NOTE: NO People v. Mejorada here.
CRUZ v. PEOPLE
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between
attempted rape and acts of lasciviousness. The felony of attempted rape
requires such intent; the felony of acts of lasciviousness does not. Only the
direct overt acts of the offender establish the intent to lie with the female.
However, merely climbing on top of a naked female does not constitute
attempted rape without proof of his erectile penis being in a position to
penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, 1 whereby
the Court of Appeals (CA) affirmed the conviction for attempted rape of the
petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC),
and imposing on him the indeterminate penalty of imprisonment of four (4)
years and two (2) months of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, and ordering him to pay moral damages
of ₱20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of
lasciviousness involving different victims. At arraignment, he pleaded not
guiltyto the respective informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar,Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force and intimidation commenced
the commission ofrape directly byovert acts, to wit: While private complainant
AAA, an unmarried woman, fifteen (15) yearsold, was sleeping inside the
tentalong Bangar-Luna Road, the said accused remove her panty and
underwear and lay on top of said AAA embracing and touching her vagina and
breast with intent of having carnal knowledge of her by means of force, and if
the accused did not accomplish his purpose that is to have carnal knowledge
of the said AAA it was not because of his voluntary desistance but because
the said offended party succeeded in resisting the criminal attempt of said
accused to the damage and prejudice of said offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 o’clock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar, Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the vagina
of [BBB]4 against the latter’s will and with no other purpose but to satisfy his
lascivious desire to the damage and prejudice of said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows: 6
x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged
in the selling of plastic wares and glass wares in different municipalities around
the country. On December 20, 1993, Norberto and Belinda employed AAA
and BBB to help them in selling their wares in Bangar, La Union which was
then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to
Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by
Norberto. The young girls were accompanied by Norberto, Belinda, Ruben
Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December
20, 1993, they parked in front of Maroon enterprises. They brought out all the
goods and wares for display. Two tents were fixed in order that they will have
a place to sleep. Belinda and the driver proceeded to Manila in order to get
more goods to be sold.
NOTE: NO People v. Mejorada here.
On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB
went to sleep. Less thanan hour later, AAA was awakened when she felt that
somebody was on top of her. Norberto was mashing her breast and touching
her private part. AAA realized that she was divested of her clothing and that
she was totally naked. Norberto ordered her not to scream or she’ll be killed.
AAA tried to push Norberto away and pleaded to have pity on her but her pleas
fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her
money and told her not totell the incident to her mother otherwise, she will be
killed. AAA went out of the tent to seek help from Jess (the house boy) but she
failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto
touching the private parts of BBB. AAA saw her companion awake but her
hands wereshaking. When she finally entered the tent, Norberto left and went
outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that
early morning. Later still, while they were on their way to fetch water, AAA and
BBB asked the people around where they can find the municipal building. An
old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the
municipal hall where they met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto
was summoned to the police station where he personally confronted his
accusers. When Norberto’s wife, Belinda, arrived at the police station, an
argument ensued between them.
On December 22, 1993, at around 2:20 o’clock in the morning, the police
investigator ordered the complainants to return at6:00 o’clock in the morning.
Norberto and Belinda were still able to bring AAA and BBB home with them
and worked for them until December 30, 1994, after which they were sent back
to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their
respective sworn statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was
presented in the assailed decision of the CA,7 as follows:
In a bid to exculpate himself, accused-appellant presents a totally different
version of the story. The accused maintains that it was not possible for him to
commit the crimes hurled against him. On the date of the alleged incident,
there were many people around who were preparing for the "simbang gabi".
Considering the location of the tents, which were near the road and the
municipal hall, he could not possibly do the dastardly acts out in the open, not
to mention the fact that once AAA and BBB would scream, the policemen in
the municipal hall could hear them. He believes that the reason why the
complainants filed these cases against him was solely for the purpose of
extorting money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment
on April 6, 2000 finding the petitioner guilty beyond reasonable doubt of
attempted rape in Criminal Case No. 2388 and acts of lasciviousness in
Criminal Case No. 2389,8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby renders
judgment declaring the accused NORBERTO CRUZ Y BARTOLOME guilty
beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF
LASCIVIOUSNESS as defined and penalized in Article 335 in relation with
(sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively.
With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences
the accused to suffer an indeterminate penalty of imprisonment from FOUR
(4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Minimum
to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory
penalties provided for by law and to pay the victim AAA the amount of
₱20,000.00 as moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby
sentences the accused to suffer an indeterminate penalty of imprisonment
from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum
and the accessory penalties provided for by law, and to pay the victim BBBthe
amount of ₱10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by reason of the two
cases is counted in his favor.
NOTE: NO People v. Mejorada here.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting
him of attempted rape despite the dubious credibility of AAA, and of acts of
lasciviousness despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of
the petitioner for attempted rape in Criminal Case No. 2388, but acquitting him
of the acts of lasciviousness charged in Criminal Case No. 2389 due to the
insufficiency of the evidence,10 holding thusly:
In sum, the arguments of the accused-appellant are too puerile and
inconsequential as to dent, even slightly, the overall integrity and probative
value of the prosecution's evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted
felony is the "penalty lower by two (2) degrees" prescribed by law for the
consummated felony. In this case, the penalty for rape if it had been
consummated would have been reclusion perpetuapursuant to Article 335 of
the Revised Penalty Code, as amended by Republic Act No. 7659. The
penalty two degrees lower than reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty
shall be the medium period of prision mayorin the absence of any mitigating
or aggravating circumstance and the minimum shall be within the range of the
penalty nextlower to that prescribed for the offense which in this case is prision
correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of ₱20,000.00
by way of moral damages against the accused-appellant. In a rape case,
moral damages may be awarded without the need of proof or pleading since
it is assumed that the private complainant suffered moral injuries, more so,
when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed against BBB, the
accused argues that there is not enough evidence to support such accusation.
BBB did not testify and neither her sworn statement was formally offered in
evidence to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is insufficient to
substantiate the charge of acts of lasciviousness against the
accusedappellant. The basis of the complaint for acts of lasciviousness is the
sworn statement of BBB to the effectthat the accused-appellant likewise
molested her by mashing her breast and touching her private part. However,
she was not presented to testify. While AAA claims that she personally saw
the accused touching the private parts of BBB, there was no testimony to the
effect that suchlascivious acts were without the consent or against the will of
BBB.11
Issues
In this appeal, the petitioner posits that the CA’s decision was not in accord
with law or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony
of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the
prosecution to prove the guilt of the petitioner beyond reasonable
doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA.
He argues that AAA still continued working for him and his wife until December
30, 1994 despite the alleged attempted rape in the early morning of December
21, 1994, thereby belying his commission of the crime against her; that he
could not have undressed her without rousing her if she had gone to sleep
only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they
struggled was also inconceivable unless she either consented to his act and
yielded to his lust, or the incident did not happen at all, being the product only
of her fertileimagination; that the record does not indicate if he himself was
also naked, or that his penis was poised to penetrate her; and that she and
her mother demanded from him ₱80,000.00 as settlement, under threat that
she would file a case against him.12
On the second issue, the petitioner assails the glaring inconsistencies in the
testimony of AAA that cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious.
NOTE: NO People v. Mejorada here.
In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only
questions of law. No review of the findings of fact by the CA is involved. As a
consequence of thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and the
probative weight of their testimonies and the conclusions drawn from its
factual findings, particularly when they are affirmed by the CA. Judicial
experience has shown, indeed, that the trial courts are in the best position to
decideissues of credibility of witnesses, having themselves heard and seen
the witnesses and observed firsthand their demeanor and deportment and the
manner of testifying under exacting examination. As such, the contentionsof
the petitioner on the credibility of AAA as a witness for the State cannot
beentertained. He thereby raises questions of fact that are outside the scope
of this appeal. Moreover, he thereby proposes to have the Court, which is not
a trier of facts, review the entire evidence adduced by the Prosecution and the
Defense.
Conformably with this limitation, our review focuses only on determining the
question of law of whether or not the petitioner’s climbing on top of the
undressed AAA such thatthey faced each other, with him mashing her breasts
and touching her genitalia with his hands, constituted attempted rape, the
crime for which the RTC and the CA convicted and punished him. Based on
the information, supra, he committed such acts "with intent of having carnal
knowledge ofher by means of force, and if the accused did not accomplish his
purpose that is to have carnal knowledge of the said AAA it was not because
of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of
said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, 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 this own spontaneous
desistance. In People v. Lamahang,14 the Court, speaking through the
eminent Justice Claro M.Recto, eruditely expounded on what overt acts would
constitute anattempted felony, to wit:
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation. The attempt
to commit an indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction,
that an act objectively performed constitute a mere beginning of execution; it
is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated,
as the material damage iswanting, the nature of the action intended (accion
fin) cannot exactly be ascertained, but the same must be inferred from the
nature of the acts of execution (accion medio). Hence, the necessity that these
acts be such that by their very nature, by the facts to which they are related,
by the circumstances of the persons performing the same, and by the things
connected therewith, they must show without any doubt, that they are aimed
at the consummation of a crime. Acts susceptible of double interpretation, that
is, in favor as well as against the culprit, and which show an innocent aswell
as a punishable act, must not and cannot furnish grounds by themselves for
attempted or frustrated crimes. The relation existing between the facts
submitted for appreciation and the offense of which said facts are supposed
to produce must be direct; the intention must be ascertainedfrom the facts and
therefore it is necessary, in order to avoid regrettable instance of injustice, that
the mind be able to directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of the legislator in
requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts
performed must be such that, withoutthe intent to commit an offense, they
would be meaningless."15
To ascertain whether the acts performed by the petitioner constituted
attempted rape, we have to determine the law on rape in effect on December
21, 1993, when the petitioner committed the crime he was convicted of. That
law was Article 335 of the Revised Penal Code, which pertinently provided as
follows:
Article335. 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 ofreason or otherwise unconscious;
and
NOTE: NO People v. Mejorada here.
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.
xxxx
The basic element of rape then and now is carnal knowledge of a female.
Carnal knowledge isdefined simply as "theact of a man having sexual bodily
connections with a woman,"16 which explains why the slightest penetration of
the female genitalia consummates the rape. In other words, rape is
consummated once the peniscapable of consummating the sexual act
touches the external genitalia of the female. 17 In People v. Campuhan,18 the
Court has defined the extent of "touching" by the penis in rape in the following
terms:
[T]ouching 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 victim’s vagina, or the mons pubis, as in this case.
There must be sufficient and convincing proof that the penis indeedtouched
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. As the
labias, which are required to be "touched" bythe penis, are by their natural
situsor location beneath the mons pubisor 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 pudendumor vulvais 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 pubisis the rounded
eminence that becomes hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majoraor 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 majorais the labia minora.
Jurisprudence dictates that the labia majoramust be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female
organ. xxxx Thus, a grazing of the surface of the female organ or touching the
mons pubisof 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 pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in
People v. Eriñia20 whereby the offender was declared guilty of frustrated
rapebecause of lack of conclusive evidence of penetration of the genital organ
of the offended party, was a stray decisionfor not having been reiterated in
subsequent cases. As the evolving case law on rape stands, therefore, rape
in its frustrated stage is a physical impossibility, considering that the requisites
of a frustrated felony under Article 6 of the Revised Penal Codeare that: (1)
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. Obviously, the offender attains his purpose from the
moment he has carnal knowledge of his victim, because from that moment all
the essential elements of the offense have been accomplished, leaving
nothing more to be done by him.21
Nonetheless, rape admits of an attempted stage. In this connection, the
character of the overt actsfor purposes of the attempted stage has been
explained in People v. Lizada:22
An overt or external act is defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. The raison d’etrefor the law requiring a direct overtact is
that, in a majority of cases, the conduct of the accused consisting merely of
acts of preparation has never ceased to be equivocal; and this is necessarily
so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is.It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient
if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made." The act done
need not constitute the last proximate one for completion. It is necessary,
however, that the attempt must have a causal relation to the intended crime.
In the words of Viada, the overt acts must have an immediate and necessary
relation to the offense. (Bold emphasis supplied)
NOTE: NO People v. Mejorada here.
In attempted rape, therefore, the concrete felony is rape, but the offender does
not perform all the acts of execution of having carnal knowledge. If the
slightest penetration of the female genitalia consummates rape, and rape in
its attempted stage requires the commencement of the commission of the
felony directly by overt actswithout the offender performing all the acts of
execution that should produce the felony, the only means by which the overt
acts performed by the accused can be shown to have a causal relation to rape
as the intended crime is to make a clear showing of his intent to lie with the
female. Accepting that intent, being a mental act, is beyond the sphere of
criminal law,23 that showing must be through his overt acts directly connected
with rape. He cannot be held liable for attempted rape withoutsuch overt acts
demonstrating the intent to lie with the female. In short, the State, to establish
attempted rape, must show that his overt acts, should his criminalintent be
carried to its complete termination without being thwarted by extraneous
matters, would ripen into rape,24 for, as succinctly put in People v. Dominguez,
Jr.:25 "The gauge in determining whether the crime of attempted rape had
been committed is the commencement of the act of sexual intercourse, i.e.,
penetration of the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching
her genitalia with his hands and mashing her breasts when she freed herself
from his clutches and effectively ended his designs on her. Yet, inferring from
such circumstances thatrape, and no other,was his intended felony would be
highly unwarranted. This was so, despite his lust for and lewd designs towards
her being fully manifest. Such circumstances remained equivocal, or
"susceptible of double interpretation," as Justice Recto put in People v.
Lamahang, supra, such that it was not permissible to directly infer from them
the intention to cause rape as the particular injury. Verily, his felony would not
exclusively be rapehad he been allowed by her to continue, and to have sexual
congress with her, for some other felony like simple seduction (if he should
employ deceit to have her yield to him)26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner that would have produced
attempted rape did not include equivocal preparatory acts. The former would
have related to his acts directly connected to rape as the intended crime, but
the latter, whether external or internal, had no connection with rape as the
intended crime. Perforce, his perpetration of the preparatory acts would not
render him guilty of an attempt to commit such felony. 27 His preparatory acts
could include his putting up of the separate tents, with one being for the use
of AAA and BBB, and the other for himself and his assistant, and his allowing
his wife to leave for Manila earlier that evening to buy more wares. Such acts,
being equivocal, had no direct connection to rape. As a rule, preparatory acts
are not punishable under the Revised Penal Codefor as long as they remained
equivocal or of uncertain significance, because by their equivocality no one
could determine with certainty what the perpetrator’s intent really was.28
If the acts of the petitioner did not constitute attempted rape, did they
constitute acts of lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts
of lasciviousness is the offender’sintent to lie with the female. In rape, intent
to lie with the female is indispensable, but this element is not required in acts
of lasciviousness.29 Attempted rape is committed, therefore, when the
"touching" of the vagina by the penis is coupled with the intent to penetrate.
The intent to penetrate is manifest only through the showing of the penis
capable of consummating the sexual act touching the external genitalia of the
female.30 Without such showing, only the felony of acts of lasciviousness is
committed.31
Based on Article 336 of the Revised Penal Code, the felony of acts of
lasciviousness is consummated whenthe following essential elements concur,
namely: (a) the offender commits any act of lasciviousness or lewdness upon
another person of either sex; and (b) the act of lasciviousness or lewdness is
committed either (i) by using force or intimidation; or (ii) when the offended
party is deprived ofreason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age.32 In that regard, lewdis defined as
obscene, lustful, indecent, lecherous; it signifies that form of immorality that
has relation to moral impurity; or that which is carried on a wanton manner. 33
The information charged that the petitioner "remove[d] her panty and
underwear and la[id] on top of said AAA embracing and touching her vagina
and breast." With such allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and touching her
vagina and breasts did not directly manifest his intent to lie with her. The lack
of evidence showing his erectile penis being in the position to penetrate her
when he was on top of her deterred any inference about his intent to lie with
her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner,
even from his own declaration of it, if any, unless he committed overt acts
directly leading to rape. A good illustration of this can be seen in People v.
Bugarin,34 where the accused was charged with attempted rape through an
information alleging that he, by means of force and intimidation, "did then and
there willfully, unlawfully and feloniously commence the commission of the
crime of Rape directly by overt acts, by then and there kissing the nipples and
NOTE: NO People v. Mejorada here.
the vagina of the undersigned [complainant], a minor, and about to lay on top
of her, all against her will, however, [he] did not perform all the acts of
execution which would have produced the crime of Rape by reason of some
causes other than his own spontaneous desistance, that is, undersigned
complainant push[ed] him away." The accused was held liable only for acts of
lasciviousness because the intent to commit rape "is not apparent from the
actdescribed," and the intent to have sexual intercourse with her was not
inferable from the act of licking her genitalia. The Court also pointed out that
the "act imputed to him cannot be considered a preparatory act to sexual
intercourse."35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty
of acts of lasciviousness, is punished with prision correccional. In the absence
of modifying circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and one day to four
(4) years and two (2) months. Applying the Indeterminate Sentence Law, the
minimum of the penalty should come from arresto mayor, the penalty next
lower than prision correccionalwhich ranges from one (1) month to six (6)
months. Accordingly, the Court fixes the indeterminate sentence of three (3)
months of arresto mayor, as the minimum, to two (2) years, four (4) months
and one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender
violates her chastity by his lewdness.1âwphi1 "Moral damages include
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant's wrongful act for
omission."36 Indeed, Article 2219, (3), of the Civil Code expressly recognizes
the right of the victim in acts of lasciviousness to recover moral damages. 37
Towards that end, the Court, upon its appreciation of the record, decrees that
₱30,000.00 is a reasonable award of moral damages.38 In addition, AAA was
entitled to recover civil indemnity of ₱20,000.00.39
Under Article 2211 of the Civil Code, the courts are vested with the discretion
to impose interest as a part of the damages in crimes and quasidelicts. In that
regard, the moral damages of ₱20,000.00 shall earn interest of 6% per annum
reckoned from the finality of this decision until full payment. 40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO
CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS, and,
ACCORDINGLY, PENALIZES him with the indeterminate sentence of three
(3) months of arresto mayor, as the minimum, to two (2) years, four (4) months
and one day of prision correccional, as the maximum; ORDERS him to pay
moral damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the
complainant, with interest of 6% per annum on such awards reckoned from
the finality of this decision until full payment; and DIRECTS him to pay the
costs of suit.
SO ORDERED.
People v. Pareja
LEOANRDO-DE CASTRO, J.:
The accused-appellant Bernabe Pareja y Cruz (Pareja) is appealing the
January 19, 2012 Decision1 of the Court of Appeals in CA-G.R. CR.-H.C. No.
03794, which affirmed in toto the conviction for Rape and Acts of
Lasciviousness meted out by Branch 113, Regional Trial Court (RTC) of
Pasay City in Criminal Case Nos. 04-1556-CFM and 04-1557-CFM.2
On May 5, 2004, Pareja was charged with two counts of Rape and one
Attempted Rape. The Informations for the three charges read as follows:
I. For the two counts of Rape:
Criminal Case No. 04-15 5 6-CFM
That on or about and sometime in the month of February, 2004, in Pasay City,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Bernabe Pareja y Cruz, being the common law
spouse of the minor victim’s mother, through force, threats and intimidation,
did then and there willfully, unlawfully and feloniously commit an act of sexual
assault upon the person of [AAA3], a minor 13 years of age, by then and there
mashing her breast and inserting his finger inside her vagina against her will.4
Criminal Case No. 04-1557-CFM
That on or about and sometime in the month of December, 2003, in Pasay
City, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, Bernabe Pareja y Cruz, being the
stepfather of [AAA], a minor 13 years of age, through force, threats and
intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of said minor against her will.5
NOTE: NO People v. Mejorada here.
II. For the charge of Attempted Rape:
Criminal Case No. 04-1558-CFM
That on or about the 27th day of March, 2004, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, BERNABE PAREJA Y CRUZ, being the common law spouse
of minor victim’s mother by means of force, threats and intimidation, did then
and there willfully, unlawfully and feloniously commence the commission of
the crime of Rape against the person of minor, [AAA], a13 years old minor by
then and there crawling towards her direction where she was sleeping, putting
off her skirt, but did not perform all the acts of execution which would have
produce[d] the crime of rape for the reason other than his own spontaneous
desistance, that is the timely arrival of minor victim’s mother who confronted
the accused, and which acts of child abuse debased, degraded and
demeaned the intrinsic worth and dignity of said minor complainant as a
human being.6
On June 17, 2004, Pareja, during his arraignment, pleaded not guilty to the
charges filed against him.7 After the completion of the pre-trial conference on
September 16, 2004,8 trial on the merits ensued.
The antecedents of this case, as narrated by the Court of Appeals, are as
follows:
AAA was thirteen (13) years of age when the alleged acts of lasciviousness
and sexual abuse took place on three (3) different dates, particularly [in
December 2003], February 2004, and March 27, 2004.
AAA’s parents separated when she was [only eight years old 9]. At the time of
the commission of the aforementioned crimes, AAA was living with her mother
and with herein accused-appellant Bernabe Pareja who, by then, was
cohabiting with her mother, together with three (3) of their children, aged
twelve (12), eleven (11) and nine (9), in x x x, Pasay City.
The first incident took place [i]n December 2003 [the December 2003 incident].
AAA’s mother was not in the house and was with her relatives in Laguna.
Taking advantage of the situation, [Pareja], while AAA was asleep, placed
himself on top of [her]. Then, [Pareja], who was already naked, begun to
undress AAA. [Pareja] then started to suck the breasts of [AAA]. Not satisfied,
[Pareja] likewise inserted his penis into AAA’s anus. Because of the
excruciating pain that she felt, AAA immediately stood up and rushed outside
of their house.
Despite such traumatic experience, AAA never told anyone about the
[December 2003] incident for fear that [Pareja] might kill her. [Pareja]
threatened to kill AAA in the event that she would expose the incident to
anyone.
AAA further narrated that the [December 2003] incident had happened more
than once. According to AAA, in February 2004 [the February 2004 incident],
she had again been molested by [Pareja]. Under the same circumstances as
the [December 2003 incident], with her mother not around while she and her
half-siblings were asleep, [Pareja] again laid on top of her and started to suck
her breasts. But this time, [Pareja] caressed [her] and held her vagina and
inserted his finger [i]n it.
With regard to the last incident, on March 27, 2004 [the March 2004 incident],
it was AAA’s mother who saw [Pareja] in the act of lifting the skirt of her
daughter AAA while the latter was asleep. Outraged, AAA’s mother
immediately brought AAA to the barangay officers to report the said incident.
AAA then narrated to the barangay officials that she had been sexually abused
by [Pareja] x x x many times x x x.
Subsequently, AAA, together with her mother, proceeded to the Child
Protection Unit of the Philippine General Hospital for a medical and genital
examination. On March 29, 2004, Dr. Tan issued Provisional Medico-Legal
Report Number 2004-03-0091. Her medico-legal report stated the following
conclusion:
Hymen: Tanner Stage 3, hymenal remnant from 5-7 o’clock area, Type of
hymen: Crescentic
xxxx
Genital findings show Clear Evidence of Blunt Force or Penetrating Trauma.
After the results of the medico-legal report confirmed that AAA was indeed
raped, AAA’s mother then filed a complaint for rape before the Pasay City
Police Station.
To exculpate himself from liability, [Pareja] offered both denial and ill motive
of AAA against him as his defense. He denied raping [AAA] but admitted that
NOTE: NO People v. Mejorada here.
he knew her as she is the daughter of his live-in partner and that they all stay
in the same house.
Contrary to AAA’s allegations, [Pareja] averred that it would have been
impossible that the alleged incidents happened. To justify the same, [Pareja]
described the layout of their house and argued that there was no way that the
alleged sexual abuses could have happened.
According to [Pareja], the house was made of wood, only about four (4) meters
wide by ten (10) meters, and was so small that they all have to sit to be able
to fit inside the house. Further, the vicinity where their house is located was
thickly populated with houses constructed side by side. Allegedly, AAA also
had no choice but to sleep beside her siblings.
All taken into account, [Pareja] asseverated that it was hard to imagine how
he could possibly still go about with his plan without AAA’s siblings nor their
neighbors noticing the same.
Verily, [Pareja] was adamant and claimed innocence as to the imputations
hurled against him by AAA. He contended that AAA filed these charges
against him only as an act of revenge because AAA was mad at [him] for being
the reason behind her parents’ separation.10
Ruling of the RTC
On January 16, 2009, the RTC acquitted Pareja from the charge of attempted
rape but convicted him of the crimes of rape and acts of lasciviousness in the
December 2003 and February 2004 incidents, respectively. The dispositive
portion of the Decision11 reads as follows:
WHEREFORE, the herein accused Bernabe Pareja y Cruz is hereby acquitted
from the charge of attempted rape in Crim. Case No. 04-1558, for want of
evidence.
In Crim. Case No. 04-1556, the said accused is CONVICTED with Acts of
Lasciviousness and he is meted out the penalty of imprisonment, ranging from
2 years, 4 months and 1 day as minimum to 4 years and 2 months of prision
[correccional] as maximum.
In Crim. Case No. 04-1557, the said accused is CONVICTED as charged with
rape, and he is meted the penalty of reclusion perpetua.
The accused shall be credited in full for the period of his preventive
imprisonment.
The accused is ordered to indemnify the offended party [AAA], the sum of
₱50,000.00, without subsidiary imprisonment, in case of insolvency. 12
The RTC, in convicting Pareja of the crime of Rape and Acts of
Lasciviousness, gave more weight to the prosecution’s evidence as against
Pareja’s baseless denial and imputation of ill motive. However, due to the
failure of the prosecution to present AAA’s mother to testify about what she
had witnessed in March 2004, the RTC had to acquit Pareja of the crime of
Attempted Rape in the March 2004 incident for lack of evidence. The RTC
could not convict Pareja on the basis of AAA’s testimony for being hearsay
evidence as she had no personal knowledge of what happened on March 27,
2004 because she was sleeping at that time.
Ruling of the Court of Appeals
Wanting to reverse his two convictions, Pareja appealed 13 to the Court of
Appeals, which on January 19, 2012, affirmed in toto the judgment of the RTC
in Criminal Case Nos. 04-1556 and 04-1557, to wit:
WHEREFORE, in view of the foregoing premises, the instant appeal is hereby
DENIED and, consequently, DISMISSED. The appealed Decisions rendered
by Branch 113 of the Regional Trial Court of the National Capital Judicial
Region in Pasay City on January 16, 2009 in Criminal Cases Nos. 04-1556 to
04-1557 are hereby AFFIRMED in toto.14
Issues
Aggrieved, Pareja elevated his case to this Court 15 and posited before us the
following errors as he did before the Court of Appeals:
I
THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING [PAREJA] OF
THE CRIMES CHARGED NOTWITHSTANDING THAT HIS GUILT HAS NOT
BEEN PROVEN BEYOND REASONABLE DOUBT.
II
NOTE: NO People v. Mejorada here.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING [PAREJA] BASED
SOLELY ON THE PROSECUTION WITNESS’ TESTIMONY.16
In his Supplemental Brief17 Pareja added the following argument:
The private complainant’s actuations after the incident negate the possibility
that she was raped.18
Pareja’s main bone of contention is the reliance of the lower courts on the
testimony of AAA in convicting him for rape and acts of lasciviousness. Simply
put, Pareja is attacking the credibility of AAA for being inconsistent. Moreover,
he claimed, AAA acted as if nothing happened after the alleged sexual abuse.
Ruling of this Court
This Court finds no reason to reverse Pareja’s conviction.
Core Issue: Credibility of AAA
Pareja claims that AAA’s testimony cannot be the lone basis of his conviction
as it was riddled with inconsistencies.19
We find such argument untenable.
When the issue of credibility of witnesses is presented before this Court, we
follow certain guidelines that have overtime been established in jurisprudence.
In People v. Sanchez,20 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the
testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage point, the
trial court is in the best position to determine the truthfulness of witnesses.
Second, absent any substantial reason which would justify the reversal of the
RTC’s assessments and conclusions, the reviewing court is generally bound
by the lower court’s findings, particularly when no significant facts and
circumstances, affecting the outcome of the case, are shown to have been
overlooked or disregarded.
And third, the rule is even more stringently applied if the CA concurred with
the RTC. (Citations omitted.)
The recognized rule in this jurisdiction is that the "assessment of the credibility
of witnesses is a domain best left to the trial court judge because of his unique
opportunity to observe their deportment and demeanor on the witness stand;
a vantage point denied appellate courts-and when his findings have been
affirmed by the Court of Appeals, these are generally binding and conclusive
upon this Court."21 While there are recognized exceptions to the rule, this
Court has found no substantial reason to overturn the identical conclusions of
the trial and appellate courts on the matter of AAA’s credibility.
Besides, inaccuracies and inconsistencies in a rape victim’s testimony are
generally expected.22 As this Court stated in People v. Saludo23:
Rape is a painful experience which is oftentimes not remembered in detail.
For such an offense is not analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving; rather, it is something
which causes deep psychological wounds and casts a stigma upon the victim,
scarring her psyche for life and which her conscious and subconscious mind
would opt to forget. Thus, a rape victim cannot be expected to mechanically
keep and then give an accurate account of the traumatic and horrifying
experience she had undergone. (Citation omitted.)
Since human memory is fickle and prone to the stresses of emotions, accuracy
in a testimonial account has never been used as a standard in testing the
credibility of a witness.24 The inconsistencies mentioned by Pareja are trivial
and non-consequential matters that merely caused AAA confusion when she
was being questioned. The inconsistency regarding the year of the December
incident is not even a matter pertaining to AAA’s ordeal. 25 The date and time
of the commission of the crime of rape becomes important only when it creates
serious doubt as to the commission of the rape itself or the sufficiency of the
evidence for purposes of conviction. In other words, the "date of the
commission of the rape becomes relevant only when the accuracy and
truthfulness of the complainant’s narration practically hinge on the date of the
commission of the crime."26 Moreover, the date of the commission of the rape
is not an essential element of the crime.27
In this connection, Pareja repeatedly invokes our ruling in People v. Ladrillo, 28
implying that our rulings therein are applicable to his case. However, the
factual circumstances in Ladrillo are prominently missing in Pareja’s case. In
particular, the main factor for Ladrillo’s acquittal in that case was because his
constitutional right to be informed of the nature and cause of the accusation
NOTE: NO People v. Mejorada here.
against him was violated when the Information against him only stated that
the crime was committed "on or about the year 1992." We said:
The peculiar designation of time in the Information clearly violates Sec. 11,
Rule 110, of the Rules Court which requires that the time of the commission
of the offense must be alleged as near to the actual date as the information or
complaint will permit. More importantly, it runs afoul of the constitutionally
protected right of the accused to be informed of the nature and cause of the
accusation against him. The Information is not sufficiently explicit and certain
as to time to inform accused-appellant of the date on which the criminal act is
alleged to have been committed.
The phrase "on or about the year 1992" encompasses not only the twelve (12)
months of 1992 but includes the years prior and subsequent to 1992, e.g.,
1991 and 1993, for which accused-appellant has to virtually account for his
whereabouts. Hence, the failure of the prosecution to allege with particularity
the date of the commission of the offense and, worse, its failure to prove during
the trial the date of the commission of the offense as alleged in the Information,
deprived accused-appellant of his right to intelligently prepare for his defense
and convincingly refute the charges against him. At most, accused-appellant
could only establish his place of residence in the year indicated in the
Information and not for the particular time he supposedly committed the rape.
xxxx
Indeed, the failure of the prosecution to prove its allegation in the Information
that accused-appellant raped complainant in 1992 manifestly shows that the
date of the commission of the offense as alleged was based merely on
speculation and conjecture, and a conviction anchored mainly thereon cannot
satisfy the quantum of evidence required for a pronouncement of guilt, that is,
proof beyond reasonable doubt that the crime was committed on the date and
place indicated in the Information.29 (Citation omitted.)
In this case, although the dates of the December 2003 and February 2004
incidents were not specified, the period of time Pareja had to account for was
fairly short, unlike "on or about the year 1992." Moreover, Ladrillo was able to
prove that he had only moved in the house where the rape supposedly
happened, in 1993, therefore negating the allegation that he raped the victim
in that house in 1992.30
While it may be true that the inconsistencies in the testimony of the victim in
Ladrillo contributed to his eventual acquittal, this Court said that they alone
were not enough to reverse Ladrillo’s conviction, viz:
Moreover, there are discernible defects in the complaining witness’ testimony
that militates heavily against its being accorded the full credit it was given by
the trial court. Considered independently, the defects might not suffice to
overturn the trial court’s judgment of conviction, but assessed and weighed in
its totality, and in relation to the testimonies of other witnesses, as logic and
fairness dictate, they exert a powerful compulsion towards reversal of the
assailed judgment.31 (Emphasis supplied.)
It is worthy to note that Ladrillo also offered more than just a mere denial of
the crime charged against him to exculpate him from liability. He also had an
alibi, which, together with the other evidence, produced reasonable doubt that
he committed the crime as charged. In contrast, Pareja merely denied the
accusations against him and even imputed ill motive on AAA.
As regards Pareja’s concern about AAA’s lone testimony being the basis of
his conviction, this Court has held:
Furthermore, settled is the rule that the testimony of a single witness may be
sufficient to produce a conviction, if the same appears to be trustworthy and
reliable. If credible and convincing, that alone would be sufficient to convict
the accused. No law or rule requires the corroboration of the testimony of a
single witness in a rape case.32 (Citations omitted.)
Improbability of sexual abuse
in their small house and in the
presence of AAA’s sleeping siblings
Pareja argues that it was improbable for him to have sexually abused AAA,
considering that their house was so small that they had to sleep beside each
other, that in fact, when the alleged incidents happened, AAA was sleeping
beside her younger siblings, who would have noticed if anything unusual was
happening.33
This Court is not convinced. Pareja’s living conditions could have prevented
him from acting out on his beastly desires, but they did not. This Court has
observed that many of the rape cases appealed to us were not always
committed in seclusion. Lust is no respecter of time or place, 34 and rape defies
constraints of time and space. In People v. Sangil, Sr., 35 we expounded on
such occurrence in this wise:
In People v. Ignacio, we took judicial notice of the interesting fact that among
poor couples with big families living in small quarters, copulation does not
NOTE: NO People v. Mejorada here.
seem to be a problem despite the presence of other persons around them.
Considering the cramped space and meager room for privacy, couples
perhaps have gotten used to quick and less disturbing modes of sexual
congresses which elude the attention of family members; otherwise, under the
circumstances, it would be almost impossible to copulate with them around
even when asleep. It is also not impossible nor incredible for the family
members to be in deep slumber and not be awakened while the sexual assault
is being committed. One may also suppose that growing children sleep more
soundly than grown-ups and are not easily awakened by adult exertions and
suspirations in the night. There is no merit in appellant’s contention that there
can be no rape in a room where other people are present. There is no rule
that rape can be committed only in seclusion. We have repeatedly declared
that "lust is no respecter of time and place," and rape can be committed in
even the unlikeliest of places. (Citations omitted.)
Demeanor of AAA
as a rape victim
Pareja asseverates that AAA’s demeanor and conduct belie her claim that she
was raped. He said that "the ordinary Filipina [would have summoned] every
ounce of her strength and courage to thwart any attempt to besmirch her honor
and blemish her purity." Pareja pointed out that they lived in a thickly populated
area such that any commotion inside their house would have been easily
heard by the neighbors, thus, giving AAA the perfect opportunity to seek their
help.36 Moreover, Pareja said, AAA’s delay in reporting the incidents to her
mother or the authorities negates the possibility that he indeed committed the
crimes. AAA’s belated confession, he claimed, "cannot be dismissed as trivial
as it puts into serious doubt her credibility."37
A person accused of a serious crime such as rape will tend to escape liability
by shifting the blame on the victim for failing to manifest resistance to sexual
abuse. However, this Court has recognized the fact that no clear-cut behavior
can be expected of a person being raped or has been raped. It is a settled rule
that failure of the victim to shout or seek help do not negate rape. Even lack
of resistance will not imply that the victim has consented to the sexual act,
especially when that person was intimidated into submission by the accused.
In cases where the rape is committed by a relative such as a father, stepfather,
uncle, or common law spouse, moral influence or ascendancy takes the place
of violence.38 In this case, AAA’s lack of resistance was brought about by her
fear that Pareja would make good on his threat to kill her if she ever spoke of
the incident.
AAA’s conduct, i.e., acting like nothing happened, after being sexually abused
by Pareja is also not enough to discredit her. Victims of a crime as heinous as
rape, cannot be expected to act within reason or in accordance with society’s
expectations. It is unreasonable to demand a standard rational reaction to an
irrational experience, especially from a young victim. One cannot be expected
to act as usual in an unfamiliar situation as it is impossible to predict the
workings of a human mind placed under emotional stress. Moreover, it is
wrong to say that there is a standard reaction or behavior among victims of
the crime of rape since each of them had to cope with different
circumstances.39
Likewise, AAA’s delay in reporting the incidents to her mother or the proper
authorities is insignificant and does not affect the veracity of her charges. It
should be remembered that Pareja threatened to kill her if she told anyone of
the incidents. In People v. Ogarte,40 we explained why a rape victim’s deferral
in reporting the crime does not equate to falsification of the accusation, to wit:
The failure of complainant to disclose her defilement without loss of time to
persons close to her or to report the matter to the authorities does not perforce
warrant the conclusion that she was not sexually molested and that her
charges against the accused are all baseless, untrue and fabricated. Delay in
prosecuting the offense is not an indication of a fabricated charge. Many
victims of rape never complain or file criminal charges against the rapists.
They prefer to bear the ignominy and pain, rather than reveal their shame to
the world or risk the offenders’ making good their threats to kill or hurt their
victims. (Citation omitted.)
Medical examination
not indispensable
Pareja avers that the Medico-Legal Report indicating that there is evidence of
blunt force or penetrating trauma upon examination of AAA’s hymen, "cannot
be given any significance, as it failed to indicate how and when the said signs
of physical trauma were inflicted." Furthermore, Pareja said, the findings that
AAA’s hymen sustained trauma cannot be utilized as evidence against him as
the alleged sexual abuse that occurred in December, was not by penetration
of the vagina.41
This Court has time and again held that an accused can be convicted of rape
on the basis of the sole testimony of the victim. In People v. Colorado, 42 we
said:
NOTE: NO People v. Mejorada here.
[A] medical certificate is not necessary to prove the commission of rape, as
even a medical examination of the victim is not indispensable in a prosecution
for rape. Expert testimony is merely corroborative in character and not
essential to conviction. x x x.
Therefore, the absence of testimony or medical certificate on the state of
AAA’s anus at the time she was examined is of no consequence. On the
contrary, the medical examination actually bolsters AAA’s claim of being raped
by Pareja on more than one occasion, and not just by anal penetration.
However, as the prosecution failed to capitalize on such evidence and prove
the incidence of carnal knowledge, Pareja cannot be convicted of rape under
paragraph 1 of Article 266-A of the Revised Penal Code.
In People v. Perez,43 this Court aptly held:
This Court has held time and again that testimonies of rape victims who are
young and immature deserve full credence, considering that no young woman,
especially of tender age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter pervert herself by being
subject to a public trial, if she was not motivated solely by the desire to obtain
justice for the wrong committed against her. Youth and immaturity are
generally badges of truth. It is highly improbable that a girl of tender years,
one not yet exposed to the ways of the world, would impute to any man a
crime so serious as rape if what she claims is not true. (Citations omitted.)
Criminal Case No. 04-1557-CFM:
The December 2003 Incident
In Criminal Case No. 04-1557-CFM or the December 2003 incident, Pareja
was charged and convicted of the crime of rape by sexual assault. The
enactment of Republic Act No. 8353 or the Anti-Rape Law of 1997,
revolutionized the concept of rape with the recognition of sexual violence on
"sex-related" orifices other than a woman’s organ is included in the crime of
rape; and the crime’s expansion to cover gender-free rape. "The
transformation mainly consisted of the reclassification of rape as a crime
against persons and the introduction of rape by ‘sexual assault’ as
differentiated from the traditional ‘rape through carnal knowledge’ or ‘rape
through sexual intercourse.’"44 Republic Act No. 8353 amended Article 335,
the provision on rape in the Revised Penal Code and incorporated therein
Article 266-A which reads:
Article 266-A. Rape, When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious,
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present;
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person’s mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person.
Thus, under the new provision, rape can be committed in two ways:
1. Article 266-A paragraph 1 refers to Rape through sexual
intercourse, also known as "organ rape" or "penile rape." 45 The
central element in rape through sexual intercourse is carnal
knowledge, which must be proven beyond reasonable doubt.46
2. Article 266-A paragraph 2 refers to rape by sexual assault, also
called "instrument or object rape," or "gender-free rape."47 It must be
attended by any of the circumstances enumerated in subparagraphs
(a) to (d) of paragraph 1.48
In People v. Abulon,49 this Court differentiated the two modes of committing
rape as follows:
(1) In the first mode, the offender is always a man, while in the
second, the offender may be a man or a woman;
(2) In the first mode, the offended party is always a woman, while in
the second, the offended party may be a man or a woman;
NOTE: NO People v. Mejorada here.
(3) In the first mode, rape is committed through penile penetration of
the vagina, while the second is committed by inserting the penis into
another person’s mouth or anal orifice, or any instrument or object
into the genital or anal orifice of another person; and
(4) The penalty for rape under the first mode is higher than that under
the second.
Under Article 266-A, paragraph 2 of the Revised Penal Code, as amended,
rape by sexual assault is "by any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of sexual assault by
inserting his penis into another person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person."
AAA positively and consistently stated that Pareja, in December 2003,
inserted his penis into her anus. While she may not have been certain about
the details of the February 2004 incident, she was positive that Pareja had
anal sex with her in December 2003, thus, clearly establishing the occurrence
of rape by sexual assault. In other words, her testimony on this account was,
as the Court of Appeals found, clear, positive, and probable. 50
However, since the charge in the Information for the December 2003 incident
is rape through carnal knowledge, Pareja cannot be found guilty of rape by
sexual assault even though it was proven during trial. This is due to the
material differences and substantial distinctions between the two modes of
rape; thus, the first mode is not necessarily included in the second, and vice-
versa. Consequently, to convict Pareja of rape by sexual assault when what
he was charged with was rape through carnal knowledge, would be to violate
his constitutional right to be informed of the nature and cause of the accusation
against him.51
Nevertheless, Pareja may be convicted of the lesser crime of acts of
lasciviousness under the variance doctrine embodied in Section 4, in relation
to Section 5, Rule 120 of the Rules of Criminal Procedure,52 to wit:
SEC. 4. Judgment in case of variance between allegation and proof. – When
there is a variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another. – An offense
charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former
constitute or form part of those constituting the latter.
Article 336 of the Revised Penal Code provides:
Art. 336. Acts of lasciviousness. — Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by prisión
correccional.
The elements of the above crime are as follows:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or
otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.53 (Citation
omitted.)
Clearly, the above-mentioned elements are present in the December 2003
incident, and were sufficiently established during trial. Thus, even though the
crime charged against Pareja was for rape through carnal knowledge, he can
be convicted of the crime of acts of lasciviousness without violating any of his
constitutional rights because said crime is included in the crime of rape. 54
Nonetheless, the Court takes this case as an opportunity to remind the State,
the People of the Philippines, as represented by the public prosecutor, to exert
more diligence in crafting the Information, which contains the charge against
an accused. The primary duty of a lawyer in public prosecution is to see that
justice is done55 – to the State, that its penal laws are not broken and order
NOTE: NO People v. Mejorada here.
maintained; to the victim, that his or her rights are vindicated; and to the
offender, that he is justly punished for his crime. A faulty and defective
Information, such as that in Criminal Case No. 04-1556-CFM, does not render
full justice to the State, the offended party, and even the offender. Thus, the
public prosecutor should always see to it that the Information is accurate and
appropriate.
Criminal Case No. 04-1556-CFM:
The February 2004 Incident
It is manifest that the RTC carefully weighed all the evidence presented by the
prosecution against Pareja, especially AAA’s testimony. In its scrutiny, the
RTC found AAA’s declaration on the rape in the December 2003 incident
credible enough to result in a conviction, albeit this Court had to modify it as
explained above. However, it did not find that the same level of proof, i.e.,
beyond reasonable doubt, was fully satisfied by the prosecution in its charge
of attempted rape and a second count of rape against Pareja. In Criminal Case
No. 04-1556-CFM, or the February 2004 incident, the RTC considered AAA’s
confusion as to whether or not she was actually penetrated by Pareja, and
eventually resolved the matter in Pareja’s favor.
This Court agrees with such findings. AAA, in her Sinumpaang Salaysay,56
stated that aside from sucking her breasts, Pareja also inserted his finger in
her vagina. However, she was not able to give a clear and convincing account
of such insertion during her testimony. Despite being repeatedly asked by the
prosecutor as to what followed after her breasts were sucked, AAA failed to
testify, in open court, that Pareja also inserted his finger in her vagina.
Moreover, later on, she added that Pareja inserted his penis in her vagina
during that incident. Thus, because of the material omissions and
inconsistencies, Pareja cannot be convicted of rape in the February 2004
incident. Nonetheless, Pareja’s acts of placing himself on top of AAA and
sucking her breasts, fall under the crime of acts of lasciviousness, which, as
we have discussed above, is included in the crime of rape.
Verily, AAA was again positive and consistent in her account of how Pareja
sucked both her breasts in the February 2004 incident. Thus, Pareja was
correctly convicted by the courts a quo of the crime of acts of lasciviousness.
Defense of Denial
and Improper Motive
Pareja sought to escape liability by denying the charges against him, coupled
with the attribution of ill motive against AAA. He claims that AAA filed these
cases against him because she was angry that he caused her parents’
separation. Pareja added that these cases were initiated by AAA’s father, as
revenge against him.57
Such contention is untenable. "AAA’s credibility cannot be diminished or
tainted by such imputation of ill motives.1âwphi1 It is highly unthinkable for
the victim to falsely accuse her father solely by reason of ill motives or
grudge."58 Furthermore, motives such as resentment, hatred or revenge have
never swayed this Court from giving full credence to the testimony of a minor
rape victim.59 In People v. Manuel,60 we held:
Evidently, no woman, least of all a child, would concoct a story of defloration,
allow examination of her private parts and subject herself to public trial or
ridicule if she has not, in truth, been a victim of rape and impelled to seek
justice for the wrong done to her being. It is settled jurisprudence that
testimonies of child-victims are given full weight and credit, since when a
woman or a girl-child says that she has been raped, she says in effect all that
is necessary to show that rape was indeed committed.
Liability for Acts of Lasciviousness
The penalty for acts of lasciviousness under Article 336 of the Revised Penal
Code is prisión correccional in its full range. Applying the Indeterminate
Sentence Law,61 the minimum of the indeterminate penalty shall be taken from
the full range of the penalty next lower in degree,62 i.e., arresto mayor, which
ranges from 1 month and 1 day to 6 months. 63 The maximum of the
indeterminate penalty shall come from the proper penalty 64 that could be
imposed under the Revised Penal Code for Acts of Lasciviousness, 65 which,
in this case, absent any aggravating or mitigating circumstance, is the medium
period of prisión correccional, ranging from 2 years, 4 months and 1 day to 4
years and 2 months.66
In line with prevailing jurisprudence, the Court modifies the award of damages
as follows: ₱20,000.00 as civil indemnity;67 ₱30,000.00 as moral damages;
and ₱10,000.00 as exemplary damages,68 for each count of acts of
lasciviousness. All amounts shall bear legal interest at the rate of 6% per
annum from the date of finality of this judgment.
WHEREFORE, premises considered, the Decision of the Court of Appeals in
CA-G.R. CR.-H.C. No. 03794 is hereby AFFIRMED with MODIFICATION. We
find accused-appellant Bernabe Pareja y Cruz GUILTY of two counts of Acts
NOTE: NO People v. Mejorada here.
of Lasciviousness, defined and penalized under Article 336 of the Revised
Penal Code, as amended. He is sentenced to two (2) indeterminate prison
terms of 6 months of arresto mayor, as minimum, to 4 years and 2 months of
prisi6n correccional, as maximum; and is ORDERED to pay the victim, AAA,
₱20,000.00 as civil indemnity, ₱30,000.00 as moral damages, and
₱10,000.00 as exemplary damages, for each count of acts of lasciviousness,
all with interest at the rate of 6% per annum from the date of finality of this
judgment. SO ORDERED.
INTENT TO PENETRATE
People v. Collado
BELLOSILLO, J.:
TO TIE A CHILD of tender years spread-eagled to her bed to abuse her in the
privacy of her home is despicable enough; to encroach on her innocence
unashamedly in front of her younger brother is to descend to the deepest
recesses of depravity. Thus the incorrigible lothario transgressed all norms of
decency, morality and rectitude when he molested his nine (9)-year old victim
in the presence of her six (6)-year old brother and severed all strands of
gratefulness to her parents who gave him food, shelter and livelihood for four
(4) years.
Messeah is the daughter of Jose Noli Dumaoal, a seaman. His household was
composed of his wife Julie, and their three (3) children, Reggie, Messeah and
Metheor. The accused Jessie Ventura Collado, son of Jose Noli's cousin
Benjamin, was living with them since 1989. While waiting for an opportunity to
become a seaman himself like his uncle Jose, Jessie served as the family
driver. Aside from driving Julie, Jessie would also drive the school service
vehicle operated by the Dumaoal spouses. Since Jose was almost always at
sea and having no househelp, their children were oftentimes left in the care of
Jessie. But, instead of taking care of them as their surrogate father, he took
advantage of Messeah by sexually molesting her at home, and worse, even
in the presence of her younger brother.
The first of four (4) unfortunate occasions was on 27 April 1993 when Julie
and her oldest son Reggie went to Cubao. Messeah was resting in her
bedroom upstairs when Jessie suddenly barged into her room. "What are you
doing here?" she demanded, knowing fully well that he was not allowed
upstairs without her parents' permission. Jessie simply smiled and said,
"Wala," and added that her mother was not around to get mad at him. Then
he left only to return after three (3) to five (5) minutes with a straw rope in
hand. Messeah asked him why he was holding the rope, and Jessie told her
to keep quiet and not to ask questions or else he would hurt her. Alarmed,
Messeah rushed to the window and screamed for her brother Metheor, but
Jessie reached out to cover her mouth with one hand while he closed the
window with the other. She heard Metheor call out from downstairs, "What's
going on?" but Jessie stopped her from answering.
Hearing no response from Messeah upstairs, Metheor went up to her room
and discovered that Jessie had tied Messeah's hands to the bed and was
about to tie her feet down. Metheor asked, "What are you doing to my Ate?"
Messeah screamed to her brother to call for help from the neighbors, but
Jessie threatened to hurt him if he left the room. Jessie then moved the bed
to block the way to the door. At some point, he also punched Messeah on her
right cheek. Jessie then parted her legs and tied them apart, pulling down her
garterized shorts and panties until her ankles. He tried forcing his penis into
her vagina, but when he failed in his attempt, he inserted it into her anus
instead.
Messeah felt pain in her anus and something sticky "like paste" flowed out
from his penis. Her vagina ached from Jessie's earlier attempt to defile her.
She saw Jessie close his eyes as though he was enjoying himself. She cried
out and Metheor, unable to bear what Jessie was doing to his sister, told the
older man, "Let my Ate go," and boxed him futilely with his baby fists. Jessie
punched Metheor in the stomach and the latter was rendered helpless by the
pain. Jessie told Messeah to dress up and threatened to set them and their
house on fire if they said anything.
When Julie and Reggie arrived home in the afternoon she noticed that
Messeah's cheek was red. She asked her what was the matter, but Messeah
saw Jessie listening close by and looking at her with dagger eyes, so she
simply lied and told her mother that she hurt herself while playing. Metheor
also gave their mother the same excuse. That night, although she knew that
Jessie was no longer on the second floor where she and her family slept, she
could not muster enough courage to tell her mother what happened because
of Jessie's threats.2
Because of this incident, Messeah asked her mother to buy a lock for her
bedroom door, but her mother passed the errand on to Jessie, who,
predictably did not buy the lock. Messeah began to hate Jessie and asked her
mother to find another driver without however telling her what he did, but her
mother only told her that it would be difficult to find another one.
NOTE: NO People v. Mejorada here.
That was not the end of Messeah's ordeal. On 5 June 1993 Julie and Reggie
went to the Marikina public market, again leaving Messeah and Metheor alone
with Jessie. Messeah was resting on the sofa while Metheor was in the garage
when Jessie grabbed Messeah and dragged her upstairs. She screamed and
Jessie tried to cover her mouth. She was crying as Jessie told her to take off
her shorts and panties, took off his shorts, pressed her legs apart with his two
(2) legs, and rubbed his penis against her thighs, until it touched her vagina.
She told him to stop because she was hurting but he did not heed her plea.
The intimate encounter went on for some ten (10) to fifteen (15) minutes.
Metheor heard her screams for help, went upstairs and saw what Jessie was
doing. He told Jessie to let his sister go, but Jessie merely ignored him.
Metheor went downstairs and got a 7" to 8"-inch breadknife which had a
narrow point at the end. Metheor again told Jessie to let his sister go, and
threw the knife at Jessie's back. Jessie felt the knife hit his back that left a
reddish mark, and let Messeah go. Before he left, he told the children that he
would throw them into a volcano if they told anybody about what happened. 3
The third molestation happened on 7 July 1993. Again, only Metheor, Jessie
and Messeah were at home. Metheor was upstairs sleeping while Messeah
was resting on the sofa when Jessie suddenly entered the living room armed
with a knife. Messeah called for her older brother twice, but Reggie had
already gone out. She only stopped when Jessie pointed the knife at her and
threatened to stab her if she shouted again. He then forced her to walk
backwards to the kitchen where he told her again to remove her shorts and
panties. She resisted but Jessie insisted and even tried twice to stab her if she
did not comply. He used one of his hands to remove his shorts and briefs. He
forced Messeah to sit on a steel chair and told her to spread her legs. She sat
with her legs closed together but he got mad and threatened to stab her if she
did not open her legs. She reluctantly opened her legs slightly and Jessie
spread them wider with his free hand as the other hand was holding the knife.
Jessie then told Messeah to sit at the edge of the steel chair, like before. He
stood with one hand holding on to her shoulder, the other holding the knife,
and stood straddling her legs. He then inserted his penis between her thighs
and used his legs to press her thighs together (apart?). Then he rubbed his
penis against her thighs for some three (3) to five (5) minutes until it touched
her vagina. She could then feel something sticky coming out from his penis
and reaching her vagina. Although her hands were free, she could not slap,
box or scratch him because she was afraid that he might stab her as he
threatened. Jessie only stopped when he heard a noise. It was Reggie
entering the gate. Jessie ordered Messeah to get dressed immediately.
Although she did not want to, Messeah stood up, got dressed, and met her
brother in the living room. As she walked away, Jessie, who had also put his
clothes back on, threatened to kill her whole family and Messeah knew that
she could not get any help from her brother Reggie, who was only thirteen
(13) years old and no match for Jessie who was much older and bigger. 4
In August 1993 Jose came home for his annual vacation, but Messeah and
Metheor were too afraid of Jessie and his threats that they did not tell their
father about the ongoing abuse by Jessie. Once Jessie even borrowed a video
tape of the Vizconde Massacre and forced Messeah and Metheor to watch it,
telling them that the same thing would happen to them if they revealed to their
parents what he was doing to them.5 Not even the arrival in May 1993 of Julie's
relative, Alipio Martin, could prevent Jessie's sexual assaults as he always
waited until he was alone in the house with the children.
Jessie again took advantage of the situation on 17 October 1993 when
everybody in the Dumaoal household, except for the two (2) youngest
children, were away from home. Messeah's parents had gone shopping, while
Reggie was playing computer with his friends at a neighbor's house. Julie's
parents, who were staying for a visit, were busy with other things. Her mother
was at the parlor having a cold wave, while her father was talking to a neighbor
at the latter's house some distance away. Alipio was also out of the house and
Metheor was playing in the garage. Messeah was aware of how alone she
was and felt afraid that she might be molested again, but she could not do
anything since the door of her room still had no lock. She had wanted to go to
Cubao with her parents but Jessie had convinced them to leave her and
Metheor behind since they had been invited to go to a birthday party. By the
time they returned from the party, Jose and Julie had already left for Cubao.
As Messeah was changing her clothes after coming from the party, Jessie
again entered her room, told her to remove her panty, and inserted his
smallest finger (kalingkingan) into her vagina while telling her to keep silent.
He then removed his pants and briefs and went on top of her. This time, he
was not able to touch her vagina with his penis because Messeah cried and
screamed and called for Metheor who again went up and told Jessie "Get
away from my sister." Jessie stopped but threatened to throw the children to
the sharks if they told their parents what happened.6
That night Messeah learned from her father that he was about to board his
ship again. The next day, 18 October, she waited until Jessie left to drive the
schoolbus to school. She was crying, and it was only after some prompting
that she told her mother, "Tinorotot ako ni Jessie."7 Julie brought her to Jose
and asked her what she meant by "tinorotot." Messeah replied, "Jessie was
forcing his penis into [my] vagina." She also mentioned that Jessie had
inserted his penis into her anus, and that he had also inserted his finger into
her vagina.8
NOTE: NO People v. Mejorada here.
Jose was shocked because he had treated Jessie as if he were his own child,
and that morning, had even told Jessie to make sure his papers were in order
because he might be able to bring him along with him to sea.9 After promising
Messeah that they would talk to Jessie, Jose and Julie brought her to school,
then went home and talked to Jessie, who denied everything. However, Jessie
looked pale, and told the Dumaoal spouses to just send him back to Paoay,
Ilocos Norte. They were not able to talk to Jessie further because it was time
for him to fetch the other children from school. The Dumaoal spouses went
back to school where they found Messeah crying. When Messeah saw them,
she asked them why they did not stay with her so they could have protected
her. Apparently, Jessie had tried to bring her out of the school but was
prevented from doing so by the school guard. The Dumaoals asked the
principal's permission to bring her home. But before going home, they went to
church and again asked her what happened, and reminded her that no one
was supposed to tell a lie in church. Messeah insisted that she was telling the
truth, and even offered to draw Jessie's penis for them. She also told them to
talk to Metheor, who had witnessed the incidents, and insisted that they
confront Jessie before a policeman.
Since they did not know what to do, the Dumaoal spouses consulted a lawyer,
as well as Jose's uncle, Anastacio Dumaoal. The latter suggested that they
talk to Jessie in the presence of Jessie's father, Benjamin Collado. Since they
did not know Benjamin's exact address in Valenzuela, Bulacan, they left a
message with his employer. Benjamin came on 22 October, and in the
presence of Benjamin, Anastacio, and Julie Dumaoal's father Geronimo
Martin, the Dumaoal spouses reached an agreement with Jessie whereby
they would not press charges provided that he kept away from the Dumaoal
family, and not threaten, coerce or do harm to any of them. The agreement
was reduced to writing, and after signing the document, Jessie boarded a bus
for Paoay.
Because of Jessie's threats, the Dumaoals were forced to transfer residence
even though they did not have money to spend for the purpose. Before All
Saint's Day, Jose went to the province to visit his parents' grave. While in
Paoay, he learned from his cousin Josephine Collado, Jessie's aunt, that
Jessie only stayed in Paoay for four (4) days after which he returned to Manila.
Jose hurriedly returned to Manila and went to their former residence and
learned from bystanders that Jessie had been seen drinking in front of the
house. When Messeah learned about this, she got angry and told her father
that he should have reported Jessie to the police since she had seen him
lurking outside her school. Since Jessie violated his undertaking, they decided
to file complaints against him for one (1) count of consummated rape and three
(3) counts of acts of lasciviousness.
Jessie denied all the allegations against him and attacked instead the
credibility of Messeah and Metheor. But the trial court found accused-
appellant Jessie Ventura Collado guilty of statutory rape and sentenced him
to suffer the penalty of reclusion perpetua. Likewise, it found him guilty of three
(3) counts of acts of lasciviousness and sentenced him to suffer imprisonment
of six (6) years of prision correctional in its maximum period for each count. It
also ordered him to indemnify the private complainant in the amount of
P50,000.00, and P100,000.00 for moral damages.10
In his appeal, the accused Jessie Ventura Collado, aside from attacking the
credibility of Messeah and Metheor, insisted that Messeah clearly testified that
there was no penetration whatsoever in her vagina. But assuming arguendo
that he was found guilty of acts of lasciviousness, the trial court erred
nonetheless in imposing a penalty that did not take into account the
Indeterminate Sentence Law.
The trial court in its assailed Decision ruled that it found "Messeah's testimony
of her harrowing experience, although not absolutely consistent in all their
details, to be still credible and thus entitled to full faith and credit."11 And we
agree with the trial court in this regard. In People v. Dado,12 the Court held
that "assessing the credibility of witnesses is an area within the almost
exclusive province of a trial judge whose findings and conclusions are
normally accorded great weight and respect. In determining the credulity of
testimony, significant focus is held to lie on the deportment of, as well as the
peculiar manner in which the declaration is made by the witness in open court.
Hardly can an appellate court come close to a trial court in making, from a
mere reading of the transcript of stenographic notes, that kind of evaluation." 13
The trial court was correct in finding accused-appellant guilty of three (3)
counts of acts of lasciviousness. We take exception however to its finding that
statutory rape was committed by him on 5 June 1993. A thorough evaluation
of the records will show that accused-appellant Jessie Ventura Collado should
only be convicted for acts of lasciviousness and not for consummated rape.
It is clear from Messeah's testimony that when Jessie carried out his lecherous
intent on 5 June 1993, he did not commit rape, consummated nor attempted,
despite the victim's testimony that he succeeded in touching her genitalia with
his private parts —
Q: And what happened when he brought you to your room?
A: He told me to take off my shorts as well as my panty.
NOTE: NO People v. Mejorada here.

Q: Then what happened after that? Q: If you can calculate the time, how long did it last?

A: And while my legs were apart, he pressed them apart. A: Maybe 10-15 minutes.14

Q: Now, you said that Jessie pressed your legs apart, with what Nowhere can we find from the foregoing any indication that accused-appellant
part of his body did he press your legs apart? successfully penetrated at least the labia of the victim; neither can we glean
therein any grain of intent on his part to invade Messeah's privities. The victim
A: With his two legs, sir. only said in her testimony that Jessie initially "pressed her legs apart with his
two (2) legs, and rubbed his penis against her thighs, until it touched her
vagina." Further, Messeah might have told the accused-appellant to "stop
Q: And after he pressed your legs apart, what did he do? because she was hurting" yet she did so only because "he was pressing his
legs on her legs." She did not mention having felt pain in her vagina. As
A: He rubbed his penis between my thighs. narrated by Messeah, "the intimate encounter went on for some 10-15
minutes." If accused-appellant was penetrating her or trying to penetrate her
Q: Near your private part? for such a considerable period, she should have likewise cried out in anguish
for the pain in her sex organ. To compare, she cried out in pain when accused-
appellant tried forcing his penis into her vagina and anus during the first
A: Yes, sir, near my private part . . . incident.

Q: You said that "kinukuskos," or he was rubbing his penis near We recall that during the first incident of 27 April 1993, accused-appellant tried
your vagina, what happened when he was rubbing his penis near forcing his penis into her vagina, but when he failed in his first attempt, he
your vagina? inserted it into her anus instead. This could have been attempted rape, or even
consummated rape but the Complaint filed was only for acts of lasciviousness.
A: I told him "don't," because I was hurt, because he is pressing Thus, accused-appellant cannot be convicted of attempted or consummated
his legs on my legs. rape. Noteworthy is that the victim was already in a spread-eagle position yet
he was unsuccessful in his attempt to defile her. By then he must have realized
that it was difficult to penetrate his victim's sex organ such that during the
Q: And what did he do?
second incident of 5 June 1993, he merely "rubbed his penis between her
thighs" although in the process "touched her vagina."
A: He told me to shut up.
We recall further that during the third incident of 7 July 1993, accused-
Q: And what did he do after he told you to shut up? appellant "inserted his penis between her thighs and used his legs to press
her thighs together, then he rubbed his penis against her thighs for some three
A: He continued what he was doing. (3) to five (5) minutes until it touched her vagina and she felt something sticky
coming out of his penis." As in the second incident, there was no showing he
inserted his penis into her labias, much less tried to do so. This recourse to a
Q: And what was he exactly doing at that time?
"simulated means" of achieving orgasm is another manifestation of his
realization of, or resignation to, the difficulty of penetrating his prey's sex
A: Rubbing his penis near my vagina. organ.

Q: How near was it to your vagina? In according significance to the word "touched," it would be instructive to revisit
our ruling in People v. Campuhan15 where we said —
A: It touches my vagina (emphasis supplied)
NOTE: NO People v. Mejorada here.
x x x 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 victim's
vagina, or the mons pubis . . . 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 the accused to be convicted of consummated rape x x x x
x x x Absent any showing of the slightest penetration of the female
organ, i.e. touching of either the 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.
In other words, "touching" of the female organ will result in consummated rape
if the penis slid into or touched either labia of the pudendum. Anything short
of that will only result in either attempted rape or acts of lasciviousness.
Significantly, People v. Campuhan did not set a demarcation line separating
attempted rape from acts of lasciviousness. The difference lies in the intent of
the perpetrator deducible from his external acts. Thus when the "touching" of
the vagina by the penis is coupled with the intent to penetrate, attempted rape
is committed. Otherwise, it is merely acts of lasciviousness.
Inasmuch as the touching of the victim's organ by the penis of accused-
appellant on 5 June 1993 was but a mere incident of the "rubbing against or
between the victim's thighs" which in no way manifests an act preliminary to
sexual intercourse, accused-appellant should only be convicted of acts of
lasciviousness instead of consummated rape.
Messeah's testimony regarding the other acts of lasciviousness committed
against her person on different instances by Jessie is also credible, more so
when we consider how Metheor's testimony corroborated the appalling tale of
molestation and assault. Messeah told the trial court how on several occasions
Jessie had inserted his penis into her anus, and also his smallest finger into
her vagina, and how he straddled her legs between his legs with his penis
pressed between her thighs. The defense tried to show that it was impossible
for a man to have inserted his penis into the anus of a young girl tied spread-
eagle to the bed with her garterized shorts and panties pulled down to her
ankles, but the garter would stretch to allow the victim's legs to spread far
apart and Jessie's beastly act would not have been a physical impossibility.
Further, Messeah testified that both her anus and vagina hurt during the first
incident,16 which could only have resulted from the penetration.
On his part, Metheor testified as to how he heard his sister scream for his help,
how he saw her tied down on the bed like an animal, how he twice saw Jessie
lie on top of his sister, first on 27 April 1993, and again on 5 June 1993, and
how Jessie pushed and threatened him if he ever said a word about what he
had seen. 17 He also told the court how on17 October 1993, he saw Jessie
insert his smallest finger into Messeah's vagina. 18
Neither Messeah nor Metheor had any motive to implicate Jessie except to
stop the abuses. It should be noted that these are children forced to live in
fear for a long time, and had suffered many indignities at the hands of Jessie.
In fact, in his desire to prevent Jessie from hurting his sister, young Metheor
repeatedly tried to push Jessie away from his sister's helpless body by
punching him and even attempting to stab him with a bread knife, the only
weapon he could handle.
Messeah's failure to reveal the sexual abuses to her mother does not taint her
credibility. Her silence was impelled by both fear for her life and shame for the
degradation that had befallen her. It is not uncommon for a young girl of tender
age to be intimidated into silence by the mildest threat against her life. Silence
is not an odd behavior of a rape victim.19 In fact, the burden of keeping such
a secret took its toll on her health. Jose Noli testified that when he arrived for
a vacation in August 1993, he noticed that his children looked blank and pale,
especially Messeah who looked thin, complained of dizziness and headaches
and sometimes threw up. He and his wife had brought Messeah to several
doctors, before one finally diagnosed Messeah as suffering from nervous
breakdown and psychological trauma.20
The rule is that affirmative testimony is far weightier than a mere denial,
especially when it comes from the mouth of a credible witness. 21 Jessie's alibi
that he was driving the family car on the disputed occasions cannot stand up
to his positive identification as the perpetrator of the crime by both Messeah
and Metheor.
Neither can we believe Jessie's allegation that Julie only wanted him out of
their house because she favored her own relative over him. No mother in her
right mind would subject her child to the humiliation, disgrace and trauma
attendant to a prosecution for rape, if she were not motivated solely by the
desire to incarcerate the person responsible for her child's defilement.22
Furthermore, it is highly improbable that a rape victim and her family would
publicly disclose the incident and thus sully their honor and reputation in the
community unless the charge is true.23 In fact, if Julie only wanted Jessie out
of her house,24 then why would the Dumaoal family file the complaints against
him only on 13 April 1994, when it is clear that he had already left the
NOTE: NO People v. Mejorada here.
household as early as 22 October 1993. Neither does this explain why the
Dumaoal spouses felt compelled to change residences in such a short period
of time. As Jose Noli testified, they made the move even before All Saint's
Day,25 which shows that they left their familiar surroundings and uprooted their
family all within ten (10) days just so they could ensure Messeah's safety.
Moreover, we agree with the Solicitor General that the only reason why the
Dumaoal spouses agreed to let Jessie go home to the province instead of
filing charges against him was because they were "torn between seeking
justice for their daughter and preserving her and the family's reputation. There
was also the Christian desire to forgive and give a blood kin a new chance at
life knowing the gravity of the penalty that would be meted out to him. To
interpret their actuation any other way would be most unfair to parents who
are equally suffering with what befell their only daughter." 26
Parenthetically, it may be noted that the trial court failed to consider the
provisions of the Indeterminate Sentence Law when it imposed the penalty of
"imprisonment of six (6) years of prision correccional in its maximum period."
Under the Indeterminate Sentence Law, the imposable penalty provided by
Art. 336 of The Revised Penal Code is prision correccional the range of which
is six (6) months and one (1) day to six (6) years. With the presence of one
(1) generic aggravating circumstance, i.e., obvious ungratefulness, the
maximum shall be taken from the maximum period of the imposable penalty,
which is, four (4) years two (2) months and one (1) day to six (6) years, while
the minimum shall be taken from the penalty next lower in degree, which is,
arresto mayor the range of which is one (1) month and one (1) day to six (6)
months.
WHEREFORE, the Decision of the Regional Trial Court of Pasig City, Branch
267, finding accused-appellant JESSIE VENTURA COLLADO guilty of
Statutory Rape in G.R. No. 135667 (Crim. Case No. 106257) and three (3)
counts of Acts of Lasciviousness in G.R. Nos. 135668-70 (Crim. Cases Nos.
106258-106260) is MODIFIED as follows:
In G.R. No. 135667 (Crim. Case No. 106257), accused-appellant is found
guilty of Acts of Lasciviousness (instead of Statutory Rape) under Art. 336 of
The Revised Penal Code, aggravated by obvious ungratefulness. In G.R. Nos.
135668-70 (Crim. Cases Nos. 106258-106260), accused-appellant is likewise
found guilty of three (3) counts of Acts of Lasciviousness under the same Art.
336, also aggravated by obvious ungratefulness in each count.
Applying the Indeterminate Sentence Law, accused-appellant JESSIE
VENTURA COLLADO is sentenced to an indeterminate prison term of four (4)
months and twenty (20) days of arresto mayor maximum as minimum, to four
(4) years six (6) months and ten (10) days of prision correccional maximum
as maximum, in each count of Acts of Lasciviousness. Accused-appellant is
further directed to pay the private complainant Messeah M. Dumaoal
P30,000.00 as civil indemnity, P40,000.00 for moral damages, P20,000.00 for
exemplary damages, in each of the four (4) counts of Acts of Lasciviousness,
and to pay the costs. SO ORDERED.
People v. Mendoza
This is an appeal from the Decision dated June 29, 2007 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00651, modifying the Decision dated
October 27, 2004 of the Regional Trial Court (RTC), Branch 276 in Muntinlupa
City in Criminal Case No. 00-410. The RTC adjudged accused-appellant
Roger Mendoza guilty of rape.
The Facts
On April 28, 2000, accused-appellant was charged with rape in an Information
which reads as follows:
That on or about the 25th day of April 2000, in the city of Muntinlupa,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, with force, intimidation and
grave abuse of confidence, accused being employed as a driver in
the business of the father of [AAA],1 a six (6) year old minor, did then
and there willfully, unlawfully and feloniously insert his finger inside
the latter’s vagina against the will and consent of the said
complainant.
Contrary to law.2
When arraigned, accused-appellant entered a plea of not guilty.
During trial, the prosecution presented AAA and both her parents as
witnesses. Accused-appellant appeared as the lone witness for the defense.
The gist of AAA’s account of the incident is as follows: It occurred in the early
afternoon of April 25, 2000 after her parents had left for work. She was then
six (6) years old. At home with her on that day was the maid and accused-
NOTE: NO People v. Mejorada here.
appellant, who was reapplying as family driver. As she was playing with the
water hose in the garage, her dress got wet forcing her to repair to her room
to change. Accused-appellant followed. Once inside the room, accused-
appellant tried to undress her, tightly held her hands, and told her to lie in the
bed. He thereupon pulled her panties down. In reaction, she pulled it up but
accused-appellant quickly pulled it down again. It was at this moment when,
according to AAA, accused-appellant touched her vagina with his fingers and
kissed her on the left cheek. All the while, he repeatedly assured her of being
her friend and that they were just playing the mother-and-father roles. Shortly
after, she ran to her parents’ room and locked the door. Accused-appellant
followed but left after AAA ignored his insistence to continue with the father-
mother game.
Later in the evening, AAA told her parents about her ordeal, after which they
reported the matter to barangay officials and the police. AAA was then asked
to undergo a medical examination.3
In the course of her direct examination, AAA was presented a sketch of a
female body to assist her pinpoint what part of her body accused-appellant
touched. In response, she shaded the area in between the legs of the female
figure.4
AAA’s father testified that accused-appellant first applied as a driver in 1995.
He came back to reapply on April 24, 2000, was asked to drive on that day,
and stayed for the night. The following morning, her father left early for work
leaving the still sleeping applicant behind.
The father narrated what his daughter disclosed when he arrived home from
work, adding that, when he routinely called the house at about 3:00 in the
afternoon, the answering AAA called accused-appellant "bastos" and
explained why so.
AAA’s mother corroborated for the most part her husband’s testimony. She
attested that AAA was only six years old when it happened.
Testifying in his defense, accused-appellant admitted to being at AAA’s family
home on April 24, 2000 and staying overnight. He remained in the house the
following day waiting for AAA’s father to return so he could collect what he
earned for a day’s work. To while his time away, he went outside to watch and
talk to persons doing road repair work. And while outside, he suddenly felt
water falling upon him. As it turned out, AAA was playing in the yard with the
water hose aimed at him, which he did not mind. 5 She continued to play with
the hose and ended up flooding the garage. Thereafter, he asked the road
workers about the possibility of working with them only to be told he would
need a barangay clearance. He then left, returning a few days later to submit
his clearance to the workers’ foreperson and to collect his one-day salary.
According to accused-appellant, AAA’s father was so angry at him for not
waiting last April 25, 2000 that he pushed accused-appellant and banged his
head against the garage wall. After AAA’s mother pacified her irate husband,
barangay officials arrived and brought accused-appellant to the police station.
Once there, accused-appellant was charged with molesting AAA, who,
however, did not say anything at the police station; it was her mother who
answered all the questions of the police investigator. He was charged with
fingering the sexual organ of AAA. He denied the accusation, asserting that
he did not touch the child, being outside their house on the day in question
watching men doing road repair work.6
On October 27, 2004, the RTC rendered judgment finding accused-appellant
guilty of rape. The dispositive portion of the RTC’s decision reads:
Under these declarations and these statutes, the Court is convinced
that the crime of Rape has been committed by accused ROGER
MENDOZA Y DELA CRUZ as defined and penalized by the aforesaid
laws. He is therefore sentenced to suffer imprisonment for all of his
natural life or to life imprisonment. This sentence will be served at
the New Bilibid Prison, pending appeal should he desire to so appeal.
The Jail Warden is therefore directed to commit the said Accused, to
the said prison.
It is SO ORDERED.7
Accused-appellant appealed the RTC decision to the CA. Before the appellate
court, accused-appellant raised the following errors allegedly committed by
the trial court: (1) in not dismissing the case on account of the violation of his
right to speedy trial; (2) in considering the prosecution’s testimonial evidence
which was not formally offered; and (3) in convicting him for rape without the
prosecution presenting proof of his guilt beyond reasonable doubt.
As preliminarily indicated, the CA modified the RTC’s decision, the
modification consisting of downgrading the crime to and finding accused-
appellant guilty of acts of lasciviousness, a crime which is necessarily included
in the offense charged in the underlying Information. The fallo of the CA
decision dated June 29, 2007 reads, as follows:
WHEREFORE, in light of all the foregoing, the October 27, 2004
Decision of the Regional Trial Court of Muntinlupa City, Branch 276
NOTE: NO People v. Mejorada here.
in Criminal Case No. 00-410 finding accused-appellant guilty of the
crime of rape and sentencing him to life imprisonment, is hereby
MODIFIED. Accused-appellant Roger Mendoza y De La Cruz is
found guilty beyond reasonable doubt of the crime of acts of
lasciviousness, as defined and penalized under article 336 of the
Revised Penal Code, in relation to Article III, Section 5 (b), of
Republic Act No. 7610, and is sentenced to suffer the indeterminate
penalty of 12 years and 1 day of reclusion temporal, as minimum, to
15 years, 6 [months] and 20 days of reclusion temporal as maximum
and to pay the victim the amount of P30,000.00.
SO ORDERED.8
The CA predicated its modificatory disposition on the interplay of the following
premises: The RTC hastily concluded that rape was committed because there
was insertion by accused-appellant’s finger into the private part of AAA.9 The
records, however, show that accused-appellant merely stroked the external
surface of AAA’s vagina.10 The medical findings also showed that there was
no physical manifestation of insertion into AAA’s vagina, bolstering the
inference that no insertion took place.11
On July 12, 2007, accused-appellant filed his Notice of Appeal of the CA
decision.
On February 18, 2008, the Court required the parties to submit supplemental
briefs if they so desired. They, however, manifested willingness to submit the
case on the basis of available records, logically suggesting that they are, in
the main, reiterating the very same arguments they raised before the CA.
Thus, the issues tendered in this appeal may be formulated, as follows:
1) whether or not accused-appellant’s right to speedy trial was
violated below;
2) whether or not the trial court erred in considering the testimonial
evidence of the prosecution not formally offered;
3) whether or not the CA erred in convicting accused-appellant for
the crime of acts of lasciviousness on the basis of the evidence
presented.
The Court’s Ruling
Right to Speedy Trial Not Violated
Accused-appellant states that while he has been detained since April 26,
2000, his arraignment came only on March 2, 2001 and the prosecution
started to present its evidence only on May 9, 2001. To compound matters,
the prosecution was not deemed to have terminated its presentation of
evidence until April 14, 2004.12 Accused-appellant thus argues that the delays
attending his case should have been enough for the trial court to have
dismissed it.
The Court is not convinced.
The right to speedy trial, as an adjunct to the right of all persons to a speedy
disposition of their cases before judicial and quasi-judicial bodies, requires
that court proceedings should be conducted according to fixed rules and must
be free from vexatious, capricious, and oppressive delays.13 The same right
may also be considered violated when unjustified postponements of the trial
are asked for and secured; or when without cause or justifiable motive, a long
period of time is allowed to elapse without the parties having their case tried. 14
None of these circumstances are, to us, present in the instant case. While
perhaps there might have been delays, accused-appellant does not state in
some detail what or who caused the delays, or whether these are of the
vexatious or oppressive kind.
What is more, accused-appellant belatedly invoked his right to speedy trial
only before the CA. The proceedings cannot now be claimed to be attended
by vexatious, capricious, and oppressive delays. Accused-appellant cannot
plausibly seek the protection of the law to benefit from the adverse effects of
his failure to assert his right at the first instance.15 As the CA correctly and
judiciously observed:
As can be gleaned from the records, accused-appellant never
invoked in the RTC that he has been deprived of his right to speedy
trial and speedy disposition of case. As it is, any allegation of
violations of rights should first be ventilated with the RTC
concomitant with the prayer to dismiss the case with prejudice. It is
a bit too late in the day for herein accused-appellant to invoke now
his right to speedy trial (People vs. Tee, 395 SCRA 443 [2003]). By
raising this point belatedly with the [CA], accused-appellant has thus
waived his objection and accordingly forfeits his right to the aforesaid
constitutional guarantees.16 x x x
Objection to Prosecution’s Defective Offer of Evidence Waived
NOTE: NO People v. Mejorada here.

Accused-appellant next questions the manner in which AAA’s testimonial Q And where did he touch you after he pulled down your shorts
evidence was offered. He claims that her testimony was only offered for the and panties?
purpose of establishing her minority,17 not to establish the fact of molestation.
The trial court, he says, supposedly erred in considering evidence which did A Here.
not conform to the purpose specified in the offer, in accordance with Section
34 of Rule 132 of the Rules of Court.18
Q What do you call that here?
Accused-appellant posture is valid to a point. But despite the improper formal
offer of AAA’s testimony, the defense failed to make a timely objection to the ATTY GARCIA
presentation of such testimonial evidence. Accused-appellant in fact
proceeded with the trial of the case and, as the CA noted, "even subjected the Witness pointing to the private part. You just say, what do
witness to a rigorous cross-examination."19 The unyielding rule is that you call that? What do you call that? When you pointed to
evidence not objected to may be deemed admitted and be validly considered this, what do you call that?
by the court in arriving at its judgment.20 In point is People v. Sanchez,21 in
which the prosecution called several persons to testify. No formal offer of xxxx
testimonial evidence was made prior to or after their testimonies. The trial
court, nonetheless, considered the testimonies owing to the adverse party’s
failure to object to the presentation of such testimonial evidence. The Court COURT
sustained the trial court, reproducing what it earlier said in People v. Java:
What part of your body did he touch? You stand and point.
x x x Section 36 [of Rule 132 of the Rules of Court22] requires that an
objection in the course of the oral examination of a witness should ATTY GARCIA
be made as soon as the grounds [therefor] shall become reasonably
apparent. Since no objection to the admissibility of evidence was
You just point. May I request, Your Honor that the witness
made in the court below, an objection raised for the first time on
be made to draw in her own capacity to identify this. You
appeal shall not be considered.23
draw a female. Draw a woman.

Accused-appellant’s belated invocation of the strict application of the rules on

COURT
evidence to suit his purpose is quite misplaced, for evidence not objected to,
AAA’s testimony in this case, becomes the property of the case, and all the
parties to the case are considered amenable to any favorable or unfavorable We are going to put that on record. The part of the body that
effects resulting from the evidence.24 she pointed.

The Prosecution Presented Sufficient Proof of Accused-Appellant’s ATTY. GARCIA

Guilt
Q Where did Roger touch you? Which part is this? Is this your belly
In a bid to escape liability owing to insufficiency of evidence, accused- or is this your stomach or is this your vagina?
appellant avers, in context, that the medical findings presented in court do not
support the conclusion made by the trial court that accused-appellant inserted COURT
his fingers into AAA’s sexual organ, causing it to hurt. He likewise insists that
the testimonies of AAA’s parents were hearsay.25
Where did she [point] to?

The direct examination of AAA yields the following:

NOTE: NO People v. Mejorada here.

ATTY. GARCIA Q Did he kiss your private part, [AAA]?

The vagina. (No answer)

Q That is put in between your legs, the Judge is asking? COURT

A Yes, Ma’am. Aside from your cheek, did he kiss also your neck, your
ears, breast, the private part in between your legs?
Q Aside from touching your private part, that part between your
legs. Where else did Roger touch you? A No, Your Honor.

A No more. COURT

Q And aside from touching you, what else did he do? How about your breast, did he kiss your breast? Did he
touch your breast, [AAA]? Do you remember[?] You do not
COURT: have to be ashamed, we are all women.

No answer? A I don’t remember.

ATTY. GARCIA: ATTY. GARCIA

There was an answer, Your Honor.
A He was over the window. He was telling me that we were friends.
I did not listen to him and he already went out of our house. He was
already out.
I would like to manifest at this point, Your Honor please, to
reiterate what I mean is really shaking, Your Honor. I just
got the right word now.
COURT

Q Let’s go back to touching first, [AAA]. So after he touched you, You mean he did not kiss your breast? What about the
what else did he do to you? Did he kiss you [AAA]? portion of your body in between your legs. Did he also kiss
it?
A Yes, Ma’am.
A No, Ma’am.
Q Where did he kiss you?
Q Where did he put his fingers, [AAA?] You said he used his
fingers. Where did he use his fingers, [AAA?] Please answer and
A On the cheek. when you said he touched you on your private part, [AAA] did he?

Q Which part of your cheek if you recall? COURT

A Left.
NOTE: NO People v. Mejorada here.
After he touched you[,] you said he went out of your room.
When did he [put] your dry panty [back on,] after he
[touched] you[?] You said he went out of the room. How
about your dry panty?
A After he touched me.
COURT
He removed your wet panties and then he put on the dry
one. When did that happen[?] After he touched you or
before? Because you said he went out.
ATTY. GARCIA
The answer was before, Your Honor.
COURT
You said that he pulled down your shirt. Then he pulled
down your wet panties and then you said that he touched
your part in between your legs and then he put on your dry
panties. Was it before he touched your private part or after
you were touched?
A Before.
COURT
So you mean when he touched you in between the legs you
already [had] the dry panties or no panties yet?
A No panties yet.26
The Court need not belabor the issue of whether or not accused-appellant is
guilty of rape which in turn resolves itself into the question of whether or not
he inserted his fingers into AAA’s sexual organ. The issue has been
peremptorily answered in the negative by the CA, basing its resolution on the
relevant finding of the examining doctor and on the testimony of AAA, who, at
best, was tentative in her response when queried about the finger-insertion
aspect of the incident. Also, the People does not challenge the determination.
And precisely because of the fact of non-insertion that the appellate court was
impelled, and rightly so, to downgrade the criminal act to acts of
lasciviousness. The records appear to support the appellate court’s
modificatory action. Consider the following answer given by AAA to the
prosecution’s question: "Where did Roger touch you?" AAA pointed to the
vagina of a female figure she had drawn.27
The following exchanges subsequently between the trial court and AAA,
however, while proving in a convincing way malicious touching, provoke
doubts whether indeed accused-appellant inserted his finger into the child’s
vagina.
Q [AAA], when you said he [touched] the things between your
legs[,] did he use his fingers?
COURT
Did he use anything in touching you that he used other than
his hands. Did he use anything in touching you? Did he use
his fingers, his hands?
A Yes, Your Honor, fingers.
Q Did he insert it inside your private part the thing between your
legs, [AAA]?
A No.28
We, thus, sustain the finding of the CA, viz:
Absent any showing of the actual insertion of the finger in the private
part of the child, there can be no consummated rape. Thus, the
failure of the prosecution to establish accused-appellant’s guilt for
rape notwithstanding, this Court finds him liable for the lesser crime
of acts of lasciviousness. This latter crime is considered an offense
included or subsumed in the rape charge. Thus in Dulla v. Court of
Appeals and People v. Bon, the Supreme Court convicted the
accused with the crime of acts of lasciviousness even though the
information charged the crime of rape.29 (Citations omitted.)
NOTE: NO People v. Mejorada here.
The touching of a female’s sexual organ, standing alone, is not equivalent to
rape, not even an attempted one. With regard to penile rape, People v.
Campuhan explains:
x x x 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 victim’s
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. x x x
x x x Jurisprudence dictates that the labia majora must be entered
for rape to be consummated, 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.30 (Citations omitted.)
By analogy, we hold that for a charge for rape by sexual assault (with the use
of one’s fingers as the assaulting object, as here) to prosper, there should be
evidence of at least the slightest penetration of the sexual organ and not
merely a brush or graze of its surface. This is in consonance with Article 266-
A, paragraph 2 of the Revised Penal Code, as amended by Republic Act No.
8353, which provides:
Art. 266-A. Rape; when and how committed.–Rape is committed–
1) By a man who shall have carnal knowledge of a woman under any
of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or
otherwise unconscious;
c) By means of fraudulent machination or grave abuse of
authority; and
d) When the offended party is under twelve (12) years of
age or is demented, even though none of the circumstances
mentioned above be present.
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of sexual
assault by inserting his penis into another person’s mouth or
anal orifice, or any instrument or object, into the genital or anal
orifice of another person.
(Emphasis supplied.)
Rape through sexual assault, thus, requires that the assault be specifically
done through "insertion" into the genital or anal orifices of the victim, a
circumstance absent in this case, or at least not established by the required
quantum of evidence.
Accused-appellant’s virtual contention that his guilt for acts of lasciviousness
has not been proved by proof beyond reasonable doubt deserves scant
consideration. While the RTC and the CA had disagreed as to what crime was
committed, the disagreement stemming from their differing findings on
whether or not accused-appellant inserted his fingers into AAA’s vagina, both
the courts were one in saying that accused-appellant indeed kissed AAA on
the face and fondled her most private part, or, in fine, that he committed
lascivious acts on a six-year girl.31 The Court loathes to disturb the ensuing
findings of the CA, confirmatory of that of the RTC:
The prosecution’s evidence introduced during the entire trial
established the presence of all the elements of the crime of acts of
lasciviousness. The testimony of the victim shows that accused-
appellant committed lewd acts against her when he pulled down her
panties, kissed her on her left cheek, touched her private part and
then squeezing her arm causing her extreme pain. 32 x x x
As the CA observed, AAA’s telling testimony deserves full faith and credit,
given as it were in a categorical manner by a young and an immature girl who
had no motive–and none was ascribed by the defense–to falsely impute the
commission of a serious crime against the accused.33 And if we may add, in
cases of acts of lasciviousness, the lone testimony of the offended party, if
credible, is sufficient to establish the guilt of the accused.34 The Court, thus,
need not dwell into the probative value of the corroborative testimony on the
molestation incident of AAA’s parents which accused-appellant assails as
hearsay.
NOTE: NO People v. Mejorada here.
Finally, we also sustain the award of moral damages in the amount of PhP
30,000 in accordance with prevailing jurisprudence.35
WHEREFORE, the appeal is DENIED. The CA Decision dated June 29, 2007
in CA-G.R. CR-H.C. No. 00651 finding accused-appellant Roger Mendoza y
Dela Cruz guilty of acts of lasciviousness and imposing upon him the penalty
defined therein is AFFIRMED. No costs. SO ORDERED.
People v. Banzuela
The accused-appellant Ferdinand Banzuela (Banzuela) challenges in this
appeal the August 31, 2011 Decision1 promulgated by the Court of Appeals in
CA-G.R. CR.-H.C. No. 03868, wherein he was convicted for Rape and Acts of
Lasciviousness.
On July 25, 2003, Banzuela was charged with Rape and Attempted Rape
under Article 335 of the Revised Penal Code in relation to Republic Act No.
76102 before Branch 209, Regional Trial Court (RTC) of Mandaluyong City.
The Information read as follows:
I. For Rape (Criminal Case No. MC03-919-FC-H)
That sometime [i]n February 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs and by means of force and intimidation, did, then
and there willfully, unlawfully and feloniously have carnal knowledge with
[AAA3], minor (6 years old), against her will and consent, thus debasing and/or
demeaning the intrinsic worth and dignity of the child as a human being. 4
II.For Attempted Rape (Criminal Case No. MC03-918-FC-H)
That sometime in February 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-
namedaccused, did then and there willfully, unlawfully and feloniously attempt
to have carnal knowledge of [BBB], a girl seven (7)years of age, by then and
there bringing her to a grassy portion of Mandaluyong Cemetery, made to lie
down, undressed her, thus directly by overt acts but failed to perform all acts
of execution when a third party helped the victim to get away fromthe
accused.5
Banzuela pleaded not guilty to both charges during his arraignment on
November 20, 2003.6After the completion of the pre-trial conference on
January22, 2004,7 trial on the merits ensued.
The following narration of facts was made by theRTC and the Court of
Appeals:
Version of the Prosecution
Sometime in February 2003, while six-year old AAA and seven-year old
BBBwere watching TV in AAA’s house,Banzuela approached them and asked
them to go with him to the nearby cemetery. AAA and BBB refused, but
Banzuela carried AAA awaypromptingBBB to followsuit. Upon reaching the
cemetery, Banzuela blindfolded BBB, who thereafter removed the blindfold
and looked for AAA and Banzuela. Meanwhile, Banzuela laid AAA on a dirty
tomb, pulled up her dress, and removed her underwear. He thereafter
removed his shorts and briefs, mounted AAA, kissed her, inserted his penis in
her vagina, and moved his body up and down against the crying AAA. He
threatened to kill her entire family if she ever spokeof the incident. When BBB
finally found them,Banzuela hurriedly pulled up his briefs and shorts and then
ran away. BBB approached AAA and saw that there was blood on the tomb
from AAA’s vagina. They wiped the blood with a banana leaf, then proceeded
to BBB’s house, where AAA washed her bloodied dress and underwear before
going back to AAA’s house.8
After the incident with AAA, Banzuela used the same method on BBB, the
daughter of his mother’s half-brother. One morning in February 2003,
Banzuela asked BBB to go with him to the cemetery. When BBB refused,
Banzuela carriedher out of the house and broughther to the cemetery. BBB
cried, but Banzuela proceeded to layher down on the ground,pulled her dress
up, removed her underwear, and kissed her. However, before Banzuela could
doanything more, a man passed by causing Banzuela to flee the scene. The
man thereafter instructed BBB to go home. Upon reaching herhouse,
Banzuela, who was already there, threatened her against telling anyone of the
incident, otherwise, he wouldkill everyone in their house. 9
AAA, with her mother, submitted herself for examination but both the Initial
Medico-Legal Report10 and the Medico-Legal Report No. M-0914-0311 stated
that AAA was physically in a virgin state, and her hymen "intact."
Version of the Defense
NOTE: NO People v. Mejorada here.
Banzuela denied the accusations against him, claiming that he was working
for at least twelve (12) hours a day at Bestflow Purified Drinking Water Refilling
Station the whole month of February 2003.To prove this, hesubmitted
photocopies of his Daily Time Record (DTR) from November 2002 to February
2003.12 Banzuela added that he did not go to the cemetery the entire February
of 2003.13
Ruling of theRTC
On February 27, 2009, the RTC convicted Banzuela of the crimes of rape of
AAA and attempted rape of BBB. The dispositive portion of the Decision 14
reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as
follows:
1.In Criminal Case No. MC03-919-FC-H, finding accused
FERDINAND BANZUELA guilty beyond reasonable doubt of the
crime of RAPE under Article 335 of the Revised Penal Code, as
amended by R.A. 7659 and is hereby sentenced to suffer the penalty
of RECLUSION PERPETUAand to indemnify the victim, [AAA], of the
sum of FIFTY THOUSAND (₱50,000.00) PESOS as civil
indemnity;[and]
2.In Criminal Case No. MC03-918-FC-H, finding accused
FERDINAND BANZUELA guilty beyond reasonable doubt of the
crime of ATTEMPTED RAPE, and there being no mitigating or
aggravating circumstances and pursuant to Article 51, in relation to
Article 335 of the Revised Penal Code, as amended, is hereby
sentenced to suffer an indeterminate penalty of two (2) years, four
(4) months and one (1) day of pris[i]on correccionalas minimum to
ten years and one (1) day of prision mayoras maximum and to
indemnify the victim, [BBB] of the sum of FIFTEEN THOUSAND
(₱15,000.00) PESOS.15 (Emphases supplied.)
In AAA’s charge of rape, the RTC deemed as insignificant the results of the
medical examination thatAAA’s hymen was still intact. The RTC, invoking
established jurisprudence, said that the mere touching of the labia
consummates rape, and that a broken hymen is not an essential element of
rape.The RTC added that a medical examination, in any event, was not
essential in the prosecution of a rape case, beingmerely corroborative in
character.16
The RTC also found the prosecution to have proved its charge of attempted
rape against BBBas it was clear that Banzuelaintended to have sexual
congress with BBB had he not been unexpectedlydisturbed. 17
Anent Banzuela’s defenseof alibi, the RTC did not give it merit for being weak.
The RTC shot down the DTRs Banzuela presented for not having been
authenticated and verified, and for having been weakened by his own
testimony.18
In essence, the RTC decided in favor of the prosecutiondue to AAA’s and
BBB’s testimonies, to wit:
The testimonies of AAA and BBB are worthy of credence as they were
straightforward, spontaneous and "bore the hallmarks of truth."More notable
is that they wereable to withstand the rigors of cross-examination without
wavering or being caught in inconsistencies. Indeed, it defies belief that these
victims, who were below 12 years old, would fabricate a sordid tale of sexual
abuse andindict their very own cousin. Theirtestimonies of the separate
incidents of sexual abuse that happened to them recounted vivid details that
could not have been concocted by girls of tender age. The testimony of the
complainants are consistent, clear and free of serious contradictions. 19
Ruling of the Court of Appeals
Having lost in the RTC, Banzuela appealed to the Court of Appeals, 20 which,
on August 31, 2011, rendered a verdict no better than the RTC’s,viz:
FOR THE STATED REASONS, the assailed Decision of the Regional Trial
Court (Branch 209) of Mandaluyong City is AFFIRMED with the following
MODIFICATION:
1.In Criminal Case No. MC03-919-FC-H, Ferdinand Banzuela is
sentenced to suffer the penalty of reclusion perpetuawithout parole
and to indemnify AAA the amounts of ₱75,000.00 as civil indemnity
ex delicto, ₱75,000.00 as moral damages, and ₱25,000.00 as
exemplary damages.
2.In Criminal Case No. MC03-918-FC-H, Ferdinand Banzuela is
found guilty beyond reasonable doubt of acts of lasciviousness and
sentenced to an indeterminate penalty of 12 years, and 1 day of
reclusion temporal, as minimum, to 16 years, reclusion temporal, as
maximum and to indemnify BBB the amounts of ₱25,000.00 as moral
NOTE: NO People v. Mejorada here.
damages and ₱10,000.00 as exemplary damages. 21 (Citation
omitted.)
In agreeing with the RTC’s finding of guilt, the Court of Appeals said that
Banzuela failed to destroy the victims’ credibility or taint their straightforward
and categorical testimonies.22
However, the Court of Appeals did not agree with the RTC’s finding that
Banzuela attempted to rape BBB. The Court of Appeals, alluding to
jurisprudence, said that "[a]ttempted rape is committed when the ‘touching’ of
the vagina by the penis is coupled with the intent to penetrate; otherwise, there
can only be acts of lasciviousness."Thus, the Court of Appeals declared, that
because Banzuela’s intent to rape BBB was not clearly established, he
couldonly be convicted of acts of lasciviousness. 23
Issues
Undaunted, Banzuela elevated his case to this Court, 24 assigning the same
errors he did before the appellate court, to wit:
ASSIGNMENT OF ERRORS
I In essence, Banzuela’s appeal is hinged on the proposition that the victims
THE COURT A QUOGRAVELY ERRED IN GIVING WEIGHT TO THE
MATERIALLY INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE
PROSECUTION WITNESSES.
II
THE COURT A QUOGRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.25
Banzuela is attacking the credibility of the witnesses for being "highly
inconsistent, unusual, doubtful and thus insufficient to sustain a conviction."
Banzuela claimed that AAA’s testimony was full of inconsistencies and
contradictions, such as how she managed to remove his hand from her mouth
and yet she did not shout for help, how Banzuela managed to blindfold BBB
while still carrying her,and more importantly,how confused she was as to
whether his penis actually penetrated heror simply touched her groin area.
Banzuela argued that the fact that AAA was still a virgin was confirmedby the
medico-legal examination, and as the medico legal officer said during his
testimony, although the consensuswas that it is possible for a woman to
remain a virgin physically despite penetration, he himself has had no personal
encounter of such a case.26
Moreover, Banzuela said, even BBB's actions were highly unusual,
considering the circumstances of her situation. First, Banzuela said, BBB
continued to follow him and AAA despite being blindfolded, instead of turning
back and calling for help. Second,in view of what BBB witnessed happened to
AAA earlier that month, it was contrary to human nature, Banzuela averred,
that she did not resist or try to attract the attention of her neighbors when he
brought her to the cemetery.27
Finally, Banzuela reasoned, the prosecution cannot profit from the weakness
of his defense in light of their failure to establish his guilt beyond reasonable
doubt. Thus, he said, he should be acquitted of the charges against him.28
Ruling of this Court
We find no reason to reverse the conviction of Banzuela.
were not credible witnesses for having made several inconsistent statements
when they testified in court.
We do not agree.
Credibility of the witnesses
The guidelines to follow, when this Court is confronted with the issue of
credibility of witnesses on appeal, are established in jurisprudence. In People
v. Sanchez,29 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the
testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage point, the
trial court is in the best position to determine the truthfulness of witnesses.
Second, absent any substantial reason which would justify the reversal of the
RTC’s assessments and conclusions, the reviewing court is generally bound
NOTE: NO People v. Mejorada here.
by the lower court’s findings, particularly when no significant facts and
circumstances, affecting the outcome of the case, are shown to have been
overlooked or disregarded.
And third, the rule is even more stringently applied if the CA concurred with
the RTC. (Citations omitted.)
It is well-settled in this jurisdiction that the determination of the credibility of
the witnesses is correctly assigned to the trial court, which is in the best
position to observe the demeanor and bodily movements of all the
witnesses.30 Elucidating on the rationale for this rule, this Court, in People v.
Sapigao, Jr.,31 said:
It is well settled that the evaluation of the credibility of witnessesand their
testimonies is a matter best undertaken by the trial court because of its unique
opportunity to observe the witnesses firsthand and to note their demeanor,
conduct, and attitude under grilling examination. These are important in
determining thetruthfulness of witnesses and in unearthing the truth,
especially in the face of conflicting testimonies. For, indeed, the emphasis,
gesture, and inflection of the voice are potent aids in ascertaining the witness’
credibility, and the trial court has the opportunity and can take advantage of
these aids. These cannot be incorporated in the record so that all that the
appellate court can see are the cold words of the witness contained in
transcript of testimonies with the risk that some of what the witness actually
said may have been lost in the process of transcribing.As correctly stated by
an American court, "There is an inherent impossibility of determining with any
degree of accuracy what credit is justly due to a witness from merely reading
the words spoken by him, even if there were no doubt as to the identity of the
words. However artful a corrupt witness may be, there is generally, under the
pressure of a skillful cross-examination, something in his manner or bearing
on the stand that betrays him, and thereby destroys the force of his testimony.
Many of the real tests of truth by which the artful witness is exposed in the
very nature of things cannot be transcribed upon the record, and hence they
can never be considered by the appellate court."(Citations omitted.)
In the case at bar, both the RTC and the Court of Appeals found the
testimonies of the witnesses to be credible. Furthermore, this Court’s own
independent examination of the records leads us to the same conclusion. 32 As
the Court of Appeals said, both AAA’s and BBB’s testimonies were
straightforward, detailed, and consistent. 33 Their credibility is further
strengthened by their clear lack of illmotive to falsify such a charge against
their cousin, who shattered their youth and innocence.34
The inconsistenciesin AAA’s testimony, as catalogued byBanzuela inhis
brief,35 have no bearing in the determination of his guilt or innocence, and are
too trivial in character to damage AAA’s credibility. The material details of the
rape were clearly established,36 and BBB corroborated AAA’s testimony on
every relevant point. As this Court stated in People v. Saludo37:
Rape is a painful experience which is oftentimes not remembered in detail.For
such an offense is not analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving; rather, it is something
which causes deep psychological wounds and casts a stigma upon the victim,
scarring her psyche for life and which her conscious and subconscious mind
would opt to forget.Thus, a rape victim cannot be expected to mechanically
keep and then give an accurate account of the traumatic and horrifying
experience she had undergone.(Citation omitted.)
BBB was likewise candid, straightforward, and detailed in her narration of not
only how AAA was raped, but also of how she almost suffered the same fate.
Her allegedunusual actions during AAA’s ordeal, and laterhers, are not
enough to discredit her. It has been established that a victim of a heinous
crime such as rape cannot be expectedto act with reason or in conformity with
society’s expectations. This acquires greater significance where the victim is
a child of tender age. The workings of a human mind placed under emotional
stress cannot be predicted; and people cannot be expected to act as usual in
an unfamiliar situation. Furthermore, it is not accurate to say that there is a
standard reaction or norm of behavior among rape victims, as each of them
had to deal withdifferent circumstances.38
Crime of Rape proven
beyond reasonable doubt
Sexual intercourse with a woman below 12 years of age, whether she
consented to it or not, is punishable as rape under our laws. As such, proof of
force, threat, or intimidation is unnecessary in cases of statutory rape, they,
not being elements of the crime. When the complainant is below 12 years old,
the absence of free consent is conclusively presumedas the law supposes
that a woman below this age does not possess discernment and is incapable
of giving intelligent consent to the sexual act.39
In order to successfully convict an accused ofstatutory rape, the prosecution
must prove the following:
1.The age of the complainant;
NOTE: NO People v. Mejorada here.
2.The identity of the accused; and
3.The carnal knowledge between the accused and the
complainant.40
The first element was established by the prosecution upon the presentation
and submission to the court of a Certification from the Office of the Municipal
Civil Registrarof Mandaluyong City dated August24, 2004 stating that AAA
was born on September 10, 1996.41 Hence, she was only 6 years old when
the rape was committed in February 2003.
The second elementwas clearly satisfied when AAA positively and
consistently identified Banzuela as her offender. 42
As regards the third element,it is instructive to define "carnal knowledge" in
the context it is used in the Revised Penal Code:
‘[C]arnal knowledge,’ unlike its ordinary connotation of sexual intercourse,
does not necessarily require that the vagina be penetrated or that the hymen
be ruptured. The crime of rape is deemed consummated even when the man’s
penis merely enters the labia or lips of the female organ or, as once so said in
a case, by the ‘mere touchingof the external genitalia by a penis capable of
consummating the sexual act.43 (Citations omitted.)
This element was proven when AAA detailed in open court how Banzuela
forcefully inserted his sex organ into her genitalia in February 2003 and how
she felt pain during her ordeal.
Banzuela makes much of the fact that the medico-legal examination yielded
negative results, i.e.,that AAA remained a virgin. This Court, in People v.
Boromeo,44 suitably refuted that argument, viz:
Proof of hymenal laceration is not an element of rape.An intact hymen does
not negate a finding that the victim was raped.To sustain a conviction for rape,
full penetration of the female genital organ is not necessary.It is enough that
there is proof of entry of the male organ into thelabiaof thepudendumof the
female organ. Penetration of the penis by entry into the lips of the vagina, even
without laceration of the hymen, is enough to constitute rape,and even the
briefest of contact is deemed rape.As long as the attempt to insert the penis
results in contact with the lips of the vagina, even without rupture or laceration
of the hymen, the rape is consummated.x x x. (Citations omitted.)
Significantly, as this Court has held before,45 the pain that AAA suffered is, in
itself, an indicator of the commission of rape.Moreover, AAA’s ordeal was
witnessed by BBB, who in fact was the one who told AAA’s mother about the
incident.Thus, contrary to Banzuela’s assertions, this Court is convinced that
the prosecution was able to establish that he had carnal knowledge of AAA,
making him guilty beyond reasonable doubt of thecrime of rape.
Crime of Attempted Rape not established
but crime of Acts of Lasciviousness
provenbeyond reasonable doubt
Upon appeal, the Court of Appeals found no evidence to provewith the moral
certainty required by lawthat Banzuela intended to have carnal knowledge of
BBB, thus, it modified the crime the RTC convicted Banzuela of from
Attempted Rape under Article266-A, paragraph 1(d) in relation to Article51 of
the Revised Penal Code, to Acts of Lasciviousness under Article 336 of the
Revised Penal Codein relation to Republic Act No. 7610.
This Court agrees with the Court of Appeals. In an attempt to commit a felony,
the offender commences the commission of such felony directly by overt acts,
but 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.46 In other words, a crime is in its attempted stage when the
offender has already performed the acts preliminary to the consummation of
the crime. However, because of some reason besides his own spontaneous
desistance, he is not able to perform all the acts necessary to consummate
the crime. The elements, therefore, of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by
overt acts;
2. He does not perform all the acts of execution which should
produce the felony;
3. The offender’s act be not stopped by his own spontaneous
desistance; and
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.47 (Citation omitted.)
In the crime of rape, penetration, however slight, is an essential act of
execution that produces such felony. Thus, for Banzuela to be convicted of
NOTE: NO People v. Mejorada here.
the crime of attempted rape, he must have already commenced the act of
inserting his sexual organ in the vagina of BBB, but due to some cause or
accident, excluding his own spontaneous desistance, he wasn’t able to even
slightly penetrate BBB.48
It has not escaped this Court that rape and acts of lasciviousness are crimes
of the same nature.However, the intent to lie with the woman is the
fundamental difference between the two, as it is present in rape or attempt of
it,and absent in acts of lasciviousness.49 "Attempted rape is committed when
the ‘touching’ of the vagina by the penis is coupledwith the intent to penetrate;
otherwise, there can only be acts of lasciviousness." 50
In this case, Banzuela’s acts oflaying BBBon the ground,undressing her,and
kissing her,"do not constitute the crime of attempted rape, absent any showing
that [Banzuela] actually commenced to force his penis into [BBB’s] sexual
organ."51
The fact that Banzuelaemployed on BBB the exactsame tactics he used on
AAA–from the invitation to go to the cemeteryto visit their dead relatives, to
the carrying of the child when she refused, to the laying down of the child,
undressing her, and kissing her, cannot justify the presumption that he
intended to rape BBB, just like he did AAA. "Such a presumption hardly
constitutes proof beyond reasonable doubt of the crime of attempted rape.
The gauge in determining whether the crime of attempted rape had been
committed is the commencement of the act of sexual intercourse,i.e.,
penetration of the penis into the vagina,before the interruption." 52 Here,
Banzuela was not even able to commence the act of sexual intercourse as he
still had his pants on. Whatthe prosecution was able to establish in Criminal
Case No. MC03-918-FC-H is that Banzuela was able to lay down BBB,
undress her, and kiss her,before the untimely arrival of a third party.Such acts,
as the Court of Appeals said,53 constitute lascivious conduct.
Article 336 of the Revised Penal Codeprovides for the crime of acts of
lasciviousness as follows:
Art. 336.Acts of lasciviousness.—Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by prision
correccional.
Its elements are:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or
otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.54 (Citation
omitted.)
The foregoing elements are clearly present in BBB’s case, and were
sufficiently established during trial. Although the crime charged against
Banzuela was for attempted rape, convicting him for the crime of acts of
lasciviousness does not violate any of his rights as such crime is included in
the crime of rape.55
Anent BBB’s actions or inaction, suffice it to say that BBB was direct and
consistent in narrating her own experience with Banzuela.The argument that
she did not struggle, asked for help, or shout from when shewas carried out
of her house and brought to the cemetery isunavailing. "[F]ailure of the
offended party to make a struggle or outcry is immaterial in the rape of a child
below twelve years of age because the law presumes that the victim on
account of her age does not and cannot have a will of her own."56
Banzuela’s Defense
We agree with the lower courts that Banzuela’s defense of alibi hardly
deserves credit. Such defense is one of the weakest not only because it is
inherently frail and unreliable, but also because it is easy to fabricate and
difficult to check or rebut.57 Thus, for alibi to succeed as a defense, the
following must be established by clear and convincing evidence:
1. The accused’s presenceat another place at the time of the
perpetration of the offense;and
2. The physical impossibility of the accused’spresence at the scene
of the crime.58
NOTE: NO People v. Mejorada here.
Banzuela himself admitted the proximity of his work place and his residence
to the houses of AAA and BBB and the cemetery. As such, his alibi is negated
by the fact that it was not physically impossible for him to have been at the
cemetery wherethe crimes occurred.59
The presentation of Banzuela’s DTRs is also unpersuasive for lack of
corroboration. The DTRs were mere photocopies, Banzuela himself made the
entries therein, and they bore no signaturefrom any of his employers. If in fact
the owner of the refilling station was no longer in the country, his former
manager or the brother of the owner, from whom Banzuela’s mother was able
to procure the photocopied DTRs could have testified to confirm the veracity
of the entries therein. Banzuela’s alibi therefore cannot prevail over the
credible testimonies and positive identification that he was theperpetrator of
the crimes, by AAA and BBB, who have known him prior to the incidents, as
their cousin.
Liability for Rape
Article 266-A, paragraph (1)d of the Revised Penal Code, as amended by
Republic Act No. 8353,60 which is the basis of statutory rape, provides as
follows:
Article 266-A. Rape; When and How Committed. –Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
xxxx
d) When the offended party is under twelve (12) years of ageor is demented,
even though none of the circumstances mentioned above be present.
Undoubtedly, AAA was below 12 years old at the time she was raped.
However, the law qualifies the crime of statutory rape when it is committed on
a child below seven years old, to wit:
Article 266-B. Penalties. –Rape under paragraph 1 of the next preceding
article shall be punished byreclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:
xxxx
5) When the victim is a child below seven (7) years old.
For having been found guilty of the crime of qualified rape, AAA being a child
below seven years of age when the crime occurred, the death penalty should
have been imposed on Banzuela. However, Republic Act No. 9346,61 which
took effect on June 24, 2006, prohibits the imposition of the death penalty.
Under this Act, the lower courts correctly imposed upon Banzuela the penalty
of reclusion perpetuawithout eligibility for parole 62 in lieu of the death penalty.63
Liability for Acts of Lasciviousness
The Court of Appeals convicted Banzuela of acts of lasciviousness under
Article336 of the Revised Penal Codein relation to Section 5(b) of Republic
Act No. 7610. For Banzuela to be convicted as such, both the requisites of
acts of lasciviousness under Article336 of the Revised Penal Codeas earlier
discussed, and sexual abuse under Section5 of Republic Act No. 7610,must
be met and established by the prosecution.64 The following are the elements
of sexual abuse under Section5, Article III of Republic Act No. 7610:
(1) The accused commits the act of sexual intercourse or lascivious
conduct;
(2) The said act is performed witha child exploited in prostitution or
subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age. 65
A review of the Information filed against Banzuela reveals that there was no
allegation of the second element of Section 5, Article III of Republic Act No.
7610 –that the act is performed with a child exploited in prostitution or
subjected to other sexual abuse. There was also noattempt to prove that
element, as it would have been a violation of Banzuela’s constitutional right to
be informed of the nature and cause of the accusation against him. Although
the Information stated that the crime being charged was in relation to Republic
Act No. 7610, it is a well-settled rule that "the character of the crime is
determined neither by the caption or preamble of the information[,]nor by the
specification of the provision of law alleged to have been violated, they being
NOTE: NO People v. Mejorada here.
conclusions of law, but by the recital of the ultimate facts and circumstances
in the information."66 Therefore, Banzuela can only be punished under
Article336 of the Revised Penal Code.
The penalty for acts of lasciviousness under Article336 of the Revised Penal
Codeis prision correccional in its full range. Applying the Indeterminate
Sentence Law,67 the minimum of the indeterminate penalty shall be taken from
the full range of the penalty next lower in degree,68 i.e., arresto mayor, which
ranges from 1 month and 1 dayto 6 months.69 The maximum of the
indeterminate penalty shall come from theproper penalty 70 that could be
imposed under the Revised Penal Codefor Acts of Lasciviousness. 71 In this
case, since there are neither aggravating nor mitigating circumstances, the
imposable penalty is the medium period of prision correccional, which ranges
from 2 years, 4 months and 1 day to 4 years and 2 months.72
Banzuela is hereby sentenced to suffer the penalty of 6 months ofarresto
mayor, as minimum, to 4 years and 2 months of prision correccional, as
maximum.73
In line with prevailing jurisprudence, the Court increases the award of
exemplary damages from₱25,000.00 to₱30,000.00to AAA (rape);74 and
awards ₱20,000.00as civil indemnity, ₱30,000.00as moral damages, and
₱10,000.00as exemplary damages to BBB (acts of lasciviousness). 75
WHEREFORE, premises considered, the Decision of the Court of Appeals in
CA-G.R. CR.-H.C. No. 03868 is hereby AFFIRMED with MODIFICATION.
1. In Criminal Case No. MC03-919-FC-H, we find accused-appellant
Ferdinand Banzuela GUILTY of Rape defined and penalized
underArticles266-A and 266-B of the Revised Penal Code, as
amended. He is sentenced to reclusion perpetua without the
possibility of parole; and is ORDERED to pay the victim,
AAA,₱75,000.00 as civil indemnity;₱75,000.00 as moral
damages;and₱30,000.00 as exemplary damages, all with interest at
the rate of 6% per annum from the date of finality of this judgment;
and
2. In Criminal Case No. MC03-918-FC-H, we find accused-appellant
Ferdinand BanzuelaGUILTYof Acts of Lasciviousness, defined and
penalized under Article 336 of the Revised Penal Code, as amended.
He is sentenced toan indeterminate prison term of6 months of
arresto mayor, as minimum, to 4 years and 2 months of prision
correccional, as maximum; and is ORDERED to pay the victim,
BBB,₱20,000.00 as civil indemnity,₱30,000.00 as moral damages,
and₱10,000.00 as exemplary damages, all with interest at the rate
of 6% per annum from the date of finality of this judgment. SO
ORDERED.
SEDUCTION, CORRUPTION OF MINORS AND WHITE SLAVE TRADE (Art.
337-341) xxx Qualified Seduction
People v. Fontanilla
CASTRO, J.:
The appellant Mariano Fontanilla was prosecuted in the justice of the peace
court (now municipal court) of San Fernando, La Union for qualified seduction.
The criminal complaint, signed by the offended woman Fe Castro and filed on
February 28, 1961, charged.
That on or about the month of September, 1960, and for
sometime subsequent thereto, in the Municipality of San
Juan, Province of La Union, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there wilfully, unlawfully and
feloniously, with grave abuse of confidence and authority,
seduce and have sexual intercourse with the offended party
Fe Castro, a domestic in the house of the said accused,
located at Allangigan, San Juan, La Union, the offended
party being then a virgin over 12 years but under 18 years
of age.
After trial, the court, on November 27, 1962, found that "the guilt of the
accused has been proved beyond reasonable doubt," and accordingly
sentenced him to "an indeterminate prison term from four (4) months of arresto
mayor as maximum to two (2) years and four (4) months of prison correccional
and to pay the costs." The accused was further ordered "to pay the sum of
Five Hundred Pesos (P500.00) as moral damages to the offended party or to
her parents."
Fontanilla forthwith appealed to the Court of Appeals which subsequently
certified the case to us in a resolution dated September 25, 1965, on the
ground that the jurisdiction of the court a quo, inter alia, is in issue.
The following, in paraphrase, are the assigned errors:
NOTE: NO People v. Mejorada here.
1. The justice of the peace court of San Fernando, La Union
had no jurisdiction to try and decide this case because the
alleged offense was committed outside its territorial
jurisdiction and at the same time does not fall within the
compass of its original jurisdiction;
2. The lower court erred in finding that the accused had
sexual intercourse with Fe Castro repeatedly and that he
had told her a number of times that he will separate from his
wife Magdalena Copio and will marry her, which was the
reason why Fe Castro consented to the sexual intercourse;
3. The lower court erred in relying heavily on the testimony
of Fe Castro, considering that her testimony is hazy and
self-contradictory;
4. The lower court erred in totally disregarding the evidence
adduced by the appellant;
5. The lower court erred in failing to consider in favor of the
accused the delay in the filing of the complaint, which delay
is not convincingly explained and which renders the
accusation suspicious; and
6. The lower court erred in ordering the appellant to pay the
sum of P500 in moral damages to the offended party or to
her parents.
The evidence for the prosecution discloses that in September, 1960 Fe
Castro, a fifteen-year old virgin, was brought by her mother to the house of
the appellant and his second wife, Magdalena Copio, a sister of the
complaining witness' mother, to serve as a helper. The Fontanilla spouses had
been married for two years but were childless, although the appellant had
grown-up children by his first marriage who were domiciled elsewhere.
Fe Castro testified that during her stay in the house of Fontanilla for about
three months from September to shortly before Christmas of December, 1960,
the accused succeeded in having carnal knowledge of her repeatedly, the total
number of times she could not recall. She was certain, however, that the
accused consummated the first sexual intercourse with her one night in
September, about a week after her arrival, when the accused intruded into her
bedroom, placed himself on top of her and fondled her nipples. She added
that he was able to gain access to her room because the wooden bar used to
lock the door did not prevent the said door from being opened when pushed
from the outside. She also declared that prior to this incident, the accused had
made amorous overtures and advances toward her. Aside from giving her
money, the accused repeatedly promised to abandon his wife to live with her.
Q. — You told us that Mariano Fontanilla had been giving
you money. Are there other circumstances that led you to
the sexual intercourse?
A. — He told me, "Come now let us play. I am going to
separate your aunt because I love you more than my wife."
Q. — For how many times had Mariano Fontanilla been
promising you this?
A. — He was telling me all the time.
Fe Castro further testified that she subsequently repeatedly yielded to the
carnal desires of the accused, as she was induced by his promises of marriage
and frightened by his acts of intimidation. The accused made love to her during
the day when his wife was away and at night when the latter was already
asleep. Their intimacies lasted for almost three months until her aunt, the wife
of the accused, caught them in flagrante on the kitchen floor. The following
day she returned to her parents, and revealed everything to her mother two
days later.
Mariano Fontanilla, testifying in his defense, admitted that Fe Castro actually
lived in his house from September to December, 1960, not as a helper,
however, but in consideration of her being a niece of his wife, and was treated
as their own child. He vehemently denied having had carnal knowledge of her,
as there was never an occasion during which he could have taken advantage
of the chastity of his ward, because at night her room was locked and during
the day he was out in the farm.
Q. — When the offended party testified before the Court she
stated that the first time you had sexual intercourse with her
was a certain night in September and you said to her, "You
are very beautiful. Come let us play." What do you say to
this allegation?
A. — I did not do that, sir.
NOTE: NO People v. Mejorada here.
Q. — How is it possible or will circumstances afford you of
getting inside her room and take advantage of her being a
woman?
A. — No, sir. It cannot be.
Q. — Why could it not be that you could enter the room and
take advantage of her womanhood?
A. — Because the room is locked.
xxx xxx xxx
Q. — The offended party further testified in Court that you
did the sexual intercourse daily, one in the day time and one
in the nighttime. Will you mention before this Honorable
Court if you can commit sexual intercourse in the day time?
A. — That cannot be, sir.
Q. — Why could you not possibly do the sexual intercourse
in the day time?
A. — Because I am in the farm, sir.
Q. — Sometimes when you are in the farm, during lunch
time Fe Castro would bring your food in the farm?
A. — No, sir.
Q. — And when you go home to your house in the day time
for example you take your lunch. So it is possible for you to
have sexual intercourse with the offended party?
A. — No, sir. It is not possible during day time.
Q. — Who are your companions in your house in the day
time?
A. — My wife and also our neighbor who used to come.
Fontanilla declared that another reason why it was not possible for him to
seduce Fe Castro was that his sexual capabilities had waned considerably
because of old age, as he was already 52 years old at the time of the supposed
commission of the crime charged. He admitted that despite the fact that he
had been married for only two years to his second wife, he made love to her
only once a week. Under these circumstances, it was impossible for him to
have indulged in sexual intercourse with Fe Castro twice daily.
The accused advances the theory that the instant case was filed against him
upon the malevolent instigation of one Avelino Gapasin, an uncle of Fe Castro,
who wielded strong influence over her, adding that the complainant herself
was envious of his (Fontanilla's) children of the first marriage who received
some salary from their employment. This allegation was indirectly
corroborated by a witness for the defense, Mayor Antonio Aquino of San Juan,
La Union, who testified that he endeavored to settle the case by proposing
that the accused pay P50 which was due to Fe Castro as her share in the
cultivation of tobacco, but the complaining witness through Avelino Gapasin
refused the offer and the latter then insinuated that the amount of P2,000
should be paid, which sum he believed would be sufficient reparation for "the
honor destroyed."
Magdalena Copio 51-year old wife of the accuse, corroborated her husband's
statement that they indulged in sexual intercourse only once a week. She also
stated that during the three months that Fe Castro stayed with them, there
was no unusual incident or sexual relation between her husband and her
niece. She denied having caught the accused in a compromising situation with
the offended party. She also testified that she slept regularly from 7:00 p.m. to
12:00 midnight, after which she seldom could go back to sleep, and that she
was easily awakened by the slightest noise. She categorically declared that
her husband slept with her in the same bed every night.
For the first time on appeal, Fontanilla challenges the jurisdiction of the court
a quo — the justice of the peace court of San Fernando, the capital of La
Union - alleging that it had no jurisdiction to try and decide this case, for two
reasons: (1) the crime charged according to the indictment was committed in
San Juan, a municipality outside the territorial jurisdiction of the court a quo;
and (2) original jurisdiction over the crime of qualified seduction belongs
exclusively to the court of first instance, and not to the justice of the peace
court of the provincial capital.
The appellant's theory finds no basis in the then governing provisions of the
Judiciary Act when the instant action was commenced on February 28, 1961.
It is a settled rule that the jurisdiction of a court is determined by the statute in
NOTE: NO People v. Mejorada here.
force at the time of the commencement of the action.1 The pertinent statutory
provision then in force was section 87(c), paragraph 3, of Republic Act 296,
as amended by Republic Act 2613, which unequivocably provided that
"Justices of the peace in the capitals of provinces and Judges of Municipal
Courts shall have like jurisdiction as the Court of First Instance to try parties
charged with an offense committed within the province in which the penalty
provided by law do not exceed prision correccional or imprisonment for not
more than six years or fine not exceeding three thousand pesos or both ..."
(Emphasis supplied.) It is therefore beyond dispute that under the then
existing law all offenses committed within the province, provided that the
penalty prescribed did not exceed prision correccional or a fine not exceeding
P3,000 or both, were triable by the justice of the peace courts of provincial
capitals. Since the penalty prescribed for qualified seduction under article 337
of the Revised Penal Code is prision correccional in its minimum and medium
periods, the instant case was clearly within the periphery of the concurrent
jurisdiction of the court a quo.
It was only on June 22, 1963, more than two years after the institution of the
case at bar, that the above-cited provision of the Judiciary Act was amended
by Republic Act 3828. The pertinent provision is now section 87(c), paragraph
4, which, as amended, reads:
Municipal judges in the capitals of provinces and
subprovinces and judges of city courts shall have like
jurisdiction as the Court of First Instance to try parties
charged with an offense committed within their respective
jurisdictions, in which the penalty provided by law does not
exceed prision correcional or imprisonment for not more
than six years or fine not exceeding six thousand pesos or
both....
Republic Act 3828 introduced two significant changes: (1) the concurrent
jurisdiction of municipal courts in the capitals of provinces and sub-provinces
and of city courts with the courts of first instance has been territorially localized
and limited to the proper offenses committed "within their respective
jurisdictions," while previously said courts could take cognizance of the proper
offense committed "within the province;" and (2) the proper offenses
cognizable include those where the pecuniary penalty (fine) does not exceed
P6,000, an increase over the previous P3,000 limit.
The first of the above-mentioned changes unmasks the fallacy of the
appellant's theory that even under the then existing provision, the concurrent
jurisdiction of the justice of the peace courts of provincial capitals with the
courts of first instance was already confined to their respective territorial limits.
If this were true, then Congress would have had no reason to enact the
foregoing amendment which eliminated the phrase "within the province" and
in its place substituted the delimiting phrase "within their respective
jurisdictions."
The foregoing notwithstanding, the appellant insists that justice of the peace
courts of provincial capitals, like the court a quo, have no jurisdiction over the
crime of qualified seduction because of the provisions of article 345 of the
Revised Penal Code by virtue of which the court must, in addition to the
imposition of a prison term ( prision correccional minimum to medium in case
of qualified seduction) which the accused must suffer, require him to indemnify
the offended woman, to acknowledge the offspring unless the law should
prevent him from so doing, and in every case to support the offspring. The
theory of the appellant is that the imposition of the enumerated civil liabilities
increases the punishment, thereby divesting the justice of the peace courts of
the capitals of provinces of jurisdiction and consequently confining original and
exclusive jurisdiction over the offense to courts of first instance.
This contention is obviously untenable because section 37(c), paragraph 3
[now sec. 87(c), paragraph 4] of the Judiciary Act grants the justice of the
peace courts (now municipal courts) of provincial capitals concurrent
jurisdiction with courts of first instance over offenses for which the penalty
provided by law does not exceed prision correccional or imprisonment for not
more than six years or fine not exceeding P3,000 (now P6,000). This
concurrence of jurisdiction is based upon the duration of the imprisonment
and/or the amount of the fine imposable, irrespective of the civil incidents or
obligations which may attach to the offense charged. So that any civil liability
attaching to the offense concurrently cognizable by the courts of first instance
and the justice of the peace courts of provincial capitals can also be imposed
by the latter because these have been conferred jurisdictional parity.
The appellant cites as authority for his theory the case of U.S. vs. Bernardo, 2
a seduction case in which this Court, with a slim majority of four justices (three
justices dissented), said:
These obligations imposed upon the culprit ordinarily
exceed the amount of the penalty fixed by the law as being
within the jurisdiction of the justice of the peace court and
compromise, moreover, by virtue of the forced recognition
imposed by article 135 of the Civil Code, the special
determination of offspring which resulted from the crime,
consequently, although the said crime of seduction is only
NOTE: NO People v. Mejorada here.
punished by the penalty of arresto mayor, a judgement of
conviction cannot be pronounced by a justice of the peace,
on account of his lack of jurisdiction..
But disregarding the amount of the indemnity, whatever it
be, according to the conditions and circumstances of the
offended party and of the one obliged to furnish the same,
which amount might be greater than that fixed by law as
within the jurisdiction of justice of the peace courts, the
acknowledgement of the resulting offspring, one of the
findings which the sentence must contain, establishes by
force of law the civil status of the child whose
acknowledgment is necessarily upon the guilty party; so
with much less reason could the crime fall within the
jurisdiction of the justice of the peace court, inasmuch as, in
accordance with specific legal provisions, only the judge of
the Court of First Instance can make such pronouncements.
As correctly contended by the Solicitor General, however, "there is a big
difference between the case of U.S. vs. Bernardo, supra, and the present
case, in that while the Bernardo case involved the original exclusive
jurisdiction of the justice of the peace courts, the present case touches a
concurrent jurisdiction of the justice of the peace courts in the capitals of the
provinces and Courts of First Instance." Furthermore, "It would be going a long
way to say that an indemnification or a restitution or a reparation is a fine or
an imprisonment under any definition found in the criminal law of any country.
The jurisdiction of the court is determined by the amount of the fine and
imprisonment. An indemnification or a reparation or a restitution is merely an
incident of the crime. The jurisdiction of the court is not fixed by the incident
but by the nature of the crime itself. Legally speaking, the nature of the crime
is determined by the punishment imposed... The jurisdiction of courts of justice
of the peace over crimes being determined exclusively by the amount of the
fine and imprisonment imposed by law, that is by the legal nature of the crime,
and in no manner and to no extent whatever by the civil incidents which accrue
to the person injured by the commission of said crime, such courts have
jurisdiction of the crime presented in the case at bar, the punishment
prescribed by law for such crime being (then) simply arresto mayor."3
We now proceed to the merits of the case.
The atmosphere of secrecy and privacy which pervades the commission of
crimes against chastity, coupled with the consequent dearth or even absence
of witnesses, constrains the courts to rely in no small measure upon the
uncorroborated testimony of the complaining woman whose testimonial and
personal credibility assumes pivotal importance. It is against this situational
backdrop that we proceed to discuss the issues of fact posed by the appellant.
Fontanilla contends, among others, that the court a quo erred in finding there
that there is evidence to show that he had sexual intercourse many times with
the complainant Fe Castro. We disagree. After a thorough study of the record,
we find that the complainant's testimony, in direct as well as in cross-
examination, is entitled to essential credence. She declared that Fontanilla
had carnal knowledge of her one night in September, 1960 in the house of the
former where she was staying as a maid, and that since then up to December
of the same year, Fontanilla had sexual intercourse with her repeatedly,
sometimes at night. sometimes in the daytime, but always when his wife was
asleep or away. Significantly, convincing proof of the first sexual intercourse
would suffice to affirm the conviction of the appellant without necessity of
proving the subsequent instances of carnal liaison. The following frank and
revealing testimony of the offended woman appears on record:
Q. — When you were with the Fontanillas, do you know if
there was anything unusual that took place?
A. — He fooled me.
Q. — Who fooled you?
A. — Mariano Fontanilla.
Q. — What do you mean by fooled you?
A. — He had sexual intercourse with me.
xxx xxx xxx
Q. — When did Mariano Fontanilla start having sexual
intercourse with you?
A. — One week after my arrival in their house.
Q. — For how many times did Mariano Fontanilla have
sexual intercourse with you?
NOTE: NO People v. Mejorada here.

A. — Very often when I was in their house. Q. — When you left the house of Mariano Fontanilla and
returned to your house in barrio Allangigan, was it with the
xxx xxx xxx consent of Mr. and Mrs. Mariano Fontanilla?

Q. — For how many times after September? A. — They allowed me to go home.

A. — I could not count anymore, sir. Q. — Why did you go home?

xxx xxx xxx A. — I left sir, because the wife of Mariano Fontanilla
discovered what we have been doing.
Q. — Do you mean to tell us that he had been having sexual
intercourse with you during the three (3) months you stayed When asked upon cross-examination to narrate the circumstances
with them? surrounding the first intercourse, Fe Castro testified thus:

A. — Always. Q. — Now, what were you doing in your room when Mariano
Fontanilla first came in?
COURT:
A. — I was already sleeping.
Q. — Now, usually what time did you have that sexual
intercourse? Q. — And how were you awakened from your sleep?

A. — Day and night. A. — When I woke up, he was on top of me holding my

nipples.
Q. — And where did you do sexual intercourse during the
day time? xxx xxx xxx

A. — When I iron their clothes in their house. Q. — Can you remember the date of the week when
Mariano Fontanilla consummated his first sexual
intercourse with you?
Q. — Was there no other person in that house during the
day when you have been ironing clothes?
A. — I don't remember the date.
A. — The wife is not there.
Q. — Do you remember what time? In the morning or
afternoon?
Q. — Do they have any children?
A. — Night time.
A. — They have no children.
Q. — Do you remember what were the actual words of
xxx xxx xxx Mariano Fontanilla when he consummated his first sexual
intercourse with you?
NOTE: NO People v. Mejorada here.
A. — "How beautiful you are, my daughter! I wish I could
marry one as beautiful as you. Come let us play.
Q. — After he uttered those words, what did he do to you?
A. — He was placing his private parts in mine.
Q. — Do you mean to say he did not remove your panties
first?
A. — He removed it.
Q. — Did you offer any objection when he made those acts
to you?
A. — He told that "If you are going to move, I am going to
club you."
Q. — And you never uttered a word of what he is doing?
A. — I did not complain anymore because I was afraid."
xxx xxx xxx
Q. — Now, it was in the evening of that day when he started
caressing you in the kitchen when he had that first sexual
intercourse with you, is that right?
A. — Yes, sir, the same night he came to the room.
xxx xxx xxx
Q. — This room where you had your intercourse with the
accused was there a lock in the door?
A. — There is a piece of wood that is used as a bar but if
you push it, it will be opened.
The foregoing testimony of the aggrieved woman belies the contention of
Fontanilla that there is no evidence showing that he had carnal knowledge of
Fe Castro. Of course no other witness was presented by the prosecution to
corroborate the testimony of the victim with respect to the actual act of
seduction, nor to the amorous overtures of the accused before the first sexual
intercourse, nor to their subsequent carnal acts. But this is quite
understandable because aside from Fontanilla and Fe Castro, there was only
one other person in the house of the accused — his wife, who was either
asleep or away when the two indulged in their illicit love-making. As previously
intimated, the final verdict would principally hinge on the testimonial and
personal credibility of the complaining witness.
Assailing the credibility of the complainant, Fontanilla contends that Fe Castro
has malevolent and ulterior motives for filing this case against him. He alleged
that Fe Castro was envious of his children by his first marriage who had some
income. In our view, this is a flimsy rationalization which the accused,
significantly, did not even attempt to substantiate.
Fontanilla also argues that Fe Castro was induced and pressured by her uncle
Avelino Gapasin to file the criminal complaint. Testifying on this point, Mayor
Antonio Aquino of San Juan, La Union, stated that he tried to settle the case
by proposing that the accused pay the complainant P50 as the latter's alleged
share in the tobacco harvest; and that this proposal was refused, however, by
Fe Castro, thru Gapasin, on the ground that the amount offered would not
even be sufficient to defray the expenses for the delivery of the child which
the victim mistakenly thought she was conceiving as a result of Fontanilla's
carnal knowledge of her. Aquino also claimed that Gapasin insinuated that
any compromise amount must be equal to the "honor destroyed" and he,
Gapasin, suggested P2,000.
The foregoing testimony was presented by the defense to prove its allegation
that Fe Castro was pressured into filing the case at bar. Standing alone,
Gapasin's objection to the proposed compromise does not prove that he
induced the victim to denounce Fontanilla in court. On the contrary, from the
actuations of Gapasin it can be inferred that he was just trying to protect the
interest of his niece who was offered so meager an amount as settlement for
an offense which caused the latter the irredeemable loss of her virginity.
Furthermore, it is on record that prior to the overtures at settlement, the
complaining witness had already gone to the office of the provincial fiscal of
La Union to file charges against Fontanilla. Aquino himself admitted upon
cross-examination that he had requested Fiscal Crisogono Bautista to
postpone the filing of the complaint to enable him to settle the case, and that
the proposed compromise was his idea and made upon his own initiative. This
NOTE: NO People v. Mejorada here.
admission shows that the filing of the instant case preceded, and was not due
to, the failure of the alleged proposed compromise.
The appellant further contends that the complainant's testimony does not merit
credence because it is hazy and self-contradictory. He argues that if it is true
that he repeatedly promised to marry Fe Castro in order to deceive her into
submitting to his carnal designs, why did the latter allegedly consent to the
continuance of their illicit liaison even after it was evident that he would not
fulfill his promise to marry her? A situation like this, says the appellant, borders
on the incredible and suggests that there was actually no promise of marriage
and consequently there was no resultant carnal relation between him and the
complaining woman.
This "unthinkable" situation pointed out by the appellant was quite reasonably
explained by the complainant in a frank, albeit embarrassing, reply contained
in her sworn statement (exh. A-1) taken in the office of the provincial fiscal of
La Union on January 31, 1961. Upon interrogation, Fe Castro declared:
Q. — Despite his many promises which he never fulfilled,
why did you still continue to have relationship with him?
A. — Because I was beginning to like him and enjoy this
sexual intercourse.
Underscoring the above statement of Fe Castro, Fontanilla claims that it
exposes in fact the fabricated nature of the case against him, because for a
woman to continue having sexual relations with a man even after a patent
breach of the latter's promise of marriage, is unthinkable and alien to human
experience. We believe, on the contrary, however, that the said statement of
the aggrieved woman does not make her testimony incredible for it evinces
basic honesty and sincerity on her part, even to the extent of admitting
something which could conceivably put her to shame and ridicule.
Anent the said marital promise, Fontanilla also claims that there is no evidence
on record supporting its veracity. Granting this to be correct, it is nevertheless
settled that deceit, although an essential element of ordinary or simple
seduction, does not need to be proved or established in a charge of qualified
seduction. It is replaced by abuse of confidence. When the offender is a public
officer, a priest or minister, a servant, domestic, tutor, teacher, or under any
title is in charge of the education or keeping of the offended woman, as in the
present case, the act is punishable although fraud or deceit may not have
been used or, if employed, has not been proved. 4 The seduction of a virgin
over twelve and under eighteen years of age, committed by any of the persons
enumerated in art. 337 "is constitutive of the crime of qualified seduction ...
even though no deceit intervenes or even when such carnal knowledge were
voluntary on the part of the virgin, because in such a case, the law takes for
granted the existence of the deceit as an integral element of the said crime
and punishes it with greater severity than it does the simple seduction ... taking
into account the abuse of confidence on the part of the agent (culprit), an
abuse of confidence which implies deceit or fraud." 5
It is likewise contended for the appellant that the testimony of the complainant
is unbelievable because while she denounced the perverse and criminal
conduct of the accused, in the same breath she described the relation
between the accused and his wife as harmonious and cordial. The alleged
inconsistency in this regard is more apparent than real. A man could hide his
evil motives and immoral conduct behind a deceptive facade. And it stands to
reason that a husband who has illicit relations with a woman who resides in
the same house where he dwells with his wife would even be over-solicitous
with the latter to camouflage his infidelity.
Fontanilla also challenges the credibility of Fe Castro's account regarding his
having been discovered by his wife in the act of sexual intercourse with the
complainant on the kitchen floor. He argues that had such a discovery actually
been made, the natural reaction of his wife would have been to lay hands on
both of them (Fe Castro and himself), with the complainant taking the most
punishment since women are inherently possessive and are merciless upon
those who attempt to take away their loved ones. Fe Castro did not testify on
such a hostile reaction.
We are inclined to believe, however, that women are bound to react differently
to the same or similar situations. There is no sufficient reason to discredit Fe
Castro's testimony that when they were discovered in flagrante by Magdalena
Copio, the appellant's wife and her aunt, the latter verbally chastised
Fontanilla for having "fool(ed) this little girl."
The appellant's wife, then 51 years old and twice married, most probably knew
that it was her 52-year old second husband, the herein appellant, who was at
fault and thus spared her 15-year old niece from any punishment.
It is conceded that the testimony of Fe Castro suffers from some
inconsistencies; these, however, could be attributed to her minority (she was
barely 16 years old at the time of the trial), lack of education (she had reached
only grade III), perceptibly low intelligence, and to the understandable
partiality of a litigant to her cause. On the whole, we find that the complainant's
testimony is credible and convincing. Furthermore, we believe that no other
NOTE: NO People v. Mejorada here.
reason impelled Fe Castro in instituting this case against her very kin, and
exposing thereby her sordid experience to public scrutiny and suffering as a
consequence the travail of trial, than to seek justice for herself.
The appellant further claims that the court a quo erred in failing to consider
the unexplained delay in the filing of the complaint, which delay renders the
accusation suspicious. It is relevant to note that the accused did not raise this
issue before the court a quo. Anent the alleged delay, the Solicitor General
states that it can easily be explained "by the fact that the complainant was not
accusing a person who was a total stranger to her but the husband of her
mother's sister. The attempt of the older people to thresh out their differences
and to settle the case amicably had brought about the said delay." It appears
on record that Fe Castro left the house of Fontanilla on December 18, 1960,
and two days thereafter she informed her parents of what Fontanilla had done.
Forthwith she and her parents decided to bring the case to court, and on
January 13, 1961 Fe Castro had herself examined in the La Union Provincial
Hospital, with the name of Fiscal Bautista appearing in the medical certificate
as the requesting officer, which means that prior to January 13, 1961 Fe
Castro had already gone to the office of the provincial fiscal presumably to
complain against Fontanilla. The criminal complaint was filed only on February
28, 1961 because as previously stated, Mayor Aquino had requested Fiscal
Bautista to postpone the filing of the indictment to give the former sufficient
time to attempt at an amicable settlement of the case.
We now come to the basic defense set up by Fontanilla, which is a denial of
his having had carnal knowledge of Fe Castro whom he admits was once his
ward. His denial is anchored on two grounds: (1) there was no occasion during
which he could have violated the chastity of the complainant because during
the night the room of the latter was locked and during the day he was always
out in the fields; and (2) at the age of 52, his sexual potency had considerably
waned as proved by the fact that he had sexual intercourse with his own wife
only once a week. The court a quo did not accord credence to this defense,
and we are of the view that in this regard the court did not err.
The complainant testified that the wooden bar which she used to lock the door
of her room did not prevent the said door from being opened when pushed
from the outside. Thus, Fontanilla had easy access at night to Fe Castro's
sleeping quarters. Considering the general make-up of residential houses in
the barrios, we believe that the complainant's statement is essentially true.
With respect to the appellant's argument that during the day he had no
opportunity of being alone with the complainant, he himself admitted upon
cross-examination that there were times when he would be home earlier than
his wife and would ask Fe Castro to serve him food. As there was no other
person in the house during such occasions Fe Castro and Fontanilla naturally
would be alone together. The appellant also admitted that whenever his wife
went to market she would be away for two or three hours. He hastened to add,
however, that each time his wife left for the market she advised Fe Castro to
stay with their neighbor. Granting that Fe Castro would really go to their
neighbor's place which was only five meters away from their house, it is not
improbable that Fontanilla would call her back once his wife had left. Thus,
the very record of the case belies the defense of the appellant that there was
no occasion when he could have violated the chastity of his ward.
The appellant also contends that it was impossible for him to have indulged in
sexual intercourse with the complainant twice a day, because even with his
wife he made love only once a week. Fontanilla attributed his diminished virility
to old age as he was already 52 years old at the time of the commission of the
alleged crime. This declaration was corroborated by his wife, Magdalena
Copio who went to the extent of vouching that two years after their marriage
they did not indulge anymore in sexual relations. We believe, nonetheless,
that the appellant's claim is untenable. In the first place, the complainant did
not say that Fontanilla had her twice a day during the three months that she
stayed with him and his wife. When asked what time they indulged in sexual
intercourse, she replied "Day and night." (t.s.n., p. 6) This answer of the
complainant cannot be interpreted to mean that they had sexual intercourse
twice daily (one in the daytime and another at night), for said statement was
in reply to a question with respect to the time when they engaged in carnal
intercourse and not the frequency of their illicit love making. In the second
place, there is a presumption that an adult male has normal powers of virility
and the burden of proving the contrary rests on the party asserting it.6 We
believe that the declarations of Fontanilla and his wife on the former's alleged
weakening potency are not sufficient to rebut this presumption. Alfred W.
Herzog has cautioned that "one must be very careful not to express the
opinion that a man on account of his age is either sterile or impotent."7 Hence,
a party who claims loss of virility, or waning potency for that matter, must
bolster his assertion clinically with the aid of a competent and expert witness.
On the other hand, the prosecution presented Dr. Magno K. Guerrero, the
physician at the La Union Provincial Hospital who examined the victim. Dr.
Guerrero testified that the hymen of Fe Castro showed "incomplete healed
lacerations at 9 & 3 o'clock positions on the face of a watch, edges of which
are sharp and easily coaptable." He explained that healed lacerations would
suggest that the injury happened six months, more or less, prior to the date of
examination. In the case at bar, since per medical findings the hymen of the
complainant showed "incomplete healed lacerations," then this fact would
indicate that the injury occurred less than six months before February 12,
NOTE: NO People v. Mejorada here.
1961, the date of the medical examination of Fe Castro. Significantly, said
period corresponds to the time when Fe Castro stayed as a helper in the
house of the Fontanilla spouses. Upon cross-examination, Dr. Guerrero
testified:
Q. — Dr. Guerrero, you stated that it (the laceration) should
last less than six (6) months counting from?
A. — From the time I examined.
xxx xxx xxx
Q. — Disregarding the history of the patient, from your
observation of the patient, how many sexual intercourses
could have caused the lacerations taking into consideration
the condition of the hymen?
A. — Several intercourse because of the laxity of the
vaginal canal and it admits three (3), fingers.
Q. — How many intercourses could have caused that?
A. — Several. More than ten (10) times.
xxx xxx xxx
Q. — And those lacerations could be caused ten (10) times
or more?
A. — Ten times or more.
Q. — How many more?
A. — Another ten (10) times more.
It is clear from the above testimony that Fe Castro had experienced numerous
distinct acts of sexual intercourse, a fact which affirms her claim that the
appellant had carnal knowledge of her repeatedly during her three-month stay
in his house. There is no evidence on record that Fe Castro, then a 15-year
old single girl, was unchaste prior to her living with the Fontanilla spouses.
Such being the case, her virginity before she was seduced by the appellant
must be presumed. Presumption of a woman's virginity arises whenever it is
shown that she is single, and continues until overthrown by proof to the
contrary.8 This is in accord with the presumption of innocence which "includes,
also, that of morality and decency, and, as a consequence, of chastity." 9
We are of the considered opinion that the findings of fact reached by the court
a quo are substantially correct. This, apart from the rule that "as far as
credibility and veracity of witnesses are concerned, the conclusions of the
lower court command great weight and respect, on the ground that the
trustworthiness of witnesses and the merit of the defenses by the accused,
are in the peculiar domain of the trial court." 10 In the case at bar, we see no
reason for departing from this doctrine, there being no showing that "some
fact or circumstance of great importance to the case has been overlooked in
the records or misapplied or its significance misunderstood by the lower
court."11
The appellant finally contends that the lower court erred in ordering
him to pay P500 in moral damages to the offended party or to her
parents. Ironically, this contention is correct in two respects. The first
is that the award of P500 in moral damages is inadequate. We have
heretofore stated that the complainant was a virgin, there being no
proof to the contrary, and that she was deflowered by the appellant.
The loss of her virginity, at the hands of the appellant, together with
the attendant shame and scandal, entitles her, in the view of this
Court, to the sum of P2,500 in moral damages. Her future as a
woman is definitely impaired, and the resultant prejudice against her
engendered in the male population of the barrio where she resides
cannot be blinked away. The second error of the lower court is in
making the award payable to the offended party or to her parents,
which award is, by the very wording of the judgment, in the
alternative. Article 2219 of the New Civil Code provides that moral
damages are recoverable by the offended party in the cases of
"seduction, abduction, rape, or other lascivious acts" and that the
"parents of the female seduced, abducted, raped, or abused ... may
also recover moral damages." (Emphasis supplied). The conviction
of the accused suffices as a basis to adjudge him, in the same action,
liable for an award of moral damages, without independent proof
thereof, to the victim and her parents, because the law presumes that
not only the woman who was seduced, abducted, raped or abused,
but as well her parents, naturally suffer besmirched reputation, social
humiliation, mental anguish, and wounded feelings. In the case at
bar, moral damages must be awarded to the offended woman and
her parents, not to either of them, as ordered by the court a quo.
NOTE: NO People v. Mejorada here.
Babanto v. Zosa.
GUTIERREZ, JR., J.:
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 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)
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).
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:
... 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).
A motion for reconsideration filed by the accused-petitioner was denied by the
trial court. Hence, this petition.
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.
We agree with this statement of Justice Felix Q. Antonio, the then Solicitor
General.
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 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.
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).
NOTE: NO People v. Mejorada here.
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.
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:
(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.
(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,
(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.
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.
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.
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.
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
NOTE: NO People v. Mejorada here.
and petitioner-accused be not discharged and instead be made to pursue his
Petition for Review in the form of an ordinary appeal. "
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.
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.)
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. 63-70).
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)
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:
old healed lacerations of Hymen at nine and three o'clock.
Vaginal opening easily admit one finger but admit two
fingers with ease.
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 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
NOTE: NO People v. Mejorada here.
said that before this incident he never knew complainant Leonida (TSN, April
27, 1970, pp. 96-102).
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.
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.
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.
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 building, or was on their
way to the municipal building as testified to by Apos, a co-
policeman, 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:
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.
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.
Although the complaining witness was, at
the time of the alleged rape of the
NOTE: NO People v. Mejorada here.
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 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)
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 accused-petitioner 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:
... 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.)
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. ...
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 accused- petitioner
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
NOTE: NO People v. Mejorada here.
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)
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.
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. SO ORDERED.
Perez v. CA
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.
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:
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.)
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.
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:
NOTE: NO People v. Mejorada here.
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 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.]
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.
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
... 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).<äre||anº•1àw> 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) ...
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 SCRA, 177 [1977];
Volkschen Labor Union vs. National Labor Relations
Commission, 98 SCRA 314, 322 [1980]) [Rollo, pp. 93-94.]
Petitioner's motion for reconsideration was denied. Hence, this petition for
review.
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.
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
NOTE: NO People v. Mejorada here.
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.]
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]
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.
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].
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 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.
II. Petitioner invokes double jeopardy to question the filing against him of an
information for Qualified Seduction after he was acquitted for Consented
Abduction.
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.]
xxx xxx xxx
NOTE: NO People v. Mejorada here.
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.
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.
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:
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
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. 24444-45, July 29, 1968, 24 SCRA
163, 171-172; Emphasis supplied.]
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.
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.
Moreover, the very nature of these two offenses would negate any Identity
between them. As this Court has stated:
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 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
NOTE: NO People v. Mejorada here.
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.
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.]
WHEREFORE, the petition is DENIED and the decision of the Court of
Appeals is hereby AFFIRMED. SO ORDERED.
People v. Marcellana
DECISION
PER CURIAM:
This is an automatic review of the decision dated January 21, 1999 of the
Regional Trial Court, Fifth Judicial Region, Branch 7, Legazpi City in Criminal
Cases Nos. 7584, 7585 and 7586 for three (3) counts of Rape, the dispositive
portion of which reads:
"PREMISES CONSIDERED, the Court finds the accused TOMAS
MARCELLANA, as having committed beyond reasonable doubt the crime of
RAPE against her (sic) daughter FRANCIA MARCELLANA, who was sixteen
(16) years old at the time of the incidents complained of. He is therefore
declared GUILTY of the crime as charged on three (3) counts.
"Pursuant to the provisions of Article 335 of the Revised Penal Code, as
amended, Under Criminal Case No. 7584, the accused is hereby sentenced
to suffer the penalty of DEATH. He is likewise ordered to pay the victim the
amounts of Php50,000.00, as damages for the offense of rape, Php30,000.00
as moral damages, and Php20,000.00 as exemplary damages.
"Under Criminal Case No. 7585, accused is likewise hereby sentenced to
suffer the penalty of DEATH and ordered to pay the victim the amounts of
Php50,000.00 as damages for the offense of rape, Php30,000.00 as moral
damages, and Php20,000.00 as exemplary damages.
"Under Criminal Case No. 7586, accused is also hereby sentenced to suffer
the penalty of DEATH and ordered to pay the amounts of Php50,000.00 as
damages for the offense of rape, Php30,000.00 as moral damages, and
Php20,000.00 as exemplary damages.
"SO ORDERED."1
The antecedents of the case are as follows:
Private complainant Francia Marcellana testified that her father, accused-
appellant Tomas Marcellana, had been raping the former since 1992, the last
of which happened on Novembers 10 and 12, and December 5, 1996. The
incidents usually happen at about 7 o’clock in the morning when Francia is left
alone in their house, as her classes start at 11:00 a.m. At this time, her
brothers and sisters are already in school while her mother is in the farm.
Accused-appellant also goes to the farm early but returns before 7:00 a.m., at
which time Francia’s ordeal at the hands of her father begin. He would drag
Francia inside the bedroom, undress her, lay her down on the bed and tie her
hands and feet to the farm posts of the bed. Accused-appellant would then
take off his shorts and brief, lay on top of Francia and make a push and pull
movement for about three minutes. Thereafter, accused-appellant would put
on his brief and shorts, untie one of the hands of Francia and leave her. The
latter would then untie her other hand and feet.2 She could not tell her mother
as well as her siblings about the incidents because she was always threatened
by accused-appellant. It was only in December of 1996 when Francia,
suspecting that she might be pregnant, gathered enough courage to reveal
her ordeal to her mother.3 Since her mother did not initially believe her, Francia
went to her high school teacher4 who helped her secure assistance from the
Department of Social Welfare and Development.5
Dr. Jose Cope, the Municipal Health Officer of Daraga, Albay, conducted a
medical examination on Francia and found one deep old hymenal laceration
at 1:00 o’clock and multiple superficial lacerations at 3:00, 5:00, 9:00, 11:00
and 12:00 o’clock positions.6
NOTE: NO People v. Mejorada here.
On January 15, 1997, a criminal complaint was filed against accused-
appellant Tomas Marcellana on the basis of which accused-appellant was
charged in three separate informations for Rape, thus:
"CRIMINAL CASE NO. 7584
"The undersigned PROSECUTOR II, upon sworn written complaint of private
complainant FRANCIA MARCELLANA, hereby accuses TOMAS
MARCELLANA, of the crime of RAPE, committed as follows:
"That on November 10, 1996 at 7:00 o’clock in the morning, more or less, at
Barangay Kilicao, Municipality of Daraga, Province of Albay, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
lewd and unchaste designs, by means of force, threat and intimidation, did
then and there wilfully, unlawfully and feloniously have carnal knowledge with
his own 16 years old daughter, FRANCIA MARCELLANA, against her will and
consent, to her damage and prejudice.
"ACTS CONTRARY TO LAW."7
"CRIMINAL CASE NO. 7585
"The undersigned PROSECUTOR II, upon sworn written complaint of private
complainant FRANCIA MARCELLANA, hereby accuses TOMAS
MARCELLANA, of the crime of RAPE, committed as follows:
"That on November 12, 1996 at 7:00 o’clock in the morning, more or less, at
Barangay Kilicao, Municipality of Daraga, Province of Albay, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
lewd and unchaste designs, by means of force, threat and intimidation, did
then and there wilfully, unlawfully an feloniously have carnal knowledge with
his own 16 years old daughter, FRANCIA MARCELLANA, against her will and
consent, to her damage and prejudice.
"ACTS CONTRARY TO LAW."8
"CRIMINAL CASE NO. 7586
"The undersigned PROSECUTOR II, upon sworn written complaint of private
complainant FRANCIA MARCELLANA, hereby accuses TOMAS
MARCELLANA, of the crime of RAPE, committed as follows:
"That on December 5, 1996 at 7:00 o’clock in the morning, more or less, at
Barangay Kilicao, Municipality of Daraga, province of Albay, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
lewd and unchaste designs, by means of force, threat and intimidation, did
then and there wilfully, unlawfully and feloniously have carnal knowledge with
his own 16 years old daughter, FRANCIA MARCELLANA, against her will and
consent, to her damage and prejudice.
"ACTS CONTRARY TO LAW."9
Upon arraignment on August 28, 1997, accused-appellant pleaded not guilty
to each of the offenses charged.10
In disowning liability, accused-appellant simply denied the same and argued
that the charges were mere fabrications as a consequence of an isolated
incident wherein he reprimanded her daughter, herein complainant, for going
home late.11
After trial on the merits, accused-appellant was found guilty beyond
reasonable doubt of the crimes charged and was sentenced accordingly.
Hence, this case before us for review.
In his brief, accused-appellant raised the following errors:
"ASSIGNMENT OF ERRORS
"I.
"THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO
THE TESTIMONY OF THE PRIVATE COMPLAINANT.
"II.
"THE TRIAL COURT ERRED IN FINDING ACCUSED GUILTY BEYOND
REASONABLE DOUBT IN EACH OF THE THREE (3) RAPE CHARGES.
"III.
"ASSUMING ARGUENDO THAT ACCUSED-APPELLANT INDEED HAD
SEXUAL INTERCOURSE WITH PRIVATE COMPLAINANT,
NOTE: NO People v. Mejorada here.
NONETHELESS, THE COURT ERRED IN IMPOSING UPON HIM THE
SUPREME PENALTY OF DEATH, CONSIDERING THAT THE
ESTABLISHED FACTS SHOW THAT, IF EVER A CRIME IS COMMITTED,
THE SAME IS ONLY QUALIFIED SEDUCTION."12
The first and the second assigned errors were explained simultaneously in
appellant’s brief. Consequently, We will examine and discuss them jointly.
Three indications, allegedly upholding accused-appellants innocence, were
laid down. First, accused-appellant points to the delay in reporting the
incidents complained of.
We are not persuaded. The delay and initial reluctance of a rape victim to
make public the assault on her virtue is neither unknown or uncommon. 13
Particularly in incestuous rape, this Court has consistently held that delay in
reporting the offense is not indicative of a fabricated charge.14
"Delay in reporting a rape incident neither diminishes complainant’s credibility
nor undermines the charges of rape where the delay can be attributed to the
pattern of fear instilled by the threats of bodily harm, specially by one who
exercised moral ascendancy over the victims. (underscoring supplied)"15
Moreover, the young victim might just opt to bear the ignominy and pain in
private rather than reveal her shame to the whole world. 16 She may also be
too overwhelmed with fear and confusion as to why her very own father would
commit such a nefarious act.17
In the case before us, Francia’s ordeal in the hands of her father began in
1992.18 Based on her Certificate of Live Birth,19 Francia was then only twelve
years old. At that young age and with the naivete and innocence that comes
with provincial upbringing, the callow Francia was undoubtedly under her
father’s moral authority and influence. This ascendancy over her together with
the constant threats from her father, Francia could not possibly be expected
to come out in the open. It took her four more years of prolonged abuse as
well as the threat of a more humiliating circumstance – that of being pregnant
– to gather enough courage in finally revealing her ordeal. 20 Withal, we do not
consider the delay to be fatal.
With regard to the second indication, accused-appellant lays too much
emphasis on the accuracy of the frequency offered by Francia regarding the
number of times she was raped.
In People vs. Alicante,21 this Court aptly said,
"The other inconsistencies refer to minor details such as how many times she
was raped during a certain month. These do not create a reasonable doubt as
to whether or not accused-appellant raped his daughter. It must be
remembered that the victim is a girl of tender age who was sexually attacked
by her father several times during a period of less than a year.
"It is not expected that Richelle would remember every single detail of every
single rape. It is understandable, even anticipated, that there would be minor
lapses and inaccuracies when a young girl is made to recount, detail by detail
her frightful ordeal under the hands of her father. Considering the age of the
victim, she is more prone to error than an adult person. The grueling
experience of testifying in public, face to face with her perpetrator and being
questioned by hostile lawyers would undoubtedly intimidate and confuse a
young girl."
In People vs. Villar,22 We held that the burden of exactness cannot be
imposed on a young victim who claimed to have been raped for more than
100 times in a span of one year.
Considering private complainant Francia Marcellana’s harrowing experience
lasting for four (4) years23 , it is with more reason that we should not demand
such a high degree of accuracy and detail on the poor victim. What is
important is that Francia remained steadfast in her claim that her father raped
her.24
As to the third indication of accused-appellant’s alleged innocence, he argued
and we quote:
"The prosecution failed to rebut defense’s theory that it was Rudy Completo,
Francia’s fiancé, who had sexual intercourse with her. It must be remembered
that Rudy and Francia were set to be wed in January 1997 and yet, Rudy
decided not to pursue with the wedding. Does this fact not raise doubt that the
supposed groom backed out from the marriage plan because, any way, he
has already had carnal knowledge with his would-be-bride?
"Further, likewise undisputed from the records is the fact that it was not only
once that private complainant went home drunk, and that when she attended
a ball one time, she returned home late after the socials. Could it not be
possible that in one or all occasions Francia Marcellana committed sexual
indiscretions which is now being charged against herein accused?"25
NOTE: NO People v. Mejorada here.
The foregoing attempt to blacken Francia’s character is but a futile attempt to
discredit her unfaltering testimony. These suggestions mock the intelligence
of the court and sorely test its patience. Accused-appellant should, at the very
least, offer some basis to support these suppositions. Generally, no young
woman would accuse her father of so grave a crime as rape unless she was
truly wronged26 and is now seeking retribution for the abominable violation
against her.27 Neither would she publicly disclose a humiliating and painful
experience if it were not the truth.28 We also find it inconceivable that the young
victim would devise or fabricate a story that she was raped by her own father
considering that family honor is at stake, and that she might just send him to
jail.29
In the present case, not only was Francia’s testimony unwavering, it was also
clear, convincing and straightforward.30 More importantly, her credibility was
bolstered beyond reproach by her spontaneous emotional breakdown during
trial.31
With regard to accused-appellants' third and final assigned error, we find the
same to be both repulsive to this Court’s luminosity and that of the young
Francia’s person. In the words of Chief Justice Andres R. Narvasa, "Of all so
called heinous crimes, none perhaps more deeply provokes feelings of
outrage, detestation and disgust than incestuous rape."32 No daughter in her
right mind would consent to having carnal knowledge with her own father. 33
Besides, accused-appellant’s reliance on the case of People vs. Castillan is
misplaced. The peculiarities of that case are:
1) the complainant and the accused were sweethearts; and
2) the complainant’s testimony showed inherent lack of credibility on
crucial points.
In contrast, the relationship between accused-appellant and Francia is that of
a father and daughter. As such, the rape contemplated here is quite different
from that in Castillan. There, the crime of rape is that alleged to have been
committed by force. Where, the rape is committed by a father against his own
daughter, the father’s moral ascendancy and influence over the latter
substitutes for violence and intimidation.34 Moreover, failure to shout or offer
tenacious resistance will not make a rape victim’s submission voluntary. 35
As a last note, on accused-appellant’s overtones that he should only be held
liable for qualified seduction,36 we said:
"The accused charged with rape cannot be convicted of qualified seduction
under the same information. Then, too, rape and qualified seduction are not
identical offenses. While the two felonies have one common element which is
carnal knowledge of a woman, they significantly vary in all other respects." 37
In view of the foregoing, we uphold the decision of the trial court finding
accused-appellant guilty beyond reasonable doubt of three (3) counts of rape.
In accordance with recent jurisprudence, accused-appellant should indemnify
the victim Francia Marcellana the amount of PhP75,000.00 for each of the
three (3) counts of rape since these were committed or effectively qualified by
circumstances under which the death penalty is authorized by applicable
amendatory laws.38 The award of moral damages in favor of Francia should
be increased from PhP30,000.00 to PhP50,000.00 in each of the three counts
of rape without need of proof save for the conviction of accused-appellant.39
The award of exemplary damages is deleted for lack of legal basis. 40
Four Justices of the Court maintain their position that R.A. No. 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.1âwphi1
WHEREFORE, the decision under review convicting accused-appellant
Tomas Marcellana for three (3) counts of rape and sentencing him to DEATH
for each of the three counts is AFFIRMED, with the MODIFICATION that
accused-appellant is hereby ordered to pay the following:
a) the amount of PhP75,000.00 as civil indemnity for each of the
three counts of rape: and
b) the amount of PhP50,000.00 as moral damages for each of the
three counts of rape.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83
of the Revised Penal Code, upon finality of this decision, let certified copies
thereof, as well as the records of this case, be forwarded without delay to the
Office of the President for possible exercise of executive clemency. SO
ORDERED.
SIMPLE SEDUCTION
NOTE: NO People v. Mejorada here.
People v. Iman
1. CRIMINAL LAW; SEDUCTION; DECEIT BY MEANS OF
UNFULFILLED PROMISE OF MARRIAGE. — Carnal knowledge
with a woman of chaste life and good reputation, over twelve and
less than eighteen years of age, by means of deceit, its usual form,
according to the doctrine of the courts, consisting in an unfulfilled
promise of marriage, constitutes the crime of seduction defined and
punished in article 338 of the Revised Penal Code. (U. S. v. Salud,
10 Phil., 206; U. S. v. Limcangco, 9 Phil., 77; U. S. v. Dulay, 10 Phil.,
302; U. S. v. Lopez, 14 Phil., 593; Decisions of the Supreme Court
of Spain of June 27, 1911; April 30, 1915; November 15 1912;
November 20, and December 12 and 26, 1914; October 14, 1871;
December 24, 1887; October 7, 1874; October 19, 1898.)
2. ID.; ID.; ID. — The circumstance that the promise of marriage has
not be reiterated and that the carnal act was performed eleven
months after such promise had been made, does not detract from
the existence of the offense. The promise need not be renewed at
the time of the commission of the offense, it being sufficient for the
existence thereof that there has been a previous promise, in
consideration of which the seduction was accomplished. (57 Corpus
Juris, 50.)
3. ID.; ID.; ID. — In order to hold that the offense of seduction has
been committed, there is no need for positive and direct testimony of
the offended person that she yielded to the sexual embraces of the
accused because she was seduced and deceived by the promise of
marriage given by him, and not for the mere satisfaction of carnal
desires, it being sufficient that the conduct of the offended person
and the accused and the other circumstances of the case as a whole,
show that her consent was secured through said promise.
2.
4. ID.; ID.; LIABILITY OF THE ACCUSED. — The accused is held
guilty under article 338 of the Revised Penal Code for having
seduced A. C., 17 years of age, of chaste life and good reputation,
through false promise of marriage." ’The statute making seduction a
crime is not to punish illicit intercourse, but to punish the seducer who
by means of a promise of marriage, destroys the chastity of an
unmarried female of previous chaste character, and who thus draws
her aside from the path of virtue and rectitude, and then fails and
refuses to fulfill his promise,’ a character despicable in the eyes of
every decent, honorable man." (State v. Smith, 145 S. E., 287.)
DECISION
RECTO, J.:
In June, 1932, Crispin Iman, the accused, began courting Corazon Arcadio,
the complaining witness, a young girl 17 years of age. For two months his
efforts had been unsuccessful. But in August of the same year, after persistent
struggle and through promise of marriage, his efforts were reciprocated. On
two occasion, the second being April, 1933, they were on the verge of
separation, the girl being tired of his indecent proposals repeated time and
again during his visits. But every time the complainant intimated to the
accused her determination to sever their relations because of his importunities
he renewed his protestations of love and the lovers’ quarrel was thus patched
up. One day in the month of May, 1933, Crispin went to the house of his fiancé,
her parent then being absent, and availing himself of that opportunity, with a
renewal of his promise to make her his wife, he succeeded in betraying her.
Believing that she was already lost for having granted him that first favor, the
complainant thereafter yielded without restraint to his desires and since then
a carnal union replaced their platonic love.
Beginning from the month of October following, upon becoming aware of her
pregnancy, the complainant asked the accused if he was ready to fulfill his
promise and while at the beginning he answered in the affirmative, in the end
he told her that he was not, because he was engaged to another girl. In said
month, for a period of two weeks or more, the accused and the complainant
lived together in the former’s house. In view of such unbearable situation, her
parents intervened and reported the matter to the chief of police of Plaridel.
This officer sent for the accused who, on November 7th, renewed before the
chief of police his promise to marry the complainant. In the end, however, the
accused refused to fulfill his promise on the pretext that neither his confessor
nor his parents approved of the marriage; that he never loved the complainant;
and that he was a Catholic while the girl who gave birth to a baby boy on
March 9, 1934. The letters Exhibits C, C-1 and C-2, as to the genuineness of
which we entertain no doubt, written by the accused to the complainant in
September, 1933, corroborate the existence of amorous relations between
them and that the accused had given to the complainant his promise to marry
her. In one of said letters, Exhibit C-2, the accused calls "father" the father of
the complainant.
The fact above set out, disclosed by the complainant’s testimony, her affidavit
Exhibit 1 presented by the defense itself without any qualification or condition,
as part of its evidence, and by Exhibits C, C-1 and C-2, their existence being,
therefore, established by the record in this appeal, constitute, the crime of
seduction, defined and punished in article 338 of the Revised Penal Code, to
wit, carnal knowledge of a woman above 12 and less than 18 years of age, of
NOTE: NO People v. Mejorada here.
chaste life and good reputation, accomplished by means of deceit, the usual
form of which according to the doctrine of this court, being an unfulfilled
promise of marriage (U. S. v. Salud, 10 Phil., 206; U. S. v. Limcangco, 9 Phil.,
77; U. S. v. Dulay, 10 Phil., 302; U. S. v. Lopez, 14 Phil., 593; Decisions of the
Supreme Court of Spain of June 27, 1911; April 30, 1915; November 15, 1912;
November 20, and December 12 and 26, 1914; October 14, 1871; December
24, 1887; October 7, 1874; October 19, 1898).
The appellant contends that, assuming it to be true that in June, 1932, he
promised to marry the complainant, inasmuch as the first, carnal act took place
in March, 1933, nearly one year thereafter, in the absence of proof that during
said interval of time he reiterated such promise, it can not be said that the
complainant consented to the act upon the faith that such promise would be
fulfilled. In the first place it is not true that such promise was made by the
appellant only in June, 1932, for it is a fact that it was reiterated shortly before
the first sexual act took place between the accused and the complainant as
shown by affidavit Exhibit 1, presented in evidence by the accused himself,
and by the complainant’s answers to questions made to her on this point by
the defense counsel. But even if it were true that said promise was made only
once, namely, in June, 1932, the circumstance that it has been reiterated and
that the sexual act took place eleven months thereafter does not detract from
the existence of the offense. The weight of authorities on this question is
against the appellant’s theory.
"Promise of marriage is one of the essential elements, recognized by the
courts, constituting deceit in the crime of seduction and, inasmuch as such
fact is established in the decision of the trial court, the appellant’s contention
as to the necessity that said promise he reiterated under circumstances of
strong probability, or that the same has been given before or after the woman
has yielded to the importunities of the man carries no weight." (Decision of the
Supreme Court in Spain of June 27, 1911.)
"Except where the rule may be otherwise by reason of the construction put
upon the particular statute, the general rule is that it is not necessary that the
promise be made or renewed at the time, it being sufficient that there was a
previous promise through means of which the seduction was accomplished."
(57 C. J., 50.)
"We do not think that the promise to marry must have been the immediate (in
point of time) inducement to the coition; a yielding upon the faith of a previous
promise would be sufficient." (State v. Smith, 145 S. E., 287.)
"The second assignment of error is based upon the refusal of the trial judge
to direct a verdict for the defendant upon the ground that the sexual
intercourse between the parties was not had under promise of marriage. The
prosecuting witness testified that she did not submit herself to the defendant’s
sexual embraces until after the promise was made in March, and the
defendant himself fixes the first date of such intercourse in the June following.
The theory upon which his assignment is rested by counsel, as we understand
it, is that, in order to bring the case within the statute, the intercourse must
take place either at the time when the promise is made or immediately
following it. In our opinion no such limitation can be fairly implied from the
words of the act. Its purpose is to protect every young woman of the class
mentioned, who, confiding in the honesty of the promise, yields to the
solicitations of him who, as she believes, will sooner or later be her husband,
and permits him, as a favor, to enjoy in advance of the marriage ceremony
those privileges which after marriage become his of right. The fact that she
does not surrender her body to the sexual embraces of her supposed future
husband to the idea that sooner or later she will become his wife, does not
take her out of the protection of the statute." (State v. Slattery, 74 New Jersey
Law Reports, 241-243.)
"It is contended by appellant that there is no proof in this record to show that
appellant referred to our repeated the marriage engagement between the
parties when he obtained carnal intercourse with Addie Hardin, in the hotel at
Van Alstyne; to state the proposition in a different form: that, to constitute
seduction at the time the carnal knowledge was obtained, appellant must have
then promised to marry the party seduced, or that he must have alluded to the
contract of marriage; that it is not sufficient if the parties be engaged to be
married, but the engagement or promise must be used at the very time that
carnal knowledge was obtained. We do not concur in this contention. The
record shows that the appellant was engaged to be married to Addie Hardin;
that he had requested her mother to permit him to marry her, to which she had
agreed. The record shows that, when they went to the hotel, both claimed to
be man and wife. Now, we hold that, if the promise to marry was the moving
cause, — that is, if the carnal intercourse was the consequence of a prior
promise of marriage, — it does not matter whether this promise was repeated
or not at the time the parties had carnal intercourse with one another. This
question arose in Armstrong v. People (70 N. Y., 38). In that case the
prosecutrix testified that the promise of marriage was made in the latter part
of May, and that the illicit intercourse took place on August 5th thereafter, at
the house of Doctor Kimball. The Supreme Court of New York held that, if the
promise made in May (being before the seduction) was the cause of the illicit
intercourse, that would be sufficient. If the rule were otherwise, in jurisdictions
in which the prosecutrix is not permitted to testify, it would be almost
impossible to convict; and it would be a rare case, indeed, that proof could be
made that the promise of marriage was made at the time of the intercourse,
and, even if such proof could be made, it might smack strongly of barter and
sale. At any rate, in this state the prosecutrix was not a competent witness;
and, under that state of the law, prosecutions have been sustained, all the
NOTE: NO People v. Mejorada here.
necessary elements of the crime being established by circumstantial
evidence." (Bailey v. State, 38 Southwestern Reporter, 185, 186.)
With respect to this particular question the court has met with some difficulty
because the complainant, far from asserting directly and categorically that the
first sexual act she had had with the accused was due precisely to the deceitful
promise of marriage made by him, stated that one day in the month of May,
1933, shortly after having reiterated to her such promise the accused made
her drink a potion, causing her to believe that it would help her digestion, as a
consequence of which she was overcome by a general ill feeling to the point
of almost losing her consciousness, and while in such a state, the accused
succeeded in lying with her. Hence, the appellant contends that in the instant
case one of the essential elements of seduction defined and punished in
article 338 of the Revised Penal Code is wanting, to wit, that the act be
accomplished by means of deceit.
The court holds that there is not sufficient evidence showing that the accused
made his sweetheart drink a sleeping potion, and that it was not the means
employed to accomplish his purpose. It may then be said that if such were the
case, the accused employed no deceitful means, because barring the
sleeping potion the offended person has mentioned no other means. The court
believes, however, that in order to establish the existence of seduction, a
positive and direct statement of the offended party that she yielded to the
accused because she was induced and deceived by his promise of marriage,
and not for the mere satisfaction of carnal desires, is not necessary, it being
sufficient that the conduct of the offended person and the accused and the
circumstances of the case, taken as a whole, show that her consent was
secured by means of said promise, as in the instant case. For what other
conclusion can be inferred from the fact that the accused and the complainant,
having been engaged since June, 1932, she attempted on two occasions to
break their engagement simply because he had been annoying her with
demands for sexual favor in advance? Had this woman’s virtue of chastity not
been built upon a strong foundation, would she not have succumbed to the
first attempts, without allowing almost one whole year of their engagement to
elapse, before the accused succeeded in overcoming, through reiterated
promises of marriage, the complainant’s last line of resistance, erected
against his stubborn importunities? As to her, therefore, it was not the frailties
of the flesh which caused her to deviate from the path of virtue; it was not other
than his repeated protestations that he would not leave her in disgrace but
would redeem in the near future his promise of marriage therefore made.
Similar cases to the one at bar, upon substantially the same facts, have been
decided by courts of last resort, where it was held that the essential elements
of the offense of seduction were present.
"When the judgment admits as fact of record the amorous relations with a view
to marriage between the accused and the offended party, and her
abandonment after her pregnancy, the court having also held that those facts
constitute the crime of seduction defined and punished in article 458, No. 3,
of the Penal Code, it is evident that the intervention of the deceit in the offense
is admitted and consequently, the appeal based on the lack of evidence
showing that fraud intervened in the offense can not be sustained." (Decision
of December 2, 1873, Gazette of March 1, 1874.)
"Considering that the promise of marriage given to a member of the opposite
sex, above 12 years and less than 23 years of age, voluntarily unfulfilled and
without justifiable cause to prevent it, for the wicked purpose of committing an
unlawful act, constitutes the deceit referred to in article 458, paragraph 3, etc."
(Decision of October 7, 1874.)
"The case of State v. Norton (100 N. C., 443; 6 Am. St. Rep., 613; 6 S. E.,
238), is authority for the position that the state is not required to show that the
defendant, in so many words, promised to marry the woman if she would
agree to submit to carnal intercourse with him, or, in other words, to show the
casual relation between the promise of marriage and the seduction by any set
form of words; but it is sufficient if the evidence is such as to convince the jury
to the exclusion of all reasonable doubt that the woman is influenced by the
promise and the man intended that she should be, or so purposely acted as
to produce the impression on her mind that he would keep his promise if she
would comply with his request. The jury are to draw their own deduction from
the testimony, provided there is even inferentially any evidence of a purpose
to violate the statute." (State v. Ring, 115 Am. St. Rep. 759-761).
". . . The only serious question presented is whether the circumstances are
such as to justify a finding that the seduction was effected with fraud or deceit.
When we consider the relation in which these parties had been living in the
house of Benedicto Lopez, to whom the girl was related, and who was the
adopted father of the defendant, the evident serious nature of the promise to
marry, as shown by testimony of the girl, and the subsequent conduct of the
defendant, it is apparent that under the authorities the court properly found
that the deceit which is an essential element of the crime of estupro was
present. . . ." (U. S. v. Lopez, 14 Phil., 593.)
"The fact that the accused and the young woman seduced lived for
months, or during a great many days, in the same house in Tanauan,
San Juan de Bocboc, and Lipa, gave opportunity for the intimacy that
sprang up between them, the man causing the girl to believe that
after some time they would be wedded; so much so that, in response
to a remark made by the mother, the girl replied that by reason of her
love affairs with the accused her future was assured; undoubtedly
trusting to the deceitful promises given by the defendant, a distant
NOTE: NO People v. Mejorada here.
relative of hers, it is easily understood how she consented to be
seduced by her lover who, willfully failing to comply with the promise
so persistently given, has shown that he only made the same with
the wicked purpose of committing an unlawful act." (U. S. v. Salud,
10 Phil., 206.)
". . . proof of circumstances warranting the inference that sexual
intercourse would not have been accomplished in the absence of
such promise, is sufficient, . . ." (57 C. J., 77; People v. Wallace, 109
Cal., 611; 42 P., 159; People v. Santos, 8 Porto Rico, 348.)
The defense of the accused consisted in denying everything except that the
admission of which would not in his judgment be prejudicial to him. He denies
having had amorous relations with the complainant, or that he ever courted or
wooed her. He denies having had carnal relations with her, or that he is the
father of the child born of the complainant in March, 1934. When confronted
with the fact that the boy resembles him, he gave two explanations both
childish and nonsensical, namely, that during the complainant’s pregnancy
she must have taken a fancy for him, and that one Teopisto, who, according
to the accused, had love relations with the complainant, bears a great
resemblance to him, only that Teopisto is shorter, thereby implying that the
child who resembles him and therefore resembles Teopisto many be
Teopisto’s as well as his (defendant’s) child. With respect to the nature and
extent of his relations with the complainant, the accused only admits that they
became friends because she often came to draw water from the well in his
yard and that as outward expressions of such friendship, the complainant
used to tickle the accused, who in turn kissed her or fondled her breasts, and
beyond that they dared not venture but discreetly restrained on time the
impulses of the flesh. From the evidence of the defense it may be inferred that
the complainant’s chastity literally was shattered to pieces by reason of her
frequent visits to the well in the yard of the accused, and thus as far as he is
concerned, the unavoidable fate of the earthen vessel taken to the spring once
too often, was repeated in her case.
When the accused appeared before the chief of police of Plaridel whose good
offices were sought by the complainant’s parents, he made, according to him,
before said official, this statement: "If their purpose is that I marry their
daughter, supposing that she really loves me, they should give me time
because my parents are in Bohol and I want to consult them." When he
returned from Bohol he did not fulfill his word and said that neither from his
parents nor his confessor, before whom he presented his case, did he receive
the necessary encouragement for him to marry the complainant. The accused
surmises that this prosecution was instituted not by reason of the grave
offense which he inflicted upon the complainant is seducing her and
abandoning her afterward, but upon the instigation of the Aglipayanos of
Plaridel (he being a Catholic), with whom he had had a litigation. The trial
judge acted correctly and in conformity with the truth in disregarding the whole
story concocted by the accused where both truth and logic, ingenuity and
common sense, are conspicuous by their absence.
Wherefore, the court finds Crispin Iman guilty of seduction by means of false
promise of marriage under article 338 of the Revised Penal Code, committed
against Corazon Arcadio, seventeen years of age, of chaste life and good
reputation. As held in the case of State v. Smith (145 S.E., 287):
"The statute making seduction a crime is not to punish illicit
intercourse, but to punish the seducer who by means of a promise of
marriage, destroys the chastity of an unmarried female of previous
chaste character, and who thus draws her aside from the path of
virtue and rectitude, and then fails and refuses to fulfill his promise,’
a character despicable in the eyes of every decent, honorable man."
Finding no error in the judgment appealed from, sentencing the accused to
four months of arresto major, to indemnify Corazon Arcadio in the sum of
P500, to acknowledge the child had by him with her and to give it monthly
support in the sum of P15 until it arrives at the age of majority, the same is
hereby affirmed with the costs of both instances to the appellant. So ordered.
Barbara v. People
FERNANDEZ, J:
This petition for certiorari assails the joint decision of the Court of First
Instance of Catanduanes in four criminal cases 1 convicting the petitioner of
the crime of simple seduction based on four separate informations charging
him with rape committed by means of force and intimidation. The allegations
in the respective informations are:
In Criminal Case No. 2117
That on or about the first week of October, 1968, in the
morning, in the barrio of Cabugao, Municipality of Bato,
Catanduanes, and within the jurisdiction of this Honorable
Court, said accused Pedro Barba, by means of force, threat
and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the complainant
LENY TRAMPE against her will.
NOTE: NO People v. Mejorada here.
CONTRARY TO LAW. 2
In Criminal Case No. 2118
That on or about the middle of November, 1968, about
noontime, in the barrio of Cabugao, Municipality of Bato,
Catanduanes, and within the jurisdiction of this Honorable
Court, said accused Pedro Barba, by means of force, threat
and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the complainant,
LENY TRAMPE against her win.
CONTRARY TO LAW. 3
In Criminal Case No. 2119
That on or about the last week of November, 1968, about
noontime, in the barrio of Cabugao, Municipality of Bato,
Catanduanes, and within the jurisdiction of this Honorable
Court, said accused Pedro Barba, by means of force, threat
and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the complainant
LENY TRAMPE against her will.
CONTRARY TO LAW. 4
In Criminal Case No. 2120
That on or about the first week of December, 1968, in the
morning, in the barrio of Cabugao, Municipality of Bato,
Catanduanes, and within the jurisdiction of this Honorable
Court, said accused Pedro Barba, by means of force, threat
and intimidation, did then and there wilfully, unlawfully, and
feloniously have carnal knowledge of the complainant
LENY TRAMPE against her wilt
CONTRARY TO LAW. 5
After joint trial of these four criminal cases, the Court of First Instance of
Catanduanes convicted the accused of simple production on the following
findings:
The evidence fully establishes the fact that Leny Trampe,
who is a young girl of only fifteen years, had sexual relations
with a man and because of which she was delivered of a
baby girl on August 20, 1969, which subsequently died on
October 5 of the same year. Leny has pointed to the
accused as the only one responsible for her predicament.
Indeed, if Leny's pregnancy was the result of her relations
with another man, it is hardly conceivable that she would
point to him as the one responsible. And assuming that
Simplicio Trampe, sometime in the past in his business
relations with the accused might have harbored ill feelings
against him because of suspicion on the part of Trampe that
the accused was cheating him of a part of the proceeds due
him from the catch in his concession, that fact alone, in the
opinion of the Court could hardly be sufficient to induce
Leny of her father to point to him as the one responsible for
her pregnancy if in fact it was caused by another man. The
defense put up by the accused deserves scant
consideration from the Court. It bears the telltale marks of
fabrication and amounts to an imposition upon its credulity.
The Court, however, entertains serious doubts that the
accused's sexual relations with Leny had been
accomplished by means of force and intimidation. From the
ocular inspection conducted by the Court of the site of the
alleged attacks, which is a piece of swampy land on the sea-
coast of Cabugao covered by nipa palms and bushes of
about a few feet high connected by a street leading to the
main barrio about two hundred meters away and cut
midway by a footpath both of which are admittedly used by
fishermen going to the sea at any hour of the day or night,
there is ample ground to doubt that the accused would have
or could have taken advantage of Leny if the girl herself did
not welcome his advances, although it is possible that if he
had wanted to force himself upon her the accused could
have easily overpowered Leny who is very small and
scarcely five feet in height in contrast to the physical
proportions of the accused who is a man of well built
physique and from the observation of the Court is about five
feet five inches or five feet six inches tall. The condition of
the place, as the Court saw it, could have discouraged any
man from forcing his attentions upon any woman he might
meet unless he were a maniac devoid of any sense of
elementary decency. But if two lovers with a tryst would
NOTE: NO People v. Mejorada here.
meet there and hide either beneath the bushes or at the foot
of the nipa palms there is enough cover and there is no
doubt that they could sale themselves specially at certain
hours when the place is deserted because the fishermen
are out in the sea. The Court is intrigued by the fact that the
accused could have abused Leny four times if it were not
because she was a willing party. Otherwise, if it were true
that she had been attacked she might have avoided the
place altogether. Her explanation that she was continually
threatened by the accused while plausible must be taken
very cautiously. The medical certificate issued by Dr.
Masagca clearly shows multiple carnal indulgence.
Upon the other hand, it is admitted by the accused that he
was very familiar with Leny because she used to go to his
house to collect the rentals due to her father from the
concession. And they live in the same barrio not far from
each other. Under the circumstances, it is safe to assume
that the accused could have been attracted to the girl and
taking advantage of her youth and lack of experience he
won her affection and proceeded to seduce her. When the
inevitable result of their relations began to show and Leny's
parents became aware of her condition and demanded an
explanation Leny, as could be expected from a girl of tender
age and most probably to save herself from the wrath of her
parents or the family from the scandal and the ignomity of
the relation lied and told them that had been the unwilling
victim of the accused. The parents themselves, being only
human could not have been expected to require another
explanation and thus accomplish their own humiliation
before the public were only too willing to accept their
daughter's explanation.
Under the circumstances, the Court is fully persuaded to
believe that the crime committed by the accused is not rape
but simple seduction and the various instances of sexual
access recited by Leny must be considered not as separate
and distinct offenses but as mere incidents in the continuing
offense. Consequently, the charges contained in the four
indictments must be considered as one offense. 6
The lower court sentenced the accused "to suffer the penalty of six (6) months
imprisonment and the costs. 7
The petitioner contends that he cannot be convicted of the crime of simple
seduction because this offense is not alleged in the four informations filed
against him.
The issue, therefore, is whether or not the allegations in the four informations
charging the accused, petitioner herein, with rape necessarily included the
offense of simple production
The trial court, in convicting the petitioner of the crime of simple seduction
relied on the case of People vs. Cariaso 8 wherein this Court reversed on
appeal the conviction for rape and forthwith held the accused guilty of qualified
seduction.
The petitioner stressed that the allegations of the four informations only
charged rape committed by means of force and intimidation which did not
necessarily include the essential elements of simple seduction as defined and
penalized in Article 338 of the Revised Penal Code. 9
The contention of the petitioner is meritorious.
Indeed, the four informations do not alleged deceit which is essential in simple
seduction. It is thus clear that the trial court erred in convicting the accused of
simple seduction upon the basis of the four informations charging rape
committed by means of force and intimidation.
10
The trial court apparently misappreciated the facts of People vs. Cariaso.
The allegations of the complaint in said case are:
That on or about January 16, 1924, and in the municipal
district of Siraway of the Province of Zamboanga, Philippine
Islands, the said accused who was then and there a teacher
in the public school named Siokon Settlement Farm School
and as such in charge of the education and instruction of
the Mora Ubbang, 11 years of age, voluntarily, illegally and
criminally lay with said Ubbang girl against her will. Contrary
to law and within the jurisdiction of this court. 11
The Supreme Court convicted Juan Cariaso of qualified seduction because:
After examining the evidence we find it proven, beyond a
reasonable doubt, that the accused had carnal relations
NOTE: NO People v. Mejorada here.
with the offended party on tile occasion referred to in the
complaint.
It has not been sufficiently proved that the offended party at
that time was less than 12 years of age, nor that the act
consummated was against her wilt. And, giving the accused
the benefit of the reasonable doubt which we entertain on
these two points, there are no grounds for declaring him
guilty of the crime of rape.
He, however, according to the allegations of the complaint,
was then 'a teacher in the public school named Siokon
Settlement Farm School and as such was in charge of the
education and instruction of the Mora Ubbang; and said
accused, according to the testimony of Cristino Buendia, a
witness for the defense, 'was in charge of the field work of
the school and, at the same nine, taught the second grade
of said school' (p. 40, t.s.n.). And, according to the offended
party's testimony at that nine she was a pupil of the third
grade in said school and was working in the field known as
the school garden (P. 6, Ibid).
Although the accused was not the teacher of the third grade
class which the offended party attended and which the trial
court referred to in remarking that he 'was not, however, in
charge of the class which the offended party attended on
the day in question,' nevertheless, he was in charge of the
education of the offended party in agricultural matters,
because he was in charge of the field work of the school
according to the witness for the defense, Cristino Buendia.
And we hold that this relation of the accused to the offended
party is sufficient to make the seduction, which we
understand was voluntary, punishable under the provisions
of article 443 of the Penal Code. The term 'teacher,'
employed in this article includes not only teachers who give
academic instruction, but also those of trade schools.
(Decision of the Supreme Court of Spain of December 15,
1883, vide 3 Viada, Codigo Penal pp. 136, 137.) 12
In People vs. Castro, this Court said. —
We do not make any finding that he committed qualified
seduction. Since he was definitively and squarely charged
with rape, he cannot be convicted of qualified seduction.
The complaint in this case is not susceptible of being
construed as charging qualified seduction. It is alleged in
the indictment that Castro, 'by means of force and
intimidation', wilfully had carnal knowledge of Miguela
Micua against her wilt That charge does not include
qualified seduction. Much leas can qualified seduction
include rape. Hence, Castro cannot be convicted of
qualified seduction under the rape charge (See secs 4 and
5, Rule 120, Rules of Court). The rape charges did not place
him in jeopardy of being convicted of qualified seduction.
He is entitled 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, Old Constitution; Sec. 1 [9], Art. IV, New
Constitution).
The instant case is different from People va. Alverez, L-
34644, January 17, 1974, 55 SCRA 81, where the accused
was charge, 4 with having raped his thirteen-year-old sister-
in-law and was convicted of qualified seduction. The charge
in that case, as in the Samillano case, supra, although
nominally for rape, contained the elements of qualified
seduction. 13
This ruling was reiterated in People vs. Ramirez 14 where this Court set aside
the appealed conviction for rape and declined to hold the accused guilty of
qualified seduction because the allegations in the information could not be
construed as charging qualified seduction.
In the more recent case of People vs. Paragsa 15 this Court reversed the
appealed judgment convicting the accused of rape, and held that he could not
be legally convicted of simple seduction "for the same is not warranted by the
wording of the information, which did not allege deceit ... "
WHEREFORE, the decision appealed from is set aside, without
pronouncement as to costs. SO ORDERED.
NOTE: NO People v. Mejorada here.
ABDUCTION (342 & 343)
People v. Jose
PER CURIAM:
The amended complaint filed in this case in the court below, reads as follows:
The undersigned complainant accuses JAIME JOSE Y
GOMEZ, BASILIO PINEDA, JR. Alias "BOY," EDUARDO
AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAÑAL
Y SEVILLA alias "ROGER," as principals, WONG LAY
PUENG, SILVERIO GUANZON Y ROMERO and JESSIE
GUION Y ENVOLTARIO as accomplices, of the crime of
Forcible Abduction with rape, committed as follows:
That on or about the 26th day of June, 1967, in Quezon
City, and within the jurisdiction of this Honorable Court, the
above-named principal accused, conspiring together,
confederating with and mutually helping one another, did,
then and there, wilfully, unlawfully and feloniously, with lewd
design, forcibly abduct the undersigned complainant
against her will, and did, then and there take her, pursuant
to their common criminal design, to the Swanky Hotel in
Pasay City, where each of the four (4) accused, by means
of force and intimidation, and with the use of a deadly
weapon, have carnal knowledge of the undersigned
complainant against her will, to her damage and prejudice
in such amount as may be awarded to her under the
provisions of the civil code.
That WONG LAY PUENG, SILVERIO GUANZON y
ROMERO, and JESSIE GUION y ENVOLTARIO without
taking a direct part in the execution of the offense either by
forcing, inducing the principal accused to execute, or
cooperating in its execution by an indispensable act, did,
then and there cooperate in the execution of the offense by
previous or simultaneous acts, that is, by cooperating,
aiding, abetting and permitting the principal accused in
sequestering the undersigned complainant in one of the
rooms of the Swanky Hotel then under the control of the
accused Wong Lay Pueng, Silverio Guanzon y Romero and
Jessie Guion y Envoltario, thus supplying material and
moral aid in the consummation of the offense.
That the aforestated offense has been attended by the
following aggravating circumstances:
1. Use of a motor vehicle.
2. Night time sought purposely to facilitate the commission
of the crime and to make its discovery difficult;
3. Abuse of superior strength;
4. That means were employed or circumstances brought
about which added ignominy to the natural effects of the act;
and
5. That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not
necessary for the commission.
CONTRARY TO LAW.
Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in
the above-quoted amended complaint; however, in an order dated July 11,
1967, the court reserved judgment "until such time as the prosecution shall
have concluded presenting all of its evidence to prove the aggravating
circumstances listed in the complaint." Upon the other hand, the rest of the
defendants went to trial on their respective pleas of not guilty. After the merits,
the court below rendered its decision on October 2, 1967, the dispositive
portion of which reads as follows:
WHEREFORE, the Court finds the accused Jaime Jose,
Rogelio Cañal, Eduardo Aquino and Basilio Pineda, Jr.
guilty beyond reasonable doubt of the crime of forcible
abduction with rape as described under Art. 335 of the
Revised Penal Code, as amended, and hereby sentences
each of them to the death penalty to be executed at a date
to be set and in the manner provided for by law; and each
to indemnify the complainant in the amount of ten thousand
pesos. On the ground that the prosecution has failed to
establish a prima facie case against the accomplices Wong
NOTE: NO People v. Mejorada here.
Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion
y Envoltario, the Motion to Dismiss filed for and in their
behalf is hereby granted, and the case dismissed against
the aforementioned accused.
Insofar as the car used in the abduction of the victim which
Jaime Jose identified by pointing to it from the window of
the courtroom and pictures of which were submitted and
marked as Exhibits "M" and "M-1," and which Jaime Jose in
his testimony admitted belonged to him, pursuant to Art. 45
of the Revised Penal Code, which requires the confiscation
and forfeiture of the proceeds or instruments of the crime,
the Court hereby orders its confiscation.
This case is now before us by virtue of the appeal interposed by Basilio
Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as
regards Rogelio Cañal. However, for practical purposes all of them shall
hereafter be referred to as appellants.
The complainant, Magdalena "Maggie" de la Riva, was, at the time of the
incident, 25 years old and single; she graduated from high school in 1958 at
Maryknoll College and finished the secretarial course in 1960 at St. Theresa's
College. Movie actress by profession, she was receiving P8,000.00 per
picture. It was part of her work to perform in radio broadcasts and television
shows, where she was paid P800.00 per month in permanent shows, P300.00
per month in live promotional shows, and from P100.00 to P200.00 per
appearance as guest in other shows.
So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De
la Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City,
was driving her bantam car accompanied by her maid Helen Calderon, who
was also at the front seat. Her house was at No. 48, 12th Street, New Manila,
Quezon City. She was already near her destination when a Pontiac two-door
convertible car with four men aboard (later identified as the four appellants)
came abreast of her car and tried to bump it. She stepped on her brakes to
avoid a collision, and then pressed on the gas and swerved her car to the left,
at which moment she was already in front of her house gate; but because the
driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two
cars almost collided for the second time. This prompted Miss De la Riva, who
was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car
which he was driving, jumped out of it and rushed towards her.
The girl became so frightened at this turn of events that she tooted the horn
of her car continuously. Undaunted, Pineda opened the door of Miss De la
Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her
car's steering wheel and, together with her maid, started to scream. Her
strength, however, proved no match to that of Pineda, who succeeded in
pulling her out of her car. Seeing her mistress' predicament, the maid jumped
out of the car and took hold of Miss De la Riva's right arm in an effort to free
her from Pineda's grip. The latter, however, was able to drag Miss De la Riva
toward the Pontiac convertible car, whose motor was all the while running.
When Miss De la Riva, who was being pulled by Pineda, was very near the
Pontiac car, the three men inside started to assist their friend: one of them
held her by the neck, while the two others held her arms and legs. All three
were now pulling Miss De la Riva inside the car. Before she was completely
in, appellant Pineda jumped unto the driver's seat and sped away in the
direction of Broadway Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and Edgardo Aquino
at the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Cañal
was seated beside him. Miss De la Riva entreated the appellants to release
her; but all she got in response were jeers, abusive and impolite language that
the appellants and threats that the appellants would finish her with their
Thompson and throw acid at her face if she did not keep quiet. In the
meantime, the two men seated on each side of Miss De la Riva started to get
busy with her body: Jose put one arm around the complainant and forced his
lips upon hers, while Aquino placed his arms on her thighs and lifted her skirt.
The girl tried to resist them. She continuously implored her captors to release
her, telling them that she was the only breadwinner in the family and that her
mother was alone at home and needed her company because her father was
already dead. Upon learning of the demise of Miss De la Riva's father, Aquino
remarked that the situation was much better than he thought since no one
could take revenge against them. By now Miss De la Riva was beginning to
realize the futility of her pleas. She made the sign of the cross and started to
pray. The appellants became angry and cursed her. Every now and then
Aquino would stand up and talk in whispers with Pineda, after which the two
would exchange knowing glances with Cañal and Jose.
The car reached a dead-end street. Pineda turned the car around and headed
towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta.
Mesa Street, Shaw Boulevard, thence to Epifanio de los Santos Avenue.
When the car reached Makati, Aquino took a handkerchief from his pocket
and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not
to shout or else she would be stabbed or shot with a Thompson. Not long after,
NOTE: NO People v. Mejorada here.
the car came to a stop at the Swanky Hotel in Pasay City The blindfolded lady
was led out of the car to one of the rooms on the second floor of the hotel.
Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was
removed. She saw Pineda and Aquino standing in front of her, and Jose and
Cañal sitting beside her, all of them smiling meaningfully. Pineda told the
complainant: "Magburlesque ka para sa amin." The other three expressed
their approval and ordered Miss De la Riva to disrobe. The complainant
ignored the command. One of the appellants suggested putting off the light so
that the complainant would not be ashamed. The idea, however, was rejected
by the others, who said that it would be more pleasurable for them if the light
was on. Miss De la Riva was told to remove her stocking in order, according
to them, to make the proceedings more exciting. Reluctantly, she did as
directed, but so slowly did she proceed with the assigned task that the
appellants cursed her and threatened her again with the Thompson and the
acid. They started pushing Miss De la Riva around. One of them pulled down
the zipper of her dress; another unhooked her brassiere. She held on tightly
to her dress to prevent it from being pulled down, but her efforts were in vain:
her dress, together with her brassiere, fell on the floor.
The complainant was now completely naked before the four men, who were
kneeling in front of her and feasting their eyes on her private parts. This ordeal
lasted for about ten minutes, during which the complainant, in all her
nakedness, was asked twice or thrice to turn around. Then Pineda picked up
her clothes and left the room with his other companions. The complainant tried
to look for a blanket with which to cover herself, but she could not find one.
Very soon, Jose reentered the room and began undressing himself. Miss De
la Riva, who was sitting on the bed trying to cover her bareness with her
hands, implored him to ask his friends to release her. Instead of answering
her, he pushed her backward and pinned her down on the bed. Miss De la
Riva and Jose struggled against each other; and because the complainant
was putting up stiff resistance, Jose cursed her and hit her several times on
the stomach and other parts of the body. The complainant crossed her legs
tightly, but her attacker was able to force them open. Jose succeeded in
having carnal knowledge of the complainant. He then left the room.
The other three took their turns. Aquino entered the room next. A struggle
ensued between him and Miss De la Riva during which he hit, her on different
parts of the body. Like Jose, Aquino succeeded in abusing the complainant.
The girl was now in a state of shock. Aquino called the others into the room.
They poured water on her face and slapped her to revive her. Afterwards,
three of the accused left the room, leaving Pineda and the complainant After
some struggle during which Pineda hit her, the former succeeded in forcing
his carnal desire on the latter. When the complainant went into a state of shock
for the second time, the three other men went into the room again poured
water on the complainant's face and slapped her several times. The
complainant heard them say that they had to revive her so she would know
what was happening. Jose, Aquino and Pineda then left the room. It was now
appellant Canal's turn. There was a struggle between him and Miss De la Riva.
Like the other three appellants before him, he hit the complainant on different
parts of the body and succeeded in forcing his carnal lust on her.
Mention must be made of the fact that while each of mention must be made
the four appellants was struggling with the complainant, the other three were
outside the room, just behind the door, threatening the complainant with acid
and telling her to give in because she could not, after all, escape what with
their presence.
After the appellants had been through with the sexual carnage, they gave Miss
De la Riva her clothes, told her to get dressed and put on her stockings, and
to wash her face and comb her hair, to give the impression that nothing had
happened to her. They told her to tell her mother that she was mistaken by a
group of men for a hostess, and that when the group found out that she was
a movie actress, she was released without being harmed. She was warned
not to inform the police; for if she did and they were apprehended, they would
simply post bail and later hunt her up and disfigure her face with acid. The
appellants then blindfolded Miss De la Riva again and led her down from the
hotel room. Because she was stumbling, she had to be carried into the car.
Inside the car, a appellant Jose held her head down on his lap, and kept it in
that position during the trip, to prevent her from being seen by others.
Meanwhile, the four appellants were discussing the question of where to drop
Miss De la Riva. They finally decided on a spot in front of the Free Press
Building not far from Epifanio de los Santos Avenue near Channel 5 to make
it appear, according to them, that the complainant had just come from the
studio. Pineda asked Jose to alight and call a taxicab, but to choose one which
did not come from a well-known company. Jose did as requested, letting
several taxicabs pass by before flagging a UBL taxicab. After they warned
again Miss De la Riva not to inform anyone of what had happened to her,
appellant Canal accompanied her to the taxicab. The time was a little past
6:00 o'clock. When Miss De la Riva was already inside the cab and alone with
the driver, Miguel F. Campos, she broke down and cried. She kept asking the
driver if a car was following them; and each time the driver answered her in
the negative.
NOTE: NO People v. Mejorada here.
It was 6:30 o'clock — or some two hours after the abduction — when Miss De
la Riva reached home. Her mother, her brother-in-law Ben Suba, as well as
several PC officers, policemen and reporters, were at the house. Upon seeing
her mother, the complainant ran toward her and said, "Mommy, Mommy, I
have been raped. All four of them raped me." The mother brought her daughter
upstairs. Upon her mother's instruction, the complainant immediately took a
bath and a douche. The older woman also instructed her daughter to douche
himself two or three times daily with a strong solution to prevent infection and
pregnancy. The family doctor, who was afterwards summoned, treated the
complainant for external physical injuries. The doctor was not, however, told
about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer
who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence
when the latter received from a mobile patrol a report of the snatching. When
Miss De la Riva arrived home from her harrowing experience, Pat. Pascual
attempted to question her, but Ben Suba requested him to postpone the
interrogation until she could be ready for it. At that time, mother and daughter
were still undecided on what to do.
On the afternoon of June 28, 1967, the complainant family gathered to discuss
what steps, if any, should be taken. After some agonizing moments, a decision
was reached: the authorities had to be informed. Thus, early on the morning
of June 29, 1967, or on the fourth day after the incident, Miss De la Riva,
accompanied by her lawyer, Atty. Regina O. Benitez, and by some members
of the family, went to the Quezon City Police Department Headquarters, filed
a complaint and executed a statement (Exh. "B") wherein she narrated the
incident and gave descriptions of the four men who abused her. In the
afternoon of the same day, the complainant submitted herself ito a medico-
internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer.
During the physical examination of the complainant by Dr. Brion on June 29,
1967, Pat. Pascual was also at the NBI office. There he received a telephone
call from the police headquarters to the effect that one of the suspects had
been apprehended. That evening, the complainant and Pat. Pascual
proceeded to the headquarters where Miss De la Riva identified appellant
Jaime Jose from among a group of persons inside the Office of the Chief of
Police of Quezon City as one of the four men he abducted and raped her. She
executed another statement (Exh. "B-1") wherein she made a formal
identification of Jose and related the role played by him.
At about 9:00 o'clock of the same evening, appellant Jose executed a
statement (Exh. "I") before Pat. Marcos G. Viñas. In his statement, which was
duly sworn. Jose admitted that he knew about, and was involved in, the June
26 incident. He named the other line appellants as his companions. Jose
stated, among other things, that upon the initiative of Pineda, he and the other
three waited for Miss De la Riva to come out of the ABS Studio; that his group
gave chase to the complainant's car; that it was Pineda who blindfolded her
and that only Pineda and Aquino criminally assaulted the complainant.
After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a
picture of appellant Edgardo Aquino. The picture was shown to Miss De la
Riva, who declared in her sworn statement (Exh. "B-3") that the man in the
picture was one of her abductors and rapists. The same picture was shown to
Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the
picture as appellant Aquino.
After the apprehension of Jose, the other three soon fell into the hands of the
authorities: Pineda and Cañal on July 1, 1967, in Lipa City, and Aquino on July
5, 1967, in the province of Batangas. On the evening of July 1, 1967. Miss De
la Riva pointed to Pineda and Cañal as among the four persons who abducted
and raped her. She picked them out from among several person in the Office
of the Chief of Police of Quezon City. Later in the same evening, Miss De la
Riva executed a sworn statement (Exh. B-2)wherein she made the same
identification of the two appellants from among a group of persons in the Office
of the Chief of the Detective Bureau, adding that appellant Cañal had tattoo
marks on his right hip. After the identification, one of the policemen took
appellant Cañal downstairs and undressed him, and he saw, imprinted on the
said appellant's right hip, the words "Bahala na Gang."
Appellant Cañal and Pineda executed and swore to separate statements on
the day of their arrest. In his statement (Exh. "G"), appellant Cañal confirmed
the information previously given by Jose that the four of them waited for Miss
De la Riva to come down from the ABS Studio, and that they had planned to
abduct and rape her. Appellant Cañal admitted that all four of them
participated in the commission of the crime, but he would make it appear that
insofar as he was concerned the complainant yielded her body to him on
condition that he would release her. Pineda executed a statement (Exh. "J")
stating that he and his other three companions wept to the ABS Studio, and
that, on learning that Miss De la Riva was there, they made plans to wait for
her and to follow her. He admitted that his group followed her car and snatched
her and took her to the Swanky Hotel. He would make it appear, however, that
the complainant voluntarily acceded to having sexual intercourse with him.
In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple
contusions and bruises on different parts of the complainant's body, as well
as of genital injuries. On the witness stand the doctor was shown several
photographs of the complainant taken in his presence and under his
supervision. With the aid of the photographs and the medical reports, the
NOTE: NO People v. Mejorada here.
doctor explained to the court that he found contusions or bruises on the
complainant's chest, shoulders, arms and fore-arms, right arm index finger,
thighs, right knee and legs. He also declared that when he was examining her,
Miss De la Riva complained of slight tenderness around the neck, on the
abdominal wall and at the sites of the extragenital physical injuries, and that
on pressing the said injuries, he elicited a sigh of pain or tenderness on the
part of the subject. The injuries, according to Dr. Brion, could have been
caused blows administered by a closed fist or by the palm of the hand, and
could have been inflicted on the subject while she was being raped. It was the
doctor's opinion that they could have been sustained on or about June 26,
1967. In connection with the genital examination, the doctor declared that he
found injuries on the subject's genitalia which could have been produced by
sexual intercourse committed on June 26, 1967. He said that he failed to find
spermatozoa. He explained, however, that spermatozoa are not usually found
in the vagina after the lapse of three days from the last intercourse, not to
mention the possibility that the subject might have douched herself.
The three appellants who pleaded not guilty (Jose, Aquino and Cañal) took
the witness stand. We quote hereunder the portions of the decision under
review relative to the theory of the defense:
Their story is that they and their co-accused Pineda had
gone to the Ulog Cocktail Lounge somewhere in Mabini
street in Manila, and there killed time from 9:30 in the
evening of June 25 until closing time, which was about 3:30
in the early morning of the next day. At the cocktail lounge
they had listened to the music while enjoying some drinks.
Between them they had consumed a whole bottle of whisky,
so much so that at least Aquino became drunk, according
to his own testimony. They had been joined at their table by
a certain Frankie whom they met only that night. Come time
to go home, their new acquaintance asked to be dropped at
his home in Cubao. The five men piled into the red-bodied,
black topped two-door convertible Plymouth (Pontiac) car
of Jaime Jose, and with Pineda at the wheel repaired to
Cubao After dislodging their new friend, Pineda steered the
car to España Extension to bring Aquino to his home in
Mayon Street. But somewhere in España Extension before
the Rotonda a small car whizzed to them almost hitting
them. They saw that the driver was a woman. Pineda gave
chase and coming abreast of the small car he shouted,
"Putang ina mo, kamuntik na kaming mamatay." The
woman continued on her way. Now Pineda saying "let us
teach her a lesson," sped after her and when she swerved
ostensibly to enter a gate, Pineda stopped his car behind
being hurriedly got down, striding to the small car, opened
the door and started dragging the girl out. Both Jose and
Aquino confirm the presence of another woman inside the
girl's car, who helped the girl struggle to get free from
Pineda's grip; and that the struggle lasted about ten minutes
before Pineda finally succeeded in pushing the girl into the
red convertible. All the three accused insist they did nothing
to aid Pineda: but they also admit that they did nothing to
stop him.
Now the defense contends that Pineda cruised around and
around the area just to scare the girl who was in truth so
scared that she begged them to let her be and return her to
her home. She turned to Jose in appeal, but this one told
her he could net do anything as the "boss" was Pineda.
Aquino heard her plead with Jose "do you not have a sister
yourself?" but did not bear the other plea 'do you not have
a mother?' Then Pineda stopped at the corner of the street
where he had forcibly snatched the girl presumably to return
her, but then suddenly changing his mind he said, 'why don't
you do a strip tease for us. I'll pay you P1,000.00 and the
girl taunted, 'are you kidding?': that after a little while she
consented to do the performance as long as it would not last
too long and provided the spectators were limited to the four
of them.
Pineda sped the car until they got to Swanky Hotel where
he and Maggie alighted first, but not before Maggie had
borrowed a handkerchief from one of them to cover her face
as she went up the Hotel. The three followed, and when
they saw the pair enter a room, they quickly caught up. All
the three accused testify that as soon as they got into the
room, Maggie de la Riva asked the boys to close the
windows before she. undressed in front of them. They
themselves also removed their clothing. Two of them
removed their pants retaining their briefs, while Boy Pineda
and Cañal stripped to the skin "because it was hot." The
three accused declared that they saw Boy Pineda hand
P100.00 to Maggie and they heard him promise her that he
would pay the balance of P900.00 later. Whereupon, the
show which lasted about 10 minutes began with the naked
girl walking back and forth the room about 4 to 5 times. This
accomplished, all of them dressed up once more and the
NOTE: NO People v. Mejorada here.
three accused (Jaime Jose, Eduardo Aquino and Rogelio
Cañal) left the room to wait in the car for Boy Pineda and
Maggie de la Riva who were apparently still discussing the
mode of payment of the balance. Three minutes later
Maggie de la Riva and Boy Pineda joined them. Now, the
question of how and where to drop Maggie came up and it
is testified to by the accused that it was Maggie's idea that
they should drop her near the ABS Studio so that it would
appear as if she had just come from her work.
Jaime Jose was picked by the police on the morning of June
29 along Buendia Avenue. Aquino testifies how, on June 29
Pineda went to him with a problem. He did not have the
P900.00 with which to pay Maggie the balance of her
"show" and he was afraid that if he did not pay, Maggie
would have her goons after him. He wanted Aquino to go
with him to Lipa City where he had relatives and where he
could help raise the money. Aquino readily obliged, and to
make the company complete they invited Cañal to join
them. They used another car of Jaime Jose, different from
the one they had used the day before. At Lipa, Aquino
detached himself from his compassions and proceeded
alone to the barrio allegedly to visit his relatives. In the
meantime his two companions had remained in the City and
had, according to Canal, gone to live in a house very close
to the municipal hall building. They later moved to another
house where the PC and Quezon City police posse found
and arrested them. Aquino was the last to be apprehended,
when having read in the newspapers that he was wanted,
he surrendered on July 5 to Mrs. Aurelia Leviste, wife of the
governor of Batangas.
The striptease-act-for-a-fee story on which the defense theory is anchored,
defies one's credulity and reason, and had utterly to counteract the evidence
for the prosecution, particularly the complainant's testimony and Dr. Brion's
medical report and testimony. We quote with approval the able dissertion of
the trial judge on this point:
As main defense in the charge of rape, the three accused
advance the proposition that nothing happened in Swanky
Hotel except a strip-tease exhibition which the complaint
agreed to do for them for fee of P1,000.00, P100.00 down
and the balance to be paid "later." The flaw in this
connection lies in its utter inverisimilitude. The Court cannot
believe that any woman exists, even one habitual engaged
in this kind of entertainment (which Maggie de la Riva has
not been proven to be) who would consent (and as easily
and promptly as defense claims) to do a performance, not
even for all money in the worlds after the rough handling
she experienced from these wolves in men's clothing who
now hungered for a show. There is no fury to match a
woman stirred to indignation. A woman's pride is far
stronger than her yen for money, and her revenge much
more keen. The Court cannot believe that after the
rudeness and meanness of these men to her, Maggie would
in so short an interval of time forget her indignation and so
readily consent to satisfy their immoral curiosity about her.
The woman in her would urge her to turn the men's
hankering as a weapon of revenge by denying them their
pleasure.
Besides, the manner of payment offered for the
performance is again something beyond even the wildest
expectations. Assuming that the woman whom the accused
had abducted was in this kind of trade assuming that the
price offered was to her satisfaction, whom woman would
be willing to perform first and be paid later? It is simply
preposterous to believe that Maggie de la Riva should have
consent to do a striptease act for a measly down-payment
of P100.00 and the balance to be paid God knows when.
Since when are exposition of the flesh paid on the
installment basis? By the very precautious nature of their
pitiful calling, women who sell their attractions are usually
very shrewed and it is to be expected that they could
demand full payment before curtain call. How was Maggie
to collect later when she did not even know who these man
were, where they lived, whether they could be trusted with
a promise to pay later (!) whether she could ever find them
again? If there is anything that had struck the Court about
the complaint, it is her courage, her intelligence and her
alertness. Only a stupid woman, and a most stupid one that,
could have been persuaded to do what the defense want
this Court to believe Maggie de la Riva consented to do.
Finally, it is odd that not one of these men should have
mentioned this circumstances during their interview with
anyone, either the press, their police interrogator, the
person who negotiated their surrender (as in the case of
NOTE: NO People v. Mejorada here.
Aquino) or even their counsel. One cannot escape the very
strong suspicion that this story is a last ditch, desperate
attempt to save the day for the accused. It truly underscores
the hopelessness of their stand and projects all the more
clearly their guilt.
Then there is the incident of the men's stripping themselves.
Why was there need for this? The Court realizes that in its
desperate need of an explanation for Maggie's positive
identification of Cañal as the man with the tattoo mark on
his right buttock, the defense concocted the sickeningly
incident story that the four men removed their underclothing
in the presence of a woman simply "because it was hot."
What kind of men were these who were so devoid of any
sense of decency that they thought nothing of adding insult
to injury by not only inducing a woman a strip before them,
but for forcing her to perform before a naked audience? And
then they have gall to argue that "nothing" happened. For
males of cold and phlegmatic blood and disposition it could
be credible, but not for men of torrid regions like ours where
quick passions and hot tempers are the rule rather than the
exception!
All of these consideration set aside, notwithstanding, it is quite obvious that
the version of the defense has not been able to explain away a very vital piece
of evidence of prosecution which, if unexplained, cannot but reduce any
defense unavailing. The result of the physical (external and internal)
examination conducted on the person of Maggie de la Riva in the afternoon of
June 29, the pertinent findings of which quoted earlier in this decision,
establish beyond doubt that at the time that Maggie de la Riva was examined
she bore on her body traces of physical and sexual assault.
The only attempt to an explanation made by the defense is
either one of the following: (1) the insinuation that when
Maggie de la Riva and Boy Pineda were left behind in the
hotel room the bruises and the sexual attack could have
taken place then. But then, the defense itself says that
these two persons rejoined the three after three or four
minutes! It is physically impossible, in such a short time, for
Boy Pineda to have attacked the girl and inflicted on her all
of these injuries; (2) it was suggested by the defense that
Maggie de la Riva could have inflicted all of those injuries
upon herself just to make out a case against the accused.
The examining physician rules out this preposterous
proposition, verily it does not take much stretch of the
imagination to see how utterly impossible this would be, and
for what purpose? Was P900.00 which she had failed to
collect worth that much self-torture? And what about all the
shame, embarrassment and publicity she would (as she
eventually did) expose herself to? If she really had not been
raped would she have gone thru all of these tribulation?
A woman does not easily trump up rape charges for she has
much more to lose in the notoriety the case will reap her,
her honor and that of her family, than in the redress she
demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151;
Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito,
L-6302, August 25, 1954); (3) it could also be argued that
the contusions and bruises could have been inflicted on
Maggie during her struggle with Pineda when the latter
pulled and pushed her into the red convertible car. The
telltale injuries, however, discount this possibility, for the
location in which many of the bruises and traumas were
located (particularly on the inner portion of her thighs) could
not have been cause by any struggle save by those of a
woman trying to resists the brutal and bestial attack on her
honor.
In their Memorandum the accused contend that Maggie's
sole and uncorroborated testimony should not be rated any
credence at all as against the concerted declaration of the
the accused. In the first place, it is not correct to say that
Maggie's declaration was uncorroborated — she has for
corroboration nothing less than the written extra-judicial
statements of Jose and Canal. But even assuming that
Maggie stood alone in her statements, the cases cited by
the accused in their Memorandum notwithstanding which
the Court does not consider in point anyway, jurisprudence
has confirmed the ruling that numbers is the least vital
element in gauging the weight of evidence. What is more
important is which of the declarations is the more credible,
the more logical, the more reasonable, the more prone to
be biased or polluted. (Ricarte 44 OG 2234; Damian CA-
GR No. 25523, April 24, 1959). Besides, it should be borne
in maid that in the most detestable crime of rape in which a
man is at his worst the testimony of the offended party most
often is the only one available to prove directly its
commission and that corroboration by other eyewitnesses
NOTE: NO People v. Mejorada here.
would in certain cases place a serious doubt as to the
probability of its commission, so trial courts of justice are
most often placed in a position of having to accept such
uncorroborated testimony if the same is in regards
conclusive, logical and probable (Landicho, VIII ACR 530).
We shall now consider the points raised by the appellants in their briefs.
1. Appellants Jose, Aquino and Cañal deny having had anything to do with the
abduction of Miss De la Riva. They point to Pineda (who entered a plea of
guilty) as the sole author thereof, but they generously contend that even as to
him the act was purged at any taint of criminality by the complainant's
subsequent consent to perform a striptease show for a fee, a circumstance
which, it is claimed, negated the existence of the element of lewd design. This
line of defense has evidently leg no to stand on. The evidence is clear and
overwhelming that all the appellants participated in the forcible abduction.
Miss De la Riva declared on the witness stand, as well as in her sworn
statements, that they helped one another in dragging her into the car against
her will; that she did not know them personally; that while inside the car, Jose
and Aquino, between whom she was seated, toyed with her body, the former
forcing his lips on hers, and the latter touching her thighs and raising her skirt;
that meaningful and knowing glances were in the meanwhile being exchanged
among the four; and that all of them later took turns in ravishing her at the
Swanky Hotel. This testimony, whose evidentiary weight has not in the least
been overthrown by the defense, more than suffices to establish the crimes
charged in the amended complaint. In the light thereof, appellants' protestation
that they were not motivated by lewd designs must be rejected as absolutely
without factual basis.
2. The commission of rape by each of the appellants has, as held by the court
below, likewise been clearly established. Jose, Aquino and Canal contend that
the absence of semen in the complainant's vagina disproves the fact of rape.
The contention is untenable. Dr. Brion of the NBI, who testified as an expert,
declared that semen is not usually found in the vagina after three days from
the last intercourse, especially if the subject has douched herself within that
period. In the present case, the examination was conducted on the fourth day
after the incident, and the complainant had douched herself to avoid infection
and pregnancy. Furthermore, the absence of spermatozoa does not disprove
the consummation of rape, the important consideration being, not the
emission of semen, but penetration (People vs Hernandez, 49 Phil., 980).
Aquino's suggestion that the abrasions on the cervix were caused by the tough
tip of a noozle deliberately used by the complainant to strengthen her alleged
fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any
sane woman, who is single and earning as much Miss Dela Riva did, would
inflict injuries on her genital organ by puncturing the same with a sharply-
pointed instrument in order to strike back at four strangers who allegedly would
not pay her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion
testified that the insertion of such an instrument in the genital organ would not
result in the kind of injuries he found in the mucosa of the cervix.
3. Other evidence and considerations exist which indubitably establish the
commission of successive rapes by the four appellants. Upon Miss De la
Riva's arrival at her house in the morning of June 26, 1967, she immediately
told her mother, " Mommy Mommy, I have been raped. All four of them raped
me." This utterance, which is part of the res gestae, commands strong
probative value, considering that it was made by the complainant to her
mother who, in cases of this nature was the most logical person in whom a
daughter would confide the truth. Aquino and Canal would make capital of the
fact that Miss De la Riva stated to the reporters on the morning of June 26,
that she was not abused. Her statement to the press is understandable. At
that time the complainant, who had not yet consulted her family on a matter
which concerned her reputation as well as that of her family, and her career,
was not then in a position to reveal publicly what had happened to her. This is
one reason why the complainant did not immediately inform the authorities of
the tragedy that befell her. Another reason is that she was threatened with
disfiguration. And there were, of course, the traumas found by Dr. Brion on
different parts of the complainant's body. Could they, too, have been self-
inflicted? Or, as suggested, could they possibly have been inflicted by
appellant Pineda alone, when the story given by the other three is that Pineda
and the complainant were left in the hotel room for only three or four minutes,
and that they came out to join them in what they would picture to be a cordial
atmosphere, the complainant even allegedly suggesting that she be dropped
on a spot where people would reasonably presume her to have come from a
studio? Equally important is the complainant's public disclosure of her tragedy,
which led to the examination of her private parts and lay her open to risks of
future public ridicule and diminution of popularity and earnings as a movie
actress.
4. Jose and Canal seek the exclusion of their extrajudicial statements from the
mass of evidence on the grounds that they were secured from them by force
and intimidation, and that the incriminating details therein were supplied by
the police investigators. We are not convinced that the statements were
involuntarily given, or that the details recited therein were concocted by the
authorities. The statements were given in the presence of several people and
subscribed and sworn to before the City Fiscal of Quezon City, to whom
neither of the aforesaid appellants intimated the use of inordinate methods by
the police. They are replete with details which could hardly be known to the
police; and although it is suggested that the authorities could have secured
NOTE: NO People v. Mejorada here.
such details from their various informers, no evidence at all was presented to
establish the truth of such allegation. While in their statements Jose and Canal
admitted having waited — together with the two other appellants — for Miss
De la Riva at the ABS Studio, each of them attempted in the same statements
to exculpate himself: appellant Jose stated that only Pineda and Aquino
criminally abused the complainant; while appellant Canal would make it
appear that the complainant willingly allowed him to have sexual intercourse
with her. Had the statements been prepared by the authorities, they would
hardly have contained matters which were apparently designed to exculpate
the affiants. It is significant, too, that the said two appellants did not see it fit
to inform any of their friends or relatives of the alleged use of force and
intimidation by the police. Dr. Mariano Nario of the Quezon City Police
Department, who examined appellant Canal after the latter made his
statement, found no trace of injury on any part of the said appellant's body in
spite of the claims that he was boxed on the stomach and that one of his arms
was burned with a cigarette lighter. In the circumstances, and considering,
further, that the police officers who took down their statements categorically
denied on the witness stand that the two appellants were tortured, or that any
detail in the statements was supplied by them or by anyone other than the
affiants themselves, We see no reason to depart from the trial court's well-
considered conclusion that the statements were voluntarily given. However,
even disregarding the in-custody statements of Jose and Canal, We find that
the mass of evidence for the prosecution on record will suffice to secure the
conviction of the two.
The admissibility of his extrajudicial statements is likewise being questioned
by Jose on the other ground that he was not assisted by counsel during the
custodial interrogations. He cites the decisions of the Supreme Court of the
United States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378
U.S. 478) and Miranda vs. Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is Article III (Bill of
Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the
accused shall ... enjoy the right to be heard by himself and counsel ..." While
the said provision is identical to that in the Constitution of the United States,
in this jurisdiction the term criminal prosecutions was interpreted by this Court,
in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar
provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July
1, 1902) to mean proceedings before the trial court from arraignment to
rendition of the judgment. Implementing the said constitutional provision, We
have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal
prosecutions the defendant shall be entitled ... (b) to be present and defend in
person and by attorney at every stage of the proceedings, that is, from the
arraignment to the promulgation of the judgment." The only instances where
an accused is entitled to counsel before arraignment, if he so requests, are
during the second stage of the preliminary investigation (Rule 112, Section
11) and after the arrest (Rule 113, Section 18). The rule in the United States
need not be unquestioningly adhered to in this jurisdiction, not only because
it has no binding effect here, but also because in interpreting a provision of
the Constitution the meaning attached thereto at the time of the adoption
thereof should be considered. And even there the said rule is not yet quite
settled, as can be deduced from the absence of unanimity in the voting by the
members of the United States Supreme Court in all the three above-cited
cases.
5. Appellant Pineda claims that insofar as he is concerned there was a mistrial
resulting in gross miscarriage of justice. He contends that because the charge
against him and his co-appellants is a capital offense and the amended
complaint cited aggravating circumstances, which, if proved, would raise the
penalty to death, it was the duty of the court to insist on his presence during
all stages of the trial. The contention is untenable. While a plea of guilty is
mitigating, at the same time it constitutes an admission of all the material facts
alleged in the information, including the aggravating circumstances, and it
matters not that the offense is capital, for the admission (plea of guilty) covers
both the crime and its attendant circumstances qualifying and/or aggravating
the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People vs.
Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29,
1961). Because of the aforesaid legal effect of Pineda's plea of guilty, it was
not incumbent upon the trial court to receive his evidence, much less to require
his presence in court. It would be different had appellant Pineda requested the
court to allow him to prove mitigating circumstances, for then it would be the
better part of discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs.
Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this Court
ordered a new trial because it found for a fact that the accused, who had
pleaded guilty, "did not intend to admit that he committed the offense with the
aggravating circumstances" mentioned in the information. We are not in a
position to make a similar finding here. The transcript of the proceedings
during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his
client's plea of guilty with the statement that .
I have advised him (Pineda) about the technicalities in plain
simple language of the contents of aggravating
circumstances and apprised him of the penalty he would
get, and we have given said accused time to think. After a
while I consulted him — for three times — and his decision
was still the same.
NOTE: NO People v. Mejorada here.
Three days after the arraignment, the same counsel stated in court that he
had always been averse to Pineda's idea of pleading guilty, because "I know
the circumstances called for the imposition of the maximum penalty
considering the aggravating circumstances," but that he acceded to his client's
wish only after the fiscal had stated that he would recommend to the court the
imposition of life imprisonment on his client. To be sure, any such
recommendation does not bind the Court. The situation here, therefore, is far
different from that obtaining in U.S. vs. Agcaoili, supra.
6. Two of the appellants — Jose and Cañal — bewail the enormous publicity
that attended the case from the start of investigation to the trial. In spite of the
said publicity, however, it appears that the court a quo was able to give the
appellants a fair hearing. For one thing, three of the seven (7) original accused
were acquitted. For another thing, Jose himself admits in his brief that the Trial
Judge "had not been influenced by adverse and unfair comments of the press,
unmindful of the rights of the accused to a presumption of innocence and to
fair trial."
We are convinced that the herein four appellants have conspired together to
commit the crimes imputed to them in the amended information quoted at the
beginning of this decision. There is no doubt at all that the forcible abduction
of the complainant from in front of her house in Quezon City, was a necessary
if not indispensable means which enabled them to commit the various and the
successive acts of rape upon her person. It bears noting, however, that even
while the first act of rape was being performed, the crime of forcible abduction
had already been consummated, so that each of the three succeeding (crimes
of the same nature can not legally be considered as still connected with the
abduction — in other words, they should be detached from, and considered
independently of, that of forcible abduction and, therefore, the former can no
longer be complexed with the latter.
What kind of rape was committed? Undoubtedly, it is that which is punishable
by the penalty of reclusion perpetua to death, under paragraph 3, Article 335,
as amended by Republic Act No. 4111 which took effect on June 20, 1964,
and which provides as follows:
ART. 335. When and how rape 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
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.
The crime of rape shall be punished by reclusion perpetua.
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 by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty
shall be likewise death.
When by reason or on the occasion of the rape, a homicide
is committed, the penalty shall be death.
As regards, therefore, the complex crime of forcible abduction with rape, the
first of the crimes committed, the latter is definitely the more serious; hence,
pursuant the provision of Art. 48 of the Revised Penal Code, the penalty
prescribed shall be imposed in its maximum period. Consequently, the
appellants should suffer the extreme penalty of death. In this regard, there is
hardly any necessity to consider the attendance of aggravating
circumstances, for the same would not alter the nature of the penalty to be
imposed.
Nevertheless, to put matters in their proper perspective and for the purpose of
determining the proper penalty to be imposed in each of the other three crimes
of simple rape, it behooves Us to make a definite finding in this connection to
the effect that the commission of said crimes was attended with the following
aggravating circumstances: (a) nighttime, appellants having purposely sought
such circumstance to facilitate the commission of these crimes; (b) abuse of
superior strength, the crime having been committed by the four appellants in
conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105,
113); (c) ignominy, since the appellants in ordering the complainant to exhibit
to them her complete nakedness for about ten minutes, before raping her,
NOTE: NO People v. Mejorada here.
brought about a circumstance which tended to make the effects of the crime
more humiliating; and (d) use of a motor vehicle. With respect to appellants
Jose, Aquino and Ca_¤_al, none of these aggravating circumstances has
been offset by any mitigating circumstance. Appellant Pineda should,
however, be credited with the mitigating circumstance of voluntary plea of
guilty, a factor which does not in the least affect the nature of the proper
penalties to be imposed, for the reason that there would still be three
aggravating circumstances remaining. As a result, appellants should likewise
be made to suffer the extreme penalty of death in each of these three simple
crimes of rape. (Art. 63, par. 2, Revised Penal Code.)
In refusing to impose as many death penalties as there are offenses
committed, the trial court applied by analogy Article 70 of the Revised Penal
Code, which provides that "the maximum duration of all the penalties therein
imposed upon the appellant shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed upon the appellant,
which should not exceed forty years." The said court is of the opinion that
since a man has only one life to pay for a wrong, the ends of justice would be
served, and society and the victim would be vindicated just as well, if only one
death penalty were imposed on each of the appellants.
We cannot agree with the trial court. Article 70 of the Revised Penal Code can
only be taken into account in connection with the service of the sentence
imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz.,
623). In holding that only one death penalty should be imposed because man
has only one life, the trial court ignored the principle enunciated in the very
case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in
affirming the judgment of the trial court, found the accused guilty of two
murders and one homicide and imposed upon him two death sentences for
the murders and a prison term for the homicide. In not applying the said
principle, the court a quo said that the case of Balaba is different from the
present case, for while in the former case the accused was found to have
committed three distinct offenses, here only one offense is charged, even if
complex. As We have explained earlier herein, four crimes were committed,
charged and proved. There is, therefore, no substantial difference between
the two cases insofar as the basic philosophy involved is concerned, for the
fact remains that in the case of Balaba this Court did not hesitate to affirm the
two death sentences imposed on the accused by the trial court. In People vs.
Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on
each of the six accused three death penalties for three distinct and separate
crimes of murder, We said that "since it is the settled rule that once conspiracy
is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a
result of the conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law." In the said case (which was
promulgated after the decision of the court a quo had been handed down) We
had occasion to discuss at length the legality and practicality of imposing
multiple death penalties, thus:
The imposition of multiple death penalties is decried by
some as a useless formality, an exercise in futility. It is
contended, undeniably enough, that a death convict, like all
mortals, has only one life to forfeit. And because of this
physiological and biological attribute of man, it is reasoned
that the imposition of multiple death penalties is impractical
and futile because after the service of one capital penalty,
the execution of the rest of the death penalties will naturally
be rendered impossible. The foregoing opposition to the
multiple imposition of death penalties suffers from four basic
flaws: (1) it fails to consider the legality of imposing multiple
capital penalties; (2) it fails to distinguish between
imposition of penalty and service of sentence; (3) it ignores
the fact that multiple death sentences could be served
simultaneously; and (4) it overlooks the practical merits of
imposing multiple death penalties.
The imposition of a penalty and the service of a sentence
are two distinct, though related, concepts. The imposition of
the proper penalty or penalties is determined by the nature,
gravity and number of offenses charged and proved,
whereas service of sentence is determined by the severity
and character of the penalty or penalties imposed. In the
imposition of the proper penalty or penalties, the court does
not concern itself with the possibility or practicality of the
service of the sentence, since actual service is a
contingency subject to varied factors like the successful
escape of the convict, grant of executive clemency or
natural death of the prisoner. All that go into the imposition
of the proper penalty or penalties, to reiterate, are the
nature, gravity and number of the offenses charged and
proved and the corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve
because they will have to be executed simultaneously. A
cursory reading of article 70 will show that there are only
two moves of serving two or more (multiple) penalties:
simultaneously or successively. The first rule is that two or
more penalties shall be served simultaneously if the nature
NOTE: NO People v. Mejorada here.
of the penalties will so permit. In the case of multiple capital
penalties, the nature of said penal sanctions does not only
permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a
useless formality, has practical importance. The sentencing
of an accused to several capital penalties is an indelible
badge of his extreme criminal perversity, which may not be
accurately projected by the imposition of only one death
sentence irrespective of the number of capital felonies for
which he is liable. Showing thus the reprehensible character
of the convict in its real dimensions, the possibility of a grant
of executive clemency is justifiably reduced in no small
measure. Hence, the imposition of multiple death penalties
could effectively serve as deterrent to an improvident grant
of pardon or commutation. Faced with the utter delinquency
of such a convict, the proper penitentiary authorities would
exercise judicious restraint in recommending clemency or
leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise
of his constitutional power to pardon (one of the presidential
prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life
imprisonments, then the practical effect is that the convict
has to serve the maximum forty (40) years of multiple life
sentences. If only one death penalty is imposed, and then
is commuted to life imprisonment, the convict will have to
serve a maximum of only thirty years corresponding to a
single life sentence.
We are, therefore, of the opinion that in view of the existence of conspiracy
among them and of our finding as regards the nature and number of the crimes
committed, as well as of the presence of aggravating circumstances, four
death penalties should be imposed in the premises.
————
Before Us is a petition for intervention filed by Filipinas Investment & Finance
Corporation asking for reversal of that portion of the judgment of the court
below ordering the confiscation of the car used by the appellants in abducting
the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with
Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File
No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto
San Diego of the Quezon City Police Department. The car is registered in the
name of Mrs. Dolores Gomez.
On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose,
bought the car from the Malayan Motors Corporation and simultaneously
executed a chattel mortgage thereon to secure payment of the purchase price
of P13,200, which was stipulated to be payable in 24 monthly installments of
P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly
registered with the Land Transportation Commission and inscribed in the
Chattel Mortgage Registry. The mortgage lien was annotated on the motor
registration certificate. On April 17, 1967, for value received and with notice to
Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs.
Gomez, as well as the chattel mortgage, to the intervenor. The assignment
was duly registered with the Land Transportation Commission and annotated
on the registration certificate.
Mrs. Gomez failed to pay any of the installments due, in view of which the
intervenor filed on July 5, 1967, an action for replevin against her (Civil Case
No. 69993, Court of First Instance of Manila) as a preliminary step to
foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order
for the seizure of the car. The sheriff, however, could not enforce the writ of
replevin because the car was not in Mrs. Gomez' possession, the same having
been used by her son, appellant Jaime G. Jose, together with the other
appellants in this case, in the abduction of Miss De la Riva, as a result of which
the car was seized by the Quezon City police and placed in the custody of
Major San Diego, who refused to surrender it to the sheriff on the ground that
it would be used as evidence in the trial of the criminal case.
During the pendency of that criminal case in the court below, or on July 26,
1967, the intervenor filed with the said court a petition for intervention. The
said petition was not, however, acted upon. On October 2, 1967, the trial court
rendered its judgment in the present case ordering the car's confiscation as
an instrument of the crime. Although not notified of the said decision, the
intervenor filed, on October 17, 1967, a motion for reconsideration of the order
of confiscation; but the same was denied on October 31, 1967, on the ground
that the trial court had lost jurisdiction over the case in view of the automatic
elevation thereof to this Court. The intervenor then filed a petition for relief
from judgement, but the same was also denied.
On February 5, 1968, judgement was rendered in the replevin case ordering
Mrs. Gomez to deliver the car to the intervenor so that the chattel mortgage
thereon could be foreclosed, or, in the alternative, to pay the intervenor the
NOTE: NO People v. Mejorada here.
sum of P13,200 with interest thereon at 12% per annum from July 5, 1968,
the premium bond, attorney's fees, and the costs of suit. The judgment
became final and executory. Attempts to execute the judgment against the
properties of Mrs. Gomez were unavailing; the writ of execution was returned
by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention
was filed with this Court, which allowed the intervenor to file a brief. In his brief
the Solicitor General contends, among others, that the court a quo having
found that appellant Jose is the owner of the car, the order of confiscation is
correct.
Considering that the car in question is registered in the name of Mrs. Dolores
Gomez, who, in the absence of strong evidence to the contrary, must be
considered as the lawful owner thereof; that the only basis of the court a quo
in concluding that the said car belongs to appellant Jose were the latter's
statements during the trial of the criminal case to that effect; that the said
statement were not, however, intended to be, nor could constitute, a claim of
ownership over the car adverse to his mother, but were made simply in answer
to questions propounded in court for the sole purpose of establishing the
identity of the defendant who furnished the car used by the appellants in the
commission of the crime; that the chattel mortgage on the car and its
assignment in the favor of the intervenor were made several months before
the date of commission of the crimes charged, which circumstance forecloses
the possibility of collusion to prevent the State from confiscating the car; that
the final judgement in the replevin case can only be executed by delivering
the possession of the car to the intervenor for foreclosure of the chattel
mortgage; and the Article 45 of the Revised Penal Code bars the confiscation
and forfeiture of an instrument or tool used in the commission of the crime if
such "be the property of a third person not liable for the offense," it is the sense
of this Court that the order of the court below for confiscation of the car in
question should be set aside and that the said car should be ordered delivered
to the intervenor for foreclosure as decreed in the judgment of the Court of
First Instance of Manila in the replevin case, Civil Case No. 69993.
————
Before the actual promulgation of this decision, this Court received a formal
manifestation on the part of the Solicitor General to the effect that Rogelio
Cañal, one of the herein appellants, died in prison on December 28, 1970. As
a result of this development, this case is hereby dismissed as to him alone,
and only insofar as his criminal liability is concerned, with one-fourth (1/4) of
the costs declared de oficio.
WHEREFORE, the judgment under review is hereby modified as follows:
appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are
pronounced guilty of the complex crime of forcible abduction with rape, and
each and every one of them is likewise convicted of three (3) other crimes of
rape. As a consequence thereof, each of them is hereby sentenced to four (4)
death penalties; all of them shall, jointly and severally, indemnify the
complainant of the sum of P10,000.00 in each of the four crimes, or a total of
40,000.00; and each shall pay one-fourth (1/4) of the costs.
Insofar as the car used in the commission of the crime is concerned, the order
of the court a quo for its confiscation is hereby set aside; and whoever is in
custody thereof is hereby ordered to deliver its possession to intervenor
Filipinas Investment & Finance Corporation in accordance with the judgment
of the Court of First Instance of Manila in Civil Case No. 69993 thereof.
People v. Tayag
PUNO, J.:
Accused-appellant Danilo Tayag appeals his conviction for forcible abduction
with rape committed against the 9 year old 1 Lazel Tan. The information2
alleges:
That on or about February 23, 1991, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and
feloniously abduct, take and carry away said LAZEL TAN Y
CARABEDO, a minor, 10 years of age, by means of force and
violence, to wit: by then and there covering her mouth with a towel
and bringing her under the coconut tree, against her will and consent
and with lewd designs, and once there, said accused, by means of
force and intimidation, by then and there inserting the towel in her
mouth, tying her in a tree, kissing and biting her lips, slashing her
neck and left leg, boxing her twice in the belly, threatening to kill her
should she resist and had carnal knowledge of her against her will.
Prosecution evidence show that on February 3, 1991 at about 9 P.M., while
Lazel was watching a dance at Brgy. 656, Zone 69, Maestranza Compound,
Intramuros, Manila, the accused seized her hands from behind. He gagged
her mouth with a towel and pushed her toward his house. With a bolo, he drew
her to a nearby coconut tree. He tied a towel on her head, raised her hands
and bound them to the trunk. He also secured her feet at the trunk, pressed
the bolo against her legs then kissed and bit her lips. Next, he hit her on the
stomach and she lost consciousness.3
NOTE: NO People v. Mejorada here.
When Lazel recovered consciousness, she felt pain all over her body. The
accused approached her and dealt her another blow. Again, she fainted.
When she revived, the accused sliced her left leg with his bolo. At this point,
Lazel realized that her panty had been taken off. Her private part ached.
The accused threatened to put her in a sack and throw her at the river. He left,
purportedly to get the sack while Lazel remained tied to the tree. Frightened
by his threat, Lazel began tugging her hands. She succeeded freeing both
hands. She put on her panty and ran home. She went straight to bed. Her
sister asked her where she had been. Lazel did not answer afraid that the
accused might execute his threat to kill her if she told anyone about the
incident.4
Lazel prepared to go to school the following morning despite her ordeal that
evening. She changed her clothes and saw blood on the underwear she
wore.5 She walked with her mother, Jovita, to school. Jovita saw the wound
on her leg. She asked Lazel how she was wounded. Lazel replied that she
slipped on the aisles at school. She lied distressed by the threat of the
accused.
At school, her classmate named Mary Grace, likewise noticed her wound. She
asked Lazel about it and this time, Lazel revealed everything to her. Mary
Grace informed their teacher that Lazel was molested. Their teacher in turn
passed the information to their principal. Lazel and her mother were called for
a meeting. Lazel recounted to them the hideous episode. After discussing
what should be done, Lazel and her mother reported to the police. Lazel
executed a statement6 and underwent a medical examination.7
Dr. Marcial Cenido found a superficial laceration on Lazel's tongue, abrasions
at the lower labial region of the lower lip, left and right side of the neck, upper
middle third left anterior thigh and lower third left anterior thigh. Her hymen,
although still intact, bore a slight reddening at 3 o'clock position.8
The police launched a manhunt against the accused. They did not find him.
In the meantime, Lazel went to their province to forget the incident.
In February 1994, the accused's common-law wife, Amelia Yumang, visited
Lazel's mother and disclosed that the accused had raped his daughter. She
revealed the whereabouts of the accused which they reported to the police.
Accompanied by policemen, they proceeded to the vicinity of Jade Vine
Restaurant where the accused was arrested. Jovita then brought Lazel to the
police station to identify the accused. Lazel executed another statement. 9
The accused, a former neighbor of Lazel, denied the charges against him. He
claimed that he is not Mang Boy whom Lazel referred to in her statement.
Lazel knew him as Mang Danny. Other people call him Danny Buko because
he sells coconuts. He alleged that at the time of the incident, he was with his
children waiting for his common-law wife in front of Alemar's. They spent the
night there on cardboard boxes.
The accused added that he did not hide from the police. All the while, he sold
coconuts in front of Jade Vine Restaurant until he was arrested. In 1991, he
lived at Maestranza compound. In 1992, he met his second live-in partner,
Mercy Anza, and cohabited with her at Balut, Tondo, Manila. He parted with
Amelia because of a serious quarrel about her drinking. Amelia went to Lubao,
Pampanga where she married another man. She brought with her their
children.
The accused alleged that the charges originated from Amelia's hatred against
him. Once, Amelia and Mercy had a squabble. He sided with Mercy and
slapped Amelia. Amelia asked him to leave Mercy and live with her again, or
else, she would put him in jail. He refused and challenged Amelia to do
anything she wants.
The next day, four (4) policemen arrested him. They took him to the General
Assignment Division, Western Police District Command (WPDC) where they
forced him to admit that he was Mang Boy. He denied he was Mang Boy and
insisted he was Mang Danny. He was kicked, boxed and thrown down the
stairs. They forced him to sign the Booking and Information Sheet. 10
The son of the accused, Dennis Tayag,11 corroborated his defense. Dennis
declared that they were selling coconuts at Ermita at the time of the incident.
After selling coconuts, Dennis went with his mother at Casino where they sold
Sweepstakes tickets up to 12 P.M. His other siblings remained with his father
infront of Alemar's.
He was with the accused when the latter was arrested on February 1994.
Dennis read the news reports about his father's arrest and the alleged rape of
his sister. He asked his sister and mother about them. His sister cried and
denounced them as lies. His mother answered that somebody induced her to
cause the arrest of the accused. Nonetheless, his mother and uncle prevented
him from making statements in favor of his father.12
NOTE: NO People v. Mejorada here.
The trial court convicted the accused. It did not believe his defense and
branded it an exercise in futility. It did not give any weight to the testimony of
Dennis because of his filial relationship and held that his testimony
contradicted that of the accused's. It observed that Lazel was straightforward,
positive and convincing on the witness stand. It appreciated her lack of motive
to falsely testify against the accused.13
The dispositive portion of the Decision reads:
WHEREFORE, PREMISES CONSIDERED, the prosecution having
fully established the guilt of the accused beyond reasonable doubt,
this Court finds him, DANILO TAYAG Y LUCIANO, GUILTY beyond
reasonable doubt of the complex crime of Forcible Abduction with
Rape under Article 48 in relation to Article 335 and 342 of the
Revised Penal Code of the Philippines as charged in the information,
and hereby sentences him to suffer the penalty of Reclusion
Perpetua with all the accessory penalties provided by law; to
indemnify the private complaint the sum of Fifty Thousand
(P50,000.00) Pesos by way of moral damages; and to pay the cost
of this suit.14
In this appeal, accused-appellant assigned a single error committed by the
trial court, viz.:
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF FORCIBLE ABDUCTION WITH RAPE.
Accused-appellant contends that if Lazel's story was true, other people should
have witnessed her abduction. In addition, he could not have raped Lazel
while she was tied around the coconut tree as she claimed that her feet were
tied together. He argues that in this position, coitus is impossible. He stressed
that Lazel did not even see him naked nor insert his private part in her sex
organ. Even the medico-legal finding shows that there was no laceration on
Lazel's hymen.
The appeal is partly meritorious.
First. Accused-appellant's contention that it is unbelievable that no one
witnessed Lazel's abduction has no merit. Lazel's testimony explains why no
one witnessed her abduction. Accused-appellant grabbed her from a distance
of about five meters at the back of the crowd watching the party. 15 She did not
call for help because she thought it was her sister who clutched her hand
behind her body. Her fear had already paralyzed her when she realized she
was mistaken. While being pulled away from the crowd, she tried to free
herself but failed as accused-appellant held her tightly and covered her mouth
with a towel.16 This prevented her from shouting despite the presence of
houses along their way. She did not see any people on the path they travelled
for it was dark.17
Second. Although the prosecution has proven that Lazel was sexually abused,
the evidence preferred is inadequate to prove she was raped. Evidence of
carnal knowledge is necessary in rape. Lazel entertained the belief that she
was raped because when she regained consciousness, she felt pain all over
her body and her private part. The trial court found that Lazel was sexually
abused because of her belief.18 It then equated sexual abuse with rape by
using the numerous rulings of this Court that:
Under settled jurisprudence, it need not be medically shown that
there is full intrusion of the male organ in the woman's sex organ, for
in the crime of rape, complete or full penetration of the complainant's
private part is not necessary. Neither is rapture (sic) of the hymen
essential. What is fundamental is that the entrance or the introduction
of the male organ into the labia of the pudendum is proved. The mere
introduction of the male organ into the labia majors of the victim's
genetalia (sic) and not the full penetration of the complainant's
private part consumates (sic) the crime. . . . In fine sum, it is not
ejaculation but penetration, however slight, which constitutes the
crime of rape. (People vs. Abiera, 222 SCRA 278).19
In the case at bar, there is no evidence of entrance or introduction of the male
organ into the labia of the pudendum. The medico-legal finding and Lazel's
testimony did not establish that there was penetration by the sex organ of
accused-appellant or that he tried to penetrate her. Dr. Manuel Lagonera, a
colleague of Dr. Cenido, who interpreted the medico-legal report testified that
the victim was still a virgin during the time of the examination because her
hymen was intact. Her hymen bore a slight reddening that was possibly
caused by trauma, by a blunt object, by scratching or self-manipulation, or by
a male sex organ. He opined that possibly, there was slight penetration. 20
Lazel recounted that after accused-appellant tied her around the coconut tree,
he kissed and bit her lips. He followed it up with a blow on her stomach that
knocked her out. When she recovered, accused-appellant delivered to her
another blow which again caused her to black-out. When Lazel woke up, her
panty has been taken off and she felt pain all over her body including her
NOTE: NO People v. Mejorada here.
private part. She did not, however, see the accused-appellant naked or
penetrate her. When accused-appellant left her and she succeeded in freeing
herself, she put on her panty, ran home and slept. She woke up in the morning
and changed her stained underwear.21 She believed that accused-appellant
sexually abused her but does not know how he did it. 22
Removal of underwear, a reddening hymen, an aching private part and blood
on the underwear do not prove carnal knowledge. The removal of the victim's
underwear is at most a preparation to engage in sexual intercourse. The
reddening hymen could have been caused by a male sex organ but that is just
a possibility. In the case at bar, considering the age of the victim and the
condition of her hymen, there should be laceration if there was penetration by
an adult male sex organ.23 The aching private part could well be part of the
over-all effect of her beating. The blood on the panty discovered by Lazel after
she woke up could have come from the wound inflicted on her leg. It is easy
to speculate that Lazel was raped. But in criminal cases, speculation and
probabilities cannot take the place of proof required to establish the guilt of
the accused beyond reasonable doubt. Suspicion, no matter how strong, must
not sway judgment.24
It is unjust to convict accused-appellant for forcible abduction with rape simply
because he can only offer the defense of alibi. Alibi is not weak if it has the
ring of truth. Moreover, criminal cases are decided not on the basis of the
weakness of the defense but on the strength of the evidence mustered by the
prosecution. This is founded on the presumption of innocence accorded to
every accused.
Accused-appellant is not, however, off the hook. The prosecution proved the
crime of forcible abduction. It established that accused-appellant took Lazel
against her will and with lewd designs. The word "lewd" is defined as obscene,
lustful, indecent, lascivious, lecherous. It signifies that form of immorality
which has relation to moral impurity; or that which is carried on in a wanton
manner.25 The medico-legal finding and Lazel's testimony, although
insufficient to prove rape, buttress the conclusion that accused-appellant had
lewd designs when he abducted Lazel.
Art. 342 of the Revised Penal Code defines and punishes forcible abduction.
It provides:
Art. 342. Forcible abduction. The abduction of any woman against
her will and with lewd designs shall be punished by reclusion
temporal.
The same penalty shall be imposed in every case, if the female
abducted be under twelve years of age.
Considering the circumstances of this case, the accused-appellant should
also be made liable for moral damages. Aside from the physical sufferings of
Lazel, her studies were affected. She sometimes spends the night awake
thinking about her misfortune.26 Moral damages may be recovered in cases of
abduction.27
IN VIEW WHEREOF, the decision convicting accused-appellant of forcible
abduction with rape is modified. Accused-appellant is convicted for forcible
abduction and is sentenced to suffer 12 years of prision mayor to 17 years
and 4 months of reclusion temporal and to pay the victim P30,000.00 as moral
damages. No costs. SO ORDERED.
People v. Sabadlab
DECISION
BERSAMIN, J.:
On October 28, 2003, the Regional Trial Court (RTC), Branch 140, in Makati
City pronounced Erland Sabadlab y Bayquel guilty of forcible abduction with
rape committed against AAA,1 a 16-year old domestic helper, and penalized
him with reclusion perpetua.2 On April 26, 2006, the Court of Appeals (CA)
affirmed the conviction and the penalty, but modified the civil damages. 3
Hence, Sabadlab appeals.
Antecedents
Both the RTC and the CA agreed on the factual antecedents.
AAA was then walking at around noon of March 12, 2002 on Dapitan Street in
Makati City, proceeding towards MA Montessori to fetch her employer’s son
who was studying there. Suddenly, a man (later identified as Sabadlab)
grabbed her by the shoulder and ordered her to go with him. She recognized
him to be the man who had persistently greeted her every time she had bought
pandesal at 5 o’clock am near her employer’s house in the past two weeks.
Alarmed, she refused to do his bidding, but Sabadlab poked a gun at her
throat. Two other men whom she did not recognize joined Sabadlab at that
point. They forced her into the backseat of a parked car, and one of
Sabadlab’s cohorts blindfolded her with a handkerchief. The car moved
NOTE: NO People v. Mejorada here.

forward, and stopped after twenty minutes of travel. Still blindfolded, she was 5. Ecchymosis, nape, measuring 4.5 x 3 cms, 4 cms left of
brought out of the car. Sabadlab said that he would remove her clothes. the posterior midline.
Sabadlab then undressed her, leaving only the blindfold on her. One of them
tied her hands behind her back. Sabadlab began kissing her body from the 6. Ecchymosis, right breast, measuring 4 x 3.5 cms. 10 cms
neck downwards. Although blindfolded, she knew that it was Sabadlab from the anterior midline.
because his cohorts were calling out his name as he was kissing her body.
Then they made her lie flat on the ground with her hands still tied behind her
back. Sabadlab raped her in that position. The others took their turns in raping 7. Ecchymosis, sternal region, measuring 9 x 3 cms,
her after Sabadlab. To prevent her from shouting for help, Sabadlab stuffed bissecting the anterior midline.
her mouth with crumpled newspapers. The three ravished her again and
again, that she could not remember the number of times they did so. 8. Ecchymosis, left breast, measuring 3.5 x 2.5 cms, 9 cms
from the anterior midline.
At around 3:00 o’clock pm, Sabadlab and his cohorts returned a blindfolded
AAA by car back to Dapitan Street, but let her go only after sternly warning 9. Ecchymosis, left breast, measuring 3.5 x 3 cms, 11 cms
that they would surely kill her if she told anyone about the rapes. Once they from the anterior midline.
left, she proceeded to MA Montessori to fetch her ward. She waited there until
5:30 pm. 10. Abrasion, left scapular region, measuring 3.5 x 0.5 cms.
14 cms from the posterior midline
Upon her arrival at the house, AAA’s employer noticed the kiss marks on her
neck. AAA at first lied about the kiss marks, but she ultimately disclosed the GENITAL:
rapes because her irritated employer slapped and boxed her on the stomach
to force her to disclose.
PUBIC HAIR: Moderate
On March 13, 2002, her employer brought AAA to the Makati Police Station to
report the rapes. AAA underwent medico-legal examination later that day at LABIA MAJORA: Full, convex and slightly gaping.
the PNP Crime Laboratory in Camp Crame Quezon City. The results of the
medico-legal examination were embodied in Medico-Legal Report No. M-797- LABIA MINORA: Pinkish brown slightly hypertrophied labia minora in
02 issued by medico-legal officer Dr. Mary Ann P. Gajardo, viz: between.

PHYSICAL INJURIES: HYMEN: Presence of shallow fresh lacerations at 7 o’clock position

and deep fresh lacerations at 6 and 9 o’clock position. Congested.
1. Ecchymosis, right mandibular region, measuring 2.5 x 2.5
cm, 8 cms from the anterior midline. POSTERIOIR FOURCHETTE: Abraded/Congested

2. Ecchymosis, neck, measuring 3 x 2.5 cms, 6 cms right of EXTERNAL VAGINAL ORIFICE: Offers strong resistance upon
the anterior midline. introduction of the examiner’s index finger.

3. Ecchymosis, neck, measuring 3 x 2.5 cms, 4.5 cms left VAGINAL CANAL: Narrow with prominent rugosities.
of the anterior midline.
CERVIX: Soft and close
4. Ecchymosis, nape, measuring 3.5 x 2.5 cms, 4 cms right
of the posterior midline.
NOTE: NO People v. Mejorada here.
PERIURETHRAL AND VAGINAL SMEARS: Negative for
spermatozoa and negative for gram (-) diploxocci.
CONCLUSION: Findings are compatible with recent loss of virginity.
Barring unforeseen complications, it is estimated that the above
injuries will heal within 3-5 days.4
Afterwards, AAA and the policemen went to the vicinity where she had usually
bought pandesal to look for the suspects. She spotted Sabadlab in one of the
nearby restaurants and pointed to him. The policemen apprehended Sabadlab
and brought him to the station, where he gave his name as Erland Sabadlab
y Bayquel. That was her first time to know the name of Sabadlab.
These antecedents impelled the Office of the City Prosecutor of Makati to
immediately charge Sabadlab and two John Does with forcible abduction with
rape via the information dated March 13, 2002, alleging:
That on or about the 12th day of March of 2002, in the City of Makati,
Philippines a place within the jurisdiction of this Honorable Court, the above-
named accused together with two (2) John Does whose names and
whereabouts are still unknown, with lewd designs and by means of force,
violence and intimidation, did then and there willfully, unlawfully and
feloniously take and carry away AAA, 16 years of age, against her will from
Dapitan St., Barangay Guadalupe, Makati City and brought her to an
undisclosed place, where accused by means of force, violence and
intimidation had carnal knowledge of complainant against her will.
CONTRARY TO LAW.5
In his defense, Sabadlab denied the charge and asserted alibi, claiming that
on March 12, 2002, he was at Billiard M where he worked as a spotter; that
he stayed there until noon, leaving the place only to have lunch; and that he
returned to Billiard M at 12:30 pm and stayed there until he was arrested at
7:00 pm of March 12, 2002. Frederick Dionisio and Nathaniel Salvacion
corroborated Sabadlab’s alibi.
As stated, the RTC convicted Sabadlab for forcible abduction with rape as
charged based on AAA’s positive identification of him as one of the rapists,
observing that her physical injuries and fresh hymenal lacerations were
consistent with her account of the rapes, decreeing:
WHEREFORE, finding accused ERLAND SABADLAB y BAYQUEL GUILTY
BEYOND REASONABLE DOUBT as principal of the crime of forcible
abduction with rape charged in this case, he is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA and to pay the costs.
On the civil aspect, the accused is ordered to pay AAA the sum of FIFTY
THOUSAND PESOS (P50,000.00) as EXEMPLARY DAMAGES and ONE
HUNDRED THOUSAND PESOS (P100,000.00) as MORAL DAMAGES.
SO ORDERED.6
On appeal in the CA, Sabadlab assigned the following errors, 7 to wit:
I.
THE TRIAL COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE HIGHLY INCREDIBLE AND INCONSISTENT
TESTIMONY OF THE PRIVATE COMPLAINANT.
II.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
Nonetheless, the CA sustained his conviction and the penalty of reclusion
perpetua, holding that the supposed inconsistencies referred to trivial matters
or innocent lapses that did not affect the credibility of AAA as a witness but
were instead badges of veracity or manifestations of truthfulness of the
material points of her testimony. The CA thus disposed:
WHEREFORE, premises considered, the appeal is hereby DENIED. The
Decision of the RTC dated October 28, 2003 is AFFIRMED with
MODIFICATION as follows:
1. The award of moral damages is REDUCED to ₱50,000.00;
2. The award of exemplary damages is DELETED;
NOTE: NO People v. Mejorada here.
3. Appellant is ordered to pay the amount of ₱50,000.00 as civil
indemnity.
Pursuant to Section 13 (C), Rule 124 of the Revised Rules of Criminal
Procedure, appellant may appeal this case to the Supreme Court via a Notice
of Appeal filed before this Court.
SO ORDERED.8
Upon the denial of his motion for reconsideration on August 2, 2006, Sabadlab
is now before the Court to seek the final review.
In addition to the arguments and submissions made in his appellant’s brief in
the CA, Sabadlab indicates in his supplemental brief 9 that AAA’s version was
ambiguous and implausible, and conflicted with human experience as borne
by the following, namely: (a) the State did not present any torn apparel; (b) no
bodily injuries were shown to prove that AAA had resisted the sexual
intercourse; (c) AAA did not cry for help; and (d) AAA did not escape despite
several opportunities to do so. He contends, moreover, that the State’s
evidence established only simple seduction.10
Ruling
We affirm the conviction.
First of all, Sabadlab continues to assail the credibility of AAA’s recollections.
We understand why he does so, because the credibility of the victim’s
testimony is a primordial consideration in rape. 11 Yet, because both the RTC
and the CA unanimously regarded AAA as a credible and spontaneous
witness, he has now to present clear and persuasive reasons to convince us
to reverse both lower courts’ determination of credibility and to resolve the
appeal his way.
Our review reveals, however, that Sabadlab has not tendered any clear and
persuasive reasons that may warrant the reversal or modification of the
findings of both lower courts on the credibility of AAA and his criminal liability.
The supposed inconsistencies dwelled on minor details or collateral matters
that the CA precisely held to be badges of veracity and manifestations of
truthfulness due to their tendency of demonstrating that the testimony had not
been rehearsed or concocted. It is also basic that inconsistencies bearing on
minor details or collateral matters should not adversely affect the substance
of the witness’ declaration, veracity, or weight of testimony. 12 The only
inconsistencies that might have discredited the victim’s credible testimony
were those that affected or related to the elements of the crime. Alas, that was
not true herein.
The supposed inconsistencies were inconsequential to the issue of guilt. For
one, the matter of who of the three rapists had blindfolded and undressed AAA
was trifling, because her confusion did not alter the fact that she had been
really blindfolded and rendered naked. Nor did the failure to produce any torn
apparel of AAA disprove the crime charged, it being without dispute that the
tearing of the victim’s apparel was not necessary in the commission of the
crime charged. In fact, she did not even state that her clothes had been torn
when Sabadlab had forcibly undressed her. Verily, details and matters that did
not detract from the commission of the crime did not diminish her credibility.
We hardly need to remind that the task of assigning values to the testimonies
of witnesses and of weighing their credibility is best left to the trial judge by
virtue of the first-hand impressions he derives while the witnesses testify
before him.13 The demeanor on the witness chair of persons sworn to tell the
truth in judicial proceedings is a significant element of judicial adjudication
because it can draw the line between fact and fancy. Their forthright answers
or hesitant pauses, their quivering voices or angry tones, their flustered looks
or sincere gazes, their modest blushes or guilty blanches - all these can reveal
if the witnesses are telling the truth or lying in their teeth. 14 As the final
appellate reviewer in this case, then, we bow to the age-old norm to accord
the utmost respect to the findings and conclusions on the credibility of
witnesses reached by the trial judge on account of his unmatched opportunity
to observe the witnesses and on account of his personal access to the various
indicia available but not reflected in the record.15
Secondly, AAA’s recollection of the principal occurrence and her positive
identification of the rapists, particularly Sabadlab, were firm. It is reassuring,
too, that her trustworthiness in identifying Sabadlab as one of the rapists
rested on her recognition of him as the man who had frequently flirted with her
at the store where she had usually bought pandesal for her employer’s table.
As such, the identification of him as one of the rapists became impervious to
doubt.
Thirdly, AAA’s failure to shout for help and her failure to escape were not
factors that should diminish credibility due to their being plausibly explained,
the first by the fact that her mouth had been stuffed by Sabadlab with crumpled
newspaper, preventing her from making any outcry, and the second by the
fact that the culprits had blindfolded her and had also tied her hands behind
her back.
NOTE: NO People v. Mejorada here.
And, lastly, Sabadlab’s allegation that AAA did not sustain any bodily injuries
was actually contrary to the medical certification showing her several physical
injuries and the penetration of her female organ.16 This should debunk without
difficulty his submission that she did not offer any resistance to the sexual
assaults she suffered. Her resistance to Sabadlab’s order for her to go with
him was immediately stifled by his poking of the gun at her throat and by
appearance of his two cohorts.1âwphi1 At any rate, it is notable that among
the amendments of the law on rape introduced under Republic Act No. 8353
(The Anti-Rape Act of 1997) is Section 266-D, which adverts to the degree of
resistance that the victim may put up against the rapist, viz:
Article 266-D. Presumptions. - Any physical overt act manifesting resistance
against the act of rape in any degree from the offended party, or where the
offended party is so situated as to render her/him incapable of giving valid
consent, may be accepted as evidence in the prosecution of the acts punished
under Article 266-A.
We next deal with the characterization of the crime as forcible abduction with
rape. The principal objective of Sabadlab and his two cohorts in abducting
AAA from Dapitan Street and in bringing her to another place was to rape and
ravish her. This objective became evident from the successive acts of
Sabadlab immediately after she had alighted from the car in completely
undressing her as to expose her whole body (except the eyes due to the
blindfold), in kissing her body from the neck down, and in having carnal
knowledge of her (in that order). Although forcible abduction was seemingly
committed,17 we cannot hold him guilty of the complex crime of forcible
abduction with rape when the objective of the abduction was to commit the
rape. Under the circumstances, the rape absorbed the forcible abduction.18
The penalty of reclusion perpetua was correctly prescribed. Article 266-A and
Article 266-B of the Revised Penal Code, as amended by Republic Act No.
8353,19 respectively define and punish simple rape as follows:
Article 266-A. Rape; When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the
circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or
otherwise unconscious;
c) By means of fraudulent machinations or grave abuse of
authority; and
d) When the offended party is under twelve (12) years of
age or is demented, even though none of the circumstances
mentioned above be present.
Article 266-B. Penalties. – Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua.
xxx
Although the CA deleted the RTC’s award of exemplary damages because of
the "absence of aggravating circumstance (sic)," 20 we reinstate the award in
view of the attendance of the aggravating circumstance of use of a deadly
weapon in the commission of the crime. The Civil Code provides that
exemplary damages may be imposed in a criminal case as part of the civil
liability "when the crime was committed with one or more aggravating
circumstances."21 The Civil Code allows such damages to be awarded "by way
of example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages." 22 Present here was the
need for exemplarity. Thus, the CA should have recognized the entitlement to
exemplary damages of AAA on account of the attendance of use of a deadly
weapon. It was of no moment that the use of a deadly weapon was not
specifically alleged in the information. As fittingly explained in People v.
Catubig:23
The term "aggravating circumstances" used by the Civil Code, the law not
having specified otherwise, is to be understood in its broad or generic sense.
The commission of an offense has a two-pronged effect, one on the public as
it breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the attendance
of aggravating circumstances, whether ordinary or qualifying, in its
commission. Unlike the criminal liability which is basically a State concern, the
award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying.
Withal, the ordinary or qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the criminal, rather than to
NOTE: NO People v. Mejorada here.
the civil, liability of the offender. In fine, relative to the civil aspect of the case,
an aggravating circumstance, whether ordinary or qualifying, should entitle the
offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.
Accordingly, the Court grants the amount of ₱30,000.00 as exemplary
damages in addition to the civil indemnity of ₱50,000.00 and the moral
damages of ₱50,000.00 the CA awarded to AAA. Sabadlab is further liable for
interest of 6% per annum on all the civil damages.
WHEREFORE, we AFFIRM decision of the Court of Appeals promulgated on
April 26, 2006, with the MODIFICATION that ERLAND SABADLAB y
BAYQUEL is: (a) DECLARED GUILTY BEYOND REASONABLE DOUBT of
SIMPLE RAPE as defined under Article 266-A and as penalized with reclusion
perpetua pursuant to Article 266-B of the Revised Penal Code, as amended
by Republic Act No. 8353; and (b) ORDERED TO PAY to the victim
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 as exemplary damages, plus interest of 6% per annum on each
of the amounts reckoned from the finality of this decision. The accused shall
pay the costs of suit. SO ORDERED.
People v. Amaro
DECISION
PEREZ, J.:
For consideration is the appeal by appellant Rosendo Amaro from the
Decision1 dated 30 March 2011 of the Court of Appeals in CA-G.R. CR-I-IC
No. 02801, affirming the 26 February 2007 Decision2 of the Regional Trial
Court (RTC) of Palawan and Puerto Princesa City, Branch 50, which found
him guilty beyond reasonable doubt of the crime of forcible abduction with
rape.
On 26 May 1998, appellant was charged with the crime of forcible abduction
with rape committed as follows:
That on or about the 26th day of March, 1998 at more or less 5:00 in the
afternoon in front of Boots & Maya located at Mal var Street, Puerto Princesa
City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, by means of deceit atthe beginning and of force and
intimidation later and with lewd designs, did then and there willfully, unlawfully
and feloniously abduct one [AAA],3 a seven (7) year old girl, by forcing her and
took her to his house at Bgy. Tagburos, Puerto Princesa City and without any
justifiable reason, accused detained and deprived her of her liberty for a period
of twenty eight (28) [sic] days; that while she is being detained accused
ROSENDO AMARO had carnal knowledge of said AAA all committed against
her will.4
Appellant pleaded not guilty. Trial then proceeded. AAA, who was then only 7
years old,testified that she was walking on her way home from school when
she passed by Boots & Maya store. She met a man, whom she later identified
in court as the appellant, who asked her to buy cigarettes. After buying the
cigarettes and handing it to appellant, the latter gave her bread and banana
cue. After eating them, she suddenly became dizzy and passed out. AAA was
brought to the house of appellant. When she regained consciousness, she
saw appellant naked. Appellant then undressed her, kissed her on the lips and
neck, and inserted his penis into her vagina, causing her to feel pain. AAA
cried but appellant covered her mouth with his hand. AAA was detained for
six (6) days and was raped five (5) times by appellant. AAA clarified
thatappellant’s penis touched the outer portion of her vagina.
During the cross-examination, AAA admitted that she voluntarily went with
appellant because the latter promised to bring her home.5
On the last day of her detention, AAA and appellant went out of the house. On
their way to San Jose, a certain Aunt Ruthie saw AAA walking and
immediately picked her up and brought her to the police station. Appellant
noticed AAA being taken away but he did nothing.6
The prosecution also presented AAA’s mother, BBB, to corroborate her
daughter’s testimony. BBB narrated that on 26 March 1998, she was in the
house when AAA came home at around noon time to eat. Thereafter, AAA
told BBB that she had to go backto school. At around 5:00 p.m. when AAA
had not come home, BBB went to the school to look for her. When the teacher
told BBB that that school children had already been sent home, she proceeded
to the police station to report her missing daughter. After six (6) days, AAA
was found by BBB’s former employer who brought her to the police. Upon
receiving a call from the police, BBB immediately went to the police station
and saw her daughter. BBB observed that AAA was still in shock and could
not walk properly so she was brought to the doctor on the following day. She
only learned that her daughter was raped after the medical examination.
Appellant testified on his behalf. He denied abducting and raping AAA but
admitted that he brought the latter to his house when AAA approached him
NOTE: NO People v. Mejorada here.
asking for bread first, before begging him to take her with him because she
was always being scolded by her parents. Upon reaching his house, appellant
entrusted AAA to the care of Florante Magay’s sister. Appellant then went
back to town to attend to his work as a mason. He only decided to go back
home when he heard his name on the radio in connection with the
disappearance of a girl. He picked up the child in Barangay Tagburos and
brought her to her house in Buncag. AAA walked alone towards her house.7
On 26 February 2007, the trial court rendered judgment in this wise:
WHEREFORE, premises considered, judgment is hereby rendered finding the
accused ROSENDO AMARO GUILTY beyond reasonable doubt of the crime
of Forcible Abduction with Rape, as defined and penalized under Article 342
and Article266-B of the Revised Penal Code as amended by RA 8353 in
relation to Article 48 thereof. The accused is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA and to pay the costs. He is likewise
ordered to pay the complainant-victim [AAA] the amount of FIFTY
THOUSAND (₱50,000.00) PESOS as civil indemnity and FIFTY THOUSAND
(₱50,000.00) PESOS as moral damages.8
The trial court found AAA’s testimony as credible and straightforward and
supported by medical findings.
From the aforesaid decision, appellant appealed to the Court of Appeals.
On 30 March 2011, the Court of Appeals promulgated a Decision affirming the
ruling of the RTC. Both parties opted not to file their Supplemental Briefs and
instead adopted their Briefs filed before the appellate court. 9
In this appeal, appellant contendsthat the prosecution’s evidence is
insufficient to sustain his conviction. According to appellant, he did not rape
AAA because the latter was not in his custody at the time said incident
allegedly happened. Appellant adds that he entrusted AAA to the custody of
Florante Magay’s sister because he was working. Appellant also insists that
AAA voluntarily went with him to his house.
Thus, the resolution of this case hinges on whether or not the prosecution was
able to establish from the testimony of the complainant the guilt of the accused
for the crime offorcible abduction with rape beyond reasonable doubt.
The elements of the crime of forcible abduction, as defined in Article 342 of
the Revised Penal Code, are: (1) that the person abducted is any woman,
regardless of her age, civil status, or reputation; (2) that she is taken against
her will; and (3) that the abduction is with lewd designs. On the other hand,
rape under Article 266-A is committed by having carnal knowledge of a woman
by: (1) force or intimidation, or(2) when the woman is deprived of reason or is
unconscious, or (3) when she is under twelveyears of age.
The prosecution was able to prove all these elements in this case. The victim,
AAA was a seven (7) year-old girl who was taken against her will by appellant
who told her thathe knew her mother and that he would bring her home. 10 At
her tender age, AAA could have easily been deceived by appellant. The
employment of deception suffices to constitute the forcible taking, especially
since the victim is an unsuspecting young girl. It is the taking advantage of
their innocence that makes them easy culprits of deceiving minds.11 The
presence of lewd designs in forcible abduction is established by the actual
rape of the victim.12
During the direct examination, AAA recounted the rape incident and positively
identified appellant as the perpetrator, thus:
Q: When Rosendo undressed himself what happened next?
xxxx
A: He undressed me.
PROSECUTOR SENA:
(to witness)
Q: And after you were undressed by Rosendo what happened next? A: He
kissed me.
Q: Where were you kissed by Rosendo?
A: In lips, Sir.
Q: Only your lips was kissed by Rosendo?
A: On my neck.
NOTE: NO People v. Mejorada here.

Q: Aside by being kissed by Rosendo, what else did he do to you? (witness demonstrated the length more or less 5 inches)

A: He inserted his penis to my vagina. Q: About how – the diameter, how big is the diameter?

Q: What do you mean by "totoy?" COURT:

(No answer) It is not necessary to prove that, the size.

PROSECUTOR SENA: PROSECUTOR SENA:

(to Court) Just to prove.

May I change the question, Your Honor. (to witness)

COURT: Q: When the penis of Rosendo was being tried by Rosendo to penetrate your
vagina[,] what did you feel?
All right.
A: Painful, Sir.13
PROSECUTOR SENA:
The fact of sexual intercourse is corroborated by the medical findings that the
(to witness) victim suffered from laceration on the upper and lower part of the introitus.14

Q: [AAA], in what part of the body of Rosendo can you find that totoy that you
said?
(Witness pointed to her private part)
Q: And that bilalaythat you mentioned in what part of your body can you find
that?
(The same, witness pointed to her private part)
Q: Were you able to see that totoyof Rosendo?
Appellant was properly charged of the complex crime of forcible abduction
with rape. AAA’s abduction was a necessary means to commit rape. Sexual
intercourse with AAA was facilitated and ensured by her abduction. 15
In the prosecution of rape cases, conviction or acquittal depends on the
complainant's testimony because of the fact that usually only the participants
are witnesses to their occurrences. The issue therefore boils down to
credibility. Significantly, findings of fact of the trial court should not be
disturbed on appeal since conclusions as to the credibility of witnesses in rape
cases lie heavily on the sound judgment of the trial court which is in a better
position to decide the question, having heard the witnesses and observed their
deportment and manner of testifying.16

A: Yes, Sir. Testimonies of child-victims are normally given full weight and credit, since
when a girl, particularly if she is a minor, saysthat she has been raped, she
says in effect all that is necessary to show thatrape has in fact been
Q: And how big was that? committed. When the offended party is of tender age and immature, courts
are inclined to give credit to her account of what transpired, considering not
NOTE: NO People v. Mejorada here.
only her relative vulnerability but also the shame to which she would be
exposed if the matter to which she testified is not true. Youth and immaturity
are generally badges of truth and sincerity. 17 Moreover, AAA testified in a
straightforward manner.
On the other hand, appellant set-up the defense of denial and alibi.1âwphi1 It
is jurisprudential that denial and alibi are intrinsically weak defenses which
must be buttressed by strong evidence of non-culpability to merit credibility.
Mere denial, without any strong evidence to support it, can scarcely overcome
the positive declaration by the child-victim of the identity of the appellant and
his involvement in the crime attributed to him. 18 Alibi is evidence negative in
nature and self-serving and cannot attain more credibility than the testimonies
of prosecution witnesses who testify on clear and positive evidence. 19
The appellate court is correct in affirming the imposition of the penalty of
reclusion perpetuaby ratiocinating, to wit:
The presence of lewd intentions is established by the conduct of the accused
during the abduction. When the girl is defiled, the forcible abduction becomes
the means to commit the rape, and since rape is the more serious offense,
under Article 48 of the Revised Penal Code, the complex crime of forcible
abduction with rape is committed and penalized by reclusion perpetua, the
penalty proper to rape.20
For clarity, the lower courts should have emphasized that reclusion
perpetuaas the proper penalty for the crime of statutory rape was imposed in
lieu of death penalty pursuant to Republic Act No. 7659. When Republic Act
No. 9346 prohibited the imposition ofdeath penalty, persons convicted of
offenses punished with death penalty will now be reduced to reclusion
perpetua. And in line withour recent ruling in People v. Gambao 21 where we
order an increase in the amount ofdamages to ₱100,000.00 each for civil
indemnity, moral and exemplary damages,we deem it necessary to increase
the amount of damages accordingly.
In addition, interest at the rate of 6% per annum shall be imposed on all
damages awarded from date of finalityof this judgment until fully paid. 22
WHEREFORE, premises considered, the Decision dated 30 March 2011 of
the Court of Appeals in CA-G.R. CR-HC No. 02801 is AFFIRMED, subject to
the MODIFICATION that ROSENDO AMARO shall pay ₱100,000.00 as civil
indemnity, ₱100,000.00 as moral damages and ₱100,000.00 as exemplary
damages, plus interest of 6% per annum on the amount of damages, reckoned
from the finality of this decision until full payment. SO ORDERED.
ADULTERY AND CONCUBINAGE (Art. 333-334)
United States v. Macabagbag and Balisi
JOHNSON, J.:
These defendants were charged with the crime of amancebamiento. The
complaint alleged: "That on or about, and for some five months prior to, July
11, 1914, in the municipality of Tuguegarao, Province of Cagayan, P.I., the
said Tomas Macababbag, being legally married to Dominga Bulaqui, did
willfully, unlawfully, and criminally, with gross insult to and contempt of the
latter, take into the conjugal home and there keep the other accused, Maria
Balisi, as his mistress, with scandal to the public and in violation of the law."
Upon the said complaint the defendants were duly arrested, arraigned, tried,
found guilty of the crime charged, and sentenced in accordance with the
provisions of article 437 of the Penal Code. Tomas Macababbag was
sentenced to be imprisoned for a period of two years and four months of
prision correccional, and to pay one-half the costs. Maria Balisi was sentenced
to suffer the penalty of destierro for a period of two years and four months,
and during that period to remain away from the center of the municipality of
Tuguegarao, and not to come nearer than a distance of 25 kilometers, and to
pay one-half the costs. From that sentence each of the defendants appealed
to this court.
While the appellants make no specific assignments of error, they argue that
the evidence adduced during the trial of the cause was insufficient to show
that they are guilty of the crime charged. The appellants argue that "according
to the provisions of article 437 of the Penal Code, no crime is committed,
unless the acts alleged to have been committed were committed under
scandalous circumstances." The appellants argue that there was no public
scandal connected with the commission of the crime charged in the present
case. The appellants, however, have not carefully read said article 437. A
married man who keeps mistress in his conjugal dwelling is guilty of the crime
of concubinage. "Scandalous circumstances" are not necessary to make him
guilty of said crime. It is only when the mistress is kept elsewhere that
"scandalous circumstances" become an element of the crime. We find no
reason for modifying the sentence of the lower court after a careful
examination of the evidence brought here. The same is, therefore, hereby
affirmed, with costs. So ordered.
G.R. No. L-11549 October 12, 1916
NOTE: NO People v. Mejorada here.
United States v. Campos Rueda and Aurora
JOHNSON, J.:
The important question presented by this appeal is whether or not the crime
charged had been committed "con escandalo" (under scandalous
circumstances).
From the record it appears that on the 25th of October, 1915, Luisa Goitia de
la Camara presented a complaint in the Court of First Instance of the city of
Manila, in which she charged the said defendants with the crime of
"amancebamiento." The complaint alleged:
That on or about and during the period comprised between the 1st of
June, 1915, and the date of the filing of this complaint, the said
accused, Jose Campos y Rueda, being united in lawful marriage to
the complainant, Luisa Goitia y de la Camara, in the city of Manila,
Philippine Islands, within the jurisdiction of this court, willfully,
unlawfully, criminally and maliciously, and with scandal, did have,
outside his conjugal home, a concubine named Aurora Arroyo, his
coaccused, with whom the said accused lived in concubinage; an act
committed in violation of law.
On that complaint the defendants were duly arrested, arraigned, pleaded not
guilty, and were tried.
On the 4th of January, 1916, the Honorable Richard Campbell, judge, after
hearing the evidence adduced during the trial of the cause, reached the
conclusion that the defendant, Aurora Arroyo, was not guilty of the crime
charged, for the reason that she was ignorant of the fact that her codefendant,
at the time the alleged illicit relation took place, was a married man. He further
found that the evidence was sufficient to show that the defendant Jose
Campos Rueda was guilty of the crime charged and sentenced him to be
imprisoned for a period of one year eight months and twenty-one days of
prision correccional, to suffer the accessory penalties provided for by law, and
to pay one-half the costs.
From that sentence the defendant Jose Campos Rueda appealed to this court
and presented the following assignment of errors:
1. The court erred in making the following findings of fact:
First. (a) That the defendant had made certain proposals to
his wife, and that, as she refused to accept them, he
subjected her to such abuse that she found herself obliged
to separate from him. (b) That the logical inference from his
testimony is that the said proposals were against nature.
Second. That, on several occasions the accused slept in the
same room with the codefendant, Aurora Arroyo, in the
latter's house, where besides herself, her mother and her
two sisters also lived.
Third. That the accused had carnal intercourse with the
coaccused, Aurora Arroyo, in the parlor of the house of the
said defendant.
Fourth. That, on several occasions, the accused was seen
riding in a carriage in company with the codefendant,
Aurora Arroyo.
2. The court also erred in not taking into account the testimony of the
witnesses for the defense.
3. The court erred in holding that there had been scandal in the
relations between the accused Jose Campos and his codefendant
Aurora Arroyo, and in holding that this scandal was proven.
4. The court erred in holding that the crime of concubinage, as
defined in the Penal Code, was proven.
With reference to said assignments of error, we deem it advisable to discuss
the third first.
Passing over, for a moment, the question whether or not the defendants had
had illicit relations, but admitting that they had, only for the purpose of the
argument, we proceed to an examination of the record for the purpose of
ascertaining if such acts were committed con escandalo. If the record fails to
show that the alleged criminal acts were committed con escandalo, then of
course, in accordance with article 437 of the Penal Code, the sentence of the
lower court should be revoked.
From an examination of the record it appears that the appellant was united in
lawful wedlock with the prosecuting witness a few months before the
NOTE: NO People v. Mejorada here.
commencement of the present action: that they had separated, and that the
wife (the prosecuting witness) had returned to her mother's home to live. The
record further shows that the appellant had visited the house of his
codefendant, where her mother and sisters lived, on several occasions; that
the appellant and his codefendant had been seen riding in a carriage together;
that they had gone together to a certain theater; that certain questionable
conduct had taken place between them in the house where the codefendant
lived with her mother and sisters. These facts were proved by witnesses who
did not live in the vicinity or neighborhood where the appellant's codefendant
and her mother and sisters lived. The record shows that said witnesses had
been employed, in one way or another, to watch the appellant and his
codefendant, and that they went to the home of the codefendant of the
appellant for that purpose. The prosecution presented some proof to show
that the appellant had taken undue liberty with the person of his codefendant
in the tienda of her mother and sisters. The codefendant, her mother and
sisters lived in a thickly populated district of the city of Manila. None of the
alleged facts relating to the conduct of the appellant and his codefendant were
proved by any of the citizens of the vicinity where the mother of the appellant's
codefendant lived. Several of the neighbors were called as witnesses during
the trial of the cause and none of them had seen any conduct on the part of
the appellant and his codefendant which aroused their suspicions or caused
them to believe that the relations of the appellant and his codefendant were
not what they should be. If the appellant and his codefendant had been
associated together under scandalous circumstances, it would seem that at
least some of the neighbors or persons living in that vicinity might have been
found, who had observed such conduct. If the conduct of the appellant in
relation with his codefendant had been con escandalo in fact, it would seem
to have been unnecessary for the prosecution to have gone into another part
of the city to find witnesses to prove that fact. The mere fact that it was
necessary to employ spies for the purpose of watching the conduct of the
appellant, in relation with the fact that none of the people living in the vicinity
had observed any suspicious conduct on his part in relation with his
codefendant, gives rise to a serious doubt that the acts were committed con
escandalo.lawphil.net
In the case of United States vs. Casipong and Hongoy (20 Phil. REp., 178)
this court said, in a case very analogous to the present:
Nothing would be easier than to adduce proofs of the criminal act, . .
. for if they have lived publicly in concubinage and in sight of
everybody, various witnesses, residents not only of the place of
residence of the offended wife and her husband but also of the barrio
. . . to which the unfaithful husband removed in order to live with his
paramour, could have testified.
In the present case there is no contention that the appellant lived in the house
with his codefendant and her sisters. He only visited her house from time to
time.
We do not now attempt to define the particular acts which constitute escandalo
as that term is used in article 437. Each case must depend upon its own
particular facts. It is sufficient for the present case to say that the acts and
conduct of the appellant with his codefendant were not such as to produce a
scandal nor to set a bad example among the neighbors in the community
where said alleged acts are said to have taken place. There seems to have
been no publicity of the alleged immoral acts. We have arrived at this
conclusion for the reasons stated in the case of United States vs. Casipong
and Hongoy (20 Phil. Rep., 178) and the decisions of the supreme court of
Spain of the 16th of June, 1888, and the 25th of February, 1896. Our
conclusion, therefore, with reference to the thrive assignment of error is that
the alleged relation between the appellant and his codefendant did not exist
con escandalo. In view of that conclusion, we deem it unnecessary to discuss
the other assignments of error for the reason that the crime described in the
complaint is not punishable under article 437 of the Penal Code, nor any other
article of said Code unless the act complained of had been committed fails to
con escandalo.
Therefore, for the reason that the proof show that the alleged crime had been
committed in violation of article 437 of the Penal Code, or of any other
provision of said Code, we are of the opinion that the judgment and sentence
of the lower court must be reversed. Therefore, it is hereby ordered and
decreed that a judgment be entered revoking the sentence of the lower court,
dismissing the complaint and discharging the defendant from the custody of
the law, and without any finding as to costs, it is so ordered.
Ocampo v. People
MORAN, J.:
Charged with one Igmedia Refe of the crime of concubinage in the Court of
First Instance of Albay, petitioner Luis Ocampo was found guilty and
sentenced to an indeterminate penalty of from six (6) months of arresto mayor
to two (2) years, eleven (11) months and ten (10) days of prision correccional,
and to the accessories of the law. This judgment was affirmed by the Court of
Appeals.
The illicit relations between petitioner Luis Ocampo and his coaccused
Igmedia Refe began in 1937. In September of that year, petitioner with
NOTE: NO People v. Mejorada here.
Igmedia went to Naga where they dwelt together as husband and wife in the
same house and where often seen together attending shows and dances. In
October of the same year, they went for a thermal bath in Tiwi, Albay, where,
in the first visit, they stayed for three days, and in the second, for four days.
During their entire stay, they dwelt together as husband wife in the house of
one Alfonsa Toledo, occupying one room where they slept alone.
The legal question raised in this appeal is whether, on the basis of the
foregoing facts, petitioner may properly be held guilty of concubinage.
Under the provisions of article 334 of the Revised Penal Code, concubinage
may be committed in either of the following ways:(1) by keeping a mistress in
the conjugal dwelling; (2) by having sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; and (3) by cohabiting with
such woman in any other place.
We are here concerned only with the third way of committing the offense under
which petitioner was convicted. The term "cohabit" means to dwell together,
in the manner of husband and wife, for some period of time, as distinguished
from occasional, transient interviews for unlawful intercourse. (People vs.
Pitoc, 43 Phil., 758.) And, whether an association, for illicit intercourse, has
been such as to constitute an unlawful assumption of the conjugal relation, is,
in every case a question of fact (74 A. L. R., 1363), and the extent of such
association as to constitute a cohabitation within the meaning of the law, is a
matter of court's appreciation.
In the instant case, petitioner's conduct with his coaccused was not confined
to isolated interviews for unlawful intercourse. He and his coaccused dwelt
together as husband and wife in the same house in Naga, Camarines Sur,
where they were seen attending shows and dances; again, in Tiwi, Albay, they
dwelt together as husband and wife in the same house for seven days and
nights where they slept together and alone in one room. We are of the opinion
and so hold that such association is sufficient to constitute a cohabitation
within the meaning of the law even disregarding proofs of actual sexual
intercourse.
Petitioner maintains that the letter (Exhibit 2) sent to him by complainant in the
latter part of June, 1937, constitutes consent to his illicit relations and is,
therefore, a condonation within the provisions of the second paragraph of
article 344 of the Revised Penal Code. The letter was construed by the trial
court under the facts and circumstances of the case as not constituting
consent or condonation, and this finding has not been reversed by the Court
of Appeals. At this stage of the proceeding we cannot review the finding which
involves questions of fact.
Judgment is affirmed, with costs against petitioner.
People v. Schneckenburger
MORAN, J.:
On March 16, 1926, the accused Rodolfo A. Schneckenburger married the
compliant Elena Ramirez Cartagena and after seven years of martial life, they
agreed, for reason of alleged incompatibility of character, to live separately
each other and on May 25, 1935 they executed a document which in part
recites as follows:
Que ambos comparecientes convienen en vivir separados el uno del
otro por el resto de su vida y se comprometen, y obligan
reciprocamente a no molastarse ni intervenir ni mezclarse bajo
ningun concepto en la vida publica o privada de los mismos, entre
si, quendado cada uno de los otorgantes en completa libertad de
accion en calquier acto y todos concepto.
On June 15, 1935, the accused Schneckenburger, without leaving the
Philippines, secured a decree of divorce from the civil court of Juarez, Bravos
District, State of Chihuahua, Mexico. On May 11, 1936, he contracted another
marriage with his co-accused, Julia Medel, in the justice of the peace court of
Malabon, Rizal, and since then they lived together as husband and wife in the
city of Manila. Because of the nullity of the divorce decreed by the Mexico
Court, complaint herein instituted two actions against the accused, one for
bigamy in the Court of First Instance of Rizal and the other concubinage in the
court of First Instance of Manila. The first culminated in the conviction of the
accused for which he was sentenced to penalty of two months and one day of
arresto mayor. On the trial for the offense of concubinage accused interposed
the plea of double jeopardy, and the case was dismissed; but, upon appeal by
the fiscal, this Court held the dismissal before the trial to be premature this
was under the former procedure and without deciding the question of double
jeopardy, remanded the case to the trial court for trial on the merits. Accused
was convicted of concubinage through reckless imprudence and sentenced to
a penalty of two months and one day of arresto mayor. Hence this appeal.
As to appellant's plea of double jeopardy, it need only be observed that the
office of bigamy for which he was convicted and that of concubinage for which
NOTE: NO People v. Mejorada here.
he stood trial in the court below are two distinct offenses in law and in fact as
well as in the mode of their prosecution. The celebration of the second
marriage, with the first still existing, characterizes the crime of bigamy; on the
other hand, in the present case, mere cohabitation by the husband with a
woman who is not his wife characterizes the crime of concubinage. The first
in an offense against civil status which may be prosecuted at the instance of
the state; the second, an offense against chastity and may be prosecuted only
at the instance of the offended party. And no rule is more settled in law than
that, on the matter of double jeopardy, the test is not whether the defendant
has already been tried for the same act, but whether he has been put in
jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422; People v.
Cabrera, 43 Phil., 82)
Upon the other hand, we believe and so hold that the accused should be
acquitted of the crime of concubinage. The document executed by and
between the accused and the complaint in which they agreed to be "en
completa libertad de accion en cualquier acto y en todos conceptos," while
illegal for the purpose for which it was executed, constitutes nevertheless a
valid consent to the act of concubinage within the meaning of section 344 of
the Revised Penal Code. There can be no doubt that by such agreement, each
party clearly intended to forego to illicit acts of the other.
We said before (People vs. Guinucod, 58 Phil., 621) that the consent which
bars the offended party from instituting a criminal prosecution in cases of
adultery, concubinage, seduction, abduction, rape and acts of lasciviousness
is that which has been given expressly or impliedly after the crime has been
committed. We are now convinced that this is a narrow view in way warranted
by the language, as well as the manifest policy, of the law. The second
paragraph of article 344 of the Revised Penal Code provides:
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
(Emphasis ours.)
As the term "pardon" unquestionably refers to the offense after its commission,
"consent" must have been intended agreeably with its ordinary usage, to refer
to the offense prior to its commission. No logical difference can indeed be
perceived between prior and subsequent consent, for in both instances as the
offended party has chosen to compromise with his/her dishonor, he/she
becomes unworthy to come to court and invoke its aid in the vindication of the
wrong. For instance, a husband who believers his wife another man for
adultery, is as unworthy, if not more, as where, upon acquiring knowledge of
the adultery after its commission, he says or does nothing. We, therefore, hold
that the prior consent is as effective as subsequent consent to bar the
offended party from prosecuting the offense.
In this arriving at this conclusion we do not with to be misconstrued as
legalizing an agreement to do an illicit act, in violation of law. Our view must
be taken only to mean that an agreement of the tenor entered into between
the parties herein, operates, within the plain language and manifest policy of
the law, to bar the offended party from prosecuting the offense. If there is
anything morally condemnatory in a situation of his character, the remedy lies
not with us but with the legislative department of the government. What the
law is, not what it should be, defines the limits of our authority.
Judgment is reversed and the accused is hereby acquitted, without costs.
Busuego v. Ombudsman
PEREZ, J.:
Before us is a petition for certiorari seeking to annul and set aside the
Resolution of the Ombudsman dated 17 April 20091 and Order dated October
2010,2 which directed the tiling of an Information for Concubinage under
Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A.
Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation of
Republic Act No. 9262 (Anti-Violence Against Women and Their Children);
and (3) Grave Threats under Article 282 of the Revised Penal Code, before
the Office of the Ombudsman against her husband, Alfredo, with designation
Chief of Hospital, Davao Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church,
Davao City. Their union was blessed with two (2) sons, Alfred and Robert,
born in 1976 and 1978, respectively. Sometime in 1983, their marriage turned
sour. At this time, Rosa unearthed photographs of, and love letters addressed
to Alfredo from, other women. Rosa confronted Alfredo who claimed
ignorance of the existence of these letters and innocence of any wrongdoing.
NOTE: NO People v. Mejorada here.
Purportedly, Alfredo very rarely stayed at home to spend time with his family.
He would come home late at night on weekdays and head early to work the
next day; his weekends were spent with his friends, instead of with his family.
Rosa considered herself lucky if their family was able to spend a solid hour
with Alfredo.
Around this time, an opportunity to work as nurse in New York City, United
States of America (US) opened up for Rosa. Rosa informed Alfredo, who
vehemently opposed Rosa’s plan to work abroad. Nonetheless, Rosa
completed the necessary requirements to work in the US and was scheduled
to depart the Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained
opposed to her working abroad. Furious with Rosa’s pressing, Alfredo took his
loaded gun and pointed it at Rosa’s right temple, threatening and taunting
Rosa to attempt to leave him and their family. Alfredo was only staved off
because Rosa’s mother arrived at the couple’s house. Alfredo left the house
in a rage: Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While
in the US, Rosa became homesick and was subsequently joined by her
children who were brought to the US by Alfredo. Rosa singularly reared them:
Alfred, from grade school to university, while Robert, upon finishing high
school, went back to Davao City to study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial
support. In fact, it was Rosa who would remit money to Alfredo from time to
time, believing that Alfredo had stopped womanizing. Rosa continued to
spend her annual vacation in Davao City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at
their conjugal home. When Rosa asked Alfredo, the latter explained that Sia
was a nurse working at the Regional Hospital in Tagum who was in a sorry
plight as she was allegedly being raped by Rosa’s brother-in-law. To get her
out of the situation, Alfredo allowed Sia to live in their house and sleep in the
maids’ quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships.
Robert, who was already living in Davao City, called Rosa to complain of
Alfredo’s illicit affairs and shabby treatment of him. Rosa then rang up Alfredo
which, not surprisingly, resulted in an altercation. Robert executed an affidavit,
corroborating his mother’s story and confirming his father’s illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert found it
strange that Sia slept with his father in the conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did
not want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s
mistress.
4. During this period of concubinage, Sia was hospitalized and upon
her discharge, she and Alfredo resumed their cohabitation.
5. The relationship between Alfredo and Sia ended only when the
latter found another boyfriend. 6. His father next took up an affair with
Julie de Leon (de Leon) whom Robert met when de Leon fetched
Alfredo on one occasion when their vehicle broke down in the middle
of the road.
7. Robert read various Short Message Service (SMS) exchanges
between Julie and Alfredo on Alfredo’s mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s
and Alfredo’s conjugal dwelling and stayed in the conjugal room the
entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise
executed a joint affidavit in support of Rosa’s allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the
conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual
relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the
conjugal dwelling and slept overnight with Alfredo in the conjugal
room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without
informing Alfredo of their impending return. Upon Rosa’s return, she gathered
and consolidated information on her husband’s sexual affairs.
NOTE: NO People v. Mejorada here.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave
Threats, Rosa averred that during the course of their marriage, apart from the
marital infidelity, Alfredo physically and verbally abused her and her family.
On one occasion after Rosa confirmed the affairs, Alfredo threatened their
family, including other members of their household that he will gun them down
should he chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo
purportedly dismissed house helper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against
him and alleged that:
1. Rosa, despite his pleas for them to remain and raise their family in
the Philippines, chose to live in the US, separate from him.
2. Rosa’s allegations that he had kept photographs of, and love
letters from, other women, were only made to create a cause of
action for the suit for Legal Separation which Rosa filed sometime in
1998.
3. It was highly improbable that he committed acts of concubinage
with Sia and de Leon since from the time he became Chief of Hospital
of the Davao Regional Hospital in Tagum City, he practically stayed
all days of the work week in the hospital. The instances he went
home were few and far between, only to check on the house and
provide for household expenses.
4. When Robert returned to Davao City and lived with him, it became
more impossible for him to have shacked up with Sia and de Leon in
the conjugal dwelling.
5. With respect to his alleged relationship with Sia, without admitting
to anything, that Sia, for a time, may have lived in his and Rosa’s
conjugal house, staying at the maids’ quarters. However, at no
instance did he keep Sia as his mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31, 2004 when
he supposedly stayed with de Leon in the conjugal room, Alfredo
pointed out that said dates were busiest days of the year in the
hospital where his presence as Chief of Hospital is most required.
7. By Rosa’s own admission, she first learned of Alfredo’s alleged
concubinage in 1997, and yet she still continued with her yearly visits
to Alfredo in Davao City. Those instances ought to be construed as
condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not
impleaded along with Alfredo as party-respondents in the complaint
in violation of Article 344 of the Revised Penal Code.
Alfredo made short shrift of Rosa’s charges of violation of Republic Act No.
9262 and Grave Threats. He claimed that, at no time, did he threaten, the lives
or, to harm his wife, their family and members of their household. He only
berated the help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained
Alfredo’s culpability, and naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosa’s failure to implead Sia
and de Leon as respondents cropped up. Alfredo insisted that Rosa’s
complaint ought to be dismissed for failure to implead his alleged concubines
as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory
hearing where both Rosa and Alfredo were represented by their respective
counsels:
x x x Rosa was apprised of the need to implead the two alleged mistresses in
the complaint for Concubinage pursuant to Article 344 of the Revised Penal
Code. Although Alfredo objected to the amendment of the complaint, at this
point in time, due to the alleged procedural lapse committed by Rosa, this
Office explained to the parties that the position of Alfredo would just prolong
the conduct of the preliminary investigation since Rosa can just re-file her
complaint. The doctrine of res judicata does not apply in the preliminary
investigation stage. Hence, the counsel for Rosa was directed to submit to this
Office the addresses of the alleged mistresses so that they could be served
with the Order directing them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known addresses of
Julie de Leon and Emy Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and
de Leon as party-respondents in the complaint for Concubinage and directing
them to submit their respective counter-affidavits within a period of time.
NOTE: NO People v. Mejorada here.
Copies of the Joint Order were mailed to Sia’s and de Leon’s last known
addresses, as provided by Rosa to the Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of
the Joint Order sent to Sia’s last known address was returned to the
Ombudsman with the notation on the Registry Return Receipt No. 1624
"Return to Sender; removed," while a copy thereof to de Leon was received
on 3 September 2008 by Ananias de Leon.5
Apparently still opposed to the Ombudsman’s ruling to simply amend the
complaint and implead therein Alfredo’s alleged mistresses, Alfredo filed his
Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the
charges to the Appropriate Provincial/City Prosecutor6 praying for dismissal of
the complaint for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of the
complaint to the Office of the City Prosecutor as provided in OMB-DOJ
Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed Resolution,
disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to
resolve the ancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged
legal infirmity of Rosas’s initiatory pleading by resorting to a procedural short
cut which would result to the delay in the disposition of this case; and 2.) the
criminal charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case pursuant
to OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already pointed out
in his counter-Affidavit the alleged deficiency in the complaint. Rosa also
explained in her Reply that the names of the mistresses were categorically
mentioned in the complaint. She averred that this Office is empowered to
investigate and prosecute any act or omission of a public official or employee
to the exclusion of non-government employees. She stated that the inclusion
of the alleged concubines in the Information to be filed in court is a matter of
procedure, within the competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the parties, the
clarificatory hearing was conducted. It was explained in the said hearing the
need to implead the alleged concubines in this case pursuant to Article 344 of
the Revised Penal Code and to obviate the proceedings, Rosa was directed
to submit the addresses of the alleged concubines. Busuego’s position that
the said short cut procedure would delay the proceedings is misplaced. If the
case will be dismissed based on procedural infirmity, Rosa could still amend
her complaint and re-file this case since the doctrine of res judicata does not
apply in the preliminary investigation stage of the proceedings.
On the second issue, the motion of Busuego to refer this case to the Office of
the City Prosecutor was belatedly filed. Record would show that the motion
praying for the referral of this case to the Office of the City Prosecutor was
filed on 17 July 2008, after the parties have already filed all their pleadings
and the case is now ripe for resolution. Further, referral to the said office is not
mandatory as cited in the said Joint Circular.7
In the same Resolution, the Ombudsman, ultimately, found probable cause to
indict only Alfredo and Sia of Concubinage and directed the filing of an
Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie case
for violation of Article 334 of the Revised Penal Code (concubinage) and that
petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY SIA, are
probably guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio
and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y Abrio; and 3.)
violation of RA 9262 (Anti-Violence Against Women and Children Act), are
hereby DISMISSED for lack of merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the
Ombudsman’s ruling on the automatic inclusion of Sia as respondent in the
complaint and their indictment for the crime of Concubinage. Alfredo is
adamant that Rosa’s complaint should have, at the outset, impleaded his
alleged concubines. Failing such, the Ombudsman cannot resort to automatic
inclusion of party-respondents, erroneously finding him and Sia prima facie
culpable for Concubinage. For good measure, Alfredo pointed out that from
Rosa’s own allegations, she had condoned or pardoned Alfredo’s supposed
concubinage. Alfredo likewise submitted Liza S. Diambangan’s affidavit,
recanting her previous affidavit corroborating Rosa’s charges.
NOTE: NO People v. Mejorada here.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial
Motion for Reconsideration was filed out of time, and gave scant attention to
Liza S. Diambangan’s affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for
Reconsideration is hereby DENIED. The findings in the questioned Resolution
hereby remains undisturbed. Let the Information for Concubinage be filed in
the proper court against herein Busuego.9
Alfredo now comes to us on petition for certiorari alleging grave abuse of
discretion in the Ombudsman’s finding of probable cause to indict him and Sia
for Concubinage. Alfredo’s badges of grave abuse of discretion are the
following:
1. The Ombudsman railroaded the inclusion of Sia and de Leon as
party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department of
Justice, considering that the offense of Concubinage is not
committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s
supposed Concubinage when she alleged in the complaint that she
had known of Alfredo’s womanizing and believed him to have
changed his ways;
4. The Ombudsman did not take into consideration the affidavit of
recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia
for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of
probable cause during a preliminary investigation.10 This is the reason why
judicial review of the resolution of the Ombudsman in the exercise of its power
and duty to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction. Courts are not
empowered to substitute their judgment for that of the Ombudsman. 11
By grave abuse of discretion is meant such capricious and whimsical exercise
of judgment tantamount to lack of jurisdiction.12 The abuse of discretion must
be so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and despotic manner
by reason of passion or hostility.13 In this regard, petitioner failed to
demonstrate the Ombudsman's abuse, much less grave abuse, of discretion.
First. Alfredo insists that the Ombudsman’s automatic inclusion, over his
vehement objections of Sia and de Leon as party-respondents, violates Article
344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court,
which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. — The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution without including both
the guilty parties, if they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. – xxx.
The crimes of adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse. The offended party cannot institute
criminal prosecution without including the guilty parties, if both are alive, nor,
in any case, if the offended party has consented to the offense or pardoned
the offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely
followed the provisions of its Rules of Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
NOTE: NO People v. Mejorada here.
Section 2. Evaluation – Upon evaluating the complaint, the investigating
officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has
jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding
investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure – The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:
a) x x x
b) After such affidavits have been secured, the investigating officer
shall issue an order, attaching thereto a copy of the affidavits and
other supporting documents, directing the respondents to submit,
within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10)
days after service of the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the
investigating officer may consider the comment filed by him, if any,
as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of
jurisdiction.
Neither may a motion for a bill of particulars be entertained.
If respondent desires any matter in the complainant’s affidavit to be
clarified, the particularization thereof may be done at the time of the
clarificatory questioning in the manner provided in paragraph (f) of
this section.
e) If the respondents cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply
therewith, the complaint shall be deemed submitted for resolution on
the basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced into
writing and served on the witness concerned who shall be required
to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the
investigating officer shall forward the records of the case together
with his resolution to the designated authorities for their appropriate
action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the ombudsman in cases falling within the
jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all
other cases. (Emphasis supplied).
Notably, Rosa’s complaint contained not just the Concubinage charge, but
other charges: violation of Republic Act No. 9262 and Grave Threats. Upon
the Ombudsman’s perusal, the complaint was supported by affidavits
corroborating Rosa’s accusations. Thus, at that stage, the Ombudsman
properly referred the complaint to Alfredo for comment. Nonetheless, while the
NOTE: NO People v. Mejorada here.

Ombudsman found no reason for outright dismissal, it deemed it fit to hold a
clarificatory hearing to discuss the applicability of Article 344 of the Revised
Penal Code, the issue having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for
comment and thereafter the holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which we
have at the outset underscored. Thus did the Ombudsman rule:
by the Sandiganbayan, may take over, at any stage, from any investigating
agency of the government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any
investigation of cases against public officers involving violations of penal laws
but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, the
respondent Ombudsman may, in the exercise of its primary jurisdiction take
over at any stage.

In order to clarify some matters, including the said issue, with the parties, the Thus, with the jurisprudential declarations that the Ombudsman and the DOJ
clarificatory hearing was conducted. It was explained in the said hearing the have concurrent jurisdiction to conduct preliminary investigation, the
need to implead the alleged concubines in this case pursuant to Article 344 of respective heads of said offices came up with OMB-DOJ Joint Circular No.
the Revised Penal Code and to obviate the proceedings, Rosa was directed 95-001 for the proper guidelines of their respective prosecutors in the conduct
to submit the addresses of the alleged concubines. Busuego’s position that of their investigations, to wit:
the said short cut procedure would delay the proceedings is misplaced. If the
case will be dismissed based on procedural infirmity, Rosa could still amend OMB-DOJ JOINT CIRCULAR NO. 95-001
her complaint and re-file this case since the doctrine of res judicata does not Series of 1995
apply in the preliminary investigation stage of the proceedings. 14
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF
The Ombudsman merely facilitated the amendment of the complaint to cure THE OFFICE OF THE OMBUDSMAN
the defect pointed out by Alfredo. We agree with the Ombudsman that it would
be superfluous to dismiss the complaint when amendment thereof is allowed
by its Rules of Procedure15 and the Rules of Court.16 TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE
PROSECUTORS ANDPROSECUTING ATTORNEYS OF THE
Second. Alfredo claims that the Ombudsman should have referred Rosa’s DEPARTMENT OFJUSTICE.
complaint to the Department of Justice (DOJ), since the crime of Concubinage
is not committed in relation to his being a public officer. This is not a new
argument. SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS
AND EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION,
PREPARATION OFRESOLUTIONS AND INFORMATIONS AND
The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS
conduct preliminary investigation of crimes involving public officers, without AND THEIR ASSISTANTS.
regard to its commission in relation to office, had long been settled in Sen.
Honasan II v. The Panel of Investigating Prosecutors of DOJ,17 and affirmed
in subsequent cases: x---------------------------------------------------------------------------------------x

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of
the Sandiganbayan Law, as amended, do not give to the Ombudsman
exclusive jurisdiction to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate offenses involving
public officers or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the
Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for assistance in
the investigation and prosecution of criminal cases cognizable by his office
and the conditions under which he may do so. Also discussed was Republic
Act No. 7975 otherwise known as "AN ACT TO STRENGTHEN THE
FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
NOTE: NO People v. Mejorada here.
SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL
DECREE NO. 1606, AS AMENDED" and its implications on the jurisdiction of
the office of the Ombudsman on criminal offenses committed by public officers
and employees.
Concerns were expressed on unnecessary delays that could be caused by
discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and
the DEPARTMENT OF JUSTICE, and by procedural conflicts in the filing of
complaints against public officers and employees, the conduct of preliminary
investigations, the preparation of resolutions and informations, and the
prosecution of cases by provincial and city prosecutors and their assistants as
DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, in a series of consultations, have agreed on the
following guidelines to be observed in the investigation and prosecution of
cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed
by public officers and employees IN RELATION TO OFFICE whether
cognizable by the SANDIGANBAYAN or the REGULAR COURTS,
and whether filed with the OFFICE OF THE OMBUDSMAN or with
the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be
under the control and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds
reason to believe otherwise, offenses NOT IN RELATION TO
OFFICE and cognizable by the REGULAR COURTS shall be
investigated and prosecuted by the OFFICE OF THE
PROVINCIAL/CITY PROSECUTOR, which shall rule thereon with
finality.
3. Preparation of criminal information shall be the responsibility of the
investigating officer who conducted the preliminary investigation.
Resolutions recommending prosecution together with the duly
accomplished criminal informations shall be forwarded to the
appropriate approving authority.
4. Considering that the OFFICE OF THE OMBUDSMAN has
jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving
public officers and employees, the OFFICE OF THE
PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF
THE OMBUDSMAN a monthly list of complaints filed with their
respective offices against public officers and employees.
xxxx
A close examination of the circular supports the view of the respondent
Ombudsman that it is just an internal agreement between the Ombudsman
and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on
Preliminary Investigation, effective December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations –
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
NOTE: NO People v. Mejorada here.
Within five (5) days from his resolution, he shall forward the record of the case
to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself file the
information against the respondent, or direct another assistant prosecutor or
state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary
investigation of criminal complaints filed with them for offenses cognizable by
the proper court within their respective territorial jurisdictions, including those
offenses which come within the original jurisdiction of the Sandiganbayan; but
with the qualification that in offenses falling within the original jurisdiction of
the Sandiganbayan, the prosecutor shall, after their investigation, transmit the
records and their resolutions to the Ombudsman or his deputy for appropriate
action. Also, the prosecutor cannot dismiss the complaint without the prior
written authority of the Ombudsman or his deputy, nor can the prosecutor file
an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman or his deputy.
xxxx
To reiterate for emphasis, the power to investigate or conduct preliminary
investigation on charges against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman
prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to conduct the
preliminary investigation for complaints filed with it because the DOJ’s
authority to act as the principal law agency of the government and investigate
the commission of crimes under the Revised Penal Code is derived from the
Revised Administrative Code which had been held in the Natividad case
citation omitted as not being contrary to the Constitution. Thus, there is not
even a need to delegate the conduct of the preliminary investigation to an
agency which has the jurisdiction to do so in the first place. However, the
Ombudsman may assert its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public
officer who was charged with coup d’etat for the occupation of Oakwood on
27 July 2003, the preliminary investigation therefor was conducted by the
DOJ. Honasan questioned the jurisdiction of the DOJ to do so, proferring that
it was the Ombudsman which had jurisdiction since the imputed acts were
committed in relation to his public office. We clarified that the DOJ and the
Ombudsman have concurrent jurisdiction to investigate offenses involving
public officers or employees. Nonetheless, we pointed out that the
Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
by the Sandiganbayan, may take over, at any stage, from any investigating
agency of the government, the investigation of such cases. Plainly, applying
that ruling in this case, the Ombudsman has primary jurisdiction, albeit
concurrent with the DOJ, over Rosa’s complaint, and after choosing to
exercise such jurisdiction, need not defer to the dictates of a respondent in a
complaint, such as Alfredo. In other words, the Ombudsman may exercise
jurisdiction to the exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having
admitted to knowing of his womanizing and yet continuing with their
relationship as demonstrated in Rosa’s annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the
wife condoned the concubinage lies in the wife’s "line of conduct under the
assumption that she really believed [her husband] guilty of concubinage:"
NOTE: NO People v. Mejorada here.
Condonation is the forgiveness of a marital offense constituting a ground for
legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation
is the ‘conditional forgiveness or remission, by a husband or wife of a
matrimonial offense which the latter has committed.’
xxxx
A detailed examination of the testimony of the plaintiff-husband, especially
those portions quoted above, clearly shows that there was a condonation on
the part of the husband for the supposed ‘acts of rank infidelity amounting to
adultery’ committed by defendant-wife. Admitting for the sake of argument that
the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter
in persuading her to come along with him, and the fact that she went with him
and consented to be brought to the house of his cousin Pedro Bugayong and
together they slept there as husband and wife for one day and one night, and
the further fact that in the second night they again slept together in their house
likewise as husband and wife — all these facts have no other meaning in the
opinion of this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held
that ‘condonation is implied from sexual intercourse after knowledge of the
other infidelity. Such acts necessarily implied forgiveness. It is entirely
consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent
should operate as a pardon of his wrong.’
In Tiffany’s Domestic and Family Relations, section 107 says:
‘Condonation. Is the forgiveness of a marital offense constituting a ground for
divorce and bars the right to a divorce. But it is on the condition, implied by
the law when not express, that the wrongdoer shall not again commit the
offense; and also that he shall thereafter treat the other spouse with conjugal
kindness. A breach of the condition will revive the original offense as a ground
for divorce. Condonation may be express or implied.’
It has been held in a long line of decisions of the various supreme courts of
the different states of the U. S. that 'a single voluntary act of sexual intercourse
by the innocent spouse after discovery of the offense is ordinarily sufficient to
constitute condonation, especially as against the husband'. (27 Corpus Juris
Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal
provisions above quoted, and of the various decisions above-cited, the
inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We
agree with the trial judge that the conduct of the plaintiff-husband above
narrated despite his belief that his wife was unfaithful, deprives him, as alleged
the offended spouse, of any action for legal separation against the offending
wife, because his said conduct comes within the restriction of Article 100 of
the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with
the guilty party, after the commission of the offense, and with the knowledge
or belief on the part of the injured party of its commission, will amount to
conclusive evidence of condonation; but this presumption may be rebutted by
evidence (60 L. J. Prob. 73).18
Although the foregoing speaks of condonation of concubinage as a ground for
legal separation, the holding therein applies with equal force in a prosecution
for concubinage as a felony. Indeed, Rosa’s admission was that she believed
her husband had stopped womanizing, not that she had knowledge of
Alfredo’s specific acts of concubinage with Sia and de Leon, specifically
keeping them in the conjugal dwelling. This admission set against the specific
acts of concubinage listed in Article 33419 of the Revised Penal Code does not
amount to condonation. Their continued cohabitation as husband and wife
construed from Rosa’s annual visits to Davao City is not acquiescence to
Alfredo’s relations with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or
condonation. It is true that the offended party has to a considerable extent
been patient with her husband's shortcomings, but that seems to have been
due to his promises of improvement; nowhere does it appear that she has
consented to her husband's immorality or that she has acquiesced in his
relations with his concubine.20
Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to
eliminate his probable culpability for concubinage.
Again, we are not swayed by Alfredo’s asseverations.
NOTE: NO People v. Mejorada here.
We have generally looked with disfavor upon retraction of testimonies
previously given in court. Affidavits of recantation are unreliable and deserve
scant consideration. The asserted motives for the repudiation are commonly
held suspect, and the veracity of the statements made in the affidavit of
repudiation are frequently and deservedly subject to serious doubt.21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false and that
what he now says is true, is not sufficient ground for concluding that the
previous testimony is false. No such reasoning has ever crystallized into a rule
of credibility. The rule is that a witness may be impeached by a previous
contradictory statement x x x not that a previous statement is presumed to be
false merely because a witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e., that contradictory
testimony given subsequently does not necessarily discredit the previous
testimony if the contradictions are satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has been
solemnly taken before a court of justice in an open and free trial and under
conditions precisely sought to discourage and forestall falsehood simply
because one of the witnesses who had given the testimony later on changed
his mind. Such a rule will make solemn trials a mockery and place the
investigation of the truth at the mercy of unscrupulous witnesses. Unless there
be special circumstances which, coupled with the retraction of the witness,
really raise doubt as to the truth of the testimony given by him at the trial and
accepted by the trial judge, and only if such testimony is essential to the
judgment of conviction, or its elimination would lead the trial judge to a different
conclusion, an acquittal of the accused based on such a retraction would not
be justified.22
In this case, Liza S. Diambangan’s testimony merely corroborates the still
standing story of Robert and Melissa Diambangan, the other helper in the
Busuego household. Clearly, the two’s consistent story may still be the basis
of the Ombudsman’s finding of a prima facie case of concubinage against
Alfredo and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no
basis for indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of
concubinage by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under
scandalous circumstances, with a woman who is not his wife; and (3)
cohabiting with a woman who is not his wife in any other place.
The Ombudsman found a prima facie case against Alfredo and Sia based on
the testimony of Robert, Melissa S. Diambangan and Liza S. Diambangan that
Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at the
conjugal room. We completely agree with the Ombudsman’s disquisition:
x x x. It is ingrained in human behavior that a child has love, respect and loyalty
to his family and would strive to keep the family harmonious and united. This
is the very reason why Robert did not inform his mother about his father’s
infidelities during the time when his father was keeping his mistress at the
conjugal dwelling. A son would never turn against his father by fabricating
such a serious story which will cause his home to crumble, if such is not true.
His natural instinct is to protect his home, which he did when he kept silent for
a long time. What broke the camel’s back was the abusive treatment he
allegedly suffered and the thought that things would change for the better if
his mom would intervene.
The story of Robert in his Affidavit was reinforced by the two house helpers
Melissa S. Diambangan and Liza S. Diambangan, who were employed by the
family. Melissa was with the Busuego family in their conjugal home in 1997.
She left the family in 2005 but returned in 2006.1âwphi1 Liza started working
with the family in 2002. Melissa revealed that it was Emy Sia who recruited
her to work with the Busuego family. They both attested to the fact that Alfredo
and Emy Sia slept together in the bedroom of Alfredo but Emy Sia would sleep
in the maid’s quarter when Rosa and Alfred came home for a visit in 1997.
They recalled that Emy Sia calls Alfredo "papa". They narrated that Emy Sia
would even confide to them some private matters relating to her sexual
proclivities with Alfredo.23
We further note that the presence of Sia at the Busuego household and her
interim residence thereat was not disputed nor explained. Alfredo just
cavalierly declares that Sia may have stayed in the conjugal dwelling, but
never as his mistress, and Sia supposedly slept in the maids’ quarters.
While such a claim is not necessarily preposterous we hold that such is a
matter of defense which Alfredo should raise in court given that Rosa s
complaint and its accompanying affidavits have created a prima facie case for
Concubinage against Alfredo and Sia.
NOTE: NO People v. Mejorada here.
WHEREFORE the petition is DISMISSED The Resolutions of the
Ombudsman dated 17 April 2009 and 11 October 2010 are AFFIRMED. SO
ORDERED.
PROVISIONS RELATIVE TO TITLE 11 (Art. 344-346)
People v. Guinucud and Tagayun
BUTTE, J.:
This is an appeal from a decision of the Court of First Instance of Isabela,
convicting the appellants of the crime of adultery. The prosecution was
instituted by the complaint of the husband of Rosario Tagayun, named Ramon
Palattao.
Upon arraignment, the accused pleaded not guilty but on the hearing,
admitted the facts alleged in the information but presented evidence to prove
that Ramon Palattao consented to the adultery, which fact, if established, bars
any prosecution under article 344 of the Revised Penal Code. The pertinent
paragraphs of said article are as follows:
ART. 344. Prosecution of all crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness. — The crimes
of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
It appears from the evidence in this case that the husband, Ramon Palattao,
in April 1930, abandoned and deserted his wife, Rosario Tagayun, then aged
21, and their child. After that abandonment, Rosario lived with her mother but
made repeated efforts to win back her husband. She went to the justice of the
peace of San Pablo, Mariano Castañeda, who testified that he called Ramon
and endeavored to persuade Ramon to take his wife back, but Ramon
refused. Thereafter, at the request of the mother of Rosario, the barrio
lieutenant, Mariano Tumaliuan, took Rosario and her child to Ramon's house
but she was refused admission by the said Ramon. Thereafter, on July 3,
1930, the husband, Ramon, induced his wife, Rosario, to sign the document
which appears in the record as Exhibit 1. He brought the document in duplicate
to the house of Rosario's mother where both of them signed both copies, he
keeping the original and leaving her the carbon copy. Exhibit 1 is as follows:
COUPLE'S AGREEMENT
We, Ramon Palattao and Rosario Tagayun, man and wife, enter into
the following agreement:
That in view of the fact that, I, Ramon Palattao, the man, cannot stay
and live with the parent of Rosario Tagayun in barrio Lattu; and that
in view of the fact that I, Rosario Tagayun, the woman, cannot live
with the parent of Ramon Palattao in barrio Auitan;
We mutually agree by this present to separate from each other and
that Ramon Palattao can and I gave him the privilege to love or marry
another woman; so also Rosario Tagayun can accept or be married
to another man;
We also agree that, as to the baby Leslie who is our child, it is our
right to have him by turn and we are bound to support him jointly;
Finally we state also that each of us has to find his or her means of
existence and neither of us has the right to bother the other as to his
or her livelihood;
In witness whereof we sign at barrio Lattu in the municipality of San
Pablo, province of Isabela, this 3rd day of July, 1930.
(Sgd.) ROSARIO TAGAYUN (Sgd.) RAMON PALATTAO
At the time said Exhibit 1 was signed, Rosario and her child were living with
Rosario's mother and there is no evidence of any misconduct on her part at
that time or that she contemplated any illicit relations with any other man. On
the other hand, we are convinced from the conduct of the husband Ramon
that he solicited the signature of Rosario to said agreement in his own interest
and because he desired to have "the privilege to love or to marry another
woman". At the trial of this case, he denied that the signature in Exhibit 1 was
his signature. This was a palpable falsehood as a comparison with his
signatures on other documents in the files plainly shows. He even had the
effrontery to deny his signature to a motion for continuance which he filed in
the justice of the peace court.
NOTE: NO People v. Mejorada here.
He admitted on cross-examination that, for more than a year before he filed
the complaint in this case, he knew that his wife Rosario and her coaccused
Alfonso were living together in the same house. During all that time he took
no action whatever to vindicate the honor or his name or to resent the open
offense to the integrity of his home, doubtless, because he felt bound by the
alleged agreement to give his consent to Rosario's conduct or because he
expected her to reciprocate. As this court stated in the case of People vs.
Sensano and Ramos (p. 73, ante), he was "assuming a mere pose when he
signed the complaint as the 'offended spouse," and his conduct as shown by
the evidence in this case warrants the inference that he consented to, and
acquiesced in, the adulterous relations existing between the accused, and he
is, therefore, not authorized by law to institute this criminal proceeding.
The agreement above referred to (Exhibit 1) is void in law. (Cf. People vs.
Tolentino, G.R. No. 34145, promulgated October 22, 1931.) 2
Whilst the agreement, Exhibit 1, is void in law, it is nevertheless competent
evidence to explain the husband's inaction after he knew of his wife's living
with the coaccused and to show that he acquiesced in her conduct. The
expression "if he shall have consented" in article 344 of the Revised Penal
Code, which bars the "offended" husband from instituting a prosecution, has
no reference to any consent or agreement prior to the commission of the
offense but relates to an express or implied acquiescence subsequent to the
offense. This consent or acquiescence need not be express but may be
inferred from the conduct or the long continued inaction of the husband after
learning of the offense. The husband who is truly "offended", within the
meaning of the statute, will not sit passively by and allow his name and the
honor of his family to be flagrantly sullied by the notorious adultery of his wife.
Apart from that, the fact that he abandoned and deserted his wife and child,
in spite of all her efforts to maintain their home intact, shows a callous
indifference to every moral duty imposed upon him as her husband and the
father of their child. In this case, the very thing happened which he might have
foreseen and probably did foresee when he abandoned his wife and deceived
her into believing that she was free when she signed the said agreement a
year and a half before the offense was committed. His consent to the offense
before it was committed was void but his tolerance of and acquiescence in the
offense after it was committed demonstrate that it is a hypocritical pretense
for him now to appear in court as the "offended party" and bar his right to
prosecute his wife.1awphil.net
Very apt in this connection are the following paragraphs in Groizard's
commentaries on similar provisions in the Codigo Penal of Spain:
The judgment below is reversed with costs de oficio.
Arroyo Jr. v. CA
FELICIANO, J.:
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional
Trial Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and
Eduardo Arroyo committed on 2 November 1982 in the City of Baguio.
Both defendants pleaded not guilty and after trial, the RTC convicted petitioner
and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the
Revised Penal Code.
The essential facts of the case, as found by the trial court and the Court of
Appeals, are as follows:
... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of
Mrs. Linda Sare and witness Jabunan, took the morning plane to Baguio.
Arriving at around 11:00 a.m., they dropped first at the house of Mrs. Vera,
mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the
Mines View Park Condominium of the Neri spouses. At around 7:00 o' clock
in the evening, accused Eduardo Arroyo arrived at the Neris' condominium.
Witness opened the door for Arroyo who entered, he went down to and
knocked at the master's bedroom where accused Ruby Vera Neri and her
companion Linda Sare were. On accused Ruby Vera Neri's request, Linda
Sare left the master's bedroom and went upstairs to the sala leaving the two
accused. About forty-five minutes later, Arroyo Jr. came up and told Linda
Sare that she could already come down. Three of them, thereafter, went up to
the sala then left the condominium. (Court of Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals'
Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new
trial, contending that a pardon had been extended by her husband, private
complain ant Dr. Jorge B. Neri, and that her husband had later con traded
marriage with another woman with whom he is presently co-habiting. Both
motions were denied by the Court of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February
1991 which this court denied in a Resolution dated 24 April 1991.
NOTE: NO People v. Mejorada here.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No.
96715) dated 19 February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a
motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No.
96715.chanroblesvirtualawlibrarychanrobles virtual law library
On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the
Third Division in accordance with long-stand ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case which was then
assigned to the ponente for the writing of the Court's Resolution.
On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, praying
that the case against petitioners be dismissed as he had "tacitly consented"
to his wife's infidelity.
Petitioners then filed their respective motions praying for the dismissal or for
the granting of new trial of the case claiming a basis for their motions Dr. Neri's
manifestation. The Solicitor General was then asked to comment on the
manifestation; hi comment was filed with this Court on 18 October 1991.
In October 1991, the consolidated cases were, again in accordance with long-
standing practice of the Court, assigned to the First Division upon the
assignment of the ponente to that division. On 4 November 1991, the
consolidated cases were re deliberated upon by the members of the First
Division who reached the same conclusion as the members of the Third
Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made
the following contentions:
1. Dr. Neri's affidavit of desistance which states that the case was filed out of
"pure misunderstanding' raises questions as to the truth of the alleged
admission made by Mrs. Neri;
2. The other prosecution witnesses' corroborative testimonies merely proved
the existence of an illicit affair but not that adultery was committed on the date
and place in question;
3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged
subsequent marriage to another woman which, if proven would preclude either
of the spouses from filing charges of adultery or concubinage against each
other.
In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of
Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the motion
for reconsideration and/or new trial of the petitioner;
2. The Honorable Court of Appeals gravely erred by violating the constitutional
rights of petitioner against self-incrimination
3. The Honorable Court of Appeals erred in failing to take into consideration
the material inconsistencies of the testimony of the complaining witness; and
4. The Honorable Court of Appeals gravely erred in discarding medical
testimony as to the physical impossibility of the petitioner to have committed
the crime charged.
The issues in the consolidated cases may be summarized as follows:
1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast
reasonable doubts on his credibility;
2. Whether or not Mrs. Neri's constitutional right against self-incrimination had
been violated;
3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from
filing the criminal complaint on the ground of pari delicto;
4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of
a new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that
petitioner Arroyo has failed to show any ground that would warrant the Court
reversing its Resolution dated 24 April 1991; and
NOTE: NO People v. Mejorada here.
2. Petition for Review docketed as G.R. No. 96715, the Court considers that
petitioner Ruby Vera Neri has failed to show reversible error on the part of the
Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution,
dated 18 December 1990. Petitioner Arroyo did not convince this Court in G.R.
No. 96602 to dismiss the criminal case on the basis of Dr. Neri's pardon. He,
together with petitioner Neri, now cites the same affidavit in the effort to cast
doubts on the credibility of Dr. Neri's testimony given before the trial court.
However, in the Court's Resolution, dated 24 April 1991, dismissing the
Petition for certiorari in G.R. No. 96602, the Court held that:
It has been our constant holding that:
In certiorari proceedings under Rule 45, the findings of fact of the lower court
as well its conclusions on credibility of witnesses are generally not disturbed,
the question before the court being limited to questions of law (Rule 45, Sec.
2). Specifically, the conclusions of the trial court on the credibility of witnesses
are given considerable weight, since said court is in the best position to
observe the demeanor, conduct and attitude of witnesses at the trial. (Aguirre
v. People, 155 SCRA 337 [1987]; emphasis supplied)
Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this
stage. Besides, the Court does not believe that such an admission by an
unfaithful wife was inherently improbable or impossible. 7 (Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the
claim that Mrs. Neri's constitutional right against self-incrimination had been
disregarded when her admission to her husband in the privacy of their
conjugal home that she had indeed lain with petitioner Arroyo was taken into
account by the trial court, to wit:
Dr. Jorge Neri was also presented as a witness and he testified that sometime
in December of 1982, he surprised his wife while she was looking at some
photographs in their bedroom in their house in Dasmariñas Village, Makati.
Accused Ruby Vera Neri then turned pale and started for the door. Struck by
this unusual behavior, Dr. Neri started looking around the dressing room and
he came upon a Kodak envelope with film negatives inside. He took the
negatives for printing and a few days later, armed with the photographs which
showed his wife in intimate bedroom poses with another man, confronted
Ruby Vera Neri. It was at this point that Ruby Vera Neri admitted to her
husband that Eduardo Arroyo was her lover and that they went to bed in
Baguio on 2 and 3 November 1982.
xxx xxx
As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642
[1988]) that:
The right to counsel attaches upon the start of an investigation, i.e., when the
investigating officer starts to ask questions to elicit information and/or
confession or admissions from respondent-accused.(emphasis supplied)
In the present case, Dr. Neri was not a peace officer nor an investigating
officer conducting a custodial interrogation, hence, petitioner cannot now
claim that Mrs. Neri's admission should have been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
The declaration of an accused expressly acknowledging his guilt of the
offense may be given in evidence against him.
The rule is that any person, otherwise competent as witness, who heard the
confession, is competent to testify as to substance of what he heard if he
heard and understood all of it. An oral confession need not be repeated
verbatim, but in such case it must be given in its substance.
Compliance with the constitutional procedures on custodial investigation is not
applicable to a spontaneous statement, not elicited through questioning, but
given in an ordinary manner, whereby the accused orally admitted having slain
the victim.
We also note that the husband is not precluded under the Rules of Court from
testifying against his wife in criminal cases for a crime committed by one
against the other (Section 22, Rule 129, Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in admitting Dr.
Neri's testimony as he was a competent witness. Neither was said testimony
rendered inadmissible by the constitutional provision on the right to remain
silent and the right to counsel of a "person under investigation for the
commission of an offense.”
Petitioner next claims that the trial court erred in convicting him on the basis
of the failure of Ruby Vera Neri to take the witness stand. In People v.
Gargoles (83 SCRA 282 [1978]), it was held that:
NOTE: NO People v. Mejorada here.
We have held that an accused has the right to decline to testify at the trial
without having any inference of guilt drawn from his failure to go on the witness
stand. Thus, a verdict of conviction on the basis, solely or mainly, of the failure
or refusal of the accused to take the witness stand to deny the charges against
him is a judicial heresy which cannot be countenanced. Invariably, any such
verdict deserves to be reserved.
Such situation does not obtain, however, in the case at bar. For while the trial
court took note of the failure of defendant to take the witness stand to deny
the charge against him, the same was not the main reason, much less the
sole basis, of the trial court in holding, as credible the testimony of
complainant, and in ultimately concluding that the crime of rape had been
committed by the accused-appellant. (Emphasis supplied)
Examination of the trial court decision here shows that said failure to testify
was not the sole nor the main basis of the conviction. Aside from accused's
failure to deny Dr. Neri's testimony, the trial court also considered the
testimonies of Dr. Neri and other prosecution witnesses and the photographs
of the two accused in intimate poses (and three of which showed them half
naked in bed). (Emphasis supplied)
We turn to the contention that pari-delicto "is a valid defense to a prosecution
for adultery and concubinage and that in such a case "it would be only a
hypocritical pretense for such spouse to appear in court as the offended
spouse."
In the first place, the case cited does not support petitioner Neri's position. In
the Guinucud case, the Court found that the complaining husband, by entering
into an agreement with his wife that each of them were to live separately and
could marry other persons and by filing complaint only about a year after
discovering his wife's infidelity, had "consented to, and acquiesced in, the
adulterous relations existing between the accused, and he is, therefore, not
authorized by law to institute the criminal proceedings." In fine, the Guinucud
case refers not to the notion of pari delicto but to consent as a bar to the
institution of the criminal proceedings. In the present case, no such
acquiescence can be implied: the accused did not enter into any agreement
with Dr. Neri allowing each other to marry or cohabit with other persons; and
Dr. Neri promptly filed his complaint after discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code,
but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of
the Civil Code relates only to contracts with illegal consideration.10 The case
at bar does not involve any illegal contract which either of the contracting
parties is now seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which reads:
2. Even before I filed the complaint in court and before the pardon that I had
extended to my wife and her co-accused, I was in reality aware of what was
going on between and therefore, tacitly consented to my wife's infidelity, ...
should result in the dismissal of the case or, at the very least, in the remand
of the case for new trial claiming that in People v. Camara it was held that
"the consent of the spouse is valid defense to a prosecution for adultery and/or
concubinage."
Dr. Neri's manifestation amounts in effect to an attempted recantation of
testimony given by him before the trial court. It is settled that not all
recantations by witnesses should result in the granting of a new trial. 13 In
People v. Follantes and Jacinto, it was held that:
... [R]ecantation by witnesses called on behalf of the prosecution does not
necessarily entitle defendant to a new trial. The question whether a new trial
shall be granted on this ground depends on all the circumstances of the case,
including the testimony of the witnesses submitted on the motion for the new
trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty
of the court to deny a new trial where it is not satisfied that such testimony is
true. ... (Emphasis supplied)
Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's
belated recantation. Dr. Neri had two (2) previous occasions to make the claim
contained in his manifestation: first, in the compromise agreement dated 16
February 1989 submitted before the Regional Trial Court of Makati, Branch
149 in relation to Civil Case No. M-001; and second, his affidavit dated 23
November 1988 submitted to the Court of Appeals. Instead, however, these
two (2) documents merely stated that Dr. Neri had pardoned petitioners and
the complaint was filed out of "pure misunderstanding" without hinting that Dr.
Neri knew of the adulterous relations. It appears to the Court that Dr. Neri's
manifestation was so worded as to attempt to cure the deficiency noted by the
Court in the two (2) previous documents in the disposition of the petition in
G.R. No. 96602:
Petitioner will find no solace in the cases he cites, in support of his prayer to
dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil.
NOTE: NO People v. Mejorada here.
1098 (1957) is inapplicable as the affidavit there expressly stated that the wife
had consented to the illicit relationship. In Gomez v. Intermediate Appellate
Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was
dismissed as the affidavit of desistance specifically stated that the accused
had nothing to do whatsoever with the crime charged. In the present case, the
pardon did not state that Dr. Neri had consented to the illicit relationship
petitioner and Mrs. Neri. Neither did it state that the case was filed against the
wrong parties
Moreover, while the manifestation is dated 14 May 1991, which incidentally is
also the date of petitioner Arroyo's motion for reconsideration, it was
subscribed to only on 23 August 1991.chanroblesvirtualawlibrarychanrobles
virtual law library
Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the
compromise agreement operate as a pardon meriting a new trial. The Court
notes that the cases of People v. Camara (supra) and Gomez v. Intermediate
Appellate Court (supra) were the very same cases which petitioner Arroyo
cited in G.R. No. 96602 which the Court has already held to be inapplicable in
the present case.
The rule on pardon is found in Article 344 of the Revised Penal Code which
provides:
ART. 344. ... - The crime of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both
parties, if they are both alive, nor in any case, if he shall have consented or
pardoned the offenders.
xxx xxx xxx
While there is a conceptual difference between consent and pardon in the
sense that consent is granted prior to the adulterous act while pardon is given
after the illicit affair, 21 nevertheless, for either consent or pardon to benefit
the accused, it must be given prior to the filing of a criminal complaint. 22 In
the present case, the affidavit of desistance was executed only on 23
November 1988 while the compromise agreement was executed only on 16
February 1989, after the trial court had already rendered its decision dated 17
December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's
manifestation is both dated and signed after issuance of our Resolution in G.R.
No. 96602 on 24 April 1991.
It should also be noted that while Article 344 of the Revise Penal Code
provides that the crime of adultery cannot be prosecuted without the offended
spouse's complaint, once the complaint has been filed, the control of the case
passes to the public prosecutor. 23 Enforcement of our law on adultery is not
exclusively, nor even principally, a matter of vindication of the private honor of
the offended spouse; much less is it a matter merely of personal or social
hypocrisy. Such enforcement relates, more importantly, to protection of the
basic social institutions of marriage and the family in the preservation of which
the State has the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set
forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect find strengthen
the family as a basic autonomous social institution ...
The same sentiment has been expressed in the Family Code o the Philippines
in Article 149:
The family, being the foundation of the ration, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement destructive of the
family shall be recognized or given effect.
In U.S. v. Topiño, 24 the Court held that:
... The husband being the head of the family and the only person who could
institute the prosecution and control its effects, it is quite clear that the principal
object in penalizing the offense by the state was to protect the purity of the
family and the honor of the husband, but now the conduct of the prosecution,
after it is once commenced by the husband, and the enforcement of the
penalties imposed is also a matter of public policy in which the Government is
vitally interested to the extent of preserving the public peace and providing for
the general welfare of the community. ... 25 (Emphasis supplied)
As to the claim that it was impossible for petitioner Neri to engage in sexual
intercourse a month after her ceasarian operation, the Court agrees with the
Solicitor General that this is a question of fact which cannot be raised at this
stage. In any case, we find no reason to overturn the Court of Appeals' finding
that "a woman who has the staying power to volley tennis bags for fifteen
NOTE: NO People v. Mejorada here.
minutes at the [John Hay] tennis court would not be incapable of doing the
sexual act" which ball play was followed, as noted by the Court of Appeals "by
a picture taking of both accused in different intimate poses." 26
ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby
DENIED for lack of merit and this denial is FINAL. The Petition for Review in
G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against
petitioners.
Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion
subscribed on 23 August 1991 be forwarded to the Department of Justice for
inquiry into the possible liability of Dr. Neri for perjury.
People v. Alicante
PER CURIAM:
We are again faced with the arduous task of determining whether the accused-
appellant is guilty of a crime for which the law mandates the imposition of the
extreme penalty of death.
The records reveal that fifteen (15) informations for the crime of rape were
filed against accused-appellant Armando Alicante y David for having carnal
knowledge of his minor daughter Richelle. These cases were filed on 17 July
1995 and raffled to Branch 273 of the Regional Trial Court of Marikina. 1 The
information in Criminal Case No. 95-546-MK reads as follows:
The undersigned Assistant Provincial Prosecutor upon prior
sworn statement of the complainant to form part of the
Information charges ARMANDO ALICANTE Y DAVID with
the crime of Rape, committed as follows:
That on or about the month of August
1994 in the Municipality of Marikina,
Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, armed with a
kitchen knife, with lewd designs and by
means of force, threats and intimidation,
did, then and there wilfully, unlawfully
and feloniously have sexual intercourse
with Richelle C. Alicante, a 13 year old
girl, who is his own daughter against the
latter's will and consent. 2
The other fourteen informations are virtual reproductions of the above-quoted
information; they only differ as to the dates. 3
On 23 August 1995, accused-appellant was arraigned and entered a plea of
not guilty to all the charges. 4 On 20 May 1996, the case was transferred to
Branch 272 of the Regional Trial Court of Marikina, as said court was
designated as a special court to try cases classified as heinous crimes. 5
Joint trial on the merits then ensued.
The Office of the Solicitor General's summary of the evidence for the
prosecution, 6 with references to the pages of the stenographic notes and
exhibits deleted, is as follows:
Sometime in August 1994, noontime, Richelle had just
finished taking a bath outside their house. Her brother
Richard and sister Racquel were still in school at that time.
As she entered the house to change her clothes, her father
Armando grabbed her breasts. She slapped him. He got a
knife, pointed it to her neck, and pushed her down on the
bed. He removed her shorts and panty, laid on top of her
and inserted his penis into her vagina. She felt pain and saw
something whitish coming out of his penis which he later
placed on top of her stomach. He threatened to kill her and
the other members of her family should she tell anyone of
the incident. After ordering her to wash her vagina, he went
out of the house. Left alone, she cried in one corner. She
did not attend her class at Barangka Elementary School
because of the excruciating pain in her sex organ and her
headache.
Three (3) days thereafter, the incident was repeated. She
was outside their house when he called her. After coming
in, he locked the door and pushed her against the wall. He
took a knife and pointed it to her face. He said: "before
anyone else, I should be first." He removed her shorts and
panty as he pressed her against the wall. Armando
masturbated and inserted his penis into her vagina. She felt
pain in her sex organ. After the act, he repeated his threat
NOTE: NO People v. Mejorada here.
to kill her and her family. She could not do anything but
cry.1âwphi1.nêt
Within the same month, her ordeal continued. One day,
while leaving for school to play softball, she was ordered by
Armando to stay. Sensing that he was going to rape her
again, she started crying. He slapped her. She ran towards
the door but he closed it. While he was looking for a knife,
Richelle tried to open the door. He then grabbed and
pressed her against the wall. While pinning her, he pulled
her shorts down and took out his penis. He masturbated
and mashed her breasts. A whitish substance came out of
his penis which he again placed on her stomach.
She was thereafter raped by her father once a week in
September 1994. During the first week, she was lying on
bed together with her siblings, Richard and Racquel. She
was at the edge. Her father was on another bed. Her mother
was not home. He then approached her and laid on top of
her. He inserted his penis into her vagina. She was
frightened and nervous, her body shaking. She tried to
shout for help but he covered her mouth and slapped her.
He started pushing and pulling and she saw a white
substance oozing from his penis. She felt pain in her vagina
and was nauseated at the act.
In the second week, he summoned her inside the house to
wash the dishes. She did not obey. He then humiliated her
and she was forced to go inside. He took a knife and pointed
it to her. While so doing, he pulled her dress and removed
her shorts. He then inserted his penis into her vagina. She
felt weak and lost all her strength. Her head was throbbing.
During the third and fourth weeks, she was raped again.
In October 1994, she was raped three times. In all these
instances, he threatened to kill her. She was prevented from
shouting because he covered her mouth. She kept these
incidents a secret because she feared his threat.
In November 1994, she was again raped. Her brother and
sister were playing outside the house while her mother was
at work. As she was preparing for school, her father called
her to their house. She did not obey him. He berated her
and forced her to get inside. He locked the door. He started
hitting her head with his fists. She fought back. He slapped
her twice and grabbed her clothes. While she was being
undressed, she pleaded "tama na po!" He ignored her plea
and continued removing her shorts and panty. He laid her
on the "papag." He then mashed her breasts, kissed her
lips, masturbated and inserted his penis into her vagina.
She felt pain in her breasts and in her sex organ. Her head
was aching. After the act, he put on his shorts and laid down
on the bed. Due to shame, she did not inform anyone of the
incident.
She was raped three times by her father in January 1995.
One Thursday morning, he ordered her brother and sister
to go outside while she was preparing for school. He then
closed the door. He hit her on the nape, pulled her hair and
warned her not to cream. Threatening her with a knife, he
caressed her and ordered her to undress. She could only
cry.
She graduated from Barangka Elementary School on March
24, 1995. As she was attending the commencement
exercises, Richelle felt dizzy and fainted. In May of the
same year, she and her family transferred residence to No.
16, Blk. 37, Lot 1, Phase 2-A, Katatagan St., Karangalan
Village, Pasig City. She was enrolled in secondary school
in Pasig City. While attending her classes, Ms. Presto, her
teacher noticed her bulging abdomen. When Ms. Presto
asked her about it, she told her what her father did to her.
She was physically examined on July 6, 1995. Per Medico-
Legal Report No. M-846-95, she was found to be on the
26th-27th week of pregnancy. On the same day, she and
her mother gave their respective sworn and signed
statements to the Criminal Investigation Division of the
Eastern Police District.
Subsequently, on July 11, 1995, Pacita Alicante executed
her "Salaysay ng Pag-uurong ng Demanda." On July 24,
1995, she gave birth to twin boys who later died.
NOTE: NO People v. Mejorada here.
The defense put up by accused-appellant is one of denial. Appellant insists
that such charges are mere fabrications and that his wife and daughter filed
said charges in order to get him out of their lives:
. . . that his daughter could have filed the charges against
him because they wanted him out of their lives; that this is
so because his wife Pacita, has another man in her life
whom he only know by the name "Bangkil"; that his wife
admitted to him their relationship when he was already
detained; that he was so confused when he learned about
it; that his wife Pacita and his daughter Richelle visited him
in jail on December 25 and January 1 and told him they are
withdrawing the case. 7
After trial, the court a quo, applying Section 11 of R.A. No. 7659 which
imposes the penalty of death when the victim is under eighteen years of age,
and the offender is a parent, ascendant, step-parent guardian, relative by
consanguinity or affinity within the third civil degree, or common-law spouse
of the parent of the victim, rendered judgment against accused-appellant, to
wit:
WHEREFORE, in the light of the foregoing, accused
ARMANDO ALICANTE Y DAVID is found guilty beyond
reasonable doubt for seven (7) counts of the crime of rape
defined and penalized under Article 335 of the Revised
Penal Code, as amended by R.A. 7659 and is sentenced to
suffer the extreme penalty of DEATH in each of the case
abovementioned.
The accused is further ordered to pay the private
complainant Richelle Alicante the amount of ONE
HUNDRED THOUSAND (P100,00.00) PESOS as moral
damages and the amount of TWENTY FIVE THOUSAND
(P25,000.00) PESOS as exemplary damages and the costs
of the suit.
SO ORDERED. 8
Hence, this automatic review, where the accused-appellant through counsel
raises the following assignment of errors:
FIRST ASSIGNED ERROR: THE TRIAL COURT ERRED
IN CONSIDERING THE TESTIMONY OF THE PRIVATE
COMPLAINANT WHEN IT WAS NEVER OFFERED IN
EVIDENCE BY THE PROSECUTION. ASSUMING
ARGUENDO NO REVERSIBLE ERROR WAS
COMMITTED, STILL THE TRIAL COURT ERRED IN
CONVICTING THE ACCUSED ON THE BASIS OF THE
UNCORROBORATED TESTIMONY OF THE PRIVATE
COMPLAINANT WHICH WAS HIGHLY INCONSISTENT,
DUBIOUS, DONE BY ROTE, APPEARED TO BE
COACHED.
SECOND ASSIGNED ERROR: THE TRIAL COURT
ERRED IN APPLYING THE PRESUMPTIONS THAT (1) A
YOUNG FILIPINA WILL NOT CHARGE HER FATHER
WITH RAPE IF IT IS NOT TRUE AND (2) THAT A
MOTHER WILL NOT SACRIFICE HER DAUGHTER TO
TELL A STORY OF DEFLORATION AND IN HOLDING
THAT THESE PRESUMPTIONS OUTWEIGHED THE
CONSTITUTIONAL PRESUMPTIONS OF INNOCENCE.
THIRD ASSIGNED ERROR: THE TRIAL COURT ERRED
IN REJECTING THE COMPLAINANT'S AFFIDAVITS OF
DESISTANCE AS NOT AMOUNTING TO AN EXPRESS
PARDON MADE BEFORE THE FILING OF THE
INFORMATIONS IN VIOLATION OF ARTICLE 344 OF
THE REVISED PENAL CODE.
FOURTH ASSIGNED ERROR: THE LACK OF A DEFINITE
ALLEGATION OF THE DATE OF THE COMMISSION OF
THE OFFENSE IN THE COMPLAINT AND
INFORMATIONS FILED, AND THROUGHOUT THE TRIAL
PREVENTED THE ACCUSED-APPELLANT FROM
PREPARING AN ADEQUATE DEFENSE AND VIOLATED
HIS RIGHT TO A FAIR TRIAL AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION
AGAINST HIM.
FIFTH ASSIGNED ERROR: THE FAILURE OF THE TRIAL
COURT TO RULE ON THE OFFERS OF EVIDENCE OF
THE PROSECUTION AND THE DEFENSE
SUBSTANTIALLY IMPAIRED THE RIGHT OF THE
ACCUSED-APPELLANT TO A FAIR TRIAL SINCE IT
NOTE: NO People v. Mejorada here.
ALLOWED THE COURT TO CONSIDER BOTH
ADMISSIBLE AND INADMISSIBLE FACTS IN ARRIVING
AT ITS DECISION.
SIXTH ASSIGNED ERROR: THE DEATH PENALTY LAW
INSOFAR AS IT ORDERS THE AUTOMATIC AND
MANDATORY JUDICIAL KILLING OF APPELLANT AND
OTHERS SIMILARLY SITUATED, AS PUNISHMENTS
FOR ACTS WHICH DO NOT INCLUDE THE TAKING OF
ANOTHER PERSON'S LIFE, IS REPUGNANT TO THE
CONSTITUTION AND AMOUNTS TO A BARBARIC,
EXCESSIVE, CRUEL AND UNUSUAL PUNISHMENT. 9
We will deal with these issues in seriatim.
Accused-appellant assails the trial court's reliance on the testimony of the
private complainant on two grounds: (1) failure on the part of the prosecution
to formally offer it in evidence in accord with Rule 132, Sections 34 and 35 of
the Revised Rules of Evidence; and (2) said testimony is full of inconsistencies
and appears to be coached. 10
On the issue of the prosecution's failure to formally offer in evidence the
testimony of the victim, the applicable provisions are Sections 34 and 35 of
Rule 132 of the Revised Rules of Evidence:
Sec. 34. Offer of evidence. — The court shall consider no
evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
Sec. 35. When to make offer. — As regards the testimony
of a witness, the offer must be made at the time the witness
is called to testify.
The above-quoted requirement is explained in Vicente J. Francisco's book on
Evidence: 11
. . . The introduction of evidence is intended to inform the
court what the party making the offer intends to prove, so
that the court may rule intelligently upon the objections to
questions which have been asked, and may be necessary
in order to preserve an exception to a ruling of the trial court
excluding evidence. As a general rule, a party offering
evidence must show its relevancy, materiality, and
competency, and when he seeks to introduce evidence
which does not appear to be relevant or competent, or
propounds to his witness an interrogatory which appears to
call for an irrelevant or incompetent answer, he should
make a formal offer of proof showing what testimony he
proposes to adduce, and when necessary, his intention to
prove other facts which will render the evidence relevant or
competent; the purpose for which apparently irrelevant or
incompetent evidence is offered should be disclosed.
The Supreme Court has held that any evidence which a
party desires to submit for the consideration of the court
must formally be offered by him. Such a formal offer is
necessary because it is the duty of the judge to rest his
findings of facts and his judgment only and strictly upon the
evidence offered by the parties at the trial. The offer may be
made in any form sufficient to show that the party is ready
and willing to submit the evidence to the court.
Admittedly, the transcripts of the testimonies reveal that the prosecution failed
to declare the purpose for which the testimony of Richelle Alicante was being
offered. However, this error will not prevent said testimony from being
appreciated and made part of the evidence for the prosecution. This is so
because counsel for the accused-appellant failed to seasonably raise an
objection thereto. Said objection could have been done at the time when the
victim was called to the witness stand, without proper explanation thereof or
at anytime before the prosecution rested its case. Thus, this Court has ruled:
In People vs. Java, this Court ruled that the testimony of a
witness, although not formally offered in evidence, may still
be admitted by the courts, if the other party does not object
to its presentation. The Court explained: "Section 36 of
[Rule 132] requires that an objection in the course of the
oral examination of a witness should be made as soon as
the grounds therefor shall become reasonably apparent.
Since no objection to the admissibility of evidence was
made in the court below, an objection raised for the first time
on appeal will not be considered. In the present case, a
cursory reading of the stenographic notes reveals that the
counsel for the appellants did not raise any objection when
said witnesses testified on the matters now being
impugned. Moreover, they repeatedly cross-examined the
NOTE: NO People v. Mejorada here.
witnesses, which shows that they had waived their
objections to the said testimonies of such witnesses. 12
Moreover, it should be noted that the witness whose testimony is sought by
the accused-appellant to be disregarded is that of the victim herself. As
explained earlier, the purpose of a formal offer is to enable the trial judge to
know the purpose or purposes for which the proponent is presenting the
evidence. As it is the victim herself who testified, to state the reason for the
presentation of said witness is to state the obvious. Hence, even without the
formal offer, the judge was assumed to already know the purpose of her
testimony.
Accused-appellant argues that Richelle's testimony should be rejected since
it is highly inconsistent, dubious and appears to be coached as shown by the
following inconsistencies:
(a) While Richelle Alicante testified that at least seven rapes occurred from
August 1994 to April 1995, she only mentioned two in her sworn statement
[Exh. "F", par. 6] — once in August 1994 and once in April 1995;
(b) While Richelle said on direct examination that she was raped twice in
August 1994 [TSN, 7/2/96, pp. 7-8, 18], she only mentioned one incident in
her statement, Exh, "F";
(c) While Richelle testified that she was raped four times in September 1994
[TSN, 7/3/96, p. 8], she made no mention of such rapes in her statement, Exh.
"F"; and later changed her statement regarding the fourth incident in
September when she claimed that actual penetration took place [TSN, 7/9/96,
p. 17];
(d) While Richelle testified at one point that she was raped four times in
September 1994 [id.], she later changed her testimony and said she was
raped only three times [TSN, 7/3/96, p. 12]; and at another point in her
testimony alleged that her father did not do anything wrong to her in
September 1994 [TSN, 7/2/96, p. 19];
(e) While Richelle claimed when she testified on July 15, 1996 that she did not
read the affidavit of desistance that she signed [Exh. "3", TSN, 7/15/96, pp.
15-16], she said the exact opposite when she testified as a hostile witness for
the defense on September 9, 1996 [see TSN, 9/9/96, p. 6];
(f) While Richelle testified on direct that the consequences of signing the
affidavit of desistance were not explained to her [TSN, 7/15/96, pp. 15-16, 19],
when she testified as a hostile witness for the defense she admitted that a
lawyer who prepared the affidavit of desistance talked to her in private and
explained the consequences of her signing the affidavit [TSN, 9/9/96, p. 7];
(g) While Richelle said that physical violence was repeatedly inflicted on her
by appellant, the medico-legal report (Exh. "I"] concluded that no external
signs of application of any form of violence were found on Richelle;
(h) While Richelle testified that all the rapes occurred while their family was
residing in Marikina, she told SPO2 Balitao (as related by the latter on the
stand) that she was only raped once in Marikina and the rest of the rapes took
place in their new residence Pasig [TSN, 7/30/96, p. 37];
(i) While Richelle said on her first day on the witness stand that after the
second rape she could no longer remember the other incidents [TSN, 7/2/96,
p. 30], when she took the stand on the subsequent days she was suddenly
able to remember the other incidents;
(j) While Richelle claimed that she told the police on July 6, 1996 that she was
raped in August, September, October, November and December 1994 [TSN,
7/15/96, pp. 10-11], her statement, Exh. "F", only mentioned a rape which
allegedly occurred in August 1994 and no others for remainder of 1994; and
(k) While Richelle alleged on initial direct that she was raped a total of five
times (twice in August 1994, twice in September, 1994 and once around all
Saints Day of 1994), when Richelle testified a few days later she said she was
also raped thrice in October 1994, thrice in January 1995; and once in
February 1995 [TSN, 7/9/96, pp. 20-32]. 13
Basically, accused-appellant attacks Richelle's testimony on the ground that
in her sworn statement, the young girl only mentioned a single rape incident
that occurred in the month of August, 1994. Such claim is baseless for it is
clear in the narration of Richelle in her sworn statement that she was raped
by her father several times: "Bandang alas 12:00 ng Tanghali ng nangyari na
nasundan pa ng maraming beses sa loob ng dati naming bahay . . . " 14
The other inconsistencies refer to minor details such as how many times she
was raped during a certain month. These do not create a reasonable doubt as
to whether or not accused-appellant raped his daughter. It must be
remembered that the victim is a girl of tender age who was sexually attacked
NOTE: NO People v. Mejorada here.
by her father several times during a period of less than a year. It is not
expected that Richelle would remember every single detail of every single
rape. It is understandable, even anticipated, that there would be minor lapses
and inaccuracies when a young girl is made to recount, detail by detail her
frightful ordeal under the hands of her father. 15 Considering the age of the
victim, she is more prone to error than an adult person. 16 The grueling
experience of testifying in public, face to face with her perpetrator and being
questioned by hostile lawyers would undoubtedly intimidate and confuse a
young girl. Despite these circumstances, Richelle remained steadfast in her
claim that her father raped her.
In any case, these inconsistencies go into the credibility of Richelle as a
witness. Well-settled is the rule that this Court will not disturb the findings of
the trial court as to the credibility of a witness. This is so because the trial court
has a better vantage point in observing the candor and behavior of the
witness. Hence, the trial court's characterization of Richelle as a witness:
xxx xxx xxx
During the trial, the court observed that the complainant, as
a witness, possessed the necessary competence and
intelligence of making known her perceptions and had
narrated it with sincerity and truthfulness, though
interrupted with some temporary emotional breakdowns.
Her categorical, spontaneous, candid and straightforward
testimonies have sufficiently established her credibility. It is
noted, however, that there were inconsistencies and
discrepancies, like on the occasions of the commissions of
the rapes and on the circumstances as to how they were
committed but such would have been caused by the natural
fickleness of memory due to the tender age of the
complainant-witness which tends to strengthen rather than
to weaken her credibility as it erases suspicion of rehearsed
testimony. Besides, the precise date when the complainant
was sexually abused is not an element of the crime. . . . . 17
The fact that Richelle's testimony is uncorroborated is of no moment. As this
Court has held, the accused may be convicted on the basis of the lone
uncorroborated testimony of the rape victim, provided that her testimony is
clear, positive, convincing and otherwise consistent with human nature and
the normal course of things. 18 We agree with the trial court that Richelle's
testimony meets this criterion.
Accused-appellant, likewise, has failed to come out with any plausible reason
why Richelle would fabricate a story of rape. As we have so held in the past,
a young girl would not publicly disclose a humiliating and shameful experience
of being sexually abused by her father if such were not the truth, 19 especially
so in this case where there has been no showing of bad blood between father
and daughter prior to the charges of rape. 20
Accused-appellant, however, argues that the application of the presumption
by the trial court that a young Filipina will not charge a person with rape if it is
not true goes against the constitutional presumption of innocence. In People
vs. Godoy, 21 this Court explained the proper approach of courts when
confronted by this situation:
The trial court, in holding for conviction relied on the
presumptio hominis that a young filipina will not charge a
person with rape if it is not true. In the process, however, it
totally disregarded the more paramount constitutional
presumption that an accused is deemed innocent until
proven otherwise.
It frequently happens that in a particular case two or more
presumptions are involved. Sometimes the presumption of
conflict, one tending to demonstrate the guilt of the accused
and the other his innocence. In such case, it is necessary
to examine the basis for each presumption and determine
what logical or social basis exists for each presumption, and
then determine which should be regarded as the more
important and entitled to prevail over the other. It must,
however, be remembered that the existence of a
presumption indicating guilt does not destroy the
presumption against innocence unless the inculpating
evidence, together with all of the evidence, or the lack of
any evidence or explanation, is sufficient to overcome the
presumption of innocence by proving the defendant's guilt
beyond a reasonable doubt until the defendant is shown in
this manner, the presumption of innocence continues.
xxx xxx xxx
In rape cases, especially much credence is accorded the
testimony of the complaining witness, on the theory that she
will not choose to accuse her attacker at all and subject
herself to the stigma and the indignities her accusation will
NOTE: NO People v. Mejorada here.
entail unless she is telling the truth. The rape victim who
decides to speak up exposes herself as a woman whose
virtue has not been not only violated but also irreparably
sullied. In the eyes of a narrow-minded society, she
becomes a cheapened woman, never mind that she did not
submit to her humiliation and has in fact denounced her
assailant. At the trial, she will be the object of lascivious
curiosity. People will want to be titillated by the intimate
details of her violation. She will squirm through her
testimony as she described how her honor was defiled,
relating every embarrassing movement of the intrusion
upon the most private parts of her body. Most frequently,
the defense will argue that she was not forced to submit but
freely conjoined in the sexual act. Her motives will be
impugned. Her chastity will be challenged and maligned.
Whatever the outcome of the case, she will remain a tainted
woman, a pariah because her purity has been lost, albeit
through no fault of hers. This is why in many a rape victim
chooses instead to keep quiet, suppressing her helpless
indignation rather than denouncing her attacker. This is also
the reason why, if a woman decides instead to come out
openly and point to her assailant, courts are prone to
believe that she is telling the truth regardless of its
consequences. . . . 22
The presumption that a young Filipina will not charge a person with rape if it
is not true vis-a-vis the application of the presumption of innocence has been
explained in this wise:
The presumption of innocence, on the otherhand, is
founded upon the first principle of justice, and is not a mere
form but a substantial part of the law. It is not overcome by
mere suspicion or conjecture; a probability that the
defendant committed the crime; nor by the fact that he had
the opportunity to do so. Its purpose is to balance the scales
in what would otherwise be an uneven contest between the
lone individual pitted against the People and all the
resources at their command. Its inexorable mandate is that,
for all the authority and influence of the prosecution, the
accused must be acquitted and set free if his guilt cannot
be proved beyond the whisper of a doubt. This is in
consonance with the rule that conflicts in evidence must be
resolved upon the theory of innocence rather than upon a
theory of guilt when it is possible to do so. 23
Further, as elaborated by Father Joaquin Bernas, one of the framers of the
1987 Constitution, under the principle of presumption of innocence, it is merely
required of the State to establish a prima facie case, after which the burden of
proof shifts to the accused. 24 In U.S. v. Luling, 25 the Court said:
xxx xxx xxx
No rule has been better established in criminal law than that
every man is presumed to be innocent until his guilt is
proved beyond a reasonable doubt. In a criminal
prosecution, therefore, the burden is upon the State to
prove every fact and circumstance constituting the crime
charged, for the purpose of showing the guilt of the
accused.
While that is the rule, many of the States have established
a different rule and have provided that certain facts only
shall constitute prima facie evidence, and that then the
burden is put upon the defendant to show or to explain that
such facts or acts are not criminal.
It has been frequently decided, in case of statutory crimes,
that no constitutional provision is violated by a statute
providing that proof by the State of some material fact or
facts shall constitute prima facie evidence of guilt, and that
then the burden is shifted to the defendant for the purpose
of showing that such act or acts are innocent and are
committed without unlawful intention.
. . . The State having the right to declare what acts are
criminal, within certain well defined limitations, has a right
to specify what act or acts shall constitute a crime, as well
as what proof shall constitute prima facie evidence of guilt,
and then to put upon the defendant the burden of showing
that such act or acts are innocent and are not committed
with any criminal intent or intention. 26
In like manner, this Court can adjudge certain evidence, such as a young
Filipina's statement that she was raped, in addition to the fact that she gave a
premature birth to a twins six or seven months after the commission of one of
the rapes, as prima facie proof of the guilt of the accused, as in the case at
bar, and if unrebutted is enough to warrant a conviction, without going against
the constitutional presumption of innocence.
NOTE: NO People v. Mejorada here.
Accused-appellant's assertion that the trial court erred in applying the
presumption that a mother will not sacrifice her daughter to tell a story of
defloration deserves no consideration. A careful examination of the assailed
decision reveals that the trial court never applied this presumption.
The third assignment of error raised by the accused-appellant is the rejection
by the trial court of the affidavit of desistance executed by the victim and her
mother allegedly constitutes an express pardon. The document 27 referred to
reads as follows:
Salaysay ng Pag-uurong ng Demanda
AKO, si PACITA ALICANTE, may sapat na gulang, may
asawa at sa kasalukuyan ay naninirahan sa No. 16
Kataragan St., Karangalan Village, Pasig City, matapos
manumpa ng ayon sa batas ay malayang nagsasabing mga
sumusunod:
1. Na ako ang nagdidimanda ng salang "rape" laban sa
aking asawa na si ARMANDO ALICANTE dahil sa
panggagahasa niya sa aming anak na si RICHELLE
ALICANTE, 13 taong gulang na ngayon ay iniimbestigahan
sa Piskalya ng Pasig City na may IS. NO. 95-4739;
2. Na matapos kaming mag-usap-usap ay
napagkasunduan naming iurong na ang demanda at
patawarin siya sa nagawa niyang kasalanan. . . ginawa
namin ang paguurong na ito upang mabuhay kami ng
mapayapa at matiwasay;
3. Na ipinaaabot ko sa may kapangyarihan na hindi ko na
nais pang ipagpatuloy ang reklamo ko laban sa kanya at
iyon ay iniaatras ko na sa pamamagitan ng salaysay na ito
at hindi na kami tetestigo sa kasong ito;
4. Na ginawa ko ang salaysay na ito upang patotohanan
ang lahat ang nasasaad dito sa itaas.
PASIG CITY, July 11, 1995
(sgd) (sgd)
RICHELLE ALICANTE PACITA ALICANTE
Nagsasalaysay
In order to determine the legal effect of the above-quoted document an
examination of the following provisions of the Revised Penal Code and the
Rules of Court is necessary. Article 344 of the Revised Penal Code states:
Art. 344. Prosecution of the crimes of adultery,
concubinage, seduction, abduction, rape and acts of
lasciviousness. — The offended party cannot institute
criminal prosecution without including both the guilty
parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
has been expressly pardoned by the above-named
persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty
already imposed upon him. The provisions of this paragraph
shall also be applicable to the co-principals, accomplices
and accessories after the fact of the abovementioned
crimes.
Sec. 5, Rule 110 of the Rules of Court expounds on the application of Article
344 of Revised Penal Code:
Sec. 5. Who must prosecute criminal actions. . . .
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor in any case, if the offender
has been expressly pardoned by the above-named
persons, as the case may
be. . . .
NOTE: NO People v. Mejorada here.
The offended party, even if she were a minor, has the right
to initiate the prosecution for the above offenses,
independently of her parents, grandparents or guardians,
unless she is incompetent or incapable of doing so upon
grounds other than her minority. Where the offended party
who is a minor fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to
file the action granted to the parents, grandparents, or
guardian shall be exclusive of all other persons and shall be
exercised successively in the order herein provided, except
as stated in the immediately preceeding paragraph.
As pointed out by the Office of the Solicitor General, a careful scrutiny of the
Salaysay ng Pag-uurong ng Demanda reveals that while the victim Richelle
signed the said document, the intent to pardon the accused-appellant was
only on the part of Pacita, the victim's mother and not the victim herself. The
actor in the document, as so worded, was Pacita. It involved the sole person
of Pacita. This is demonstrated by the personal pronouns she used, pointing
to herself as the one who was extending the pardon. Thus, the first paragraph
starts with "Na ako ang nagdidimanda . . ." The second paragraph says, "Na
matapos kaming nag-usap-usap . . ." indicates that only Pacita and her
husband talked, excluding the victim who, at thirteen, could not have
intelligently participated in her parents' conversation. The third paragraph of
the Salaysay opens with the words "Na ipinaabot ko sa may kapangyarihan, .
. .," signifies her personal involvement, not that of her daughter. Finally, the
last paragraph goes "Na ginawa ko ang salaysay . . .," demonstrating that it
was only Pacita alone that executed the affidavit.
Besides, this Court looks with disfavor on affidavits of desistance. The reason
for this is enunciated in the case of People vs. Junio: 28
The appellant's submission that the execution of an Affidavit
of Desistance by complaint who was assisted by her mother
supported the "inherent incredibility of prosecution's
evidence" is specious. We have said in so many cases that
retractions are generally unreliable and are looked upon
with disfavor by the courts. The unreliable character of this
document is shown by the fact that it is quite incredible that
after going through the process of having the accused-
appellant arrested by the police, positively identifying him
as the person who raped her, enduring the humiliation of a
physical examination of her private parts, and then
repeating her accusations in open court by recounting her
anguish, Maryjane would suddenly turn around and declare
that "a[f]ter a careful deliberation over the case, (she) find(s)
that the same does not merit or warrant criminal
prosecution.
Thus, we have declared that at most the retraction is an
afterthought which should not be given probative value. It
would be a dangerous rule to reject the testimony taken
before the court of justice simply because the witness who
gave it later on changed his mind for one reason or another.
Such a rule would make a solemn trial a mockery and place
the investigation at the mercy of unscrupulous witnesses.
Because affidavits of retraction can easily be secured from
poor and ignorant witnesses, usually for monetary
consideration, the Court has invariably regarded such
affidavits as exceedingly unreliable.
This was reiterated by the Court of late in the case of Alonte vs. Savellano, Jr.
29 where we further ruled that an affidavit of desistance by itself, even when
construed as pardon in so-called "private crimes," is not a ground for the
dismissal of the criminal case once the action has been instituted. The
affidavit, nevertheless, may, as so earlier intimated, possibly constitute
evidence whose weight or probative value, like any other piece of evidence,
would be up to the court for proper evaluation.
In any case, when asked on the witness stand whether or not she wanted the
case dismissed, Richelle answered in the negative. She explained that she
did not read the contents of the document and only signed it because her aunt,
Virginia Alicante, forced her to do so. She further stated in her testimony that
she intended to pursue the present case against her father. 30 Thus:
It must be stressed that during the trial proceedings of the
rape case against the accused-appellant, it appeared that
despite the admission made by the victim herself in open
court that she had signed the Affidavit of Desistance, she,
nevertheless, "strongly pointed out that she is not
withdrawing the charge against the accused because the
latter might do the same sexual assaults to other women."
Thus, this is one occasion where an affidavit of desistance
must be regarded with disfavor inasmuch as the victim, in
her tender age, manifested in court that she was pursuing
the rape charges against the accused-appellant. 31
NOTE: NO People v. Mejorada here.
As to when the pardon is to be made, this Court has long ruled that the pardon
must be granted before the criminal case has been instituted:
In People vs. Infante, G.R. No. 36270, an adultery case, the
first division of this court, interpreting article 344 with
reference to that crime, declared in a decision rendered by
Justice Malcolm, promulgated on August 31, 1932, that in
order that the pardon of the aggrieved party may prevent
the prosecution of the adulterers, it must be granted before
and not after the penal action has been instituted.
In view of the foregoing considerations, we are of the
opinion and so hold, that the offended party's pardon of the
offender in a seduction case after the criminal action has
been instituted does not extinguish said action according to
paragraph 3, article 344, of the Revised Penal Code. . . . 32
Likewise in the Junio case, we held:
While "[t]he offenses of seduction, abduction, rape or acts
of lasciviousness, shall not be prosecuted, except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor in any case, if the offender
has been expressly pardoned by the above named persons,
as the case may be," the pardon to justify the dismissal of
the complaint should have been made prior to the institution
of the criminal action. Hence the motion to dismiss to which
the affidavit of desistance is attached was filed after the
institution of the criminal case. And the affiant did not
appear to be serious in "signifying (her) intention to refrain
from testifying since she still completed her testimony
notwithstanding her earlier affidavit of
desistance. 33
Accordingly, the prosecution of the case continues even if the offended party
pardons the offender after the case has been instituted. While the second
affidavit of desistance was signed by Richelle, this was executed only on 5
December 1995, 34 after the criminal information had already been filed in the
trial court. No error can then be imputed to the trial court, for continuing on
with the trial despite the presentation of these two so-called affidavits of
desistance.
Accused-appellant also attacks the alleged lack of a definite allegation of the
dates of the commission of the offense not only in the complaint and
informations filed but also throughout the trial. He argues that this deficiency
prevented him from preparing an adequate defense and violated his right to
be informed of the nature and cause of the accusation against him.
In addition, accused-appellant questions the basis of the informations.
According to him, a review of the records will show that the only document in
the possession of the investigating prosecutor when he filed the information
was the sworn complaint of Richelle Alicante. Nowhere in her sworn complaint
did Richelle allege the number of times she was raped except for her
declaration that she had been raped "(m)any times." Hence, the filing of fifteen
(15) separate Informations was mere speculation on the part of the
prosecution without any factual basis. Further, while the offended party could
not recall the exact dates of each and every alleged rape, it was incumbent
upon the prosecution to file charges only for those rapes in which they were
fairly certain of the dates when these sexual assaults occurred.
We are not persuaded.
Sec. 11, Rule 110 of the Rules of Court is in point:
Sec. 11. Time of the commission of the offense. — It is not
necessary to state in the complaint or information the
precise time at which the offense was committed except
when time is a material ingredient of the offense, but the act
may be alleged to have been committed at any time near
the actual date at which the offense was committed as the
information or complaint will permit.
On numerous occasions, this Court has pronounced that the precise time of
the commission of the crime is not an essential element of rape:
It is settled that even a variance of a few months between
the time set out in the indictment and that established by
the evidence during trial has been held not to constitute an
error so serious as to warrant a reversal of a conviction
solely on that score. The failure of the complainant to state
the exact date and time of the commission of rape is a minor
matter and can be expected when the witness is recounting
the details of a humiliating experience which are painful and
difficult to recall in open court and in the presence of other
people. Moreover, the date of the commission of the rape is
not an essential element of the crime. 35
NOTE: NO People v. Mejorada here.
The Court finds that the informations filed against herein accused-appellant
state all the facts and ingredients that would, with sufficient definiteness and
clarity, fully apprise him of the nature and cause of the accusation against him
in compliance with his constitutional right to be informed of the nature and the
charges against him.
As to the factual basis of the informations, while the records of the prosecution
36 may be sketchy as bases of the other thirteen informations except for those
charging rapes for the months of August 1994 and April 1995, it is too late in
the day to question such. Accused-appellant had adequate remedies during
the investigation and trial but he failed to avail of them. In any case, such
seeming defect is not fatal because as has been mentioned earlier, the
informations filed comply with the constitutional mandate.
We agree with the accused-appellant that there was failure on the part of the
trial court judge to rule on the formal offer of evidence and the objections
thereto. It should be noted that this failure pertains to the documentary and
object evidence only, for as earlier discussed, testimonial evidence is offered,
objected to and admissibility ruled on when the witness is called to the stand.
However, this deficiency will not result in the reversal of accused-appellant's
conviction. The purpose of the requirement is to ensure that the judge will not
consider inadmissible evidence in making his decision. After a careful scrutiny
of the decision and the records, it is our view that the judge did not consider
any inadmissible evidence. As pointed out by the Office of the Solicitor
General, the testimony of Richelle, which, as has been discussed, is deemed
formally offered without any objections thereto, has been accepted as
admissible by the trial court. Said testimony alone, to the mind of this Court,
is sufficient to sustain the conviction of the accused-appellant.
In a last ditch effort to escape the imposition of the death penalty, accused-
appellant asks this Court to re-examine its ruling on the constitutionality of the
appreciation of such an extreme penalty. In People v. Echegaray, 37 we have
affirmed the constitutionality of the imposition of the death penalty for crimes
which are not attended by the circumstance of death on the part of the victim:
. . . We have already demonstrated earlier in our discussion
of heinous crimes that the forfeiture of life simply because
life was taken, never was a defining essence of the death
penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in heinous
crimes because the perpetrators thereof have committed
unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely
destructive effects on the national efforts to lift the masses
from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and
because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition of
their acts would pose actual threat to the safety of
individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this
Court has no doubts as to the innate heinousness of the
crime of rape, as we have held in the case of People v.
Cristobal:
Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and chastity. Rape
deeply wounds the respect, freedom, and physical and
moral integrity to which every person has a right. It causes
grave damage that can mark the victim for life. It is always
an intrinsically evil act . . . an outrage upon decency and
dignity that hurts not only the victim but the society itself. 38
We find no cogent reason to reverse our stand on the heinousness of the
crime of rape when the perpetrator of such bestial act is the father of the victim.
To say that the crime of incestuous rape is not heinous simply because the
victim did not die is to ignore the lifelong trauma and stigma of the victim
brought about by rape. In this particular case, the psychiatrist who conducted
and evaluated the test on Richelle observed that she consistently showed
signs of post traumatic stress disorder common to persons who have
undergone unusual traumatic events in their lives caused by natural or man-
made catastrophes. The social worker from the Department of Social Welfare
and Development, likewise, noted that Richelle was greatly traumatized and
emotionally injured individual. 39 These findings are consistent with studies on
the general effects of rape on a victim:
The experience of rape creates a disruption in lifestyle that
realistically could last a lifetime. The physical trauma — that
which is visibly noted and treated — quickly heals, creating
the illusion of recovery. Unfortunately, the real trauma,
because it is not of physical origin frequently goes
unnoticed and unattended.
The common pattern of public blame and skepticism
encourages the victim to harbor emotional injury and pain.
This process results in longterm psychological and
NOTE: NO People v. Mejorada here.
emotional symptoms . . . . . . Previously common,
comfortable situations may become fearful and phobic
experiences following an assault. Certain phobias may
appear to be very logical, while other may appear to the
nonvictim to present little or no association. Some
frequently associated phobias include: association with
crowds, being left alone, previously ignored sound, poorly
lit areas, seeing a man who may even vaguely resemble the
rapist, odors associated with the attack, such as the smell
of alcohol and gasoline, the feeling that a crowd of people
knows of the rape and is talking about it, the occurrence of
another disruptive experience, although unrelated, a
general fear of people, the thought of sexual relations. It
must be remembered that to the victim these phobias are
every real and frightening. 40
In sum, we agree with the following findings of the trial court that accused-
appellant is guilty beyond reasonable doubt of seven counts of rape since the
same is ably supported by the evidence:
The record shows that the complainant took the witness
stand for three (3) times on July 2, July 3 and July 9, 1996
and each and all of these trials, she consistently testified
that the first time she was raped by her father was in August
1994 and the same was repeated three (3) days thereafter.
There had been allegations that she was still repeatedly
abused by her father but the circumstances as to how they
were committed bears repetitious contentions of general
tenor which created doubt except those committed in
October 1994, near the all Saint's Day and those three (3)
rapes committed in January 1995, due to the fact that she
gave birth to a 6 to 7 months prematurely born twin baby
boys in July 24, 1995, as evidenced by the clinical records
of the attending physicians which were taken cognizance as
judicial notice by the Court as the same was capable of
unquestionable demonstration. The last memorable
occasion of the series of incest was in April 1995 just before
they transferred to another house from Bonifacio St., Dela
Peña, Marikina, to Pasig, Metro Manila. Considerably,
therefore, in holding the accused to be liable for the two
crimes of rapes in August 1994 which were docketed as
Criminal Case Nos. 95-546-MK and 95-547-MK,
respectively; once in the last week of October 1994;
docketed as Criminal Case No. 95-554-MK; three rapes
committed in January 1995, docketed as Criminal Cases
Nos. 95-555-MK, 95-556-MK, and 95-557 respectively; and
the rape committed in April 1995 and docketed as Crim.
Case No. 95-560-MK; the Court notes the well settled rule
in this jurisdiction in crimes against chastity, that the
exacting standard of proof beyond reasonable doubt
acquires more relevance cases because such accusation is
easily fabricated but hard to prove and harder still to defend
on the part of the accused, though innocent. Such that the
testimony of the complainant should be scrutinized with
extreme caution and the evidence of the prosecution must
fall or stand on its own merit and should not draw any
strength from the weakness of the evidence of the defense.
41
As the relationship between the accused-appellant and the victim
has in the same wise been proven beyond reasonable doubt, the
Court affirms the imposition of the death penalty in accordance with
Republic Act No. 7659 amending Article 335 of the Revised Penal
Code which provides:
xxx xxx xxx
The death penalty shall be imposed if the crime of rape is
committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, stepparent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the patent of the
victim. . . .
In line with prevailing jurisprudence, the civil indemnity ex delicto for the victim
shall be in the amount of P75,000.00 for each count of rape and moral
damages of P50,000.00, likewise for each count of rape without the need of
pleading or proof of the basis thereof. 42
Four members of the Court maintain their position that Republic Act No. 7659,
insofar as it prescribes the death penalty, is unconstitutional; nevertheless,
they submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should be accordingly imposed.
NOTE: NO People v. Mejorada here.
WHEREFORE, premises considered, the Court hereby AFFIRMS the
appealed decision sentencing the accused-appellant ARMANDO ALCANTE y
DAVID to the extreme penalty of death with the MODIFICATION that the
accused-appellant shall be ordered to indemnify the victim Richelle Alicante,
in the amount of P75,000.00 as civil indemnity and P50,000.00, respectively,
as moral damages for each count of the offense proved.
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 his pardoning power. SO ORDERED.
People v. De Guzman
NACHURA, J.:
This resolves the motion for extinguishment of the criminal action and
reconsideration of our Resolution dated July 20, 2009 filed by appellant Ronie
de Guzman.
Appellant was indicted before the Regional Trial Court, Branch 163, Pasig
City, for two counts of rape. He pled "not guilty" when arraigned. After pretrial
and trial, the trial court found him guilty as charged and imposed on him the
penalty of reclusion perpetua for each count. The trial court further ordered
him to indemnify the victim ₱50,000.00 in each case or a total amount of
₱100,000.00 as civil indemnity.
On appeal, the Court of Appeals (CA) affirmed, in its Decision dated March
27, 2008, appellant’s conviction, but modified it with an additional award of
₱50,000.00 for each case, or an aggregate amount of ₱100,000.00, as moral
damages.
Appellant elevated the case to this Court on appeal.
In a Resolution dated July 20, 2009, we dismissed the appeal for failure of
appellant to sufficiently show reversible error in the challenged decision as
would warrant the exercise of the Court’s appellate jurisdiction. Accordingly,
the March 27, 2008 Decision of the CA was affirmed in toto.
In the instant motion, appellant alleges that he and private complainant
contracted marriage on August 19, 2009, solemnized by Reverend Lucas R.
Dangatan of Jeruel Christ-Centered Ministries, Inc. at the Amazing Grace
Christian Ministries, Inc., Bldg. XI-A, Bureau of Corrections, Muntinlupa City.
Attached to the motion is the pertinent Certificate of Marriage 1 and a joint
sworn statement ("Magkasamang Sinumpaang Salaysay") 2 executed by
appellant and private complainant, attesting to the existence of a valid and
legal marriage between them. Appellant, thus, prays that he be absolved of
his conviction for the two counts of rape and be released from imprisonment,
pursuant to Article 266-C3 of the Revised Penal Code (RPC).
In its Comment/Manifestation,4 appellee, through the Office of the Solicitor
General, interposed no objection to the motion, finding the marriage to have
been contracted in good faith, and the motion to be legally in order.
The motion should be granted.
In relation to Article 266-C of the RPC, Article 89 of the same Code reads –
ART. 89. How criminal liability is totally extinguished. – Criminal liability is
totally extinguished:
xxxx
7. By the marriage of the offended woman, as provided in
Article 344 of this Code.
Article 344 of the same Code also provides –
ART. 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape, and acts of lasciviousness. – x x x.
In cases of seduction, abduction, acts of lasciviousness, and rape, the
marriage of the offender with the offended party shall extinguish the criminal
action or remit the penalty already imposed upon him. x x x.
On several occasions, we applied these provisions to marriages contracted
between the offender and the offended party in the crime of rape, 5 as well as
in the crime of abuse of chastity,6 to totally extinguish the criminal liability of
and the corresponding penalty that may have been imposed upon those found
guilty of the felony. Parenthetically, we would like to mention here that prior to
the case at bar, the last case bearing similar circumstances was decided by
this Court in 1974, or around 36 years ago.1avvphi1
NOTE: NO People v. Mejorada here.
Based on the documents, including copies of pictures7 taken after the
ceremony and attached to the motion, we find the marriage between appellant
and private complainant to have been contracted validly, legally, and in good
faith, as an expression of their mutual love for each other and their desire to
establish a family of their own. Given public policy considerations of respect
for the sanctity of marriage and the highest regard for the solidarity of the
family, we must accord appellant the full benefits of Article 89, in relation to
Article 344 and Article 266-C of the RPC.
WHEREFORE, the motion is GRANTED. Appellant Ronie de Guzman is
ABSOLVED of the two (2) counts of rape against private complainant Juvilyn
Velasco, on account of their subsequent marriage, and is ordered RELEASED
from imprisonment.
Let a copy of this Resolution be furnished the Bureau of Corrections for
appropriate action. No costs. SO ORDERED.
CHILD PORNO; RA 9775; RA 9995; SEXUAL HARASSMENT; RA 7877
Jacutin v. People
VITUG, J.:
In an accusatory Information, dated 22 July 1996, petitioner, City Health
Officer Rico Jacutin of Cagayan de Oro City, was charged before the
Sandiganbayan, Fourth Division, with the crime of Sexual Harassment, thusly:
"That sometime on or about 01 December 1995, in Cagayan de
Oro City, and within the jurisdiction of this Honorable Court
pursuant to the provisions of RA 7975, the accused, a public officer,
being then the City Health Officer of Cagayan de Oro City with
salary grade 26 but a high ranking official by express provision of
RA 7975, committing the offense in relation to his official functions
and taking advantage of his position, did there and then, willfully,
unlawfully and criminally, demand, solicit, request sexual favors
from Ms. Juliet Q. Yee, a young 22 year-old woman, single and
fresh graduate in Bachelor of Science in Nursing who was seeking
employment in the office of the accused, namely: by demanding
from Ms. Yee that she should, expose her body and allow her
private parts to be mashed and stimulated by the accused, which
sexual favor was made as a condition for the employment of Ms.
Yee in the Family Program of the Office of the accused, thus
constituting sexual harassment."1
Upon his arraignment, petitioner pled not guilty to the offense charged; hence,
trial proceeded.
Juliet Q. Yee, then a 22-year old fresh graduate of nursing, averred that on 28
November 1995 her father accompanied her to the office of petitioner at the
City Health Office to seek employment. Juliet’s father and petitioner were
childhood friends. Juliet was informed by the doctor that the City Health Office
had just then filled up the vacant positions for nurses but that he would still
see if he might be able to help her.
The following day, 29 November 1995, Juliet and her father returned to the
City Health Office, and they were informed by petitioner that a medical group
from Texas, U.S.A., was coming to town in December to look into putting up
a clinic in Lapasan, Cagayan de Oro, where she might be considered. On 01
December 1995, around nine o’clock in the morning, she and her father went
back to the office of petitioner. The latter informed her that there was a
vacancy in a family planning project for the city and that, if she were interested,
he could interview her for the job. Petitioner then started putting up to her a
number of questions. When asked at one point whether or not she already
had a boyfriend, she said "no." Petitioner suggested that perhaps if her father
were not around, she could afford to be honest in her answers to the doctor.
The father, taking the cue, decided to leave. Petitioner then inquired whether
she was still a virgin, explaining to her his theory on the various aspects of
virginity. He "hypothetically" asked whether she would tell her family or friends
if a male friend happened to intimately touch her. Petitioner later offered her
the job where she would be the subject of a "research" program. She was
requested to be back after lunch.
Before proceeding to petitioner’s office that afternoon, Juliet dropped by at the
nearby church to seek divine guidance as she felt so "confused." When she
got to the office, petitioner made several telephone calls to some hospitals to
inquire whether there was any available opening for her. Not finding any,
petitioner again offered her a job in the family planning research undertaking.
She expressed hesitation if a physical examination would include "hugging"
her but petitioner assured her that he was only kidding about it. Petitioner then
invited her to go bowling. Petitioner told her to meet him at Borja Street so that
people would not see them on board the same car together. Soon, at the
designated place, a white car driven by petitioner stopped. She got in.
Petitioner held her pulse and told her not to be scared. After dropping by at
his house to put on his bowling attire, petitioner got back to the car.
NOTE: NO People v. Mejorada here.
While driving, petitioner casually asked her if she already took her bath, and
she said she was so in a hurry that she did not find time for it. Petitioner then
inquired whether she had varicose veins, and she said "no." Petitioner told her
to raise her foot and lower her pants so that he might confirm it. She felt
assured that it was all part of the research. Petitioner still pushed her pants
down to her knees and held her thigh. He put his hands inside her panty until
he reached her pubic hair. Surprised, she exclaimed "hala ka!" and
instinctively pulled her pants up. Petitioner then touched her abdomen with his
right hand saying words of endearment and letting the back of his palm touch
her forehead. He told her to raise her shirt to check whether she had nodes or
lumps. She hesitated for a while but, eventually, raised it up to her navel.
Petitioner then fondled her breast. Shocked at what petitioner did, she lowered
her shirt and embraced her bag to cover herself, telling him angrily that she
was through with the research. He begged her not to tell anybody about what
had just happened. Before she alighted from the car, petitioner urged her to
reconsider her decision to quit. He then handed over to her P300.00 for her
expenses.
Arriving home, she told her mother about her meeting with Dr. Jacutin and the
money he gave her but she did not give the rest of the story. Her mother
scolded her for accepting the money and instructed her to return it. In the
morning of 04 December 1994, Juliet repaired to the clinic to return the money
to petitioner but she was not able to see him until about one o’clock in the
afternoon. She tried to give back the money but petitioner refused to accept
it.
A week later, Juliet told her sister about the incident. On 16 December 1995,
she attempted to slash her wrist with a fastener right after relating the incident
to her mother. Noticing that Juliet was suffering from some psychological
problem, the family referred her to Dr. Merlita Adaza for counseling. Dr. Adaza
would later testify that Juliet, together with her sister, came to see her on 21
December 1995, and that Juliet appeared to be emotionally disturbed, blaming
herself for being so stupid as to allow Dr. Jacutin to molest her. Dr. Adaza
concluded that Juliet’s frustration was due to post trauma stress.
Petitioner contradicted the testimony of Juliet Yee. He claimed that on 28
November 1995 he had a couple of people who went to see him in his office,
among them, Juliet and her father, Pat. Justin Yee, who was a boyhood friend.
When it was their turn to talk to petitioner, Pat. Yee introduced his daughter
Juliet who expressed her wish to join the City Health Office. Petitioner replied
that there was no vacancy in his office, adding that only the City Mayor really
had the power to appoint city personnel. On 01 December 1995, the afternoon
when the alleged incident happened, he was in a meeting with the Committee
on Awards in the Office of the City Mayor. On 04 December 1995, when Juliet
said she went to his office to return the P300.00, he did not report to the office
for he was scheduled to leave for Davao at 2:35 p.m. to attend a hearing
before the Office of the Ombudsman for Mindanao. He submitted in evidence
a photocopy of his plane ticket. He asserted that the complaint for sexual
harassment, as well as all the other cases filed against him by Vivian Yu, Iryn
Salcedo, Mellie Villanueva and Pamela Rodis, were but forms of political
harassment directed at him.
The Sandiganbayan, through its Fourth Division, rendered its decision, dated
05 November 1999, penned by Mr. Justice Rodolfo G. Palattao, finding the
accused, Dr. Rico Jacutin, guilty of the crime of Sexual Harassment under
Republic Act No. 7877. The Sandiganbayan concluded:
"WHEREFORE, judgment is hereby rendered, convicting the
accused RICO JACUTIN Y SALCEDO of the crime of Sexual
Harassment, defined and punished under R.A. No. 7877,
particularly Secs. 3 and 7 of the same Act, properly known as the
Anti-Sexual Harassment Act of 1995, and is hereby sentenced to
suffer the penalty of imprisonment of six (6) months and to pay a
fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary
imprisonment in case of insolvency. Accused is further ordered to
indemnify the offended party in the amount of Three Hundred
Thousand (P300,000.00) Pesos, by way of moral damages; Two
Hundred Thousand (P200,000.00) Pesos, by way of Exemplary
damages and to pay the cost of suit."2
In the instant recourse, it is contended that -
"I. Petitioner cannot be convicted of the crime of sexual harassment
in view of the inapplicability of Republic Act No. 7877 to the case at
bar.
"II. Petitioner [has been] denied x x x his constitutional right to due
process of law and presumption of innocence on account of the
insufficiency of the prosecution evidence to sustain his conviction." 3
The above contentions of petitioner are not meritorious. Section 3 of Republic
Act 7877 provides:
"SEC. 3. Work, Education or Training-related Sexual Harassment
Defined. – Work, education or training-related sexual harassment is
committed by an employer, employee, manager, supervisor, agent
NOTE: NO People v. Mejorada here.
of the employer, teacher, instructor, professor, coach, trainor, or
any other person who, having authority, influence or moral
ascendancy over another in a work or training or education
environment, demands, requests or otherwise requires any sexual
favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.
"(a) In a work-related or employment environment, sexual
harassment is committed when:
"(1) The sexual favor is made as a condition in the hiring
or in the employment, re-employment or continued
employment of said individual, or in granting said
individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual
favor results in limiting, segregating or classifying the
employee which in any way would discriminate, deprive or
diminish employment opportunities or otherwise adversely
affect said employee."
Petitioner was the City Health Officer of Cagayan de Oro City, a position he
held when complainant, a newly graduated nurse, saw him to enlist his help
in her desire to gain employment. He did try to show an interest in her plight,
her father being a boyhood friend, but finding no opening suitable for her in
his office, he asked her about accepting a job in a family planning research
project. It all started from there; the Sandiganbayan recited the rest of the
story:
"x x x. Succeeding in convincing the complainant that her physical
examination would be a part of a research, accused asked
complainant if she would agree that her private parts (bolts) would
be seen. Accused assured her that with her cooperation in the
research, she would gain knowledge from it. As complainant looked
upon the accused with utmost reverence, respect, and paternal
guidance, she agreed to undergo the physical examination. At this
juncture, accused abruptly stopped the interview and told the
complainant to go home and be back at 2:00 o’clock in the
afternoon of the same day, December 1, 1995. Complainant
returned at 2:00 o’clock in the afternoon, but did not proceed
immediately to the office of the accused, as she dropped by a
nearby church to ask divine guidance, as she was confused and at
a loss on how to resolve her present predicament. At 3:00 o’clock in
the afternoon, she went back to the office of the accused. And once
inside, accused called up a certain Madonna, inquiring if there was
a vacancy, but he was told that she would only accept a registered
nurse. Complainant was about to leave the office of the accused
when the latter prevailed upon her to stay because he would call
one more hospital. In her presence, a call was made. But again
accused told her that there was no vacancy. As all efforts to look for
a job in other hospitals failed, accused renewed the offer to the
complainant to be a part of the research in the Family Planning
Program where there would be physical examination. Thereafter,
accused motioned his two (2) secretaries to go out of the room.
Upon moving closer to the complainant, accused asked her if she
would agree to the offer. Complainant told him she would not agree
because the research included hugging. He then assured her that
he was just kidding and that a pre-schooler and high schooler have
already been subjected to such examination. With assurance given,
complainant changed her mind and agreed to the research, for she
is now convinced that she would be of help to the research and
would gain knowledge from it. At this point, accused asked her if
she was a ‘tomboy’, she answered in the negative. He then
instructed her to go with him but he would first play bowling, and
later proceed with the research (physical examination). On the
understanding of the complainant that they will proceed to the clinic
where the research will be conducted, she agreed to go with the
accused. But accused instructed her to proceed to Borja St. where
she will just wait for him, as it was not good for people to see them
riding in a car together. She walked from the office of the accused
and proceeded to Borja St. as instructed. And after a while, a white
car arrived. The door was opened to her and she was instructed by
the accused to come inside. Inside the car, he called her attention
why she was in a pensive mood. She retorted she was not. As they
were seated side by side, the accused held her pulse and told her
not to be scared. He informed her that he would go home for a
while to put on his bowling attire. After a short while, he came back
inside the car and asked her if she has taken a bath. She explained
that she was not able to do so because she left the house hurriedly.
Still while inside the car, accused directed her to raise her foot so
he could see whether she has varicose veins on her legs. Thinking
that it was part of the research, she did as instructed. He told her to
raise it higher, but she protested. He then instructed her to lower
her pants instead. She did lower her pants, exposing half of her
legs. But then the accused pushed it forward down to her knees
and grabbed her legs. He told her to raise her shirt. Feeling as if
she had lost control of the situation, she raised her shirt as
instructed. Shocked, she exclaimed, ‘hala ka!’ because he tried to
insert his hand into her panty. Accused then held her abdomen,
NOTE: NO People v. Mejorada here.
saying, ‘you are like my daughter, ‘Day’! (Visayan word of
endearment),’ and let the back of his palm touch her forehead,
indicating the traditional way of making the young respect their
elders. He again told her to raise her shirt. Feeling embarrassed
and uncomfortable, yet unsure whether she was entertaining
malice, she raised her shirt up to her breast. He then fondled her
breast. Reacting, she impulsively lower her shirt and embraced her
bar while silently asking God what was happening to her and asking
the courage to resist accused’s physical advances. After a short
while, she asked him if there could be a right place for physical
examination where there would be many doctors. He just
exclaimed, ‘so you like that there are many doctors!’ Then he asked
her if she has tooth decay. Thinking that he was planning to kiss
her, she answered that she has lots of decayed teeth. He advised
her then to have them treated. Finally, she informed him that she
would not continue with the research. The accused retorted that
complainant was entertaining malice and reminded her of what she
earlier agreed; that she would not tell anybody about what
happened. He then promised to give her P15,000.00 so that she
could take the examination. She was about to open the door of the
car when he suddenly grabbed her thigh, but this time, complainant
instantly parried his hand with her bag."4
While the City Mayor had the exclusive prerogative in appointing city
personnel, it should stand to reason, nevertheless, that a recommendation
from petitioner in the appointment of personnel in the municipal health office
could carry good weight. Indeed, petitioner himself would appear to have
conveyed, by his words and actions, an impression that he could facilitate
Juliet’s employment. Indeed, petitioner would not have been able to take
undue liberalities on the person of Juliet had it not been for his high position
in the City Health Office of Cagayan de Oro City. The findings of the
Sandiganbayan were bolstered by the testimony of Vivian Yu, petitioner’s
secretary between 1979 to 1994, of Iryn Lago Salcedo, Public Health Nurse
II, and of Farah Dongallo y Alkuino, a city health nurse, all of whom were said
to have likewise been victims of perverse behavior by petitioner.
The Sandiganbayan rightly rejected the defense of alibi proffered by petitioner,
i.e., that he was at a meeting of the Committee on Awards; the court a quo
said:
"There are some observations which the Court would like to point
out on the evidence adduced by the defense, particularly in the
Minutes of the meeting of the Awards Committee, as testified to by
witness Myrna Maagad on September 8, 1998.
"First, admitted, Teresita I. Rozabal was the immediate supervisor
of witness Myrna Maagad. The Notices to hold the meeting (Exh.
‘3-A’ and ‘3-B’) were signed by Teresita Rozabal. But the Minutes of
the meeting, Exh. ‘5’, was signed by Myrna Maagad and not by
Teresita Rozabal. The documents, Exhs. ‘3-A’ and ‘3-B’ certify that
the officially designated secretary of the Awards Committee was
Teresita Rozabal.
"Second, why was Myrna Maagad in possession of the attendance
logbook and how was she able to personally bring the same in
court when she testified on September 8, 1998, when in fact, she
admitted during her testimony that she retired from the government
service on December 1, 1997? Surely, Myrna Maagad could not still
be the custodian of the logbook when she testified.
"And finally, in the logbook, under the sub-heading, ‘Others
Present,’ the attendance of those who attended was individually
handwritten by the persons concerned who wrote and signed their
names. But in the case of Dr. Tiro and Dr. Rico Jacutin, their names
were handwritten by clerk Sylvia Tan-Nerry, not by Dr. Tiro and Dr.
Jacutin. However, Myrna Maagad testified that the logbook was
passed around to attending individuals inside the conference
room."5
Most importantly, the Supreme Court is not a trier of facts, and the factual
findings of the Sandiganbayan must be respected by, if not indeed conclusive
upon, the tribunal,6 no cogent reasons having been sufficiently shown to now
hold otherwise. The assessment on the credibility of witnesses is a matter best
left to the trial court because of its unique position of being able to observe
that elusive and incommunicable evidence on the deportment of witnesses at
the stand, an opportunity that is denied the appellate court. 7
Conformably with prevailing jurisprudence, the grant of moral and exemplary
damages by the Sandiganbayan must be tempered to reasonable levels.
Moral damages are not intended to enrich a complainant but are awarded only
to enable an injured party obtain some means that would help obviate the
sufferings sustained on account of the culpable action of an offender. Its award
must not appear to be the result of passion or undue prejudice, 8 and it must
always reasonably approximate the extent of injury and be proportional to the
wrong committed. Indeed, Juliet should be recompensed for her mental
anguish. Dr. Merlita F. Adaza, a psychological counseling expert, has found
Juliet to be emotionally and psychologically disturbed and suffering from post
trauma stress following her unpleasant experience with petitioner. The Court
NOTE: NO People v. Mejorada here.

finds it fitting to award in favor of Juliet Yee P30,000.00 moral damages. In

addition, she should be entitled to P20,000.00 exemplary damages to serve
as a deterrent against, or as a negative incentive to curb, socially deleterious
actions.9

WHEREFORE, the questioned decision of the Sandiganbayan in Criminal

Case No. 23799, finding Dr. Rico Jacutin y Salcedo GUILTY of the crime of
Sexual Harassment defined and punished under Republic Act No. 7877,
particularly Sections 3 and 7 thereof, and penalizing him with imprisonment of
six (6) months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with
subsidiary imprisonment in case of insolvency, is AFFIRMED. The
Sandiganbayan’s award of moral and exemplary damages are MODIFIED;
instead, petitioner is ordered to indemnify the offended party, Juliet Yee, in the
amount of P30,000.00 and P20,000.00 by way of, respectively, moral
damages and exemplary damages. Costs against petitioner.

SO ORDERED.