GIGATARAS, REBIE N.

OLTAA7 – TA180081

G.R. No. 143702, September 13, 2001

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS.
ZALDY MENDOZA Y SEVILLA, ACCUSED-APPELLANT

Facts:
That on or about the 7th day of July, 1994 in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, armed with a knife,
conspiring and confederating with Marco Aguirre who is still at large, working
together and helping one another, with deliberate intent and with violence
employed upon the person of Hernandez Abatay, that is by stabbing him with the
said knife, with which the accused was armed at the time, did then and there
wilfully, unlawfully and criminally take and carry away with intent to gain one (1)
Seiko Divers wristwatch valued at P300.00 and cash of P15.00 owned by
Hernandez Abatay and as a consequence of the stab wounds suffered by
Hernandez Abatay at the hands of the accused, the said Hernandez Abatay died
a few days thereafter.
Wherefor, the accused Zaldy Mendoza y Sevilla is hereby found guilty
beyond reasonable doubt of the crime of Robbery with Homicide under Article
294 of the Revised Penal Code, as amended nu Republic Act 7659, is hereby
punished with imprisonment of Reclusion Perpetua to Death, to pay the heirs of
the victim P75,000.00 as actual damages and to pay civil indemnity of
P50,000.00.

ISSUE:
THE TRIAL COURT ERRED IN CONVICTING ACCUSED ZALDY
MENDOZA Y SEVILLA OF A CAPITAL OFFENSE ON INSUFFICIENT
EVIDENCE.
GIGATARAS, REBIE N. OLTAA7 – TA180081

RULLING OF THE COURT:

SEC. 2. Form and contents of judgment. The judgment must be written in
the official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts proved and
admitted by the accused and the law upon which the judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission thereof, if there be any; (b)
the participation of the accused in the commission of the offense, whether as
principal, accomplice, or accessory after the fact; (c) the penalty imposed upon
the accused; and (d) the civil liability or damages caused by the wrongful act to
be recovered from the accused by the offended party, if there be any, unless the
enforcement of the civil liability by a separate action has been reserved or
waived.

In case of acquittal, unless there is a clear showing that the act from which the
civil liability might arise did not exist, the judgment shall make a finding on the
civil liability of the accused in favor of the offended party. 
GIGATARAS, REBIE N. OLTAA7 – TA180081

[G.R. No. 114007. September 24, 1996.]

PEOPLE OF THE PHILIPPINES,
vs.
GONZALO GALAS, JOSUE GALAS, NOE GALAS, DIMAS ACMA alias "DIMAY," and
MAXIMO DELGADO,

FACTS:
On 23 December 1995, at around 9:00 p.m., Federico Gamayon and his
15-year-old son Crisanto, who was riding on a carabao, and 6-year old nephew
Joemar, 16 who was riding on the sled, were on their way home to Tinagong
Dagat from Sandoval, Narra, Palawan, where they had sold copra to a certain
Gabileo. When they were near the house of accused Gonzalo Galas, Federico
was called by Gonzalo. When Federico approached Gonzalo, the latter suddenly
hacked Federico with a bolo. 17 Federico fell to the ground, 18 then accused
Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado "ganged up" on
Federico, according to Crisanto, 19 or "helped each other in mauling" Federico,
according to Joemar. 20 Josue Galas hacked Federico with a bolo, while Noe
Galas, Dimas Acma, and Maximo Delgado were armed with pieces of wood. 21

Federico was unable to fight back; he could not even unsheath his bolo from its
scabbard. 22

Crisanto Gamayon could not do anything to help his father because he was
afraid; moreover, the accused ran after him. 23 Crisanto ran to his uncle for help,
but the latter was not in his house. 24 Crisanto did not return to the crime scene
until the next day 25 and after the incident was reported to the police authorities.

Federico lay there until the next day when the police and Dr. Dominador Hubo,
the municipal health officer, arrived to transport and examine Federico’s cadaver.
GIGATARAS, REBIE N. OLTAA7 – TA180081

Dr. Hubo conducted the autopsy, and his findings are quoted verbatim: 26

The cadaver in the state of rigor mortiz [sic] wearing red jacket and red short
pants. The cadaver is covered with a twig and leaves of cacawate tree and a
small plastic canvass in a right side double up position. Several bloods scattered
the water where he is laying and a dry place. The cadaver is located
approximately 200 yards from the house of Mr. Galas.

ISSUE:
Whether he voluntarily surrendered or was arrested is unclear from the
record. Since the other accused remained outside the jurisdiction of the court and
the warrants for their arrest had not been returned, Judge Guerra, on 12 July
1988, again directed the Station Commander of Narra, Palawan, to explain why
he should not be held for indirect contempt.

RULLING OF THE COURT:

It must be stressed that Joemar’s age does not disqualify him as a
witness. Section 20, Rule 130 of the Rules of Court provides that all persons who
can perceive, and perceiving, can make known their perception to others, may be
witnesses. The exceptions thereto are found in the succeeding Section 20 and,
insofar as children are concerned, only those whose mental maturity is such so
as to render them incapable of perceiving the facts respecting which they are
examined and of relating truthfully are disqualified. It is thus clear that any child,
regardless of age, can be a competent witness if they meet the following criteria:
(a) capacity of observation, (b) capacity of recollection, and (c) capacity of
communication. 46 The accused urge us to give no weight to Joemar’s testimony
because of its unreliability; they claim that he could not even remember the
month and the year when the incident happened. A scrutiny of his testimony
discloses, however, that Joemar was clear on the facts he observed surrounding
the death of Federico which, according to him took place on a date "nearing
Christmas." 47 Since the date of Federico’s death was undubitably established to
GIGATARAS, REBIE N. OLTAA7 – TA180081

be 23 December 1985, which was, indeed, "nearing Christmas," Joemar’s

approximation was sufficient.
Under these circumstances, it was discretionary upon Judge Gacott to
voluntarily inhibit himself pursuant to Section 1(2), Rule 137 of the Rules of
Court, 69 and returned the case to Branch 48 where it originated. However, while
Judge Gacott’s voluntary inhibition would have been preferable, it cannot be said
that his failure caused substantial prejudice to the accused. Initially, let it be clear
that Judge Gacott’s previous participation in the case as Provincial Fiscal was
not raised either before us or the court a quo. On this score, it has been held
GIGATARAS, REBIE N. OLTAA7 – TA180081

G.R. No. 107799 April 15, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLITO NANG alias "Batutto," (at large) SUMINA GAMO and
LUMUNSOG GABASAN alias "Dodong," accused, SUMINA GAMO
and LUMUNSOG GABASAN alias "Dodong," accused-appellants.

FACTS:
That on the 16th day of May, 1990 at about 7:00 o'clock in the evening at
Sitio San Pedro, Barangay Lubusan, Municipality of Lapuyan, Province of
Zamboanga del Sur, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused conspiring and confederating together and
mutually helping one another, the two of said accused being armed with a pistol
and a knife respectively, with intent to gain and by means of violence did then
and there willfully, unlawfully and feloniously take and rob (sic) the spouses Mr.
and Mrs. Nicanor Gonzales of the sum of Five Hundred (P500.00) Pesos and
pursuant to said conspiracy and by reason and on the occasion thereof, the
abovenamed accused did then and there willfully, unlawfully and feloniously stab
and inflict injuries upon Nicanor Gonzales which caused the latter's death
immediately thereafter.

Act contrary to Article (sic) 293 and 294 of the Revised Penal Code.

WHEREFORE, the Court hereby finds "GUILTY" beyond reasonable

doubt accused SUMINA GAMO and LUMONSOG GABASAN of the crime of
Robbery with Homicide and sentences them to RECLUSION PERPETUA or
LIFE IMPRISONMENT, with all the accessory penalties prescribed by law and to
return the sum of FIVE HUNDRED (P500.00) PESOS to the heirs of victim
Nicanor Gonzales which is the amount taken by them and to pay FIFTY
THOUSAND (P50,000.00) PESOS as to compensation for the death of the victim
Nicanor Gonzales to the latter's heirs without subsidiary imprisonment in case of
insolvency. Both accused Sumina Gamo and Lumonsog Gabasan having been in
prison since June 5, 1990, are hereby credited FOUR-FIFTH (4/5) of such
preventive imprisonment in the service of their sentence herein imposed.

ISSUE:
whether a child is of sufficient intelligence according to the foregoing
requirements is addressed to the sound judgment of the trial court. In the instant
GIGATARAS, REBIE N. OLTAA7 – TA180081

case, this Court finds no cogent reason to disturb the trial court's assessment
regarding Elizabeth's credibility as a witness.

RULLING OF THE COURT:

I . . . WHEN IT IGNORED MATERIAL INCONSISTENCIES IN THE
TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION AND MADE
FINDINGS OF FACT THAT ARE UNSUPPORTED BY THE RECORDS AND
THE EVIDENCE.

II . . . WHEN IT GAVE CREDENCE AND FULL WEIGHT TO THE

TESTIMONY OF THE WIFE AND THE DAUGHTER OF THE DECEASED
VICTIM NICANOR GONZALES.

III . . . WHEN IT HELD THAT THE ACCUSED APPELLANTS WERE

GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY
WITH HOMICIDE. 21
GIGATARAS, REBIE N. OLTAA7 – TA180081

G.R. NO. 189297, June 03, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.

GUILLERMO LOMAQUE, Accused-Appellant.

Facts:
Appellant was charged under separate Informations for 13 counts of Rape
by Sexual Intercourse allegedly committed against his stepdaughter "AAA"
In addition, appellant was also charged with Acts of Lasciviousness in
relation to Section 5 of Republic Act (RA) No. 7610
At arraignment, appellant entered a plea of not guilty to all the
Informations.
Version of the Prosecution
AAA was born... to BBB by her first husband.
She was about eight (8) years old at the time Lomaque started
abusing/molesting her.
The first act of molestation happened on May 8, 1993 when Lomaque
asked AAA to remove his growing mustache and take out white hair from his
head.
Lomaque, while lying on AAA's lap, started to smell and sniff her private
parts, and thereafter inserted his finger inside her... vagina.
AAA told her mother that accused appellant... touched her private parts.
AAA was awakened by Lomaque who... embraced her and slowly
removed her shorts, and immediately inserted his penis into her vagina. She was
then only [11] years old.
BBB was in the hospital, Lomaque again sexually abused AAA, this time
removing all the clothes of AAA, and thereafter inserting his penis into her
vagina. AAA could not shout as Lomaque, with a gun, threatened to kill her and
her mother if she reported... the incident.
AAA could not do anything as she recalled
Lomaque's threat to kill her and her mother if she reported the matter to
BBB.
GIGATARAS, REBIE N. OLTAA7 – TA180081

AAA's harrowing experience with Lomaque continued and she eventually

became pregnant.
However, when BBB became hysterical, Lomaque retracted and
concocted a story that somebody else caused the pregnancy of AAA.
After giving birth, AAA returned to their house.  There she saw Lomaque
kissing her younger sister, CCC. Afraid that CCC might suffer the same fate she
had, she decided to file a complaint against Lomaque
Version of the Defense
He denied that he sexually abused AAA, claiming that he could not have
committed the crimes charged because as a bio-medical technician, he was
deployed all over the country to repair hospital equipment.
RTC found "AAA" to be a credible witness and rejected the defense of
denial and alibi proffered by the appellant.
declared appellant guilty of seven counts of rape by... sexual intercourse...
one count of rape by sexual assault... one count of Acts of Lasciviousness
The CA, however, was not impressed with the arguments of the appellant,
and hence rendered the questioned Decision... affirming the Decision of the
RTC.
Issues:
whether the prosecution has proven beyond reasonable doubt the guilt of
appellant for the crimes of rape and acts of lasciviousness.
Ruling:
We affirm.
Here, we find no plausible ground to disturb the findings of the trial court,
as sustained by the CA, respecting the credibility of "AAA." Her testimony indeed
bears the earmarks of truth and sincerity which contains details only a real victim
could remember and reveal.
"It does not diminish the complainant's credibility or undermine the
charges of rape when the delay can be attributed to the pattern of fear instilled by
the threats of bodily harm, specially by one who exercises moral ascendancy...
over the victim."
In fine, "AAA's" woeful tale of her harrowing experience in the hands of the
appellant is impressively clear, definite and convincing. Her detailed narration of
the incidents, given in a spontaneous and frank manner and without any fanfare,
were beyond cavil well-founded. We... therefore sustain the RTC's and the CA's
findings of appellant's guilt.
Under Article 266-B of the Revised Penal Code (RPC), rape is qualified,
and the penalty of death is imposed when the victim is below 18 years of age and
GIGATARAS, REBIE N. OLTAA7 – TA180081

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.
To justify the imposition of the death penalty, however, it is required that
the special qualifying circumstances of minority of the victim and her relationship
to the appellant be properly alleged in the Information and duly... proved during
the trial. These two circumstances must concur.
While the prosecution was able to sufficiently prove "AAA's" minority
through the latter's testimony during the trial and by the presentation of her
Certificate of Live Birth... it however, failed... to prove the fact of relationship
between her and the appellant (stepfather-stepdaughter).
Notably, said alleged relationship was not even made the subject of
stipulation of facts during the pre-trial.
The bare testimony of appellant that he was married to "BBB" ("AAA's"
mother) is not enough. Neither does "AAA's" reference to appellant as her
stepfather during... her testimony would suffice.
the record is bereft of any evidence to show that appellant and "BBB"
were indeed legally married.
Appellant, therefore, should only be convicted of simple rape
In Criminal Case No. Q-00-96402, appellant was charged with
having inserted his finger inside "AAA's" vagina under Article 336 (Acts of
Lasciviousness) of the RPC
The elements of Acts of Lasciviousness under Article 336... are:
That the offender commits any acts of lasciviousness or lewdness.
That it is done under any of the following circumstances: a) By using force
or intimidation; 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
That the offended party is another person of either sex.
To obtain conviction for the same, the prosecution is also bound to establish
the elements of sexual abuse under Section 5, Article III of RA 7610, to wit:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to
other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
Lascivious conduct is defined... as "a crime committed through the intentional
touching, either directly or through the clothing of the genitalia, anus, groin, breast,
inner thigh or buttocks with the intention... to abuse, humiliate, harass, degrade or
arouse or gratify the sexual desire of any person, among others."
GIGATARAS, REBIE N. OLTAA7 – TA180081

In this case, it is undisputed that appellant committed lascivious conduct

when he smelled "AAA's" genital area and inserted his finger... inside her vagina to
gratify or arouse his sexual desire.
Without a doubt, all the afore-stated elements are obtaining in this case.
Decision of the Court of Appeals... is AFFIRMED with the following
MODIFICATIONS: