People vs. Dela Cerna (G.R. No. 136899-904, October 9, 2002) PDF

8/14/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 390
538 SUPREME COURT REPORTS ANNOTATED

People vs. Dela Cerna
*
G.R. Nos. 136899-904. October 9, 2002.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ERNESTO DELA CERNA, accused-appellant.
Witnesses; Affidavits of Desistance; Words and Phrases; An

affidavit of desistance is a sworn statement, executed by a
complainant in a criminal or administrative case, that he or she is
discontinuing or disavowing the action filed upon his or her
complaint for whatever reason he or she may cite; The court
attaches no persuasive value to a desistance, especially when
executed as an afterthought.—Accused-appellant mainly relies on
the affidavit of desistance executed by private complainant,
claiming that said affidavit created a reasonable doubt as to his
guilt. An affidavit of desistance is a sworn statement, executed by
a complainant in a criminal or administrative case, that he or she
is discontinuing or disavowing the action filed upon his or her
complaint for whatever reason he or she may cite. A survey of our
jurisprudence reveals that the court attaches no persuasive value
to a desistance, especially when executed as an afterthought. The
unreliable character of this document is shown by the fact that it
is quite incredible that a victim, after going through the trouble 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,
repeating her accusations in open court and recounting her
anguish in detail, will suddenly turn around and declare that she
is no longer interested in pursuing the case.
Criminal Law; Rape; Statutes; Anti-Rape Law of 1997 (R.A.
8353); Where the rape incidents occurred prior to the effectivity of
RA 8353, which classified the crime of rape as a crime against
persons, the Court shall apply the old law and treat the acts of
rape committed as private crimes.—It is worthy to note that the
rape incidents in this case occurred prior to the effectivity of RA
8353, “The Anti-Rape Law of 1997” which took effect on October
22, 1997 and classified the crime of rape as a crime against
persons. Such being the case, we shall apply the old law and treat
www.central.com.ph/sfsreader/session/00000173e8cff4e720826def003600fb002c009e/t/?o=False 1/19
the acts of rape herein committed as private crimes. Thus, their

institution, prosecution and extinction should still be governed by
Article 344 of the Revised Penal Code (RPC).
______________
* EN BANC.
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VOL. 390, OCTOBER 9, 2002 539
Same; Same; Extinction of Criminal Liability; Pardon; After

the case for rape has been filed in court, any pardon made by the
private complainant, whether by sworn statement or on the witness
stand, cannot extinguish criminal liability.—The aforequoted
article provides for the extinction of criminal liability in private
crimes. For the crimes of adultery and concubinage, the pardon
extended by the offended spouse results in the extinction of the
liability of the offender. On the other hand, in seduction,
abduction, rape and acts of lasciviousness, two modes are
recognized for extinguishing criminal liability—pardon and
marriage. In all cases, however, the pardon must come prior to
the institution of the criminal action. After the case has been filed
in court, any pardon made by the private complainant, whether
by sworn statement or on the witness stand, cannot extinguish
criminal liability.
Same; Same; Same; Same; The reason for the rule that a
pardon extended by the rape victim to the accused made after the
institution of the criminal action cannot be a ground to dismiss the
action is that the true aggrieved party in a criminal prosecution is
the People of the Philippines whose collective sense of morality,
decency and justice has been outraged.—It must be stressed that
private complainant in this case filed her complaint on May 16,
1997 and even testified against accused-appellant on March 25,
1998. On the other hand, she executed her affidavit of desistance
only on July 3, 1998. Clearly, the pardon extended by the victim
to her father was made after the institution of the criminal action.
Consequently, it cannot be a ground to dismiss the action in these
cases. The reason for this rule is that the true aggrieved party in
a criminal prosecution is the People of the Philippines whose
collective sense of morality, decency and justice has been
outraged. In such a case, the offended party becomes merely a
complaining witness. The complaint required by Article 344 of the
Revised Penal Code is but a condition precedent to the exercise by
the proper authorities of the power to prosecute the guilty parties

in the name of the People of the Philippines. Such condition is
imposed out of consideration for the offended woman and her
family who might prefer to suffer the outrage in silence rather
than go through with the scandal of a public trial. Hence, once
filed, control of the prosecution is removed from the offended
party’s hands and any change of heart by the victim will not affect
the state’s right to vindicate the atrocity committed against itself.
Same; Same; Witnesses; A rape victim’s testimony against her
father is entitled to much credibility since respect for elders is
deeply ingrained in Filipino children and is even recognized by
law.—At any rate, there is hardly any doubt about the
truthfulness and reliability of Irene’s initial testimony in the trial
court which we find to be positive, credible and
540
convincing. To be sure, she would not have accused her own

father of a serious offense like rape had she really not been
aggrieved. Likewise, a rape victim’s testimony against her father
is entitled to much credibility since respect for elders is deeply
ingrained in Filipino children and is even recognized by law.
Same; Same; Criminal Procedure; Appeals; It is a well-
established procedure that an appeal in a criminal proceeding
throws the whole case open for review and it becomes the duty of
the appellate court to correct an error in the appealed judgment,
whether this is assigned as an error or not.—Certain facets of this
case, however, need to be carefully threshed out in order to fully
administer justice to all parties concerned. Conformably, it is a
well-established procedure that an appeal in a criminal
proceeding throws the whole case open for review and it becomes
the duty of the appellate court to correct an error in the appealed
judgment, whether this is assigned as an error or not. In the case
at bar, two of the six instances of rape—on January 15, 1989 and
December 26, 1993—occurred before the effectivity of RA 7659
(Death Penalty Law) which took effect only on December 31, 1993.
As correctly held by the trial court, the imposable penalty is
reclusion perpetua for each of these two crimes of rape.
Same; Same; Qualified Rape; Right to be Informed; Both the
age of the offended party and her relationship with the accused
must be alleged in the information as part of the constitutional
right of the accused to be informed of the nature and cause of the
accusation against him.—In a number of cases, this Court ruled

that both the age of the offended party and her relationship with
the accused must be alleged in the information as part of the
constitutional right of the accused to be informed of the nature
and cause of the accusation against him. Failure to specifically
state these attendant circumstances of minority and relationship
in the information will bar the imposition of the death penalty.
Same; Same; Same; Same; Jurisprudence requires that the
victim’s minority must not only be specifically alleged in the
information but must likewise be established beyond reasonable
doubt during trial.—In the instant case, the trial court, pursuant
to Section 11 of RA 7659, imposed the penalty of death on
accused-appellant Ernesto dela Cerna after taking into account
the minority of Irene as well as the relationship of father and
daughter between them. Both circumstances of minority and
relationship were alleged in the informations. However,
jurisprudence requires that the victim’s minority must not only be
specifically alleged in the information but must likewise be
established beyond reasonable doubt during trial. The leading
case on this point is People vs. Javier, where this Court
unanimously held: However, it is significant to note that the
prosecution
541
VOL. 390, OCTOBER 9, 2002 541
failed to present the birth certificate of the complainant. Although

the victim’s age was not contested by the defense, proof of age of
the victim is particularly necessary in this case considering that
the victim’s age which was then 16 years old is just two years less
than the majority age of 18. x x x. In a criminal prosecution
especially of cases involving the extreme penalty of death, nothing
but proof beyond reasonable doubt of every fact necessary to
constitute the crime with which an accused is charged must be
established by the prosecution in order for said penalty to be
upheld x x x. Verily, the minority of the victim must be proved
with equal certainty and clearness as the crime itself. Otherwise,
failure to sufficiently establish the victim’s age is fatal and
consequently bars conviction for rape in its qualified form.
Same; Same; Same; Witnesses; Evidence; Hearsay Rule;
Pedigree; While the declaration of a victim as to her age, being an
exception to the hearsay proscription, would be admissible under
the rule on pedigree, the question of the relative weight that may be
accorded to it is an entirely different matter—corroborative

evidence would be most desirable or even essential when
circumstances call for it.—In People vs. Liban, we held that the
birth certificate of the victim, or in lieu thereof, any other
documentary evidence, like a baptismal certificate or school
record, that can help establish the age of the victim beyond
reasonable doubt should be presented. While the declaration of a
victim as to her age, being an exception to the hearsay
proscription, would be admissible under the rule on pedigree, the
question of the relative weight that may be accorded to it is an
entirely different matter. Corroborative evidence would be most
desirable or even essential when circumstances call for it.
Same; Same; Same; Same; Penalties; Death Penalty; The
penalty of death is an extreme sanction as it carries with it the
forfeiture of life which makes it imperative for the Supreme Court
to carefully weigh every piece of evidence presented by all parties;
The Court cannot presume that the victim is a minor simply
because she claims to be one.—Once again, we need to emphasize
that the penalty of death is an extreme sanction as it carries with
it the forfeiture of life. Which makes it imperative for this Court
to carefully weigh every piece of evidence presented by all parties.
We cannot presume that the victim is a minor simply because she
claims to be one.
AUTOMATIC REVIEW of a decision of the Regional Trial

Court of Cebu City, Br. 14.
The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
542

Public Attorney’s Office for accused-appellant.
CORONA, J.:
Irene dela Cerna did not experience and enjoy the natural
love and affection of a father. Instead, at fifteen, she went
through an ordeal, characterized by suffering and torment
perpetrated by the very person who was supposed to
protect and shield her from harm—her own father.
Six separate complaints were filed on May 16, 1997
against accused-appellant charging him with rape
committed on January 15, 1989, December 26, 1993, March
3, 1996, August 25, 1996, February 10, 1997 and March 5,

1997. The first complaint alleged:
“That on or about the 5th day of March, 1997, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court,
the said accused, who is her father, by means of force and
intimidation upon undersigned complainant, then only fifteen (15)
years old to wit: by carrying her to a room and forcibly lie down on
bed and removed her panty and short, placed himself on top of
her, did then and there have carnal knowledge with the
undersigned against her will.
1
CONTRARY TO LAW.”
The five other complaints were identically worded except

for the dates of the commission of the crime and the age of
private complainant.
Upon arraignment, accused-appellant pleaded not
guilty. Thereafter, the cases were jointly tried.
As principal witness for the prosecution, Irene recounted
her harrowing experience at the hands of her father, which
began when she was only seven years old. Her testimony
was faithfully summarized by the Solicitor General as
follows:
Irene dela Cerna was born on August 26, 1982 at Negros

Occidental, San Carlos City (p. 2, TSN, March 25, 1998). She
recalled that one afternoon when she was only seven (7) years old,
her father, appellant herein, beckoned her to come inside the
room. At the time, her mother was not at home. When she went
inside the room, appellant undressed her and made
______________
1 Rollo, p. 26.
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VOL. 390, OCTOBER 9, 2002 543

her lie down. Appellant then played with her private parts and
touched her vagina with his penis which lasted for about fourteen
(14) minutes (p. 4, TSN, ibid.). Thereafter, appellant instructed
her to put on her clothes as her mother was due to arrive any
time. Appellant did the same act to Irene many times (p. 5, id.)
On January 15, 1989 at about 5:00 o’clock in the afternoon,
appellant called Irene from inside the room. Once Irene was
inside the room, appellant undressed her and made her lie down.
Appellant played with her vagina for about ten (10) minutes (p. 5,
id.) and “pushed” his penis into the lips of her vagina (p. 16, id.).
On December 26, 1993 at about 5:00 o’clock in the afternoon
while her mother was out taking up dressmaking, appellant
forced Irene to enter the room. Appellant stripped her naked,
forced his penis into her vagina (pp. 14-15, id.) and performed the
push and pull movement for about ten (10) minutes. Irene did not
shout for help because of fear. In one occasion, Irene saw
appellant with a gun. After the rape, appellant cautioned Irene
not to report to anybody what happened (p. 16, Id.).
On March 3, 1996, at about 5:00 o’clock in the afternoon while
her mother was out, appellant called Irene in the room and
stripped her naked. Appellant ordered Irene to lie down and
mounted on top of her. Appellant inserted his penis into her
vagina and performed the push and pull movement. Irene tried to
shake appellant off but he was too heavy for her. Irene did not
shout for help because of fear that appellant might harm her and
her siblings. Irene had witnessed appellant punched her mother
on the stomach during a quarrel (pp. 12-13, id.). After the rape,
appellant warned her not to tell anybody of what transpired
between them (p. 13, id.).
On August 25, 1996, when Irene was fourteen (14) years old,
appellant called her from the room. Irene was already reluctant to
go alone near appellant as she knew what appellant would do to
her. Irene was constrained to go to appellant when her other
sister told her to go to him as beckoned. Inside the room,
appellant undressed her (p. 7, id.). Irene did not utter a word
while she was being undressed because she was afraid that
appellant might get angry and she and her siblings will again be
subjected to physical abuse as they used to be (p. 8, id.). Irene
tried to resist appellant but he was too strong for her (p. 7, Id.).
Appellant mounted on top of Irene, inserted his penis into her
vagina, and performed the sexual act of push and pull. After the
sexual act, Irene was ordered to leave the room. On the same day,
her mother delivered the dresses she had sewn to her customers.
Irene did not report the sexual abuse to the police authorities
because she was afraid of appellant and she pitied her mother
who was suffering from tension (p. 9, id.).
544

On February 10, 1997 while her mother was out, appellant

dragged Irene up the stairs of their new house towards the room.
Appellant pushed her on the bed, inserted his penis into her
vagina and performed the push and pull movement. The sexual
act lasted for just a short time as her mother was expected to
arrive any time. Irene hated appellant for raping her. After the
rape, appellant warned her not to tell anybody what happened
(pp. 18-19, id.).
On March 5, 1997, appellant forced Irene inside the room and
stripped her naked. Appellant made her lie down on the bed,
inserted his penis into her vagina and performed the push and
pull movement for about ten (10) minutes. Irene initially resisted
appellant but she was no match for him. After the rape, appellant
warned her not to tell anybody what happened. Irene cried
thereafter (pp. 20-22, id.).
Irene described appellant as a mean person. She was afraid to
tell anyone about the rape as she believed appellant is capable of
killing her and her siblings (p. 24, id.).
Irene eventually revealed the rapes to her two (2) best friends
in school, namely, Cheryl Quano and Bernadette Comita.
Bernadette, in turn, told her own mother what Irene divulged (p.
27, id.). Bernadette’s mother talked with Irene regarding the rape
incidents after which the former brought her to the office of the
Department of Social Welfare and Development (DSWD) at the
City Hall2
where she was interviewed by a social worker (pp. 28-
28, id.).
Emma Patalinghug, a social worker at the Department of

Social Welfare and Development (DSWD) Center for
Women and Children, declared that private complainant,
accompanied by her mother, was referred to her office on
March 21, 1997. She testified that the victim told her that
she had been sexually
3
abused by her father since she was
seven years old.
Dra. Aster Khusravibabadi of the Cebu City Medical
Center examined the victim on March 21, 1997 and found
“old healed hymenal lacerations at 5:00 and 6:00 o’clock 4
positions, and the introitus admits two fingers with ease.”
Accused-appellant opted not to testify invoking his
constitutional right to remain silent.
______________
2 Appellee’s Brief, pp. 3-7.

3 TSN, January 21, 1998, pp. 3-4.
4 TSN, January 16, 1998, p. 3.
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VOL. 390, OCTOBER 9, 2002 545

On September 15, 1998, the defense presented private

complainant to prove that she voluntarily executed an
affidavit of desistance. Private complainant explained that
she decided to forgive her father for the sake of her mother
and her younger siblings who experienced pain and
difficulty in sustaining their daily needs as their5 whole
family was dependent upon their father for support.
The affidavit of desistance, dated July 3, 1998, was
made in the vernacular and was offered in evidence for the
defense. Pertinent portions thereof stated that
“complainant was no longer interested in pursuing the
cases against her father; the complaints filed with the
Prosecutor’s Office and in Court were not her voluntary
acts as she was only influenced and forced by the people
who came to support and intercede in her action; the
testimony she made in court on March 25, 1998 was not of
her own free will as she was only forced to do so; there were
false statements she made during the hearing of the case;
she had truly forgiven her father; she wanted harmony and
happiness; nobody influenced her to execute the said
affidavit of desistance
6
to end the cases she filed against her
father x x x.”
On November 29, 1998, the trial court rendered
judgment finding accused-appellant Ernesto dela Cerna
guilty of six counts of rape, as follows:
“WHEREFORE, premises all considered, judgment is hereby

rendered finding the accused, ERNESTO DELA CERNA,
GUILTY beyond reasonable doubt of the crime of RAPE
committed against complainant, IRENE DELA CERNA, his
minor daughter, in the aforequoted six (6) charges and
consequently, he is hereby imposed the penalty of reclusion
perpetua in the aforesaid Third and Sixth Complaints in
accordance with the Revised Penal Code and the supreme penalty
of DEATH in the First, Second, Fourth, and Fifth Complaints,
conformably with the provisions of the Death Penalty Law (R.A.
No. 7659) and ordered to pay the complainant Irene dela Cerna,
the sums of FIFTY THOUSAND (P50,000.00) PESOS in each of
the six (6) cases as damages, with all the accessory penalties
provided for by law and to pay the costs.
The entire records of these cases must be forwarded to the
Honorable Supreme Court for automatic review.
______________
5 TSN, September 15, 1998, pp. 4-7.

6 Decision, p. 5.
546

7
SO ORDERED.”
Accused-appellant assails said decision and contends that

the trial court erred in convicting him despite the
insufficiency of evidence to prove his guilt beyond
reasonable doubt.
Accused-appellant mainly relies on the affidavit of
desistance executed by private complainant, claiming that
said affidavit created a reasonable doubt as to his guilt.
An affidavit of desistance is a sworn statement, executed
by a complainant in a criminal or administrative case, that
he or she is discontinuing or disavowing the action filed
upon his or her complaint for whatever reason he or she
may cite. A survey of our jurisprudence reveals that the
court attaches no persuasive value to a desistance,
especially when executed as an afterthought. The
unreliable character of this document is shown by the fact
that it is quite incredible that a victim, after going through
the trouble 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, repeating her accusations in open court
and recounting her anguish in detail, will suddenly turn
around and declare 8
that she is no longer interested in
pursuing the case.
A careful scrutiny of the affidavit of desistance in this
case reveals that private complainant never retracted her
allegation that she was raped by her father. Neither did
she give any exculpatory fact that would raise doubts about
her rape. Plainly, all the affidavit really stated was that
she had decided to withdraw the complaints as she had
already forgiven her father and she wanted peace and
happiness for her family. Rather than contradict, this
affidavit reinforces complainant’s testimony that accused-
appellant raped her on several occasions.
Likewise, when asked on the witness stand what
prompted her to sign the affidavit, Irene answered:
______________
7 Rollo, p. 33.
8 People vs. Junio, 237 SCRA 826 (1994).
547
VOL. 390, OCTOBER 9, 2002 547

Q: What prompted you to write that letter?

A: I was already staying with the DSWD and my condition
there was all right but the problem was my mother,
whenever she visited me, she told me that they were
really hard in their daily existence. They were just
staying in the house of a friend and they have no
means to support themselves. My brothers and sister at
times cannot even go to school9 because of lack of money
and they cannot eat properly.
But, in her earlier testimony for the prosecution, Irene

demonstrated a firm resolve to have accused-appellant
punished for his crime, as can be gleaned from the
following:
Prosecutor Solima
Q: Are you aware that your father would be penalized the
moment he would be convicted for the crime of rape?
A: Yes, sir.
Court
Q: And you would want him to die?
A: Although I have forgiven him for what he did to me
considering that he is my father, but I will not also
agree that he will not
10
be penalized of imprisonment for
what he did to me.
Also, during cross-examination, Irene testified:
Atty. Porio
Q: And you earlier testified that you pity your mother and
that you have forgiven your father for what he had
done to you, do you know that if it is proven that your
father is guilty he would be sentenced to a death
penalty?
A: Yes, sir.
Q: Are you not bothered by your conscience if your father
would be sentenced to death?
11
A: Yes I would surely be bothered but that is his fault.
A comparison of Irene’s previous and subsequent

testimonies leads to the inference that the affidavit of
desistance was executed merely as an afterthought. As
such, it has no persuasive effect.
______________
9 TSN, September 15, 1998, p. 11.

10 TSN, March 25, 1998, p. 20.
11 Ibid., pp. 30-31.
548

Accused-appellant cannot capitalize on Irene’s affidavit of

desistance. Such an affidavit, by and of itself, does not
mean that what she previously said was false or the
recitals of the affidavit itself are true. On the contrary, the
Court has invariably regarded such affidavits as
exceedingly unreliable. The reason is because affidavits of
retraction can all too easily be secured from poor and
ignorant witnesses, usually through intimidation or
monetary consideration. Thus, there is always the
probability that they will later be repudiated 12
and there will
never be an end to criminal litigation. It is also a
dangerous rule for courts to reject testimony solemnly
taken before courts of justice simply because the witness
who gave it later changed his or her mind for one reason or
another. This will make a mockery of solemn trials and put
the investigation
13
of crimes at the mercy of unscrupulous
witnesses.
It is worthy to note that the rape incidents in this case
occurred prior to the effectivity of RA 8353, “The Anti-Rape
Law of 1997” which took effect on October 22, 1997 and
classified the crime of rape as a crime against persons.
Such being the case, we shall apply the old law and treat
the acts of rape herein committed as private crimes. Thus,
their institution, prosecution and extinction should still be
governed by Article 344 of the Revised Penal Code (RPC):
“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.
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, the offender has been expressly

pardoned by the above-named persons, as the case may be.
______________
12 Lopez vs. Court of Appeals, 239 SCRA 562 (1994).

13 Alonte vs. Savellano, Jr., 287 SCRA 245 (1998).
549
VOL. 390, OCTOBER 9, 2002 549

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 above-mentioned crimes.”
The aforequoted article provides for the extinction of

criminal liability in private crimes. For the crimes of
adultery and concubinage, the pardon extended by the
offended spouse results in the extinction of the liability of
the offender. On the other hand, in seduction, abduction,
rape and acts of lasciviousness, two modes are recognized
for extinguishing criminal liability—pardon and marriage.
In all cases, however, the pardon must come prior to the
institution of the criminal action. After the case has been
filed in court, any pardon made by the private complainant,
whether by sworn statement or 14 on the witness stand,
cannot extinguish criminal liability.
It must be stressed that private complainant in this case
filed her complaint on May 16, 1997 and even testified
against accused-appellant on March 25, 1998. On the other
hand, she executed her affidavit of desistance only on July
3, 1998. Clearly, the pardon extended by the victim to her
father was made after the institution of the criminal action.
Consequently, it cannot be a ground to dismiss the action
in these cases. The reason for this rule is that the true
aggrieved party in a criminal prosecution is the People of
the Philippines whose collective sense of morality, decency
and justice has been outraged. In such a case, the offended
party becomes merely a complaining witness. The
complaint required by Article 344 of the Revised Penal
Code is but a condition precedent to the exercise by the
proper authorities of the power to prosecute the guilty
parties in the name of the People of the Philippines. Such
condition is imposed out of consideration for the offended

woman and her family who might prefer to suffer the
outrage in silence rather than go through with the scandal
of a public trial. Hence, once filed, control of the
prosecution is removed from the offended
______________
14 Alonte vs. Savellano, Jr., supra.
550

15
party’s hands and any change of heart by the victim will
not affect the state’s right to vindicate the atrocity
committed against itself.
At any rate, there is hardly any doubt about the
truthfulness and reliability of Irene’s initial testimony in
the trial court which we find to be positive, credible and
convincing. To be sure, she would not have accused her own
father of a16serious offense like rape had she really not been
aggrieved. Likewise, a rape victim’s testimony against her
father is entitled to much credibility since respect for elders
is deeply ingrained 17
in Filipino children and is even
recognized by law.
Considering all these premises, we are impelled to
affirm the trial court’s conviction of accused-appellant for
the six counts of rape committed upon Irene dela Cerna.
Certain facets of this case, however, need to be carefully
threshed out in order to fully administer justice to all
parties concerned. Conformably, it is a well-established
procedure that an appeal in a criminal proceeding throws
the whole case open for review and it becomes the duty of
the appellate court to correct an error in the appealed 18
judgment, whether this is assigned as an error or not. In
the case at bar, two of the six instances of rape—on
January 15, 1989 and December 26, 1993—occurred before
the effectivity of RA 7659 (Death Penalty Law) which took
effect only on December 31, 1993. As correctly held by the
trial court, the imposable penalty is reclusion perpetua for
each of these two crimes of rape.
However, with respect to the four other incidents of rape
which were committed after the effectivity of RA 7659 and
in each of which the trial court imposed the extreme
penalty of death, an exhaustive discussion is called for.
Article 335 of the Revised Penal Code, as amended by

Section 11 of RA 7659, was already the pertinent statutory
provision prevailing at the time of the latter four rape
incidents. It categorized as a
______________
15 People vs. Yparraguire, 335 SCRA 69 (2000); People vs. Manhuyod,

Jr., 290 SCRA 257 (1998).
16 People vs. Bernaldez, 322 SCRA 462 (2000).
17 People vs. Docena, 322 SCRA 820 (2000).
18 People vs. Calayca, 301 SCRA 192 (1999).
551
VOL. 390, OCTOBER 9, 2002 551

“heinous” offense punishable by death the rape of a minor

by her own father. Said provision reads:
“Art. 335. When and how rape is committed.—

x x x x x x
The death penalty shall also 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 parent of the victim.
x x x x x x
In a number of cases, this Court ruled that both the age of

the offended party and her relationship with the accused
must be alleged in the information as part of the
constitutional right of the accused to be informed of the
nature and cause of the accusation against him. Failure to
specifically state these attendant circumstances of minority
and relationship in the
19
information will bar the imposition
of the death penalty.
In the instant case, the trial court, pursuant to Section
11 of RA 7659, imposed the penalty of death on accused-
appellant Ernesto dela Cerna after taking into account the
minority of Irene as well as the relationship of father and
daughter between them. Both circumstances of minority
and relationship were alleged in the informations.
However, jurisprudence requires that the victim’s minority
must not only be specifically alleged in the information but
must likewise be established beyond reasonable doubt
during 20trial. The leading case on this point is People vs.

Javier, where this Court unanimously held:
However, it is significant to note that the prosecution failed to

present the birth certificate of the complainant. Although the
victim’s age was not contested by the defense, proof of age of the
victim is particularly necessary in this case considering that the
victim’s age which was then 16 years old is just two years less
than the majority age of 18. x x x. In a criminal
______________
19 People vs. Gianan, 340 SCRA 477 (2000); People vs. Teves, 310 SCRA 788
(1999); People vs. Perez, 296 SCRA 17 (1998).
20 311 SCRA 122 (1999).
552

prosecution especially of cases involving the extreme penalty of

death, nothing but proof beyond reasonable doubt of every fact
necessary to constitute the crime with which an accused is
charged must be established by the prosecution in order for said
penalty to be upheld x x x. Verily, the minority of the victim must
be proved with equal certainty and clearness as the crime itself.
Otherwise, failure to sufficiently establish the victim’s age is fatal
and consequently bars conviction for rape in its qualified form.
This doctrine has since been reiterated in a plethora of

cases with the Court consistently holding that proof of the
victim’s age must be indubitable in order to justify the
imposition of the death
21
penalty.
In People vs. Cula, this Court lowered the penalty from
death to reclusion perpetua in a case of rape committed on
a 16-year-old victim by her father on the ground that the
prosecution did not present any independent proof of age,
such as a birth certificate, and the trial court failed to
render a categorical finding
22
on the matter.
In People vs. Liban, we held that the birth certificate of
the victim, or in lieu thereof, any other documentary
evidence, like a baptismal certificate or school record, that
can help establish the age of the victim beyond reasonable
doubt should be presented. While the declaration of a
victim as to her age, being an exception to the hearsay
proscription, would be admissible under the rule on
pedigree, the question of the relative weight that may be
accorded to it is an entirely different matter. Corroborative
evidence would be most desirable or even essential when

circumstances call for it. 23
The case of People vs. Pecayo, Sr., reiterated the
pronouncement in Liban that a duly certified certificate of
live birth accurately showing the complainant’s age, or
some other authentic document such as a baptismal
certificate or school record, is competent evidence. Even the
lack of objection on the part of appellant does not excuse the
prosecution from proving such fact beyond reasonable
doubt.
______________
21 329 SCRA 101 (1999).

22 345 SCRA 453 (2000).
23 348 SCRA 95 (2000).
553
VOL. 390, OCTOBER 9, 2002 553

In this case, the prosecution utterly failed to discharge its

burden of proving the minority of the victim beyond
reasonable doubt. No single independent proof was offered
in court to establish the fact that complainant was below
18 years old at the time of the incidents. Irene merely
stated during her direct examination that she was born on
August 26, 1982. We find Irene’s casual testimony as to her
age insufficient.
Once again, we need to emphasize that the penalty of
death is an extreme sanction as it carries with it the
forfeiture of life. Which makes it imperative for this Court
to carefully weigh every piece of evidence presented by all
parties. We cannot presume that the victim is a minor
simply because she claims to be one.
In sum, the Court upholds the decision of the trial court
convicting accused-appellant of the crime of rape in the
latter four instances but must reduce the penalty of death
to reclusion perpetua on account of the prosecution’s failure
to satisfactorily prove the qualifying circumstance of
minority of the victim.
Finally, the award of damages made by the trial court
should likewise be modified. In accordance with current
case law, accused-appellant should be ordered to pay
complainant the amount of P50,000 24
as civil indemnity for
each of the six counts of rape. In addition, the victim
should be awarded moral damages in the amount of
P50,000 for each of the six counts of rape without need of

pleading or proof. This Court has held many times that a
rape victim’s injury is inherently concomitant
25
to and
results from the odiousness of the crime. Lastly, accused-
appellant is also liable to pay the sum of P25,000 as
exemplary damages to deter other fathers with perverse
tendencies or aberrant sexual26
behavior from sexually
abusing their own daughters.
WHEREFORE, the judgment appealed is hereby
AFFIRMED with the MODIFICATION that accused-
appellant Ernesto dela Cerna is found guilty beyond
reasonable doubt of six counts of simple rape and is
sentenced in each count to suffer the penalty of reclusion
perpetua and to indemnify the victim Irene dela Cerna
______________
24 People vs. Santos, 334 SCRA 655 (2000).

25 People vs. Prades, 293 SCRA 411 (1998).
26 People vs. Javier, supra.
554

the following: (1) P50,000 as civil indemnity; (2) P50,000 as

moral damages and (3) P25,000 as exemplary damages.
Costs de oficio.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Vitug, Panganiban,

Sandoval-Gutierrez, Carpio-Morales and Callejo, Sr., JJ.,
concur.
Bellosillo, Mendoza, Quisumbing, Ynares-Santiago,
Carpio and Austria-Martinez, JJ., On leave.
Judgment affirmed with modification.
Notes.—Reputation has been held admissible as

evidence of age, birth, race, or race-ancestry, and on the
question of whether a child was born alive. Unlike that of
matters of pedigree, general reputation of marriage may
proceed from persons who are not members of the family—
the reason for the distinction is the public interest that is
taken in the question of the existence of marital relations.
(In Re: Florencio Mallare, 59 SCRA 45 [1974])
Where a party claims a right to a part of the estate of

the declarant, the declaration of the latter that the former
is her niece is admissible and constitutes sufficient proof of
such relationship, notwithstanding the fact that there was
no other preliminary evidence thereof, the reason being
that such declaration is rendered competent by virtue of
the necessity of receiving such evidence to avoid a failure of
justice. (Tison vs. Court of Appeals, 276 SCRA 582 [1997])
The enumeration contained in the second portion of Rule
130, Section 40, in light of the rule of ejusdem generis, is
limited to objects which are commonly known as “family
possessions,” or those articles which represent, in effect, a
family’s joint statement of its belief as to the pedigree of a
person. (Jison vs. Court of Appeals, 286 SCRA 495 [1998])
The failure of a party claiming filiation to show her birth
certificate raises the presumption that if such evidence
were presented, it would be adverse to her claim; Use of a
family name certainly
555
VOL. 390, OCTOBER 10, 2002 555

Hoehne vs. Plata
does not establish pedigree. (Labagala vs. Santiago, 371

SCRA 360 [2001])
——o0o——
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8/14/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 390

538 SUPREME COURT REPORTS ANNOTATED

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

Witnesses; Affidavits of Desistance; Words and Phrases; An

the acts of rape herein committed as private crimes. Thus, their

VOL. 390, OCTOBER 9, 2002 539

People vs. Dela Cerna

Same; Same; Extinction of Criminal Liability; Pardon; After

the proper authorities of the power to prosecute the guilty parties

540 SUPREME COURT REPORTS ANNOTATED

People vs. Dela Cerna

convincing. To be sure, she would not have accused her own

accusation against him.—In a number of cases, this Court ruled

VOL. 390, OCTOBER 9, 2002 541

People vs. Dela Cerna

failed to present the birth certificate of the complainant. Although

accorded to it is an entirely different matter—corroborative

AUTOMATIC REVIEW of a decision of the Regional Trial

The facts are stated in the opinion of the Court.

542 SUPREME COURT REPORTS ANNOTATED

Public Attorney’s Office for accused-appellant.

3, 1996, August 25, 1996, February 10, 1997 and March 5,

The five other complaints were identically worded except

Irene dela Cerna was born on August 26, 1982 at Negros

VOL. 390, OCTOBER 9, 2002 543

544 SUPREME COURT REPORTS ANNOTATED

On February 10, 1997 while her mother was out, appellant

Emma Patalinghug, a social worker at the Department of

2 Appellee’s Brief, pp. 3-7.

VOL. 390, OCTOBER 9, 2002 545

On September 15, 1998, the defense presented private

“WHEREFORE, premises all considered, judgment is hereby

5 TSN, September 15, 1998, pp. 4-7.

546 SUPREME COURT REPORTS ANNOTATED

Accused-appellant assails said decision and contends that

VOL. 390, OCTOBER 9, 2002 547

People vs. Dela Cerna

Q: What prompted you to write that letter?

But, in her earlier testimony for the prosecution, Irene

Also, during cross-examination, Irene testified:

A comparison of Irene’s previous and subsequent

9 TSN, September 15, 1998, p. 11.

548 SUPREME COURT REPORTS ANNOTATED

Accused-appellant cannot capitalize on Irene’s affidavit of

“Art. 344. Prosecution of the crimes of adultery, concubinage,

guardian, nor in any case, the offender has been expressly

12 Lopez vs. Court of Appeals, 239 SCRA 562 (1994).

VOL. 390, OCTOBER 9, 2002 549

In cases of seduction, abduction, acts of lasciviousness and rape,

The aforequoted article provides for the extinction of

condition is imposed out of consideration for the offended

14 Alonte vs. Savellano, Jr., supra.

550 SUPREME COURT REPORTS ANNOTATED

Article 335 of the Revised Penal Code, as amended by

15 People vs. Yparraguire, 335 SCRA 69 (2000); People vs. Manhuyod,

VOL. 390, OCTOBER 9, 2002 551

“heinous” offense punishable by death the rape of a minor

“Art. 335. When and how rape is committed.—

In a number of cases, this Court ruled that both the age of

during 20trial. The leading case on this point is People vs.

However, it is significant to note that the prosecution failed to

552 SUPREME COURT REPORTS ANNOTATED

prosecution especially of cases involving the extreme penalty of