Crim 2 Full Text Arts. 246-270

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-50905 September 23, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL JUMAWAN alias "OWEL" and PRESENTACION JUMAWAN-MAGNAYE alias "ESEN" accused-appellants. ABAD SANTOS, J.: On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye. The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to Presentacion Jumawan albeit they had been living separately from each other. (During the trial Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811812.) The Station Commander can perhaps be excused for not accusing Presentacion of parricide but when the case was elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No. 1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder against all the accused. The information reads: The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and punished under Article 248 of the Revised Penal Code, committed as follows: That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo (gulukan), conspiring and confederating together and mutually helping one another, with intent to kill and with evident premeditation and treachery, taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bolo one Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest, which directly caused his death. After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following judgment: Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos. The case is now before this Court on appeal. The brief of the appellants gives the following: STATEMENT OF FACTS The Accused: Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan. Presentacion Jumawan was married to Rodolfo Magnaye. Death of Rodolfo Magnaye:

As described by the lower court, '... when Rodolfo Magnaye did not return home in (that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. ...' (page 5, Judgment). For the death of Rodolfo Magnaye, the accused stand charged of the crime of MURDER. The People's brief, on the other hand, merely reproduces the trial court's findings of facts as follows: It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad Alcantara. The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to secure the signature of Rodolfo Magnaye on a document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye persisted in refusing to sign said document. On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for the assistance of Sgt. Mortilla to assist her daughter in securing a separation from Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done. Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told her that he was going to the public market because his wife asked him to fetch her. He asked his mother to prepare food because they are going to talk about their lives. He left home at about 6:00 o'clock in the evening. At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he was infront of the public market on the way to the former BLTB station he heard the noise of pigs being butchered and being in the business of buying pigs and chicken he went to the direction of [the] slaughter house to inquire about the prices of pigs and chicken. Before reaching the slaughter house he heard the noise (sic) of a person being attacked by three (3) persons and a woman inside a store which was lighted. He saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Magnaye with his left hand holding the collar of Rodolfo Magnaye and in his right hand he was holding a small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple. At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a gasoline station across the old station of the BLTB waiting for a ride home when he saw Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they were crossing the national highway towards the south to a road opposite the Emil Welding Shop. They went on walking after crossing the highway. At that time the head of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of Cesario and Manuel Jumawan. Rodolfo Magnaye was not walking. At about 11:45 o'clock in the evening of 19 June 1976 Presentacion JumawanMagnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the store of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Jumawan-Magnaye denied being related to Rodolfo Magnaye. He went to investigate

the reported attempt to rob the store of Sebastiana Jumawan and he saw one of the panels used to close the store was destroyed but nothing appears to have been taken from the store. Presentacion Jumawan-Magnaye and her companions Tita Dañez and Anabelle Jumawan told Patrolman Baera that they will file charges against Rodolfo Magnaye. Patrolman Baera entered the report of Presentacion Jumawan-Magnaye in the police record book. When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. The two Patrolmen Baera and Albufera went to the place and they saw the dead man without a shirt and wearing black pants with white shoes. They noticed a stab wound on the lower portion of the right breast. The dead man was lying face up. In the afternoon of the same day Patrolman Loreto Galeon went to the store of Sebastiana Jumawan located at the public market of Sariaya to follow up the investigation of the reported attempted robbery case against Magnaye. He asked the storekeeper for permission to look at the wood panels which are used to close the store. He found traces of blood in one of the wooden panels. He reported what he saw to Sgt. Labitigan when he returned to the police headquarters. The following day he was ordered by the chief of police to look again at the wooden panel with traces of blood but he saw that the wooden panels were already planed ('kinatam') and the traces of blood could no longer be seen. On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Dañez in Barrio Mamala Sariaya, Quezon because Tita Dañez was allegedly in the store at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was allegedly killed. Patrolman Cedonio was informed by the mother of Tita Dañez that she had not gone to her home at barrio Mamala. She accompanied Patrolman Cedonio in trying to locate Tita Danez. They first went to the store of Sebastiana Jumawan which turned out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon where they were able to find Tita Danez together with Francisco Jumawan, Bienvenido Jumawan and Rosita Abratiga. Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a brother-in-law of the victim, set up the defense of alibi when he testified that between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio Sampaloc, Sariaya, Quezon which is more or less three (3) kilometers away from the poblacion of Sariaya, Quezon. He went home to Barrio Pili of the same town early in the afternoon of the following day. He did not go anywhere else since 3:00 to 4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to Barrio Pili. Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also a brother-in-law of the victim, likewise set up the defense of alibi when he testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is about five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about 7:00 o'clock in the evening of 19 June 1976. He woke up at about 6:30 o'clock in the morning. He further claims that he suffers from an abnormality of the left arm which he cannot raise in a normal way and that he was suffering from said disability since childhood when he fell from a cow continuously up to the present. Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion dela Merced, a radiologist of the National Orthopedic Hospital certifying to the fact that Manuel Jumawan is negative for fracture dislocation and that he suffers from a deformity of the proximal and left humerous proba-

bly from a previous fracture. There is no showing that Manuel Jumawan is incapable of raising his left arm around the neck of Rodolfo Magnaye whose actual height was not established by the evidence nor was Dr. Concepcion dela Merced presented to testify on her findings. Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita Dañez when she heard a person who wanted to enter the store. She shouted 'thieves' ('magnanakaw'). In response to her shouts several people arrived and chased the person who wanted to enter the store. She then went to the house of Sebastiana Jumawan where hats are being made and where her father Francisco Jumawan was staying that night. While she was in the house where her father was staying, their adjoining neighbor, a certain Mateo Diamante informed her that the person being chased by several men was Rodolfo Magnaye. She, however, did not talk with any of the person who chased her husband nor does she know any of them. She then went with her father, Francisco Jumawan, to report the matter to the police whom they met at the Filipina Restaurant. While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the suspect in the attempted robbery, she did not reveal to the investigating policemen that he was her husband even if she was asked why they knew his name, neither did she inform the police that her husband was chased by several persons nor did she give the direction where her husband supposedly ran. The two policemen, Patrolmen Baera and Albufera, actually went to the store of Sebastiana Jumawan and after looking at the store, these two patrolmen told Presentacion Jumawan-Magnaye that because nothing happened they will continue the investigation on the next day. None of those who allegedly chased her husband that evening was even presented as a witness. Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise set up the defense of alibi when he testified that in the evening of 19 June 1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and that he was awakened only when his daughter Presentacion woke him up to ten him that someone was trying to enter the store of Sebastiana Jumawan. In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence, the appellants claim that the trial court committed the following errors: THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS IT FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE FOR THE DEFENSE. THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO A DAY IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT APPELLATE COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES. THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE FOR THE PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS. THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY DENIED THE DEFENSE REASONABLE OPPORTUNITY OF THE PROSECUTION WITNESSES. THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY CONCOCTIONS.

The foregoing assignment of errors can be reduced to the simple proposition whether the evidence against the accused, independent of their alibis, has overcome the presumption of innocence in their favor and created a moral certainty as to their guilt. Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses deserves scrutiny. Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Quezon, to attend the Aglipayan fiesta; he arrived there at about 5:00 o'clock and thereafter did the following: listened to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and walked to the public market where there was a former BLTB station. While he was waiting for a trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the purpose of asking the price of pigs since he was then engaged in the business of buying and selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he had bought. He was not able to talk to the butchers because an unusual event intervened which in his own words was: Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where were you? A. Yes sir. Q. Where were you on that particular date and hour? A. I was in the public market of Sariaya, Quezon, sir. Q. While you were in the market of Sariaya, Quezon, on that particular date and hour, do you remember if there was any unusual incident that you witnessed? A. There was, sir. Q. What was that unusual incident that happened on that particular place and hour? A. I saw a person being attacked by three persons, sir. Q. What else did you see there on that particular occasion, aside from a person being attacked by three persons? A. There was a woman who ordered the three persons to stab and kill the person being attacked by these three persons, sir. Q. Where in particular in the public market of Sariaya, Quezon did you see this incident happen? A. Inside the store within the public market of Sariaya, Quezon, sir. Q. Did you recognize, or did you come to know these three persons whom you said were inside the store within the public market of Sariaya, Quezon at about 9:30 o'clock in the evening of June 19, 1976? A. I recognize their faces, sir. Q. Did you come to know their names later on? A. Yes sir. Q. What is the name of the woman whom you said was there on that particular occasion? A. Presentacion Jumawan, sir. Q. If you will see that Presentacion Jumawan again, will you be able to Identify her? A. Yes, sir. Q. Will you please look around the courtroom and point to Presentacion Jumawan if she is here.

A. She is here sir. Q. Please point her out to this Honorable Court. A. That one sir. ATTY. ALCALA: May we respectfully ask if your honor please that the person pointed to by the witness Identify herself. COURT: Ask the person to Identify herself. INTERPRETER: What is your name? A. Presentacion Jumawan. INTERPRETER: The person pointed to by the witness your honor, Identified herself as Presentacion Jumawan. ATTY. ALCALA: And what is the name of the person whom you said was being attacked by the three men on that particular occasion inside the store? A. Rodolfo Magnaye, sir. Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you please state it before this Honorable Court? A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario Jumawan. Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo Magnaye, on that particular occasion, will you be able to recognize him if you will see him again? A. Yes, sir. Q. If this Francisco Jumawan is inside the courtroom, will you please point him out before this Honorable Court? A. Yes, sir. Q. Please do so. A. That one sir. ATTY. ALCALA: Your honor please may we ask that the person pointed to by the witness Identify himself. COURT: Ask the Identity of the person pointed to by the witness. INTERPRETER: What is your name? A. Francisco Jumawan. INTERPRETER: The person pointed to by the witness your honor Identify himself as Francisco Jumawan. Q. And that person whom you said the name as Manuel Jumawan will you be able to recognize him if you will see him again? A. Yes, sir. Q. Please look around the courtroom and point out to this Honorable Court if Manuel Jumawan is here inside the courtroom.

A. Yes, sir, that one. ATTY. ALCALA: May we ask Your Honor that the person pointed to by the witness be made to Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Manuel Jumawan. INTERPRETER: The person pointed to by the witness Your Honor Identified himself as Manuel Jumawan. Q. And that person whom you mentioned is named Cesario Jumawan, will you be able to Identify him if you will him again? A. Yes, sir. Q. Please look around the courtroom and point to this Honorable Court the person whom you said is Cesario Jumawan. That one sir. ATTY. ALCALA: May we request your honor that the person pointed to by the witness Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Cesario Jumawan. INTERPRETER: The person pointed to by the witness Identify himself as Cesario Jumawan Your Honor. Q. On that occasion what was Francisco Jumawan doing at that time you saw him? A. He was standing besides Rodolfo Magnaye and holding his hands. Q. Who was holding his hands? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir. Q. How about Manuel Jumawan, what was he doing? A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye, sir. Q. How about Cesario Jumawan what was he doing on that particular occasion? A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo Magnaye and his right hand holding a bolo, sir. Q. How about Presentacion Jumawan, what was she doing on that particular occasion? A. She was standing inside the store ordering the three persons to stab and kill Rodolfo Magnaye, sir. Q. What happened when Presentacion Jumawan give that order?

A. Rodolfo Magnaye was stabbed, sir. Q. Who stabbed Rodolfo Magnaye on that occasion? A. Cesario Jumawan, sir. Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular occasion, what were Francisco Jumawan and Manuel Jumawan doing.? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms around the neck of Rodolfo Magnaye, sir. Q. What happened to Rodolfo Magnaye when he was stabbed by Cesario Jumawan on that occasion? A. He was hit by the stab, sir. Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that occasion? A. Under the right nipple, sir. Below the right nipple. Q. What did Rodolfo Magnaye do on that particular occasion after he was hit? A. He said, why did you stab me. Q. What did you do after that? A. I left, sir. Q. While you were walking away did you hear anything? .A. Yes, sir. Q. What did you hear? A. A voice of a woman shouting, thief, thief. Q. What did you do when you heard the shout of a woman? A. I hurriedly walked away, sir. Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of that incident? A. Yes, sir. Q. What happened to him? A. He died, sir. (t.s.n., pp. 494-509.) Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977. He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the BLTB; and on that occasion he saw the aforesaid persons thus: Q. Will you please describe before this Honorable Court their position when you saw them? A. Their hands were on the shoulders of each other. Q. And who was in the middle? A. Rodolfo Magnaye, sir. Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when you saw him being in the middle of Cesario Jumawan and Manuel Jumawan on that occasion? A. His head falls and his two hands were on the shoulder of Cesario Jumawan and Manuel Jumawan. Q. Did you see where these persons were going on that particular occasion when you said you saw them? ATTY. CUARTOY Objection Your Honor, that has already been answered, that they are going out of the old BLTB station.

COURT: Witness may answer. A. They cross the highway, sir. Q. In what particular place did they go when they cross the highway? A.. They went to the road opposite the Emil Welding Shop, sir. Q. Did you see on that particular occasion whether Rodolfo Magnaye was walking? A. He was not walking and he cannot step his feet, sir. Q. When they went to that place, near the Emil Welding Shop, did they go any further? A. They proceeded walking, sir. Q. Where did you go upon seeing them? A. I went directly to my house, sir. (t.s.n., pp. 628-631.) The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad shows that the four appellants conspired and cooperated in the assassination of Rodolfo Magnaye. The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the fate of their marriage. While it is not known if they actually conversed, the purpose of the rendezvous was in fact accomplished; the marriage was terminated by the murder of the husband. The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer the cadaver to another place. The alibis of Francisco, Cesario and Manuela are for naught. Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sariaya, on the night of June 19, 1976, he and his wife were in Barrio Sampaloc, Sariaya, visiting his brother Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night of June 19, 1976, he was in his house at Barrio Pili. These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were positively Identified to be at the scene of the crime by Vicente Recepeda and Cesario and Manuel were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to be were not far from the scene of the crimeso that it was not impossible fro them to be there. Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance from the former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three kilometers from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is about five kilometers from the same poblacion. Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the information, she, like the others, can be convicted of murder only qualified by abuse of superior strength. Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants. True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships of father-in-law and brother-in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].) The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is reduced to reclusion perpetua. WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs. SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-47941 April 30, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME TOMOTORGO y ALARCON, defendant-appellant. ALAMPAY, J.: Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows: WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor. Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole. SO ORDERED. Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA Judge (Rollo, pg. 10) The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to. On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife

with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains. After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife. Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused. After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation. With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred: 1. In disregarding its own findings of fact which showed manifest lack of intent to kill; 2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; 3. In not following the mandatory sequence of procedures for determining the correct applicable penalty; 4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4) We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him. Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that: ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed; 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx

The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty. Under Article 64, sub-par. 5, of the Penal Code, When there cumstances prescribed the number

are two or more mitigating circumstances and no aggravating cirare present, the court shall impose the penalty next lower to that by law, in the period that it may deem applicable, according to and nature of such circumstances.

The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9) Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law. These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that — ... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150). Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied) We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious

crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence. The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole. WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur. EN BANC [G.R. No. 115686.

December 2, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MALABAGO y VILLAESPIN, accusedappellant. D E C I S I O N PUNO, J.: This is an automatic review of the decision of the Regional Trial Court of Dipolog City, Branch 10 which imposed the penalty of death on accused-appellant, Pedro Malabago y Villaespin, in Criminal Case No. 6598, viz: WHEREFORE, the court finds accused Pedro Malabago guilty beyond reasonable doubt of the crime of PARRICIDE as defined and penalized under Article 246 of the Revised Penal Code. With reluctance and a heavy heart therefore, inspired by the personal feeling and view of the undersigned with respect to the wisdom of the penalty of death for any crime, the court finds itself with no other alternative but to impose the penalty provided for by the express mandate of the law which is now restored under Republic Act No. 7659. The accused (Pedro Malabago y Villaespin) is hereby sentenced to DEATH for the terrible crime he has committed and, to indemnify the heirs of the victim in the sum of P50,000.00 conformable to the recent jurisprudence on the matter (People v. Sison, 189 SCRA 643).

Cost de oficio. SO ORDERED DIPOLOG CITY, Philippines, this 10th day of May 1994. (Sgd.) WILFREDO C. OCHOTORENA Acting Presiding Judge”1 In an information dated January 7, 1994, accused-appellant was charged with the crime of parricide committed as follows: “That in the evening, on or about the 5th day of January 1994, at Barangay Gulayon, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously hack and strike with a bolo one Letecia R. Malabago, his lawfully wedded wife, hitting the latter on her face and neck, which caused the victim’s instantaneous death, to the damage and prejudice of the heirs of the victim, in the amount of P30,000.00 as death indemnity, and also moral and exemplary damages in the amounts to be established during the trial.”2 The following facts were established by the prosecution: On January 5, 1994, at about 7:00 in the evening, Guillerma Romano, appellant’s mother-in-law, was tending her sarisari store in Barangay Gulayon, Dipolog City. The Store and its premises were lit by a kerosene lamp and the fluorescent light from the adjoining house of Dodong Opulentisima. Guillerma’s daugther. Letecia Romano Malabago, arrived and sat on one of the benches outside the store. She had just come from selling some jackfruit. Allandel, Letecia’s fourteen-year old son, appeared and sat on the bench facing her. He listened to his mother and grandmother who were conversing. A few minutes later, accused-appellant came and interrupted his wife and mother-in-law’s conversation. He and Letecia began arguing. Guillerma turned away but heard the couple’s altercation over money and appellant’s jealousy of someone. Suddenly, Guillerma heard a loud sound and she thought that appellant slapped Letecia on the face. Letecia cried out “Agay!” Looking out the store window, Guillerma saw Letecia’s face bloodied with a slash along her right ear. Appellant was facing Letecia, and with a bolo in his hand, struck her again, this time hitting the lower left side of her face, from the lips down to the neck. Letecia fell to the ground. Guillerma rushed towards her daughter and shouted for help.3 She was lifeless. Appellant fled to Dodong Opulentisima’s house. Dodong Opulentisima later called the police. They came, fetched appellant and brought him to their station.4 On investigation, the police found a bloodied bolo in the pineapple plantation near appellant’s house.5 Letecia was found to have died of “cardio-respiratory arrest; shock hemorrhage, massive; hack wounds, multiple.”6 Accused-appellant pled not guilty to the crime. He claimed that on January 5, 1994, he was in the poblacion of Dipolog City. He alleged he did not know who hacked his wife and had no means of finding the culprit because he was placed in jail after her killing.7 He claimed through his son, Allandel, as defense witness, that Guillerma testified against him because she was against their marriage. He was then jobless.8 The proccedings show that Guillerma, together with her husband, catalino, and appellant’s and Letecia’s three children namely, Allandel, Aljun and Alex later signed as affidavit of desistance and moved to dismiss the case against him.9 The trial court upheld the prosecution and on May 10, 1994 convicted accused-appellant of parricide and sentenced him to death pursuant to republic Act No. 7659. Before us appellant assigns the following errors: “I The sentence of death imposed by the trial court on the appellant is an unconstitutional penalty for being violative of fundamental human rights and is, thus, null and void. II

The judgment of conviction is null and void for having been rendered by a trial court ousted of jurisdiction because of the grave violations of the appellant’s rights to due process committed by no less that the presiding judge himself as shown by his conduct at trial. III Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant of parricide considering that the prosecution failed to prove his guilt beyond reasonable doubt as demonstrated by: (a) The prosecution’s failure to prove the legitimate marital relation between appellant and the victim; (b)

The prosecution’s failure to prove the fact and cause of death;

(c) The prosecution’s failure to establish the chain of custody over the alleged instrument of death; IV Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant when it arbitrarily and selectively gave full weight and credence only to Guillerma Romano’s inculpatory but inconsistent and inadmissible testimony and disregarded her exculpatory statements. V Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in peremptorily dismissing the appellant’s defense of alibi as inherently weak. VI Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in appreciating the existence of treachery as an aggravating and qualifying circumstance. VII Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in refusing to consider the mitigating circumstance of voluntary surrender in favor of the appellant, despite the prosecution’s failure to contradict and challenge the appellant’s claim of this mitigator. VIII Assuming without conceding that it was not ousted of jurisdiction, the trial court nevertheless gravely erred in awarding civil indemnity arising from the death of Letecia Malabago considering that the prosecution failed to prove said death as a fact during trial.”10 We affirm the trial court’s findings with modification The crime of parricide defined in Article 246 of the Revised Penal Code as amended by Republic Act 765911 states: “Art. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.” Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendants or other descendants, or the legitimate spouse of the accused.12 The key element in parricide is the relationship of the offender with the victim.13 In the case at parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certifi-

cate. However, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.14 Guillerma Romano testified on direct examination that: “PROSECUTOR MAH: Q

On January 5, 1994 at about 7:00 in the evening, can you still recall where you were at that particular time?

A

I was in my store.

Q

While you were in your store at that particular time and date, can you still remember if there was an unusual incident [that] happened?

A

Yes, sir.

Q

Please tell us what that incident was about?

A

At that moment, I heard a loud sound (paka).

Q

Did you investigate what that loud sound [was] all about?

A

I did not mind because they are husband and wife.

Q

What was that loud sound about?

A

I thought it was a slap on the face but she was nit by a bolo.

Q

What was that incident about?

A

There was an altercation between husband and wife.

Q

After the altercation between husband and wife, what happened?

A

I saw the hacking two times and I saw blood.

Q

Who was hacked?

A

My daugther Letecia was hacked by Pedro Malabago. x x x

x x x.”15

x x x

Guillerma Romano’s testimony on direct examination affirmed the narration in her affidavit taken the day after the incident. The affidavit was adopted by the prosecution as its Exhibit “A” and it reads in part: “Q

What is your purpose in coming to the Office of the Investigator of the Dipolog City Police?

A

To file a complaint against Pedro malabago y Villaespin, 42 years old and a resident of Gulayon, Dipolog City,

Q

What is your complaint against said person?

A

He hacked to death my daughter

Q

How many times did the suspect hack his wife, Letecia R. Malabago?

A

Twice, hitting the victim on the right side of her face and on the neck resulting in her instanteneous death. x x x

who is his wife with the use of a bolo.

x x x

x x x.”16

Appellant did not object to Guillerma’s testimony and sworn statement that he and Letecia were husband and wife.17 Appellant himelf corroborated Guillerma’s testimony, to wit: “COURT: (to the witness) Q

You are Pedro Malabago, the accused herein?

A

Yes, sir.

Q

What is your relation to the late Letecia Romano Malabago?

A

She was my wife, your honor.

Q

You mean to say you were legally married to Letecia Romano Malabago?

A

Yes, sir.

Q

Who solemnized the marriages?

A

Mayor Barinaga, your honor.

Q

When?

A

In the year 1970, your honor.

Q

Who were the witnesses, could you still remember?

A

I

Q

But then you were legally married by civil ceremony officiated by Mayor Barinaga?

A

Yes, your honor.

can only remember Sergio Vidal, your honor.

x x x The against and the entered

x x x.”18

x x x

testimony of the accused that he was married to the deceased is an admission his penal interest. It is a confirmation of the semper praesumitur matrimonio presumption that a man and a woman deporting themselves as husbands and wife have into a lawful contract of marriage.19

Appellant alleges that the prosecution failed to establish the fact and cause of Letecia’s death because Dr. Dominador Celemin, the City Health Officer who signed the death certificate, did not personally examine her cadaver.20 It is content that the consent of the death certificate issued by Dr. Celemin is hearsay.21 Letecia’s death certificate is not the only proof of her death. Guillerma, in her affidavit, stated that her daughter died as a result of the hack wounds. 22 Called also as a hostile witness to the defense, she testified: “COURT Q

At the time, you actually saw the accused hacked (sic) the bolo to (sic) your daughter?

A

Yes, you honor.

Q

In fact, you witnessed the blood oozing on the face of your daughter?

A

Yes, your honor.

Q

In other words, you actually saw the accused herein hack the bolo to your daughter, am I right?

A

Yes, your honor.

Q

And the cause of death of your daughter was hacking of Pedro Malabago?

A

Yes, your honor.

Q

I have observed a while ago while you were testifying, you were crying. Why?

A

Because of worries that Pedro had done to my daughter.

Q

You mean to say, you cried because your daughter was killed by her husband?

A

Yes, your honor. x x x

x x x

x x x.”23

Appellant affirmed on cross examination that his wife died as a result of the hacking, thus: “FISCAL MAH: (to the witness)

Q

Mr. Witness, you know Letecia Malabago because she was your wife?

A

Yes, sir.

Q

Where is she now?

A

She is already buried in the cemetery.

Q

You mean to say she is already dead?

A

Yes, sir.

Q

What was the cause of her death?

A

She was hacked, sir.

Q

Hacked by whom?

A

I do not know who hacked my wife. x x x

x x x

x x x.”24

Accused-appellant also claims that the trial court showed partiality to the prosecution by unduly interfering in the presentation of evidence. By asking questions, the judge allegedly elicited prejudicial admissions from witnesses without affording appellant’s counsel the right to examine them on their answers to the court, in violation of appellant’s constitutional right to due process and right against self-incrimination.25 The records disclosed that the questions the trial judge propounded were made mainly to clarify what the prosecution and defense witnesses had testified on direct and cross examinations. The essential elements of the crime of parricide like appellants’s marriage to Letecia, the cause of Letecia’s death and appellant’s participation therein were facts already established by the prosecution in its evidence in chief. Using his discretion, the trial judge questioned the witnesses to clear up obscurities in their testimonies ans sworn statements.26 The wise use of such discretion cannot be assailed as a specie of bias. A judge is called upon to ascertain the truth of the controversy before him. He may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time27 and clarify obscure and incomplete details after the witness had given direct testimony.28After all, the judge is the arbiter and he ought to satisfy himself as to the respective merits of the claims of both parties in accord with the stringent demands of due process.29 In the case at bar, the trial judge had strong reasons to question the material witnesses who executed affidavits of desistance contradicting their previous stance. If to the mind of the parties, the trial judge was unduly interfering in their presentation of evidence, they were free to manifest their objection. They were likewise free to ask redirect questions from their witness after interrogation by the trial court. In the instant case, however, they never manifested that the questions of the trial judge had traversed the allowable parameters. Even assuming that some of the questions were incriminating, we cannot hold that the witnesses were compelled to incriminate themselves. The records show they answered the questions of the court freely and voluntarily and without any objection from their respective counsels. The prosecution evidence is based solely on the testimony of Guillerma Romano. Nonetheless, her testimony is clear, spontaneous and straightforward. Her inconsistencies are minor and inconsequential and they are not incongruous with her credibility. 30 Her testimony was not eroded even when she was presented by the defense as a hostile witness. She admittedly signed the affidavit of desistance for the sake of her three grandchildren and this is understandable in light of the circumstances of the case. Allandel and his brothers pled that she withdraw the complaint because they did not want their father to be in prison.31 Deep in her heart, however, Guillerma wanted justice for her daughter and thus, she testified for the prosecution.32 The fact that she objected to her daughter’s marriage to appellant is too flimsy a reason to impel her to testify against the father of her grandchildren. We agree with the trial court that appellant’s defense of alibi is weak and unconvincing. Appellant was positively identified as the one who hacked his wife to death. Moreover, it was not physically impossible for him to be at the scene of the crime on that

fateful evening. The poblacion of Dipolog City is merely four kilometers from Barangay Gulayon and this distance may be traversed within a few minutes by motorized vehicle.33 Be that as it may, we find that the trial court erred in appreciating the aggravating circumstance of treachery. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and rataliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of execution were deliberately and consciously adopted by the offender.34 It is true that appellant hacked his wife who was then unarmed and had no opportunity to defend herself. However, the evidence does not show that appellant deliberately and consciously employed this particular mode of attack to ensure the killing of the victim. The unembroidered facts reveal that appellant hacked his wife in the midst of a sudden, unscripted heated argument. This precludes the idea that appellant priorly planned to kill his wife. Indeed, appellant was not carrying his bolo at that time. The bolo was hanging in its usual place on one of the posts of the sari-sari store.35 Treachery, to be appreciated, must spark an attack that is deliberate, sudden and unexpected not where it is prefaced by an unforeseen heated argument with the victim standing face to face with her assailant.36 The trial court also erred in disregarding the mitigating circumstance of voluntary surrender. In answer to questions by the trial court, appellant declared: “COURT: (to the witness) x x x

x x x

x x x

Q

Do you have suspects as to the alleged killers of your wife?

A

I have no suspect, your honor.

Q

Because you denied killing your wife, you did not surrender to the police authorities?

A

I surrendered because I was accused of killing my wife.

Q

Immediately after the incident?

A

Yes, sir.

Q

Was it placed in the police blotter that you surrendered?

A

Yes, sir.

Q

Will you give the name of the person or police officer to whom you surrendered?

A

I forgot the name, your honor.

Q

Are you telling the truth?

A

Yes, sir. x x x

x x x

x x x.”37

Appellant testified that he voluntarily surrendered to the police when they fetched him at Dodong Opulentisima’s house. The prosecution did not dispute appellant’s claim of voluntarily surrender. Guillerma herself testified that without any resistance, appellant went with the police when they fetched him at Dodong’s house. 38 Indeed, appellant did not escape after Dodong Opulentisima called the police. Instead, he voluntarily placed himself at the disposal of the police authorities. In the absence of an aggravating circumstance39 and the presence of a mitigating circumstance the penalty imposable to appellant is reclusion perpetua.40 Considering the death of the victim, a civil indemnity of P50,000.00 must be awarded to her heirs. In light of the above disquisitions, the Court need not resolve the alleged unconstitutionality of R.A. No. 7659, as amended. Nonetheless, the Court expresses its appreciation to the scholarly arguments of our amici curiae, Senator Arturo M. Tolentino and Fr. Joaquin G. Bernas, S.J., on the constitutional aspects of R.A. No. 7659, as amended. Death not being the lis mota of the instant case, the Court has to await for more appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended.

IN VIEW WHEREOF, the decision appealed from is affirmed with the modification that the penalty of death imposed by the Regional Trial court of Dipolog City, Branch 10 on accused-appellant Pedro Malabago y Villaespin in Criminal Case No. 6598 is reduced to reclusion perpetua. SO ORDERED Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Narvasa, C.J., join Justice Padilla in his dissenting opinion. Padilla J., see Dissenting Opinion. FIRST DIVISION [G.R. No. 107801.

March 26, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSARIA V. IGNACIO, accused-appellant. D E C I S I O N VITUG, J.: Rosaria V. Ignacio was accused of parricide before the Regional Trial Court of Rizal, Branch 76 (Criminal Case No. 1700),[1] for fatally hitting her husband, Juan Ignacio, with a wooden club (palo-palo). The deceased was Rosaria's fourth husband. Juan died after having lived with Rosaria for two (2) years and seven (7) months. On 19 February 1992, the following information was filed against accused Rosaria Ignacio: "That on or about the 10th day of February 1992 in the Municipality of Rodriguez, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and while armed with the wooden club (palo-palo) did then and there willfully, unlawfully and feloniously attack, assault and hit her lawfully wedded husband Juan Ignacio, whereby inflicting upon the latter serious injuries which directly caused his death. "Contrary to law."[2] Rosaria pleaded not guilty to the charge.[3] The prosecution gave the following narration of its version of the incident. Rosaria Ignacio, then 44 years of age, lived with her husband, Juan Ignacio, 67 years old, in a small two-storey house of sawali and cogon grass in Sampaguita Street, San Jose, Montalban (Rodriguez), Rizal. Residing with them was Rosaria's daughter, Milagros V. Cabanilla, by a previous marriage. On the night of 09 February 1992, Rosaria and Juan had a heated argument. Milagros, entreated them to stop but the couple were in no mood to heed her. The following night (10 February 1992), at dinner, Juan and Rosaria had another quarrel. Milagros grudgingly went upstairs and tried instead to put her child to sleep. She could hear, after a brief moment, that the fight had become somewhat violent (nagrarambulan). Milagros peeped. She saw by the gas lamp (batutoy), that both were pulling a piece of lawanit and each tried to take possession of it. Juan ultimately released the lawanit and turned to go for his bolo when Rosaria picked up a palo-palo and hit Juan on the nape.[4] Rosaria left the straggling (kikisay-kisay) Juan and surrendered to the police at the municipal building. Rolando Ignacio, Juan's son by his former wife, was fishing in the San Jose river when he learned of the unfortunate incident. At the municipal hall in Montalban, Rizal, Rosaria voluntarily disclosed before Rolando and Pat. San Diego that she hit Juan with a wooden club.[5] She repeated this statement at the Office of the Prosecutor in Marikina in the presence of Rolando. Juan died the following day.[6] His body underwent postmortem examination at the Francisco Memorial Homes in Montalban, Rizal, by Dr. Emmanuel Aranas of the PNP Crime Laboratory Service.[7] Dr. Aranas found a contusion on the left occipital region, a lacerated

wound on the right occipital area and an abrasion on the right elbow. The death, per the autopsy report, was attributed to hemorrhage resulting from the injuries on the head.[8] Dr. Aranas opined that the contusion and laceration head, which fractured the bones of the skull,[9]had badly affected the cranial the brain.

cause of traumatic on Juan's cavity of

Testifying in her defense, Rosaria did not deny having inflicted the fatal wounds on her husband. According to her, between seven and eight o'clock in the evening of 10 February 1992, while she was resting on the wooden bed near the kitchen, after having returned home from her laundry work, her husband arrived. He was drunk. Armed with a bolo, he went around the wooden bed and then faced her. Exasperated, she finally stood up, pulled his hair, got hold of a palo-palo and hit him once on the head. The assault sent Juan hovering down the floor seriously wounded. Rosaria went to the municipal hall and surrendered to police officer San Diego. No other witness was presented by the defense. On 08 September 1992, the trial court rendered judgment convicting the accused and concluded: "WHEREFORE, premises considered, judgment is hereby rendered finding herein accused Rosaria V. Ignacio guilty beyond reasonable doubt of the crime of Parricide as defined and penalized under Art. 246 of the Revised Penal Code, and sentencing her to suffer the penalty of reclusion perpetua, and to indemnify the heirs of Juan Ignacio in the amount of P30,000.00."[10] Rosaria has interposed this appeal praying that she be acquitted on the basis of selfdefense or, in the alternative, that she be held guilty only of homicide rather than of parricide. An accused who interposes self-defense admits the commission of the act complained of. The burden of proving self-defense would now be on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached.[11] The first paragraph of Article 11 of the Revised Penal Code requires, in a plea of self-defense, (1) an unlawful aggression on the part of the victim, (2) a reasonable necessity of the means employed by the accused to prevent or repel it, and (3) the lack of sufficient provocation on the part of the person defending himself.[12] Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether complete or incomplete, that can validly be invoked.[13] The importance of this requisite must remain underscored. In De Luna vs. Court of Appeals,[14] the Court has explained: "x x x. We did repeatedly say before that, whether complete or incomplete, self-defense, by its very nature and essence, always would require the attendance of unlawful aggression initiated by the victim which must clearly be shown. When unlawful aggression on the victim's part is alone established, incomplete self-defense is so appreciated merely as an ordinary mitigating circumstance under Article 13, paragraph 1, of the Code. When such unlawful aggression is coupled with still another element of self-defense, incomplete self-defense becomes a privileged mitigating circumstance, referred to in Article 69 of the Revised Penal Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one or two degrees depending on the conditions and circumstances therein obtaining."[15] The presence of the requisite of unlawful aggression is pivotal. In the case at bench, appellant has sought to prove unlawful aggression by her testimony; thus "Q.

Please tell the court what was that unusual incident?

"A.

That night, as I was taking a rest, my husband arrived and he was drunk. When I was on top of our wooden bed, I saw him armed with a bolo going around me, I lost my patience (nagdilim ang aking paningin), I got hold of a palo-palo and hit him on his head, sir.

"Q.

And what was your relative position as compared to the position of the victim when you hit him with a palo-palo?

"A.

He was facing me and I was on top of the wooden bed and as I was on top of it, I hit him, sir.

"x x x "Q. "A.

x x x

You also testified that prior to that incident, before you hit your husband with a palo-palo, he was armed with a bolo, is that correct? Yes, sir.

"Q.

Where did he get that bolo, if you know?

"A.

At the post, near the wooden bed, sir.

"Q. "A.

x x x.

Are you aware as to the whereabouts of that bolo now? I do not know, sir."[16]

In People vs. Pletado[17] the Court, quoting from People vs. Bausing,[18] has reiterated the acceptable test in determining the presence of unlawful aggression; viz: "x x x. (F)or unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude (People vs. Pasco, Jr., supra; People vs. Rey, 172 SCRA 149 [1989]) and the accused must present proof of positively strong act of real aggression (Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]; People vs. Aquiatan, 123 SCRA 501 [1983]; People vs. Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat."[19] By her own admission, appellant only thought that her husband would strike her. swering questions from the trial court, she testified:

An-

"COURT: "Q. "A. "Q. "A. "Q. "A. "Q. "A.

Was he really about to strike you? Yes, sir. What made you say that? Because even before, he was doing that to me, sir. But at that very precise moment, were you really certain that he was going to hit you? I am sure that he will hit me, sir. Was it necessary to hit him with this palo-palo? I hit him because I defended myself, sir." (Italics supplied.)[20]

In fact, appellant's claim of self-defense was belied by her own daughter, Milagros, who declared that even before the victim could get his bolo, appellant already picked up her palo-palo and hit him. "Q.

You also made mention in your statement, particularly in question No. 6 to which you answered `nakarinig po ako ng kalabugan' what is that noise all about?

"A.

Both of them were pulling the lawanit and as they were pulling the lawanit, Juan Ignacio then freed the lawanit and was about to get his bolo but my mother was able to get at once the palo-palo and hit Juan Ignacio, sir.

"x x x "Q. "A. "Q.

x x x

x x x.

Mrs. Witness, you said during the cross-examination that the deceased tried to get a bolo, is that correct? Yes, sir. And do you know where the deceased was keeping his bolo?

"A.

Just opposite the place where they were sleeping, sir.

"Q.

What was the position of Juan Ignacio when you saw him, as you said, he was getting a bolo?

"A.

He stood up to get his bolo but he felt so weak because he was drunk, sir." (Italics supplied.)[21]

Self-defense, being essentially a factual matter furthermore, is best addressed by the trial court.[22] Here, the trial court has also observed: "Accused's claim of self-defense cannot be sustained. The bolo which was allegedly in victim's possession and with which the victim allegedly attempted to hit the accused, was never found, as in fact, admittedly, its whereabouts [was] unknown to the accused (TSN, p. 4, July 29, 1992 hearing) who naturally would have preserved the same and utilized it in evidence to corroborate her claim. Under the circumstances, the existence of the bolo particularly on the occasion alleged, is even doubtful."[23] Appellant contends that, if at all, she should be convicted only of homicide, not parricide, because "there was no clear evidence of marriage" between her and the victim. [24] Article 246 of the Revised Penal Code defining and penalizing the crime of parricide provides: "Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death." Indeed, the phrase "whether legitimate or illegitimate" characterizes the relationship between the accused and his victim who might be his father, mother, or child, but not the "spouse" who obviously refers to either the legitimate husband or the lawful wife.[25] Here, appellant not only declared in court that the victim was her fourth husband[26] but she also swore that they were married before a judge in Montalban, Rizal. [27] The victim's son testified that his father and appellant were husband and wife, [28] in much the same way that appellant's daughter, Milagros, held the victim to be her mother's husband.[29] Appellant's own admission that she was married to the victim was a confirmation of the semper praesumitur matrimonio and the presumption that a man and a woman so deporting themselves as husband and wife had verily entered into a lawful contract of marriage.[30] In People vs. Borromeo,[31] the Court has said: "Persons living together in apparent matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in constant violation of decency and law (Son Cui vs. Guepangco, 22 Phil. 216). The presumption in favor of matrimony is one of the strongest known in law. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. There is the presumption that persons living together as husband and wife are married to each other."[32] In view of the presence of the mitigating circumstance of voluntary surrender, the trial court correctly imposed upon appellant the penalty ofreclusion perpetua.[33] WHEREFORE, the decision of the trial court finding appellant Rosaria V. Ignacio guilty beyond reasonable doubt of the crime of parricide and imposing upon her the penalty of reclusion perpetua is AFFIRMED subject to the modification that the indemnity awarded to the heirs of the victim, Juan Ignacio, is increased to Fifty Thousand Pesos (P50,000.00). Costs against accused-appellant. SO ORDERED. Padilla, (Chairman), Bellosillo, Kapunan, and Hermosisima, Jr., JJ., concur. EN BANC [G.R. No. 135981.

January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. D E C I S I O N PANGANIBAN, J.: Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the “battered woman syndrome” (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This “psychological paralysis” she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her battererspouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn child’s. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case. The Case For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads: “WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. “The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.”[2] The Information[3] charged appellant with parricide as follows: “That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: ‘Cadaveric spasm. ‘Body on the 2nd stage of decomposition. ‘Face, black, blownup & swollen w/ evident post-mortem lividity. from its sockets and tongue slightly protrudes out of the mouth.

Eyes protruding

‘Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels

on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. ‘Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. ‘Abdomen distended w/ gas.

Trunk bloated.’

which caused his death.”[4] With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of parricide. The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarizes the prosecution’s version of the facts in this wise: “Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben’s younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. “On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben’s house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas’ rented house, he heard her say ‘I won’t hesitate to kill you’ to which Ben replied ‘Why kill me when I am innocent?’ That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas’ rented house appeared uninhabited and was always closed. “On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. “That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas’ rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. “On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son’s misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. “Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas’ rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of

an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. “About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben’s death was ‘cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].’ “Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas’ house. Ecel went home despite appellant’s request for her to sleep in their house. “Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her ‘You might as well be killed so nobody would nag me.’ Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, ‘smashed’ the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then ‘smashed’ Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom. “Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly ‘distorted’ the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom.”[7] (Citations omitted) Version of the Defense Appellant relates her version of the facts in this manner: “1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husband’s death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. “2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. “3. After their marriage, they lived first in the home of Ben’s parents, together with Ben’s brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben ‘lived happily’. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent. “4. Ben’s brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for

help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Ben’s forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Ben’s aid again and saw blood from Ben’s forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Ben’s forgiveness. “Mrs. Iluminada Genosa, Marivic’s mother-in-law, testified too, saying that Ben and Marivic married in ‘1986 or 1985 more or less here in Fatima, Ormoc City.’ She said as the marriage went along, Marivic became ‘already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic’s two sons, there were ‘three (3) misunderstandings.’ The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead ‘using a sharp instrument until the eye was also affected. It was wounded and also the ear’ and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Ben’s hand was plastered as ‘the bone cracked.’ “Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. “5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 ‘After we collected our salary, we went to the cock-fighting place of ISCO.’ They stayed there for three (3) hours, after which they went to ‘Uniloks’ and drank beer – allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait ‘for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.’ On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one ‘Fredo’ who is used by Ben to feed his fighting cocks. Basobas’ testimony on the root of the quarrel, conveniently overheard by him was Marivic saying ‘I will never hesitate to kill you’, whilst Ben replied ‘Why kill me when I am innocent.’ Basobas thought they were joking. “He did not hear them quarreling Basobas admitted that he and Ben He claims that he once told Ben Genosa’ that he should leave her leave him ‘so many times’.

while he was across the road from the Genosa residence. were always at the cockpits every Saturday and Sunday. ‘before when he was stricken with a bottle by Marivic and that Ben would always take her back after she would

“Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben ‘even had a wound’ on the right forehead. He had known the couple for only one (1) year. “6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. “These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. “7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. ‘7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses ‘grappling with each other’. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.[8]) ‘7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw ‘the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa’. He said after a while, Marivic was able to ex-

tricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). ‘7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified ‘if somebody would come.’ He testified that while Ben was alive ‘he used to gamble and when he became drunk, he would go to our house and he will say, ‘Teody’ because that was what he used to call me, ‘mokimas ta,’ which means ‘let’s go and look for a whore.’ Mr. Sarabia further testified that Ben ‘would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her.’ Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. ‘7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house ‘because she might be battered by her husband.’ When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that ‘her husband was already there and was drunk.’ Miss Arano knew he was drunk ‘because of his staggering walking and I can also detect his face.’ Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple ‘were very noisy in the sala and I had heard something was broken like a vase.’ She said Marivic ran into her room and they locked the door. When Ben couldn’t get in he got a chair and a knife and ‘showed us the knife through the window grill and he scared us.’ She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivic’s house on November 15, 1995, the couple were still quarreling. ‘7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient ‘many times’ and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.’ x x x

x x x

x x x

‘Dr. Caing’s clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits ‘2’ and ‘2-B.’ The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit ‘3.’ “On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, ‘whether she is capable of committing a crime or not.’ ‘7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing ‘family troubles’. He told Marivic to return in the morning, but he did not hear from her again and assumed ‘that they might have settled with each other or they might have forgiven with each other.’ x x x

x x x

x x x

“Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact,

Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. “Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because ‘he was crazy about his recent girlfriend, Lulu x x x Rubillos.’ “On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias ‘Marvelous Isidro’; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. ‘Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to ‘smash him once’; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was ‘whirled’ by Ben, he kicked her ‘ass’ and dragged her towards the drawer when he saw that she had packed his things.’ “9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. “10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw ‘some police officer and neighbor around.’ She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. x x x

x x x

x x x

“Dra. Cerillo said that ‘there is only one injury and that is the injury involving the skeletal area of the head’ which she described as a ‘fracture’. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. “Dra. Cerillo was not cross-examined by defense counsel. “11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed ‘with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.’ “12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. “13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty ‘beyond reasonable doubt’ of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. “14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivic’s trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant’s Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. “The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. “15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip,

Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her ‘Brief without counsels’ to the Court. “This letter was stamp-received by the Honorable Court on 4 February 2000. “16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. “Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit ‘A’) is more akin to a gunshot wound than a beating with a lead pipe. “17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic’s URGENT OMNIBUS MOTION and remanded the case ‘to the trial court for the reception of expert psychological and/or psychiatric opinion on the ‘battered woman syndrome’ plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.’ “18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. “Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. “Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph’s College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled ‘Energy Global Psychology’ (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. “Dra. Dayan testified that for the research she conducted, on the socio-demographic psychological profile of families involved in domestic violence, and nullity cases, looked at about 500 cases over a period of ten (10) years and discovered that ‘there lots of variables that cause all of this marital conflicts, from domestic violence to fidelity, to psychiatric disorder.’

and she are in-

“Dra. Dayan described domestic violence to comprise of ‘a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.’ x x x

x x x

x x x

“Dra. Dayan testified that in her studies, ‘the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them.’ Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from ‘broken homes.’

“Dra. Dayan said that the batterer, just like the battered woman, ‘also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent.’ The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so ‘there is a lot of modeling of aggression in the family.’ “Dra. Dayan testified that there are a lot her husband: poverty, self-blame and guilt self which makes her hope her husband will the family intact at all costs for the sake x x x

of reasons why a battered woman does not leave that she provoked the violence, the cycle itchange, the belief in her obligations to keep of the children.

x x x

x x x

“Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering ‘physical violence on both of them.’ She said that in a ‘normal marital relationship,’ abuses also happen, but these are ‘not consistent, not chronic, are not happening day in [and] day out.’ In an ‘abnormal marital relationship,’ the abuse occurs day in and day out, is long lasting and ‘even would cause hospitalization on the victim and even death on the victim.’ x x x

x x x

“Dra. Dayan said that as a result of the battery it was her opinion that Marivic fits the profile her feeling of self-confidence which we can see of loss, such feelings of humiliation which she person. And at the same time she still has the experienced in the past.’ x x x

x x x

x x x of psychological tests she administered, of a battered woman because ‘inspite of at times there are really feeling (sic) sees herself as damaged and as a broken imprint of all the abuses that she had x x x

“Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim. x x x

x x x

x x x

“19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. “Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. “He authored ‘The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 – 1978’ which was presented twice in international congresses. He also authored ‘The Mental Health of the Armed Forces of the Philippines 2000’, which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. “Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.

“Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. “As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder ‘depends on the vulnerability of the victim.’ Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, ‘it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.’ “In psychiatry, the post-traumatic stress disorder is incorporated under the ‘anxiety neurosis or neurologic anxcietism.’ It is produced by ‘overwhelming brutality, trauma.’ x x x

x x x

x x x

“Dr. Pajarillo explained that with ‘neurotic anxiety’, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks ‘of nothing but the suffering.’ x x x

x x x

x x x

“A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her ‘self-world’ is damaged. “Dr. Pajarillo said that an abnormal family background relates to an individual’s illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally ‘internalizes what is around him within the environment.’ And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong façade ‘but in it there are doubts in himself and prone to act without thinking.’ x x x

x x x

x x x

“Dr. Pajarillo emphasized that ‘even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.’ x x x

x x x

x x x

“Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and ‘primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household.’ He said a victim resorts to weapons when she has ‘reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.’ x x x

x x x

x x x

“Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. x x x

x x x

x x x

“On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic’c mental condition was that she was ‘re-experiencing the trauma.’ He said ‘that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind.’ At the time he interviewed Marivic ‘she was more subdued, she was not super

alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.’ x x x

x x x

x x x

“20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated.”[9] Ruling of the Trial Court Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review. Supervening Circumstances On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts’ reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts’ testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellant’s Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the “battered woman syndrome” plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Court’s Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12] The Issues Appellant assigns the following alleged errors of the trial court for this Court’s consideration: “1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. “2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. “3. with a pipe.

The trial court gravely erred finding the cause of death to be by beating

“4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. “5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. “6. The trial court gravely erred in concluding that Marivic’s flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

“7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. “8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death.”[13] In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa. The Court’s Ruling The appeal is partly meritorious. Collateral Factual Issues The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.[14] In appellant’s first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial court’s disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated “an obviously hasty decision without reflecting on the evidence adduced as to self-defense.” We note that in his 17page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judge’s conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an “obviously hasty” manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.[15] Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held: “The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.” Two of the prosecution witnesses -- namely, the mother and the brother of appellant’s deceased spouse -- attested in court that Ben had been married to Marivic. [17] The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there

is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19]Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circumstances of this case, the specific or direct cause of Ben’s death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, “[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim’s death.” Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of “battered woman syndrome,” for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellant’s children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present. [20] As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial court’s appreciation of these circumstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.[22] The Battered Woman Syndrome In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their “understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.”[24] A battered woman has been defined as a woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”[25]

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer’s actions; and false hopes that the relationship will improve.[26] More graphically, the battered woman syndrome is characterized by the so-called “cycle of violence,”[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28] During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her “placatory” and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence “spirals out of control” and leads to an acute battering incident.[29] The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is well-entrenched in a battered woman’s psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of “tension, violence and forgiveness,” each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.[31] History of Abuse in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows: “ATTY. TABUCANON Q

How did you describe your marriage with Ben Genosa?

A

In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

Q

You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you?

A

He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

Q A Q A Q A Q

How many times did this happen? Several times already. What did you do when these things happen to you? I went away to my mother and I ran to my father and we separate each other. What was the action of Ben Genosa towards you leaving home? He is following me, after that he sought after me. What will happen when he follow you?

A

He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said ‘sorry’.

Q

During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?

A Q A

Yes, sir. Who are these doctors? The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. x x x

Q A Q A Q A

x x x

x x x

You said that you saw a doctor in relation to your injuries? Yes, sir. Who inflicted these injuries? Of course my husband. You mean Ben Genosa? Yes, sir. x x x

x x x

x x x

[Court] /to the witness Q A Q

A Q A

How frequent was the alleged cruelty that you said? Everytime he got drunk. No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence? Everytime he got drunk. Is it daily, weekly, monthly or how many times in a month or in a week? Three times a week.

Q A

Do you mean three times a week he would beat you? Not necessarily that he would beat me but sometimes he will just quarrel me.” [32]

Referring to his “Out-Patient Chart”[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: “Q

So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Q

Yes, sir. Who prepared the list of six (6) incidents, Doctor?

A

I did.

Q

Will you please read the physical findings together with the for the record.

dates

A

1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero; 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora; 3.

March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2ο to trauma. physician: Dr. Caing; 5. April 17, 1995 - Trauma, tenderness (R) Shoulder. cian: Dr. Canora; and 6. cy. Q A Q A

Attending

Attending physi-

June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion PregnanAttending physician: Dr. Canora.

Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct? Yes, sir. Did you actually physical examine the accused? Yes, sir.

Q

Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?

A

Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q A Q A

Q

What is meant by furuncle axilla? It is secondary of the light infection over the abrasion. What is meant by pain mastitis secondary to trauma? So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. So, these are objective physical injuries. x x x

Q A Q A

x x x

Doctor? x x x

Were you able to talk with the patient? Yes, sir. What did she tell you? As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.

Q A

You mean, Ben Genosa? Yes, sir. x x x

x x x

x x x

ATTY. TABUCANON: Q A Q A Q A Q A Q A Q A

By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? As per record, yes. What was the date? It was on November 6, 1995. So, did you actually see the accused physically? Yes, sir. On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? Yes, sir. Being a doctor, can you more engage at what stage of pregnancy was she? Eight (8) months pregnant. So in other words, it was an advance stage of pregnancy? Yes, sir.

Q

What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?

A

No, she was admitted for hypertension headache which complicates her pregnancy.

Q A Q A Q A

When you said admitted, meaning she was confined? Yes, sir. For how many days? One day. Where? At PHILPHOS Hospital. x x x

Q

x x x

x x x

Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about? A

Q A

Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times. For what? Tension headache.

Q

Can we say that specially during the latter consultation, that the patient had hypertension?

A

The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature.

Q

What did you deduce of tension headache when you said is emotional in nature?

A

From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem.

Q A Q

You mean problem in her household? Probably. Can family trouble cause elevation of blood pressure, Doctor?

A

Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.

Q

In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A Q A Q A

On November 6, 1995 consultation, the blood pressure was 180/120. Is this considered hypertension? Yes, sir, severe. Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? It was dangerous to the child or to the fetus.”

[34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35] Ecel Arano also testified[36] that for a number of times she had been asked to sleep at the Genosa house, because the latter feared that Ben would come and hurt her. On one occasion that Ecel did sleep over, she was awakened o’clock at night, because the couple “were very noisy … and I heard something like a vase.” Then Marivic came running into Ecel’s room and locked the door. up by the window grill atop a chair, scaring them with a knife.

by Marivic home drunk about ten was broken Ben showed

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37]Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: “ATTY. TABUCANON: Q

Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A

Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, ‘he was not home yet’. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children.

Q A Q

This is evening of November 15, 1995? Yes, sir. What time did Ben Genosa arrive?

A Q A Q A Q A Q A Q A Q A

Q A Q A Q A Q A Q A Q A Q

When he arrived, I was not there, I was in Isabel looking for him. So when he arrived you were in Isabel looking for him? Yes, sir. Did you come back to your house? Yes, sir. By the way, where was your conjugal residence situated this time? Bilwang. Is this your house or you are renting? Renting. What time were you able to come back in your residence at Bilwang? I went back around almost 8:00 o’clock. What happened when you arrived in your residence? When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. Who was this cousin of yours who you requested to sleep with you? Ecel Araño, the one who testified. Did Ecel sleep with you in your house on that evening? No, because she expressed fears, she said her father would not allow her because of Ben. During this period November 15, 1995, were you pregnant? Yes, 8 months. How advance was your pregnancy? Eight (8) months. Was the baby subsequently born? Yes, sir. What’s the name of the baby you were carrying at that time? Marie Bianca. What time were you able to meet personally your husband?

A

Yes, sir.

Q

What time?

A Q A Q A Q A Q

When I arrived home, he was there already in his usual behavior. Will you tell this Court what was his disposition? He was drunk again, he was yelling in his usual unruly behavior. What was he yelling all about? His usual attitude when he got drunk. You said that when you arrived, he was drunk and yelling at you? did he do if any?

What else

He is nagging at me for following him and he dared me to quarrel him. What was the cause of his nagging or quarreling at you if you know?

A Q A

Q A Q A Q A Q A Q

He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again. You said that he was yelling at you, what else, did he do to you if any? He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, ‘why did you switch off the light when the children were there.’ At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television. What did he do with the bolo? He cut the antenna wire to keep me from watching T.V. What else happened after he cut the wire? He switch off the light and the children were shouting because they were scared and he was already holding the bolo. How do you described this bolo? 1 1/2 feet. What was the bolo used for usually? For chopping meat. You said the children were scared, what else happened as Ben was carrying that bolo?

A

He was about to attack me so I run to the room.

Q

What do you mean that he was about to attack you?

A Q A Q A Q A Q A Q A Q

When I attempt to run he held my hands and he whirled me and I fell to the bedside. So when he whirled you, what happened to you? I screamed for help and then he left. You said earlier that he whirled you and you fell on the bedside? Yes, sir. You screamed for help and he left, do you know where he was going? Outside perhaps to drink more. When he left what did you do in that particular time? I packed all his clothes. What was your reason in packing his clothes? I wanted him to leave us. During this time, where were your children, what were their reactions?

A

After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck.

Q

You said that when Ben came back to your house, he dragged you? drag you?

How did he

COURT INTERPRETER: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A

And he dragged me towards the door backward.

ATTY. TABUCANON: Q A

Q A Q A

Where did he bring you? Outside the bedroom and he wanted to get something and then he kept on shouting at me that ‘you might as well be killed so there will be nobody to nag me.’ So you said that he dragged you towards the drawer? Yes, sir. What is there in the drawer? I was aware that it was a gun.

COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: Q A Q A

Were you actually brought to the drawer? Yes, sir. What happened when you were brought to that drawer? He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER: (The witness at this juncture is crying intensely). x x x

x x x

x x x

ATTY. TABUCANON: Q A Q A Q

Talking of drawer, is this drawer outside your room? Outside. In what part of the house? Dining. Where were the children during that time?

A

My children were already asleep.

Q

You mean they were inside the room?

A Q A Q A Q

Yes, sir. You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? Three (3) inches long and 1/2 inch wide. Is it a flexible blade? It’s a cutter. How do you describe the blade, is it sharp both edges?

A Q A Q A

Yes, because he once used it to me. How did he do it? He wanted to cut my throat. With the same blade? Yes, sir, that was the object used when he intimidate me.”

[38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter’s ordeal to the court a quo as follows: “Q:

What can you say, that you found Marivic as a battered wife? Could you in layman’s term describe to this Court what her life was like as said to you?

A:

What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out.” [39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below: “Q

In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather?

A

The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life.

Q

Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case?

A

I believe I had an idea of the case, but I do not know whether I can consider them as substantial. x x x

Q A Q A

x x x

x x x

Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? I also heard that from her? You heard that from her? Yes, sir.

Q

Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

A

What I remember that there were brothers of her husband who are also battering their wives.

Q

Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room?

A

She told me about that.

Q A Q

Did she inform you in what hotel in Ormoc? Sir, I could not remember but I was told that she was battered in that room. Several times in that room?

A

Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q

Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion?

A

Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost she’s not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband.

Q

I do believe that she is a battered wife.

A

Sir, it is an extreme form of battering.

Was she extremely battered? Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows: “Q

And you also said that you administered [the] objective personality test, what x x x [is this] all about?

A

The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person.

Q

What do you mean by that?

A

Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]

Q

And what did you discover on the basis of this objective personality test?

A

She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I’m gathering from her are the truth.”[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,[42] which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until “Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees.” The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: “At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk.” Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, “[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.”[43] From the totality of evidence presented, there is indeed no doubt in the Court’s mind that Appellant Marivic Genosa was a severely abused person. Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. “How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the socalled ‘battered wife syndrome.’”[44] To understand the syndrome properly, however, one’s viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.[45] The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter’s “ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape.”[46] In her years of research, Dr. Walker found that “the abuse often escalates at the point of separation and battered women are in greater danger of dying then.”[47] Corroborating these research findings, Dra. Dayan said that “the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them.”[48] According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latter’s belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.[49] The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated “probably ten to twenty thousand” violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.[50] Dr. Pajarillo explained that “overwhelming brutality, trauma” could result in posttraumatic stress disorder, a form of “anxiety neurosis or neurologic anxietism.”[51] After being repeatedly and severely abused, battered persons “may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim’s ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect.”[52] A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that “even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape.” He said that it was the cognitive aspect -- the individual’s thoughts -- that proved all-important. He referred to this phenomenon as “learned helplessness.” “[T]he truth or facts of a situation turn out to be less important than the individual’s set of beliefs or perceptions concerning the situation. Battered women don’t attempt to leave the battering situation, even when it may seem to outsiders that

escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances.”[54] Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.[57] In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the “cycle of violence” supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Ben’s relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mother’s or father’s house;[58] that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other’s testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS. We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas. BWS as Self-Defense In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.[59]

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense [60] -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to selfdefense must face a real threat on one’s life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of self-defense:[62] “Art. 11. Justifying circumstances. -- The following do not incur any criminal liability: “1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself.” Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children’s bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their children’s bedroom -and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life “would amount to sentencing her to ‘murder by installment.’”[65] Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant’s use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant selfdefense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivic’s killing of Ben was not completely justified under the circumstances. Mitigating Circumstances Present In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.[69] From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows: “This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part.” [70] Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of “repetitious pain taking, repetitious battering, [and] repetitious maltreatment” as

well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.[71]Expounding thereon, he said: “Q A

What causes the trauma, Mr. Witness? What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder.... x x x

x x x

x x x

Q

You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?

A

The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q

But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A

We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q

Can you please describe this pre[-]classification you called delayed or [atypical]?

A

The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q A

And in chronic cases, Mr. Witness? The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder.” [72]

Answering the questions propounded by the trial judge, the expert witness clarified further: “Q A Q A

But just the same[,] neurosis especially on battered woman syndrome affects x x x his or her mental capacity?

x x x

Yes, your Honor. As you were saying[,] it

x x x

obfuscated her rationality?

Of course obfuscated.”[73]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in “cumulative provocation which broke down her psychological resistance and natural self-control,” “psychological paralysis,” and “difficulty in concentrating or impairment of memory.” Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution

of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. [76] In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.[78] Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.[79] His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo’s testimony[80] that with “neurotic anxiety” -- a psychological effect on a victim of “overwhelming brutality [or] trauma” -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control “re-experiencing the whole thing, the most vicious and the trauma that she suffered.” She thinks “of nothing but the suffering.” Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation. It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts. On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part. Second Legal Issue: Treachery There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.[81] In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence.[82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83]

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an “open, depressed, circular” fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death: “Q

You said that when Ben came back to your house, he dragged you? drag you?

How did he

COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A

And he dragged me towards the door backward.

ATTY. TABUCANON: Q A

Q A Q A

Where did he bring you? Outside the bedroom and he wanted to get something and then he kept on shouting at me that ‘you might as well be killed so there will be nobody to nag me’ So you said that he dragged you towards the drawer? Yes, sir. What is there in the drawer? I was aware that it was a gun.

COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: Q A Q A

Were you actually brought to the drawer? Yes, sir. What happened when you were brought to that drawer? He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER (The witness at this juncture is crying intensely). x x x Q A Q A Q A

x x x

x x x

You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? Three (3) inches long and ½ inch wide. It is a flexible blade? It’s a cutter. How do you describe the blade, is it sharp both edges? Yes, because he once used it to me.

Q

How did he do it?

A

He wanted to cut my throat.

Q

With the same blade?

A

Yes, sir, that was the object used when he intimidate me. x x x

x x x

x x x

ATTY. TABUCANON: Q

You said that this blade fell from his grip, is it correct?

A

Yes, because I smashed him.

Q A

What happened? Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q A

What else happened? When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure.

COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape). ATTY. TABUCANON: Q A

You said you went to the room, what else happened? Considering all the physical sufferings that I’ve been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT /to Atty. Tabucanon Q A

You shot him? Yes, I distorted the drawer.”[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim’s position relative to appellant’s at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.[85] Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.[86]There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.[87] Proper Penalty The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circum-

stance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5[88] of the same Code. [89] The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91] Epilogue Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant’s counsel, Atty. Katrina Legarda, have helped it in such learning process. While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau ofCorrections may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED. Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent. Vitug and Quisumbing JJ., in the result. Ynares-Santiago J., see dissenting opinion. Republic of the Philippines SUPREME COURT

Manila SECOND DIVISION G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 89, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the

wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who, having surprised his spouse in the

act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accusedappellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct byproduct of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit — amounting practically to an exemption from an adequate punishment — to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused — who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be — is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates

criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellantarresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur. Republic of the Philippines

SUPREME COURT Manila FIRST DIVISION G.R. No. L-32103 September 28, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON, defendants-appellants. MELENCIO-HERRERA, J.: This is an appeal from the Decision of the then Court of First Instance of Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON, all members of the police force of Dinalupihan, Bataan, of Murder, and sentencing "said accused each to suffer the penalty of RECLUSION PERPETUA; to jointly and severally indemnify the heirs of the deceased Pariseo Tayag in the amount of P12,000.00; and each to pay the proportionate costs." 1 The Information filed against said four accused together with two other policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with Murder as follows: That on April 21, 1967 at about 5:00 o'clock in the afternoon at Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by conspiring, confederating and helping one another, with intent to kill, treachery and by taking advantage of their official positions and superior strength, using their service revolvers did then and there willfully, unlawfully and feloniously shoot one PARESEO TAYAG Y ANGELES hitting him in the different parts of his body inflicting upon his person several gunshot wounds which caused his death to the damage and prejudice of his heirs. 2 After pleas of not guilty and after due trial, accused BUENSUCESO SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and, as aforestated, were sentenced to suffer reclusion perpetua. MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3 Three separate Briefs were filed: the first was for IZON and JOSON; the other was for BUENSUCESO; and the third one was for AGUILAR. The Solicitor General filed a consolidated Brief. The prosecution synthesized the occurrence as follows: Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while prosecution witness Apolonio Salvador was in his small store beside the market near the municipal building of Dinalupihan Bataan, he saw Patrolman Rodolfo Aguilar and Pariseo Tayag con. conversing as they were walking side by side, each resting his hand on the shoulder of the other, going towards the municipal building (pp. 22-24, tsn, July 25, 1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could not take it because Tayag prevented him from taking it by gripping it with his right hand and swaying it left and right as ff playing (p. 24, tsn, Id.). Tayag did not want to , the give knife because he was not making any trouble (p. 25, tsn., Id.). At the suggestion of Pat. Aguilar, Tayag readily agreed to go to the office of the chief of police (pp. 25, 26, tsn, Id.). When they arrived in the said office, there were two persons there, namely, Enrique Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the municipal guard and in uniform (p 8, tsn., July 26, 1967). Subsequently, a heated argument took place between Pat. Aguilar and Tayag arising from the latter's refusal to give his fan knife to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz appeared at the doorway (pp. 30, 32, tsn Id.). Thereafter , when Tayag was about to leave the office, Chief of Police Adriano Canlas arrived and inquired what the trouble was an about (p. 31,

tsn, Id.). Pat. Aguilar answered that the two of them (Aguilar and Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag asserted that he did not curse either of them, but that Aguilar was to force him to give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the office. He was followed by Pat. Aguilar, Mallari and de la Cruz who walked fast, with Aguilar and Mallari holding guns (p. 33, tan, Id.). After having gone out of the building, Pat. Aguilar fired his gun upward (p. 34, tsn, Id.). Hearing the shot, Tayag turned about, then retreated backwards until he reached the fence of the plaza (Id.). When Tayag was near the wooden fence about a knee high, Pat. Aguilar aimed his gun at Tayag and fired, hitting him above the right knee (pp. 34, 36, tsn, Id.). Tayag continued to run towards his house followed by de la Cruz without a gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept Tayag (Id.). Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat. Aguilar followed Mallari in the shed and they took opposite sides of the road, that is, Rizal Street, in front of the Catholic Church (Id.). Then there were several successive gun shots, more or less nine in number (p. 39 tsn, tsn, Id.). After the commotion, Tayag was seen lying prostrate near the back of a jeep parked at the corner of Rizal and San Juan Streets, about 60 meters away from the municipal building (p. 38, tsn. Id.). Pat. de la Cruz took the knife from Tayag and gave it to Pat. Jose Buensuceso (p. 39, tsn, Id.), who at the precise moment had his revolver tucked in its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose were also seen in the immediate vicinity of the crane scene by witness Apolonio Salvador (Id.). Witness did not know, however, where Pat. Izon and Joson came from (p. 45, tsn, Id.). Both had their guns in their holsters (Id.). Later, at about 5:50 that afternoon of April 21, 1967, Sgt. Romualdo-Espiritu of the P.C. stationed at Balanga Bataan, arrived at the corner of Rizal and San Juan Bautista streets in Dinalupihan (pp. 1, 2, tsn, July 26, 1967). He noticed a commotion in the plaza and as a peace officer he inquired from people around what was going on (p. 2, tsn, July 26, 1967). He was told that a certain person was shot (Id.). He went to the place where people were converging and found Pariseo Tayag dead lying down on a pool of blood, some 10 to 15 yards from the corner of Rizal and San Juan Bautista Streets (Id.). He ordered that deceased be brought to the municipal health center where a cursory inspection of the cadaver was made by the Municipal Health Officer, Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.) taken of the deceased (p. 5, tsn, Id.). Thereafter, he proceeded to the municipal building and investigated (p. 2, tsn, Id.). Upon learning that some police officers were involved he investigated the suspects. He first saw Pat. Aguilar who was then recounting the incident to Pat. de la Cruz (Id.). He asked for his service pistol inspected the cylinder and found three (3) empty shells and three (3) live ammunitions (Id.). He smelled the barrel Of the gun and found out that it had been fired (Id.). Then he proceeded to the office of the chief of police (p. 3, tsn, Id.) Moments later, Pat. Buensuceso arrived (Id.). He asked for Buensuceso's service revolver, inspected the cylinder, and found four (4) empty shells and two (2) live ammunitions (Id.). He smelled the barrel of the gun and found that it also had been fired. He also asked for the service revolver of Pat. de la Cruz but the latter manifested that he had no firearm at the time but pointed to Pat. Mallari from whom he (Pat. de la Cruz) got a pistol while they were on the ground door of the municipal building (Id.). Sgt. Espiritu then proceeded to the Patrol base or detachment of the 161st PC Co. at Layac Dinalupihan, Bataan and from there he reported the incident by calling up headquarters in Balanga, Bataan (Id.), and at the same time asked for investigators to come over (Id.). Later on, while Sgt. Espiritu was preparing an on-the-spot report in the office of the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st PC Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to Capt. Resurreccion the revolvers of Aguilar and Buensuceso, which are both Smith and Wesson Cal. 38, Sgt. Espiritu Identified in court as Exhibit "C"a Smith and Wesson cal. 38 revolver,

with Serial No. K-617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar (p. 4, tsn, July 26, 1967). Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12, 13, 14, tsn, Id.) and the municipal treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.), testified that on the basis of the memorandum receipt and records in their offices (Exhibits "H", "I", "J"), the respective firearms issued to the policemen of Dinalupihan, Bataan, bear the following serial numbers: Eduardo Mallari Serial No. L- 597615 (Exh. H-1; J-4) Rodolfo Aguilar Serial No.C 73130 Jose Buensuceso Serial No. K-617092 (Exh H-3; J-3) Ernesto Joson Serial No. K-617201 (Exh. H-4; J-3) Conrado Izon Serial No. 73534 (Exh. H-5; 1-1) The deceased Pariseo Tayag died of gunshot wounds as found by Dr. Ceferino Cunanan, a medico-legal officer of the National Bureau of Investigation. His findings and conclusions are reflected in his necropsy report No. N-67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as follows: 1. Entrance located at the scapular region, left, directed forward slightly upward and medially; ... 2. Entrance located at the infrascapular region, left, * * * directed forward, upward and medially; * * * ... 3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect, *** directed backward, downward and laterally; ... 4. Entrance located at the leg, right, proximal ward, antero-lateral aspect * * * directed upward, backward and laterally; * * * fracturing communitedly the upper 3rd of the tibia and a slug was recovered at a point at the level of the knee, * * * Dr. Cunanan testified that gunshot wound No. 4 is not a through and though wound, but instead the bullet was recovered with its course at Exhibits Q-3 and S (pp. 7, 8, tsn, Aug. 15, 1967). The bullet is preserved in their office and the photo of the slug is shown in Exhibits T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1 and 2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3 may have been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must have been fired by an assailant behind and to the left of the victim (p. 9, tsn, Id.). The shot causing Wound No, 2 must have been fired by an assailant while in the same position when Wound No. 1 was inflicted on the victim. Wound No. 3 is located on the lower extremity which is movable part of the body and could be inflicted on the victim assuming different positions. Wound No. 4 could be inflicted when the victim was lying down and assailant was in a lower position than the victim both standing erect face to face. Wounds No. 1 and 2 were fatal. Wound No. 1 involves the heart and lungs and Wound No. 2 involves the lungs, spleen and the liver (pp. 9, 10, tsn, Id.). Lunges diphenylamine tests were made on the dorsal aspect of both hands of the accused from the wrist joint to the fingertips, which produced the following results, to wit: Chemistry Report No. G-67-204-Conrado Izon Left Hand ——— Positive Right Hand ——— Negative Chemistry Report No. G-67-203-Fidel de la Cruz

Negative results Chemistry Report No. G-67-202-Ernesto Joson Left Hand ——— Positive Right Hand ——— Negative Chemistry Report No. G-67-200 — Eduardo Mallari Negative results. Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic of the National Bureau of Investigation, who conducted a ballistic examination of the firearms and shells and ammunitions received from the office of the provincial fiscal of Bataan in connection with this case, rendered his Ballistic Reports Nos. B-41-867 and B-44-867 (Exh. V, pp. 4, 5, tsn, April 17, 1968). Exhibit W which is a deformed jacketed bullet which was received from Dr. Cunanan (p. 6, tsn, Id.), showed that it was fired from the Smith and Wesson revolver, Cal. 38, bearing Serial No. K-617092 (p. 7, tsn, Id.). He also found that the empty shells, Exhs. "Y", "Y-1" and "Y-2" and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The three empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and Wesson revolver, Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn., April 18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967). 4 The testimony of one of the accused, Eduardo MALLARI, in his defense was summarized by the Trial Court thus: In his defense, the accused Eduardo Mallari testified that at about 5:30 o'clock in the afternoon of April 21, 1967, he closed the office of the Chief of Police on the 2nd floor of the municipal building. Then he went down to the office of the Deputy Chief of Police on the ground floor. While descending to the ground floor, he saw a person in the office of the Deputy Chief of Police facing Cpl. Aguilar. The person was holding a knife and cursing the Chief of Police. Suddenly the person raised his right hand with the knife stating, "You can only get this from me, Aguilar, when I am already dead." Then the person and Aguilar pursued one another around the table, the person with a knife as the pursuer. He saw the person pushed aside Aguilar and stabbed him but Aguilar was not hit. Thereupon Aguilar ran towards the outside of the building. The person followed Aguilar. At this juncture Pat. Fidel de la Cruz arrived. De la Cruz asked Mallari what happened. As De la Cruz and Mallari were conversing, Mallari heard a shot fired outside the building. Thereupon, De la Cruz grabbed Mallari's gun and rushed outside the building. Mallari also ran outside of the building. He saw the person, whom he later recognized as Pariseo Tayag, running away. He heard other shots, not less than five of them. He was short distance from the main door of the municipal building and he saw a commotion of the people. Fidel de la Cruz returned Mallari's gun after the shooting and when they were already inside the building. Thereafter Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun from De la Cruz, smelled it, then handed it back to De la Cruz, saying: "It was not fired". Another defense witness, Corazon Cruz, a waitress, testified that the deceased together with some companions had drunk beer inside Freddie's Restaurant before the shooting incident. After her testimony, the defense without presenting the other accused on the witness stand, offered its evidence and submitted the case for decision. Accused-appellants, in their respective Briefs, assigned the following errors: 1) By IZON and JOSON: I THE LOWER COURT ERRED IN HOLDING THE APPELLANTS CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE. II

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

Left Hand — Positive Right Hand — Negative Chemistry Report No. G-67-203 — Fidel de la Cruz Negative Results. Chemistry Report No. G-67-202 — Ernesto Joson Left Hand — Positive Right Hand — Negative Chemistry Report No. G-67-200 — Eduardo Mallari Negative Results. 10 (Emphasis ours) The positive finding, insofar as IZON and JOSON are concerned, confirm prosecution witness Apolonio Salvador's declaration that they were in the vicinity of the crime at the time of its occurrence. Although they had their guns in their holsters when Salvador saw them the fact remains that, upon examination, their left hands were positive for nitrates. AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR followed the victim right after the latter hurriedly left the office of the Chief of Police. Once outside the building, AGUILAR fired his gun upward. And when the victim turned around and retreated backwards, AGUILAR fired upon him hitting him above the right knee. If, as contended, the victim had thrust his knife at AGUILAR inside the Municipal Building malting the former the unlawful aggressor, to be sure, the incident would have happened there and then and not some 60 meters away from the building. We discredit AGUILAR's testimony that it was the victim who had pursued him rather than the other way around. BUENSUCESO's contention that there is serious doubt that the body autopsied was that of the victim hardly deserves even passing consideration. All told, there is ample evidence establishing that AGUILAR, BUENSUCESO, IZON, and JOSON had fired their guns at the victim hitting him on different parts of his body. True, it has not been established as to which wound was inflicted by each accused. However, as this Court has held, where the victim died as a result of wounds received from several persons acting independently of each other, but it has not been shown which wound was inflicted by each assailant, all of the assailants are liable for the death of the victim. 11 The crime is Murder, qualified by treachery. The victim was already retreating backwards until he reached the fence of the town plaza when AGUILAR fired his revolver at the former hitting him above the right knee. 12Notwithstanding that he was already hit and wounded, and possibly immobilized, he was still subjected to successive shots as shown by the wounds that he had received, even at his back. Certainly, the means employed by the accused-appellants tended directly and specially to insure the execution of the crime without risk to themselves arising from any defense which the victim might have made. 13 The killing of the victim was aggravated by abuse of superior strength as shown by the number of assailants, which circumstance, however, is absorbed by treachery. 14 No other circumstances modify the commission of the crime. WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the victim's heirs is hereby increased to P30,000.00. 15 With proportionate costs. SO ORDERED. Teehankee (Chairman), Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-74324 November 17, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants. The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants. MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows: That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda. That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda. CONTRARY TO LAW (p. 1, Records). Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows: WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. Let the preventive imprisonment of Pugay be deducted from the principal penalty. Cost against both accused. SO ORDERED (p. 248, Records). Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo: 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION. 2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE. 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo). The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel. Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him. The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame. The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof. The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody. After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit. It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense. While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense. Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution. There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corrobora-

tive, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797). Besides, the matter as to whom to utilize as witness is for the prosecution to decide. Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience. Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them. In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accusedappellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion. However, explaining this testimony on re-direct examination, Gabion stated: Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? A. I put down the comics which I am reading and I saw what they were doing. Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct? A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so. Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true? A. Yes, sir. Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? A. I do not know that would be that incident. Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? A. Because I pity Bayani, sir. Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? A. I was not told, sir. Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct? A. Yes, sir. Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline. A. I saw him pouring the gasoline on the body of Joe. Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani? A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire. However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371). The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows: A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months ofarresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree. There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17). The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years ofprision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum. The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00. Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo. Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants. SO ORDERED. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 86941 March 3, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", accused, JAIME RAMIREZ @ "NEBOY" accused-appellant. The Solicitor General for plaintiff-appellee. Public Attoney's Office for accused-appellant. DAVIDE, JR., J.: Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal complaint 1 filed on 24 March 1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan-San Jose in the Province of Negros Oriental for having allegedly killed the spouses Zosimo and Beatrice Toting and their six-year old daughter, Bombie, and for having burned the said spouses' house to conceal the crime; as a consequence of such fire, the spouses' other daughter, Manolita, was burned to death.

On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was recommended. 2 It appears, however, that the accused had earlier been apprehended on 6 March 1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF) and were detained at the Pamplona municipal jail. On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the MCTC, the following day, to order the clerk of court to forward the records of the case to the Office of the Provincial Fiscal. 4 Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the burning of the house. 5 On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the Regional Trial Court (RTC) of Negros Oriental an Information for Multiple Murder and Frustrated Murder with Arson 6 against the accused. The accusatory portion of the Information reads: . . . That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and acting in common accord, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack, stab and hack with the use of a bolo and sickle, with which the accused were then respectively armed and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound, neck posterior area 5" long, 3" depth, hack wounds, left upper back 3" long, 4" depth, stab wound, thru and thru, lower abdomen, 4" width, exit lower back 1" width, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately thereafter; one BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck posterior area, 5" long, 6" depth, incised wound, epigastric area 11" long, 4" depth, exposing vital organs, lower abdomen, 11" long, 4" depth exposing intestines, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter; one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right anterior lumber area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle, and which wounds caused the death of said Bombie Toting shortly thereafter; and in order to cover-up the heinous crime committed, the above-named accused, conspiring and confederating together and acting in common accord, did then and there willfully, unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground, and as a consequence thereto MANOLITA TOTING suffered Third degree burns, all burn (sic) body, head, extremities or 100% burns, and which wounds caused the death of said Manolita Toting immediately thereafter and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns on the upper extremity bilateral, posterior shoulder, left and back, and which wounds would have caused the death of victim Manolo Toting, thus performing all the over acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrator, that is, the timely medical assistance extended to said Manolo Toting which prevented his death. Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code. The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said court. After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial on the merits ensued. The prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr. Lucio Togonon as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan in rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On

the other hand, the accused testified for the defense together with witnesses Joven Lopez and Maxima Basay. Accused Ramirez took the witness stand again in surrebuttal. On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988, acquitting accused Teodoro Basay but convicting accused Jaime Ramirez. 8 It s dispositive portion reads: WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against the accused Teodoro Basay, this Court hereby finds said accused Teodoro Basay NOT GUILTY and orders his immediate release from detention. The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against accused Jaime Ramirez (sic), this Court finds him GUILTY to (sic) said crime and hereby sentences him to suffer the penalty of life imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand (P30,000.00) Pesos as his civil indemnity. SO ORDERED. 9 The evidence for the prosecution upon which the decision is based is summarized in detail in the trial court's decision and is further condensed in the Appellee's Brief 10 as follows: On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental, that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt. Nestorio Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to Tigbaw, [Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5). Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four (4) fatalities and their injuries as follows: (1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack wound, left upper back, . . . stab wound, through and through, lower abdomen, . . . 90% second and third degree burns of the body; (2) Beatrice Toting, hack wound, neck posterior area . . . incised wound, epigastric area . . . exposing vital organs, lower abdomen, . . . exist (sic) lower back, 90% second and third degree burns of the body; (3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle; (4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns. Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity bilateral, posterior shoulder, left and back. (Records. p. 213). Zosimo Toting, Sr. Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About forty (40) meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds (TSN, January 20, 1988, p. 18). The young girl said that she had been in this condition for one and a half days already. Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 o'clock in the evening, appellant and Teodoro Basay killed her parents and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9). On the same day the investigating officers went to the appellant's house. They saw appellant fixing the roof of his house and when appellant saw them, he went down and tried to ran (sic) away (TSN, January 20, 1988, p. 22). Ap-

pellant was turned over to the Pamplona Police Station (TSN, January 20, 1988, p. 25). Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I). Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial judge of Pamplona, Amlan, and San Jose, on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the court interpreter translate the allegations of the sworn statement into the local dialect for appellant (TSN, June 6, 1988). Thereafter, in the presence of the Judge, appellant and Mr. Catacutan signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and counsel also signed the vernacular translation of Exhibit F (Records, p. 12). Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the Appellant's Brief 11 in this wise: Evidence for the Defense: xxx xxx xxx Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him on March 5, 1986 and was brought (sic) to the Nabalabag PC Detachment where he was maltreated. Later, he was brought to Municipal (sic) Jail where he stayed for one month and 23 days. Queried on he did not it because he did not

the "Joint Waiver", this witness said he did not read it because know how to read. When it was read to him, he did not understand it was read in English. Elpedio Catacutan was not his lawyer and know him (TSN, March 5, pp. 3, 5-6, 9-10).

On cross-examination, this witness said he reached Grade II and knows how to write his name. He was alone at the time he was arrested. He was arrested ahead of Teodoro Basay and those who arrested him where (sic) not the same persons who arrested Teodoro Basay. He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was in front of him. They did not converse with each others (sic). He did not engage Catacutan to assist him, nor solicit his services. He does know (sic) any one who solicited Catacutan's services for him. He did not ask the Judge (Calumpang) that a lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988, p. 4). 12 Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. 13 The prosecution did not rebut his claim that he had only finished Grade II and that he does know how to read. He, however, understands the Cebuano dialect. 14 The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime Ramirez taken in the Pamplona police station on 7 March 1986 and subscribed and sworn to only on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC of Pamplona-AmlanSan Jose. The trial court described this document as the Extra-Judicial Confession16 of Ramirez. The Joint Waiver (Exhibit "G") mentioned in the testimony of Jaime Ramirez is in the Cebuano dialect and was signed by accused Basay and Ramirez on 7 March 1986. Both accused state therein that for their safety and security, they voluntarily decided to be detained and that they killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses' house; this fire resulted in the death of one and the hospitalization of two Toting children. 17 The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused "because when they signed said Joint Waiver, they were not represented by counsel;" thus, the same was prepared in violation of "Section 12, Article 3 of the Bill of Rights of the 1987 Constitution." 18 There being no other evidence against Basay, the trial

court acquitted him. However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez, considered as part of the res gestae the alleged statement given by Bombie Toting to PC Sgt. Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay as the perpetrators of the crime and considered as flight — which is indicative of guilt — Ramirez's running away when he saw the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial confession voluntarily and in the presence of Elpedio Catacutan, the COMELEC registrar of Pamplona — "a barister (sic) who appeared as counsel for accused Jaime Ramirez;" hence it is admissible against the latter. 19 On the other hand, the trial court did not admit the statement of Bombie Toting as a dying declaration but merely as part of the res gestae because the prosecution failed to prove two (2) of the requisites for the admissibility of a dying declaration, viz., that the statement was given under consciousness of an impending death and that Bombie Toting is a competent witness. 20 Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to appeal. However, on 31 January 1989, the trial court handed down an order directing the clerk of court to transmit to this Court the entire records of the case because in view of the penalty imposed — life imprisonment — "such Decision is subject for automatic review by the Supreme Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court, the automatic review of a criminal case is applicable only where the penalty of death has been imposed which, nevertheless, is now banned under Section 19 (1), Article III of the 1987 Constitution. In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22 In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon the trial court the commission of this lone error: THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE PRESUMPTION OF GUILT. Appellant contends that his so-called extra-judicial confession Exhibit "F", was executed in blatant disregard of his constitutional right to counsel and to remain silent during custodial investigation. It is therefore inadmissible in evidence. 24 Without the said confession, the only piece of evidence which seems to point to his guilt is the alleged statement of Bombie Toting. Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable mind would conclude that she was candidly truthful; "hence, her statement, besides being hearsay as it came from a person who was not presented in court to testify, should not have been taken at "face value against any of the accused, much less against the appellant." 25 Besides, the appellant asserts that same statement was not used against his co-accused Basay who was, unlike him, acquitted by the trial court. As to his having run away upon seeing the armed law enforcers, appellant claims that he did so out of fear as the latter were armed. 26 On the other hand, it is maintained by the People, in the Appellee's Brief 27 submitted by the Office of the Solicitor General, that the appellant executed the extra-judicial confession voluntarily and without duress; in signing such confession, he was accompanied by a certain Mr. Catacutan, a non-lawyer, inside the chambers of Judge Calumpang — "an environment . . .other than vindictive and oppressive which the courts desired to guard against in Miranda vs. Arizona, 384 US 436." 28 As to Bombie's statement, it is claimed that the same should be considered as a dying declaration. We find merit in the appeal. 1. Jamie Ramirez's sworn statement or extra-judicial confession was prepared on 7 March 1986 at about 11:00 o'clock in the morning in the Pamplona police station. Pertinent portions thereof read as follows: xxx xxx xxx PRELIMINARY — MR. JAIME RAMIREZ, you are now under investigation in connection with the death of the couple and the burning of their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio Togbao, Barangay Banawe, Pamplona, Negros

Oriental. You are also informed that under our new constitution you have the right to remain silent and not to answer questions which will incriminate you and to have a counsel of your own choice to assist you in this investigation, do (sic) you aware of this? ANSWER — Yes. Q — You are also informed that whatever statement you may offer in this investigation it (sic) might be used as evidence in your favor or against you in the future, do (sic) you aware of this this (sic)? A — Yes. Q — After you have informed (sic) of your rights are you willing to proceed with this investigation of yours even if you have no counsel of your own choice that will assist you in this investigation? A — Yes. I don't need any counsel in this investigation because I will just tell the truth. 1. Question — If so, please state your name, age, and other personal circumstances? Answer — Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio Palale, Barangay San Isidro, Pamplona, Negros Oriental. xxx xxx xxx 11. Q — What more can you say? A — No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona, Negros Oriental. (Sgd.) JAIME T. RAMIREZ (TYP) JAIME T. RAMIREZ Affiant NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN Counsel of the accused SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros Oriental, Philippines. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge CERTIFICATION I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge 29

We do not hesitate to rule that this purported extra-judicial confession belonging to appellant Jaime Ramirez and obtained during custodial interrogation was taken in blatant disregard of his right to counsel, to remain silent and to be informed of such rights, guaranteed by Section 20, Article IV of the 1973 Constitution — the governing law at that time. Said section reads: Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The source of this provision is Miranda vs. Arizona; 30 in connection therewith, this Court stated in People vs. Caguioa 31 that: . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: "Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does not make (sic) may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." (citations omitted) Then, in Morales vs. Enrile, 32 this Court, in the light of the said Section 20, prescribed the procedure to be followed by peace officers when making an arrest and when conducting a custodial investigation. Thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement ob-

tained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. This was reiterated in People vs. Galit. 33 In People vs. Nicandro, 34 this Court declared that one's right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, it is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms — e.g., what the person under interrogation may or may not do — and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. 35 If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel. 36 That counsel must be a lawyer. 37 The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article III of the 1987 Constitution, to wit: Sec. 12(1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of this right to counsel. A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible violations of the appellant's right to remain silent, to counsel and to be informed of such rights, and of the safeguards prescribed by this Court for the holding of custodial interrogations. (a) The interrogation was conducted and the confession was written in English — a language the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and the answers into a dialect known and fairly understood by the appellant. (b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be provided with one. (c) He did not sign any waiver of his right to remain silent and to counsel. (d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to have appeared for him as a "friendcounsel," 38 was present only at the time that appellant was brought to the office of Judge Calumpang for the preparation of the jurat. It was precisely for this reason that the following notations were inserted above the jurat of the so-called extra-judicial confession: NOTE: ASSISTED BY:

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

2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jamie Saguban identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her to have communicated effectively. She suffered the following injuries: Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left through and through, with necrotic transected muscle. 47 She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial court to express its doubts on the veracity of the latter's supposed statement: . . . Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show that Bombie Toting told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither did the P.C. or (sic) the police take any statement from her on her way to the hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain or to any reputable member of the community where the incident happened, the Court will have to put weight and consider her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements of peace officers. The Court therefore has to be cautious when these peace officers testify in Court. 49 In the second place, as a result of the foregoing observations, the trial court completely disregard Bombie Toting's so-called statement as against Teodoro Basay. We therefore see neither rhyme nor reason for the trial court's admission of the same as against the appellant. 3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not be considered as the flight which is indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be construed asflight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction, there must, be inter alia, be more than one (1) circumstance. No other circumstance was established in this case. Hence, the appellant's guilt was not established with moral certainty. He should be acquitted. We cannot, however, close this case without making some observations about the legal conclusion of the trial court anent the crimes committed and the penalty imposed. The facts indisputably establish that Zosimo Toting. Sr., Beatrice Toting and Bombie Toting were stabbed and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned to conceal the stabbing and hacking. As a result of this fire,

Manolita Toting and Manolo Toting suffered burns which caused the death of the former; the latter, however, survived due to timely medical attention. Four (4) crimes were therefore committed,viz.: three (3) separate murders under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie, and arsonas punished under Section 5 of P.D. No. 1613 51 for the death of Manolita and the injuries sustained by Manolo as a consequence of the burning of the house. The aforementioned Section 5 reads: Sec. 5. Where Death Results from Arson. — If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash under Section 3(e), Rule 117 of the Rules of Court. No such motion leaving been filed, appellant is deemed to have waived the defect. Finally, We have time and again said that life imprisonment is not a penalty provided for in the Revised Penal Code and is not the same as reclusion perpetua. 52 Unfortunately, the trial court still disregarded this pronouncement. It is hoped that it will not happen again. WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional Trial Court of Negros Oriental is REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED with costs de oficio. His immediate release from detention is hereby ordered. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur. Gutierrez, Jr., J., is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 30, 1988 G.R. No. L-50884 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant. PADILLA, J.: Padilla, J.: In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows: That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256,

paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess. CONTRARY TO LAW Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged. After trial the lower court rendered a decision dated 9 August 1978, the dispositive part of which states: WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. “For unselfish, valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds SO ORDERED. The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo. Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortemexaminations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana Abuyo-Salufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o’clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o’clock to 2:00 o’clock in the afternoon of the same day. He reduced his findings of injuries into writing. (Exhibit “A”), which, together with their probable cause, as testified to by him, are as follows: Injury Cause 1) Multiple abrasions with “Blunt object or friction by contusion, left leg, middle part, hard object” (tsn., Aug. 20, posterior

covering an area of 1976, p. 7) about 2 & 1/2 by 5 inches. 2) Abrasions, 1/2 by 2 Friction on a hard object” inches, medial side of the cubi (tsn., Aug. 20, 1976, p. 7) tal fossa (back left leg) 3) Multiple pinhead sized Hard pinhead sized material wounds, right face, starting (tsn., Aug. 20, 1976, p. 7) from the side of the right eye

down to mandibular bone (right check) 4) Upper right eyelid No cause given more prominent than the left eyelid (“the right upper eyelid a little bit bulging than the left eye “and” sort of “swollen”) (tsn., Aug. 20, 1976, pp. 7-8) 5) Tongue protruding bet Usually, the main cause of ween the lips, about 1 inch teeth protruding tongue during

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

the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother and that she died right on the spot where she fell. Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial. Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his father-accused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother’s death. The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit “C”). He declared that his sister was more or less seven (7) months pregnant when she died; that he first came to know about his sister’s death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974. Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraña told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte. The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania. Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00 o’clock in the morning of 4 December 1974 in her house at SitioKapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright light in the fireplace and he saw Filomeno Salufrania boiling “ikmo” and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying “ikmo” to the different parts of the body of Marciana Abuyo and by administering the native treatment known as “bantil”, that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o’clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead. Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o’clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter’s brother-in-law at Tigbinan, Labo, Camarines Norte. Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o’clock in the morning of 4 December 1974 after being called by one of the latter’s sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o’clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home

at 3:00 o’clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o’clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as “hilot” or massaging and “banti” that Geronimo Villan and Francisco Repuya alternately applied “bantil” to his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later. Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter’s death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present. The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death. The appellant assigns the following errors allegedly committed by the trial court: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT. II ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION. III THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED. Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses: Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly. Therefore, according to appellant, for failure of the trial court to determine Pedro’s competence, the presumption of incompetency was not rebutted and Pedro’s testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court’s finding that Pedro is intelligent. Appellant’s contention is without merit. The record shows that the trial court determined Pedro Salufrania’s competency before he was allowed to testify under oath. 2 The trial court’s conclusion that Pedro was intelligent and competent is fully supported by Pedro’s responsiveness to the questions propounded to him when he was already under oath: A. Did you go here in court to testify voluntarily? Q. Yes, Your Honor.

A. Were you not forced by your uncle to testify in his case? Q. No, I was not forced by my uncle. xxx xxx xxx A. The accused is your father? Q. Yes, sir. A. Do you love him? Q. No, sir. A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him? xxx xxx xxx Q. Why did you say that you don’t love your father A. Because he killed my mother. Q. And that is the reason why you hate your father now? A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976). Pedro’s strong sense of moral duty to tell the truth, even though it should lead to his father’s conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and proves that he did not appreciate the meaning of an oath at all. 3 Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro’s confusion is apparent from the fact that when asked the third time, he affirmed his first answer, Q. Isn’t it that your uncle threatened you with bodily harm if you will not give statement before the police? A. No, sir. xxx xxx xxx Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him? A. Yes, sir. Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police? A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976) Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on cross-examination he said that she died in the morning of December 4. It must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered ‘yes’ to the question “And isn’t it that your mother died in the early morning on that day (December 4) and not on the evening of December 3?” 4 Thus, Pedro’s answer could have resulted only from a misapprehension of the a question, and for no other reason.

Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out: Q. When did your father leave to get the hammock? A. In the afternoon. Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a hammock so that your mother may be brought to Tigbinan what time was that? A. About 12:00 o’clock noon. (Tsn, p. 16, Nov. 12, 1976) One may discern that the court itself noticed that there was a missapprehension when it commented “that maybe when the body was brought to Talisay” after Pedro answered “In the afternoon”. When Pedro answered “about 12:00 noon’ he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro’s testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant’s coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock. Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must be pointed out that Pedro merely answered “yes” to a question purportedly mentioning the time when the victim’s body was transferred to Tigbinan. The question is as follows: “The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening of December 4, is that right?” It is to be noted that the question’s thrust is whether or not the victim’s body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase “in the evening” may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother’s dead body that night, while on cross-examination, he testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother. Appellant further cites other alleged improbabilities to discredit Pedro’s testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, he closed his eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated. Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro’s divulging the real cause of his mother’s death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant’s threat suddenly ceased from that time. It must be noted that

Pedro was young and was still very much under appellant’s influence and control. The thought and memory of his father’s viciousness were still too fresh even after three days from his mother’s death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier. Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react differently to the same types of situations. 9 One cannot overlook that there is no standard form of behaviour when one is confronted by a shocking occurrence. 10 Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro’s brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex’s testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how many witnesses the prosecution should have presented. 13 The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro’s testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks of verisimilitude. 14 The trial court’s assessment of Pedro’s testimony, as quoted hereunder, deserves more than passing consideration: … The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the details of the horrible occurence that took place at about 6:00 o’clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid cross-examination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed cross-examination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of happened is the believable version. 15 Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor’s first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor’s expression of medical opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including em-

balming and the state of the cadaver’s decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania’s testimony. Both are consistent on material points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court insofar as their credibility and the appellant’s guilt are concerned. Appellant’s third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other. This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo’s death. The trial court’s reasons for rejecting the defense version, as hereunder quoted, are tenable and sound. Thus – On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dove-tailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o’clock in the morning of 4 December 1974, in their house atsitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with “ikmo” and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of ‘hilot’ and ‘bantil’ to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. … Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. … Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not disturb the findings of the trial

court on the credibility of witnesses, in view of its advantage in observing first hand their demeanor in giving their testimony. 16 Such rule applies in the present case. Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1. That there is a pregnant woman. 2. That violence is used upon such pregnant woman without intending an abortion. 3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom. 17 The Solicitor General’s brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that appellant’s intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim. It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant, SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 88724 April 3, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO ORITA alias "Lito," defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant. MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo): The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows: That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent. CONTRARY TO LAW. Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 5960, Rollo): WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARSPRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs. SO ORDERED. Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo): WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00. SO ORDERED. On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948. The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo): Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand

poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room. Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her Tshirt. Then he pulled off her bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory. PE Findings — Pertinent Findings only. Neck- — Circumscribed hematoma at Ant. neck. Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast. Back — Multiple pinpoint marks. Extremities — Abrasions at (R) and (L) knees. Vulva — No visible abrasions or marks at the perineal area or over the vulva,errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted. As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted. We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo): As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor. When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo): . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): . . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind. In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated. The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape: Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides: Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs

all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students: . . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished.Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted orfrustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo): . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): Q Was the penis inserted on your vagina? A It entered but only a portion of it. xxx xxx xxx Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply? A I inserted his penis into my vagina. Q And was it inserted? A Yes only a little. The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra). Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape. Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112

SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702). ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00. SO ORDERED. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 79011 February 15, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEMION MANGALINO y LUMANOG, accused-appellant. The Office of the Solicitor General for plaintiff-appellee. Adriatico T. Bruno for accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty ofreclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states: xxx xxx xxx That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent. Contrary to Law. The following facts are fully supported by the evidence on record, mainly the testimonies of the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as well as the testimonies of the witnesses for the defense — Ramil las Dulce, Linda Ayroso, and the accused himself. At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan, Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other. During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen.

Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6 The accused then laid her feet. 7 He kissed into the private part sexual organ into her

Marichelle down, removed her jogging pants, and placed them beside her and fondled her infantile breasts. 8 He inserted his finger of the victim, 9 and then forcibly and repeatedly introduced his undeveloped genitalia, but in vain. 10

Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was for her daughter, who should be leaving for school by that time. She was informed sister Agnes, who was living next door, that the adopted daughter of the accused, to, had told her that Marichelle was in their apartment. 11 Immediately, Michael, four-year old son, was dispatched to fetch Marichelle.

looking by her CieliAgnes'

Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12 At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows: No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination. Hymen, intact and its orifice, narrow. Sign of recent genital trauma, present. Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagina if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14 The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her. The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia. Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help when she was being abused. 15 Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit: ASSIGNMENT OF ERRORS ERROR I THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN; ERROR II THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING — RUNNING AROUND "TAKBUHAN"; ERROR III

THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES; ERROR IV THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16 The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in broad daylight, and 2) there were at least eight persons — including the accused and the complainant — on the ground floor where the rape was supposedly consummated. The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim. On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence. The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butas-butas." 17 Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated. We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence. We rule that statutory rape had been committed beyond the shadow of a doubt. The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial. The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma.Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia. The penile-vaginal contact without penetration was due to the one- centimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21 Indeed, even the slightest penetration is sufficient to consummate the crime of rape. The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on the medico-legal finding, because it explains the absence of visible signs of physical injuries.22 The close relationship of Semion Mangalino to Marichelle — as a nearby neighbor of the Carlos family — and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the vic-

tim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.) The attempt to discredit the prosecution's version as shown by the fact that Marichelle did not cry out or struggle against her attacker deserves scant consideration. The absence of hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that her chastity was being violated? As her mother testified, it was only upon realizing that she had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food — symptoms of a state of anguish. The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused. xxx xxx xxx q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that? Witness (Marichelle) a While I was playing Mang Simeon called me madam. Court q Why, were you playing alone? Witness a Yes, your Honor. Fiscal Salvania q What were you playing? Witness a I was running around "takbuhan" madam. Court q Were you running outside or inside the house of the accused Witness a Inside the house of Semion Mangalino, your Honor. Fiscal Salvania q While you were playing inside the house of Semion Mangalino he called for you? Witness a Yes, madam. q Why did he called (sic) for you? Witness a He called me and told me to go to his bedroom madam. Fiscal Salvania q When you were asked to go to his bedroom, did he give you anything? Witness a Yes madam. q What did he give to you? a He gave me P2.00, madam. Court q Did you accept that P2.00? Witness a Yes, your Honor.

Fiscal Salvania q When you were asked to go inside the higaan of Semion Mangalino, did you go? Witness a Yes, madam. q Now, when you went inside the higaan, what did he do to you? a He inserted one of his fingers in my private part madam. Fiscal Salvania q You stated that you were wearing jogging pant? Witness a Yes, madam. q What happened to your jogging pant? a He first removed my jogging pant, madam. q After removing your jogging pant, did he removed (sic) anything in his clothes? a He did not removed (sic) anything in his clothes madam. Court q Beside the jogging pant you are (sic) wearing, were you also wearing a panty? Witness a Yes, your Honor. Fiscal Salvania q What happen(ed) to your panty, did he remove? Witness a He also removed my panty madam. Fiscal Salvania q What did he do with his finger? Court She said he inserted. q Was one of the fingers of the accused inserted in your private part? Witness a Yes, your Honor. q What did he do? a He kissed me your Honor. q Where did he kissed (sic) you? a In my breast your Honor. Fiscal Salvania q Did he remove your T-shirt? Witness a No madam. xxx xxx xxx Court q Did Semion Mangalino removed (sic) his pant? Witness

a He did not removed (sic) his pant your Honor. xxx xxx xxx q Do you know what is penis? a Yes, your Honor. q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast? a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor. q What did he do with his penis? a He is inserting his penis in my private part, your Honor. Court q Was the accused able to insert his penis into your private part? Witness a He was not able, your Honor. xxx xxx xxx q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part? Witness a I did not feel anything, your Honor. q Did you feel pain? a I did not feel anything painful, your Honor. q Did you saw (sic) the penis of Semion Mangalino? a Yes, your Honor. q What was your position when Semion Mangalino was trying to insert his penis into your private part? Witness a I was lying down, your Honor. Court q Who put you lay (sic) down, was it yourself or what? Witness a Semion Mangalino, your Honor. q Did you not cry? a I did not cry, your Honor. q Did you shout? a I did not shout, your Honor. q Why, were there persons inside the house while Semion Mangalino was doing all these things to you? a There were no other persons except myself and Semion Mangalino your Honor. 23 Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the

presence of people, some of them complete strangers, in the police precinct and in court, her tragic story. The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law. It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages. The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circumstance that would have contradicted the findings of the trial court. The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age. The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" — a mere distance of 5 to 6 meters — is no obstacle to the satiation of his carnal lusting after the child. The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butas-butas," was sufficient to conceal the commission of the bestial act. In several instances, this Court held that rape can be committed even in places where people congregate: in parks, along the road side, within school premises, and even inside a house where there are other occupants. 27The apartment of the accused was no exception. Lust is no respecter of time or place. In fine, we hold that the trial court did not commit any reversible error in finding the accused-appellant guilty beyond reasonable doubt of the crime of statutory rape.

No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00. WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated. Costs against the accused-appellant. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. L-44859-60 April 27, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO BALBUENA and JUANITO TORRES, accused-appellants. The Solicitor General for plaintiff-appellee. Luciano D. Valencia for accused-appellants. GUERRERO, J.:ñé+.£ªwph!1 Appeal from the decision of the Court of First Instance of Rizal, Branch XII, Caloocan City, promulgated on August 6, 1976, in Criminal Cases Nos. C-6848 (75) and C-6849 (75) convicting herein accused Abelardo Balbuena and Juanito Torres for the crime of RAPE and sentencing each of them to suffer in each case the penalty of reclusion perpetua and to pay the costs. The two separate informations dated November 20, 1975 filed by Asst. City Fiscal Romeo C. Cortes upon the complaint of the offended party, Elvira Polintan, single, 20 years of age, a senior criminology student of the Philippine College of Criminology, against the two accused, read as follows: CRIMINAL CASE NO. C-6848 (75) têñ.£îhqw⣠That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Abelardo Balbuena y Garcia, conspiring and confederating with Juanito Torres y Villanueva, by means of force, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent. Contrary to law. CRIMINAL CASE NO. C-6849 (75) têñ.£îhqw⣠That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines and within the jurisdiction of this Honorable Court, the said accused Juanito Torres y Villanueva, conspiring and confederating with Abelardo Balbuena y Garcia, by means of force, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent. Contrary to law. Upon arraignment, both accused, assisted by counsel, waived the reading of the information and entered the plea of not guilty. Upon motion of the Fiscal, on the ground that the complainant in both cases is one and the same person, the court conducted a joint trial of the two cases. The evidence of the prosecution as summarized in the People's Brief established that: têñ.£îhqwâ£

On August 28, 1975, at around 10:00 o'clock in the evening, complainant Elvira Polintan was in an apartment located at P. Zamora St., Caloocan City, talking with appellant Juanito Torres, a friend of long standing (pp. 1-2, t.s.n., Feb. 10, 1976). After a while, some friends of Torres arrived. Torres and his friends agreed to drink liquor. They invited Elvira Polintan to join them (p. 2, t.s.n., Id.). Because Elvira had not seen appellant Torres for quite sometime, she accepted the invitation. They decided to hold the drinking party at the apartment of appellant Abelardo Balbuena which was also situated at P. Zamora St., Caloocan City, and adjacent to the house of appellant Juanito Torres (Ibid.). The ground floor of Balbuena's apartment was formerly a billiard hall but was no longer used as such (p. 10, t.s.n., Id.). Inside the billiard hall where the drinking party was held, Torres introduced Balbuena to Elvira Polintan (lbid.). Aside from the two appellants and Elvira Polintan there were three other male persons in the group (p. 2, t.s.n., Id.). They drank gin. (lbid.) After Elvira Polintan consumed a half glass of gin, she felt dizzy (Ibid.). She asked permission from the group that she would take a rest. She lay down in a bench inside the billiard hall (p. 5, t.s.n., Feb. 24, 1976). Then, appellant Balbuena undressed the complainant by removing her pants and briefs (pp. 4, 19, 21, t.s.n., Id.) and spread her legs wide apart (p. 22, t.s.n., Id.). At this juncture, appellant Torres was holding Elvira's hands. Balbuena then went on top of the billiard table (p. 16, t.s.n., Feb. 24, 1976). In the meantime, complainant feebly tried to extricate herself even as appellant Balbuena kept on threatening her and her family with death if she would not yield her body to him (Ibid.). Finally, Balbuena succeeded in having carnal knowledge with complainant (pp. 22-23, t.s.n., Id.). After appellant Balbuena had satisfied his lustful desires, he went down the billiard table. Immediately thereafter, appellant Torres went up the billiard table. Appellant Balbuena held complainant's hands (p. 4, t.s.n., Feb. 16, 1976). Despite complainant's continued struggle by twisting her body and kicking her feet, she simply could not overpower the appellants, so that appellant Torres also succeeded in consummating the sexual act with her (p. 5, t.s.n., Id.). In the course of the sexual act, appellant Balbuena covered the mouth of complainant to prevent her from shouting (p. 5, t.s.n., Id.). After she was raped, she sat down on the corner and cried. Appellant Balbuena told her "remember what I told you (referring to the threat that he will kill complainant and her parents)." (Ibid.). After about five minutes and when the attention of the appellants were distracted, complainant ran away and proceeded to her house. (Ibid.). On October 19, 1975, she related her sad experience to her mother (p. 7, t.s.n., Feb. 10, 1976). The following day, October 20, 1975, she went to the police headquarters at Caloocan City and gave a statement (Exhibit "A") narrating the incident of August 28, 1975 (p. 6, t.s.n., Id.). Also on October 20, 1975, she filed a complaint (Exhibits "B" and "C") for rape in the City Fiscal's Office at Caloocan City against the appellants. On the same date, complainant was examined by Dr. Maximo Reyes, medico-legal officer of the National Bureau of Investigation who issued a medical certificate (Exhibit "D", p. 46, rec.) with the following findings: General Physical Examination: têñ.£îhqw⣠Height: 156 cm. Weight: 96 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative subject. Breast fully developed, hemispherical and soft. Areola, dark brown, 3.0 cm. in diameter. No evident sign of extragenital physical injury noted on the body of the subject. Genital Examination: têñ.£îhqwâ£

Pubic hairs, fully grown and abundant. Labia majora and minora both gaping. Fourchette, lax Vestibular mucosa, pinkish. Hymen, thick, moderately wide, with multiple natural notches and a healed superficial laceration at 5:00 o'clock position corresponding to the face of the watch; edges beginning to round up and hardly coeptable Hymenal orifice originally annular and admits a tube 3.0 cm. in diameter with moderate resistance. Rugosities, shallow, and vaginal walls lax. CONCLUSIONS: têñ.£îhqw⣠1. No evident sign of extragenital physical injury noted on the body of the subject. 2. She could have had sexual intercourse with a man on or about the alleged date of commission. 1 Both accused-appellants rest their defense on denial and alibi. Accused Juanito Torres testified that he had known, the complainant for the past three years prior to the alleged commission of rape as she used to be with him in going places and having occasional drinking sprees of beer, gin and coke, "pagka may katuwaan", with a group of male companions; 2 that at about 4:00 o'clock in the afternoon of August 28, 1975, he saw complainant and requested her to accompany him to his cousin who resides at Gen. Luna Street, Caloocan City, to request his cousin to write a letter for him, and she acceded to come along; 3 that however, he went alone to see his cousin while complainant stayed behind at the fire department and then he went home without her at about 6:00 o'clock in the afternoon of the same day. 4 In denying any participation in the rape charge, accused Torres disclaimed his presence at the drinking party held inside the billiard hall. He denied that he usually drives a public utility jeepney from the corner of 10th Avenue, Rizal Avenue Extension, up to Biglang-Awa from 6:00 o'clock in the evening up to 12:00 o'clock midnight. 5 He declared further that complainant, a tomboy, had a previous amorous relation with his cousin, Rhodora Torres, and that she maintains a grudge against him for advising his cousin to part ways with her which resulted in the separation of his cousin and the complainant. 6 He said that after August 28, 1975, he had on seven or nine occasions seen the complainant who when greeted simply ignored him. 7 On the other hand, accused Abelardo Balbuena also denied the accusation of rape against him and his participation at the drinking spree with complainant. He testified that he first met complainant upon being introduced to each other on August 28, 1975 at his father's billiard hall situated at P. Zamora Street, Caloocan City; that after conversing with her for about five minutes, he left complainant in the company of three male companions and that they had a drinking spree at the billiard hall. They went to the upper floor of their house to eat supper and only came down later to ask her and her companions what time they would leave the house, to which she answered that it would not take long, and immediately thereafter he went upstairs again to do something else. 8 As indicated earlier, both accused were found guilty and sentenced in each case to suffer the penalty of reclusion perpetua and to pay the costs. Appealing to this Court, accused-appellants submit the following assignment of errors:têñ.£îhqw⣠I The lower court erred in not declaring Elvira Polintan as an incredible complaining witness in her narration of being raped by the accused. II The lower court erred in not declaring Elvira Polintan as a willing victim in the crime of rape, hence, the element of force is absolutely wanting. In raising the first assigned error, appellants contend that the lower court should have declared complainant Elvira Polintan as an incredible witness in her narration of being raped by the accused, pointing out that there was a delay of more than one month before the incident was reported to the police authorities; that complainant used to go with male friends, imbibing alcoholic beverages; that no bodily injuries were noted in the medical certificate (Exhibit "D"); that her dress or underwear was not torn and that she

was able to give a detailed description of what transpired during the night including the acts and movements of the appellants. On the question of delay which the defense submits to be construed to mean that the Court should doubt the very existence of the commission of the crime, We agree and affirm the ruling of the trial court that the delay in filing the complaint was reasonable. The reasoning of the Court that "(i)t is not easy for a Filipina to easily decide whether to come out in the open in a situation where public contempt and ridicule would result in the prosecution of a case. The very fact that she came forward in the case is persuasion that the act had been committed. The complainant stands to gain nothing with her revelation and the consequent punishment of the accused," is well-grounded, considering the inate modesty of Filipina womanhood and the inherent reluctance of the Filipino family to be exposed to the rigors of a long drawn out trial scandalizing the family's good name and honor. It is quite true that the unexplained delay in the filing of a criminal complaint for rape may result in an adverse inference against the complainant's sincerity and credibility, as in People vs. Pimentel, 118 SCRA 695, where the formal complaint was lodged against appellant after the lapse of 39 days and the Court said it taxes one's credibility that complainant could be able, after a long period of time, to feign a composed and serene posture after the harrowing experience she had undergone. But that is not true in the instant case. The victim herein has rendered a credible and satisfactory account for her delay in reporting the incident to her mother and in seeking the help of the authorities. The complainant unequivocably testified that she was fearful over the threats of the accused-appellants that they would kill her and her parents should she report the matter to the police, especially so since she resides near the houses of the accused-appellants and she has to pass their houses in going out. 9She also expressed her worry that her ongoing classes at school would be disrupted upon her filing of the complaint. 10 The fear and the shock engendered by the threats as well as her desire to avoid further shame is more than sufficient to restrain the offended party from immediately exposing her sad experience. 11 We reject appellants' contention that complainant Elvira Polintan is an incredible witness because she used to go with male friends, imbibing alcoholic beverages. This is not unusual, considering that complainant is admittedly a "'tomboy". As observed by the trial court, the demeanor of the complainant at the witness stand shows: têñ.£îhqw⣠Admittedly, the complainant is a 'tomboy'. Her appearance is most revealing. She is not exactly ugly. These considerations notwithstanding, and perusing the background leading to the incidents in question, it cannot be disputed that the two accused were at the time of the incident, drunk. Such being their state, it is not-improbable to say that the physical appearance of the woman would not bar these persons from the commission of the offense. (See CFI Decision) And neither the absence of any injury being noted in the medical certificate nor that her dress or underwear was not torn supports appellants' submission that complainant is an incredible witness. The absence of any injury is explained by the fact that the physical examination of the victim was made after more than one month had elapsed from the commission of the crime and moreover, We find no evidence that complainant was injured in her struggle to resist the acts of the accused. And there was no torn dress or underwear because she was then wearing pants and brief at the time of the incident. 12 The general rule on the credibility of the victim's testimony in a rape case is wellstated in People vs. Pimentel, 118 SCRA 695 where the Court, speaking through Justice Escolin, held as follows: têñ.£îhqw⣠In weighing the testimony of the complainant in an accusation for rape, the rule often applied by the courts is that the testimony of the victim, whose chastity has not been questioned, is generally accorded credence because such offended party would not have fabricated facts that could bring shame and dishonor on her. Nor would she disclose her humiliating experience at a public trial, and thus give rise to gossip and slander, unless her motive was to bring to justice the person who grievously wronged her. Such a rule has been established because the detestable crime of rape in which a man shows his most heinous side is one of the hardest to prove. Indeed, the testimony of the

victim most often is the only one available to prove directly its commission and corroboration by other witnesses would in certain cases place a serious doubt as to the probability of its commission. When a woman testifies that she has been raped, she says all that need to be said to signify that this crime has been committed. (U.S. vs. Ramos, 1 Phil. 81). In its decision, the trial court said that it "has gone at length with the testimony of Elvira Polintan in order to determine whether the same is conclusive, logical and probable. The complainant when she testified before the court to narrate what had happened on the night of August 28, 1975, appeared to be credible as a witness, and her account of the incident likewise left in the judicial mind an affirmative answer whether a woman of complainant's stature could be the object of this heinous offense." The court further added: "Then too, the complainant narrated the incident in a straight forward and convincing manner and despite the lengthy cross-examination to which she has been put too, she was steadfast in the fact that she was the victim of rape. Moreover, the very fact that she came out forward in this case is in itself a silent but persuasive evidence of an outrage done upon her honor. Considering these "evidences on record," there is nothing in the defense evidence which points out convincingly why Elvira Polintan should "corrupt the truth and put the lives of these two accused in jeopardy." This finding of the trial court on the credibility of the complaining witness is entitled to the highest respect upon this Tribunal, and We will not disturb the same. Moreover, We find no reason, and none is advanced by appellant Balbuena why complainant should implicate him in the case considering that he came to know the complainant for the first time during the incident. The motive imputed by appellant Torres to the complainant in implicating the appellant in the charge of rape which is that Torres told his cousin, Rhodora Torres, to sever her relationship with complainant, is indeed too flimsy to be accepted because the crime of rape exposes not only the accused but also the complainant to public ridicule and shame. We agree with the trial court in its conclusion that "(t)he sum total of all the foregoing considerations is the fact that the court believes that essential elements constitutive of the crime of rape had been established by the prosecution peradventure of doubt." The defense of the accused is one of denial as pointed out earlier in this decision, which is inherently weak, and more than that, the testimony of the accused Torres that he was with the complainant on August 28, 1975 at about 4:00 o'clock in the afternoon and not in the evening, is itself belied by the other accused Balbuena who admitted that Torres was present at the drinking spree on August 28, 1975. And in addition to the above contradiction, the defense of the accused is wanting in material corroboration. As to the second assigned error, We find the same to be without merit. Complainant is a "tomboy" and as such, she is sexually attracted to persons of her own sex rather than to the male specie. She would not willingly submit herself to a sexual intercourse with a male person as suggested by the appellants. The evidence is clear that appellants employed force in consummating the crime of rape. From the bench where she was lying down, she was pulled to the billiard table and bodily raised on top of the table where she was forced to lie down. Both accused held her at the wrist and one of them held her by the feet. She fought and struggled with them (nagpapapalag). On top of the billiard table, Torres held both of her hands while Balbuena laid on top of her and sexually abused her. After that, Balbuena went down from the table and Torres climbed while the other held both of the victim's hands and similarly, Torres was able to rape her. That the guilt of the accused for the crime of rape has been proved beyond reasonable doubt is clear and the decision being in accordance with law and the evidence, the same must be affirmed. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction against the accusedappellantsAbelardo Balbuena y Garcia and Juanito Torres v Villanueva and the penalty of reclusion perpetua in Criminal Case No. C-6848 and Criminal Case No. C-6849 for each of the accused is hereby AFFIRMED. Costs de oficio. SO ORDERED.1äwphï1.ñët Makasiar (Chairman), Aquino, De Castro and Escolin, JJ., concur. Concepcion, Jr., J., I vote for acquittal.

Separate Opinions ABAD SANTOS, J., dissenting: Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena. If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tubawine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view: 1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises. 2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant. 3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all. It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact raped. I accept this proposition — for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin. The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused. I vote for acquittal.

Separate Opinions ABAD SANTOS, J., dissenting: Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena. If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tuba wine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view: 1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises.

2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant. 3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all. It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact raped. I accept this proposition — for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin. The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused. I vote for acquittal. SUPREME COURT Manila FIRST DIVISION G.R. No. 92269 July 30, 1993 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCIO GARCIA y BAUTISTA, accused-appellant. The Solicitor General for plaintiff-appellee. Sison & Paderanga for accused-appellant. CRUZ, J.: The complaining witness was only nine years old when she was raped. This happened at about six-thirty in the evening of February 2, 1989, in Barangay Tabuating, San Leonardo, Nueva Ecija. Marilou Santos was playing hide-and-seek with her cousins when Lucio Garcia grabbed her, covered her mouth and dragged her near the river. The girl screamed for help and was heard by her cousin Anna, who followed them. Anna saw him remove his pants and lie on top of Marilou. Marilou felt much pain when he inserted his sex organ in hers. Anna fled for fear that Lucio might next turn on her. Remigio Galang, who was passing by, saw Lucio forcing his attentions on Marilou. Remigio immediately ran to Marilou's father, Enrique Santos, to inform him of the incident. On their way to the scene of the crime, they met Anna, who told them what had happened. When they reached the river, Lucio was wearing only his briefs. Marilou was standing nearby and crying. Lucio tried to escape but Remigio caught him. Enrique then fetched a barangay tanod, who placed Lucio under arrest. Marilou's physical examination revealed the following findings: 1 Breast — not yet developed External Genitalia — no pubic hair — with laceration on middle aspect of labia majora — with reddening and small amount of blood oozing.

The above narration was made through the testimonies of the prosecution witnesses, principally Marilou herself. Marilou is a retarded child and most of the answers she gave were prodded by leading questions. 2 The other witnesses were Annabel Manzon, 3 Enrique Santos, 4 Remigio Galang, 5 and Dr. Leonardo Gonzales, who made the medical examinations. 6 The defense presented only the accused himself. He had earlier, through counsel, withdrawn his plea of guilty but later changed his mind and decided to go to trial. 7 Lucio testified that at the time of the incident in question, he was sleeping under the stage constructed for the town fiesta. He was drunk. He was awakened when Marilou kicked him several times. In the presence of other persons, he asked Marilou why she was kicking him. A few minutes later, a barangay tanod arrived and arrested him. He was told he was being charged with embracing Marilou but the following day he learned that he was being accused of raping her. 8 There was no corroboration from the "other persons" he claimed to have witnessed his version of the incident. After trial, the Regional Trial Court of Nueva Ecija rendered judgment 9 disposing as follows: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt for the crime of rape committed on the child below 12 years old and sentences him to reclusion perpetua or life imprisonment and to indemnify the offended party in the amount of P15,000.00. It is contended in the appellant's brief that the trial court erred in giving credence to the prosecution witnesses despite their conflicting testimonies and in not holding that the guilt of the accused had not been proved beyond reasonable doubt. Specifically, the defense argues that Lucio would not have committed the rape in plain view of many people and that the medical report did not contain a finding of physical violence on Marilou's body or a definite conclusion that carnal intercourse was consummated. We hold for the prosecution. Strange as it may seem, there are cases when fear of discovery or the possible appearance of other people in a public place has not deterred the commission of rape. Animal lust is an aberration that this Court will not explain for the benefit of the accused. Rape was committed in a public street in People v. De los Reyes; 10 in a public park in People v. Veloso; 11 in a public market in People v. De la Cruz; 12 within school promises in People v. Gamboa;13 and inside a house with several other occupants in People v. Opeña. 14 The scene of the rape is not always or necessarily isolated or secluded. Force or intimidation does not have to be proved where the victim is less than twelve years old. 15 In the case at bar, the victim was only nine years old, besides being retarded. No violence — or not much of it anyway — was necessary to subject Marilou to the appellant's lechery. In fact, we have held that even when the victim is of age, or only more than 12 years old, proof of violence is not indispensable to a rape conviction. 16 Neither is a medical examination. 17 And if such examination is held, it is not necessary to show that there was full penetration of the vagina to constitute the consummated crime of rape. 18 It is settled that the mere entry of the penis into the labia majora of the female organ, even without rupture of the hymen, suffices to warrant a conviction for rape. 19 The alleged inconsistencies in the testimonies of the prosecution witnesses do not impair their essential veracity. Marilou's mental condition explains why she merely nodded to most of the questions asked. Anna's confusion may be attributed to her age (she was then 15) and her lack of experience with court proceedings. At any rate, we must give proper weight to the factual findings of the trial judge, who had the opportunity that this Court does not have of observing the witnesses and of assessing their credibility by their demeanor on the stand. There is substantial evidentiary basis for such findings in the case before us. We are convinced that Lucia Garcia is guilty of the crime charged, which has been established with proof beyond reasonable doubt that has overcome the constitutional presumption of innocence in his favor. He fully deserves the penalty imposed by law for his bestial defilement of his innocent victim.

But the penalty is not "reclusion perpetua or life imprisonment," as Judge Cecilio F. Balagot put it. We have already explained in Administrative Circular No. 6-A-92 and in many cases 20 that the two penalties are not interchangeable as life imprisonment does not carry the accessory penalties attached to reclusion perpetua. The proper penalty in this case is reclusion perpetua, not life imprisonment. If there is anything more nauseating than the crime committed by the appellant, it can only be the appellant himself. It is meet that he be banished from the society of decent persons who should not be exposed to his obscene presence. WHEREFORE, the appealed judgment is AFFIRMED except as to the penalty, which is changed, to reclusion perpetua and as to the civil indemnity, which is increased to P30,000.00. Costs against the appellant. SO ORDERED. Griño-Aquino, Davide, J., Bellosillo and Quiason, JJ., concur. EN BANC [G.R. No. 129433. March 30, 2000] PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused. D E C I S I O N BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climacticgusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A merestrafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts.[3] The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and

death for the accused - a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death,[5]hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6] As may be culled from the evidence on record, on 25 April 1996, at around 4 o’clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children’s room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel’s vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel’s body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor. Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel’s younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for any-

body to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel’s private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel’s vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should be understood here as inherently part of the entry of the penis into thelabias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Peña[11] we clarified that the decisions finding a case for rape even if the attacker’s penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, [12] or that the penis of the accused touched the middle part of her vagina. [13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the 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, andnot merely stroked the external surface thereof, for an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of thepudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora,labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"[17] but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion." A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo’s penis was able to penetrate Crysthel’s vagina

however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children’s room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim). It can reasonably be drawn from the foregoing narration that Primo’s kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo’s penis supposedly reaching Crysthel’s external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon’s sight, not to discount the fact that Primo’s right hand was allegedly holding his penis thereby blocking it from Corazon’s view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt thatinter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man’s instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon’s presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir.[20] This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo’s penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touchingand penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accusedtouched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touchedthe middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection.[23] On the con-

trary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo’s penis having breached Crysthel’s vagina is belied by the child's own assertion that she resisted Primo’s advances by putting her legs close together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding ofdiscoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death. Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness’ body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim.[27] In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Panganiban, J., in the result. EN BANC [G.R. No. 124736.

September 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y IGLOSO, accused-appellant. R E S O L U T I O N PER CURIAM: The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable doubt of the crime of qualified rape, was affirmed by this Court in its odecision promulgated on 22 January 1998. On 24 August 1999, accused-appellant filed a “Motion to Re-open Case (with Leave of Court)” seeking a modification of the death sentence to reclusion perpetua. Accused-appellant proffers that the reduction sought by him would be in line with the new Court rulings which annunciate that the seven attendant circumstances introduced in Section 11 of Republic Act No. 7659 partake of the nature of qualifying circumstances that must be pleaded in the indictment in order to warrant the imposition of the penalty. The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz D. Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659 should be considered as special qualifying circumstances distinctly applicable to the crime of rape and, if not pleaded as such, could only be appreciated as generic aggravating circumstances.[2] The Information filed against accused-appellant reads: “That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above named accused, with lewd designs and by means of force or intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with a 13 year old girl, Marites Gallo y Segovia.”[3] The above indictment has not specifically alleged that accused-appellant is the victim’s father; accordingly, accused-appellant’s relationship to the victim, although proven during the trial, cannot be considered to be a qualifying circumstance.[4] The next crucial point is whether the Court must now apply retroactively the Garcia doctrine to the conviction of accused-appellant. The Court has had the opportunity to declare in a long line of cases that the tribunal retains control over a case until the full satisfaction of the final judgment conformably with established legal processes. It has the authority to suspend the execution of a final judgment or to cause a modification thereof as and when it becomes imperative in the higher interest of justice or when supervening events warrant it.[5] The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos, [6] People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the promulgation of the instant case. The Office of the Solicitor General, when requested to comment on the aforesaid 24th August 1999 motion of accused-appellant, had this to state: “Judicial decisions applying or interpreting the law or the Constitution shall form part of the legal system of the land (Article 8, Civil Code of the Philippines). Medina, which has the force and effect of law, forms part of our penal statutes and assumes retroactive effect, being as it is, favorable to an accused who is not a habitual criminal, and notwithstanding that final sentence has already been pronounced against him (Article 22, Revised Penal Code). “Indeed, by operation of law, appellant is rightfully entitled to the beneficial application of Medina. Accordingly, the Office of the Solicitor General hereby joins appellant’s prayer for reduction of his sentence from death to reclusion perpetua.” The Court agrees with the Office of the Solicitor General in its above observations and sees merit in its stand to join accused-appellant in praying for a modification of the sentence from death to reclusion perpetua.

WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to be reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion perpetua in lieu of the death penalty and ordering him to indemnify the victim the amount of P50,000.00. Considering that the records of all cases where the death penalty is imposed are forwarded to the Office of the President in accordance with Section 25 of R.A. 7659, the Court directs the Clerk of Court to furnish the Office of the President with a copy of this resolution for appropriate guidance. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. EN BANC [G.R. No. 123544.

July 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL BERANA y GUEVARRA, accused-appellant. D E C I S I O N ROMERO, J.: In this sordid tale of defloration, a man is saved from the gallows for failure of the prosecution to adduce clear and positive proof of his relationship with the complainant. Before us on automatic review is a decision rendered by the Regional Trial Court of Naga City, Branch 25, imposing the supreme penalty of death on herein accused-appellant, Raul Berana y Guevarra for the crime of rape.[1] The facts of the case are as follows: On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old Maria Elena Jarcia was sleeping with her four-year old niece in one of the two rooms in a house her family was renting at Bayawas Street, Naga City when she was awakened by her brother-in-law, herein accused-appellant, Raul Berana. Complainant recognized him because light was filtering in from a nearby window. Berana pointed a "buntot page" at her neck and warned her not to make any noise, otherwise she would be killed. The terrified girl was made to lie down while accused-appellant raised her duster and proceeded to remove her shorts and her underwear, after which he mashed her breast and lay on top of her. The hapless girl was again threatened not to make any noise otherwise he would kill her. Complainant tried to cover her breasts with her arms but accused-appellant pushed her arms aside. As he inserted his organ into her womanhood, Elena felt excruciating pain. He began kissing her and made several push and pull movements, after which, the victim felt something liquid in her organ. Accused-appellant sat down and warned her not to talk to anyone about the incident. His bestial lust not having been satisfied, accused-appellant lay on top of her for the second time, fondled her breast and made push and pull movements. At around 2:30 o'clock in the morning, accused-appellant left after warning her that only the two of them must know about the incident. During the entire time that the accused-appellant was raping her, the poor girl was weeping and trembling with fear because he repeated his threats to kill her should she make any noise. Complainant, before having identified in court Exhibit A as the "buntot page" used by accused-appellant, described it as "long with some protruding parts and with long and pointed tip"[2] After the accused-appellant left, Elena put on her clothes and went to the adjacent room to report the incident to her sister, Ma. Ana. When Ana heard the grim story, she lost no time in hurrying to Camaligan, Camarines Sur where their parents , having been invited to a birthday party of a relative, had stayed overnight. On the same day, their mother fetched Elena and accompanied her to the Provincial Hospital for medical examination. The medical examination conducted revealed the following findings:

P.E. Vagina admits one finger (+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions Gram Staining Result: -gram (+) bacilli = many -pus cells = few -epithelial cells = many NOTE:

Gram stains smear shows presence of spermatozoa[3]

After having been examined, Elena and her mother proceeded to the Sabang Police station in Naga City to report the incident. Thereafter, accused-appellant was apprehended by the police. On June 3, 1994, an information was filed before the Regional Trial Court of Naga City, Branch 25, against accused-appellant for the crime of rape, allegedly committed as follows: That on or about June 2, 1994, in the city of Naga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, did then and there willfully, unlawfully and feloniously, have sexual intercourse with the herein complaining witness, MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age. CONTRARY TO LAW On June 6, 1994, an amended information was filed against accused-appellant which reads: That on or about June 2, 1994, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a relative of the offended party within the third civil degree, by means of force and intimidation, did there and then, willfully, unlawfully and feloniously have sexual intercourse with herein complaining witness MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age, to her damage and prejudice. CONTRARY TO LAW Upon arraignment, accused-appellant entered a plea of not guilty. On October 12, 1994, the prosecution again sought the amendment of the information filed in accordance with the mandate of Section 5, Rule 110 of the Revised Rules on Criminal Procedure relating to de oficio offenses which require the offended party's express conformity to the filing of the information. On October 17, 1994, accused-appellant entered plea of not guilty to the re-amended information. Accused-appellant does not deny having sexual intercourse with the complainant but, however, maintains that Elena consented to it. According to accused-appellant, at around 1:30 o'clock in the morning of June 2, 1994, he had difficulty sleeping, so he took a walk and decided to visit his daughter at the house in Bayawas Street. When he arrived at the said place, he sat on the stairs at the rear of the house. While seated, he heard someone calling, "Mama." He recognized the voice as Elena's so he answered, "this is not your mama, this is your manoy,"[4] On hearing these words, complainant opened the door and approached accused-appellant to ask him where her mother was, whereupon, accused-appellant told her that her parents might not return home because her father got drunk at a birthday party of a relative in Camaligan. He then asked Elena if his daughter was already asleep. Upon having been informed that his daughter had just fallen asleep, accused-appellant bade Elena goodbye but the girl, invited him to stay for the night so that he could keep watch over her and his daughter. Accused-appellant accepted her invitation since he was very tired. When he entered the room, Elena followed him and locked the door. Seeing his daughter sleeping soundly on a mat, he picked her up and moved her away from the middle to the left side so as not to disturb her. Elena turned off the light from the gas lamp and lifted the mosquito net to prepare for bed.

At this point, she reminded the accused-appellant of the sum of money which she had been asking him some time. When told that he had no money, complainant allegedly started to caress and embrace accused-appellant while at the same time insisting that he give her the money. When he reiterated that he had no money, complainant took hold of his hand and placed it on her breast. Complainant allegedly was wearing only an undershirt and panty at the time. Accused-appellant, feeling "hot", decided, and succeeded in having sex with her. During the sexual intercourse, Elena told him, "It is painful, manoy." but accused-appellant tried to assuage the pain, saying that it is painful only during the first time.[5] Afterwards, accused-appellant sat beside Elena and engaged her in conversation. Elena allegedly asked him to help her when she completes high school. When accused-appellant promised to help her on condition that she will be serious in her studies, Elena rose from her lying position and embraced him. He kissed her on the lips, touched her breasts and asked her again for sex. Complainant allegedly smiled and told him, "To my sister, you could only do it one (sic) but to me you will make it two,"[6] They had sex for the second time in the early morning of June 2, 1994. Accused-appellant left the room at around 2:30 o'clock in the morning. While answering a call of nature near a santol tree outside the house, he heard Ma. Ana ask Elena, "What did your manoy do to you?", to which the latter answered, "None, none." Accused-appellant heard nothing more as he decided to go on his way.[7] Accused-appellant narrated that prior to the incident, or specifically on December 1993, he was alone in the same room, reading an adult magazine when Elena arrived. She saw what he was reading and remarked that she had read the same magazine also. Embarassed, accused-appellant turned away and went near the window to continue his reading. Complainant, in the meantime, removed her school uniform leaving only her "sando" and her panty on. She approached accused-appellant and told him of the interesting parts in the magazine. When he told her that he had already seen them and was just reviewing the magazine, she told him, "Manoy, there are parts there which are beautiful." He then showed her the adult magazine and asked her to point out where these were. Elena placed her arms on his shoulders as she obliged him. When she embraced him, accused-appellant responded by embracing her back. He felt "hot" and placed his hand on her cheek then began touching her breast also. However, she turned her lips away so he ended kissing her cheek instead. Elena responded by kissing his cheek in turn. Accused-appellant, this time, kissed her lips and touched her breasts. They moved away from the window to avoid unwitting voyeurs. Somebody soon arrived and interrupted them so Elena became flustered and accused-appellant left. They maintained no relationship after the incident. The trial court did not give credence to the testimony of accused-appellant and on November 27, 1995, rendered a decision, the dispositive portion of which reads as follows: PREMISES CONSIDERED, this court finds accused-appellant guilty beyond reasonable doubt of the crime of rape defined and punishable under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659 which provides The death penalty shall be imposed when the crime of rape is committed with any of the following circumstances 1. When the victim is under eighteen (18) years of age and the offender is a x x x relative by consanguinity or affinity within the third civil degree. The accused being the husband of the victim's sister, is related by affinity to his victim within the third civil degree, the court hereby imposes upon Raul Berana y Guevarra to suffer DEATH PENALTY , to pay Ma. Elena M. Jarcia, the amount of P50,000 by way of damages and to pay the costs. In this automatic review of the decision rendered by the trial court, accused-appellant raises the following issues: I.

The trial court erred when it convicted herein accused-appellant despite the absence of any clear and convincing evidence demonstrating the alleged use of force.

II. The trial court erred when it convicted herein accused-appellant despite serious lapses and material inconsistencies in the testimony of the private complainant.

III. The trial court erred when it convicted herein accused-appellant despite the prosecution's failure to adduce clear proof of all the attendant qualifying circumstances of the crime charged IV. The trial court erred when it convicted herein accused-appellant based on a misplaced conclusion that herein accused-appellant allegedly admitted committing the offense charged We shall deal with the issues raised seriatim. Regarding the first issue, accused-appellant contends that the trial court's finding that he had forcible sexual intercourse with the complainant was based solely on the results of the medical examination conducted by the prosecution's witness, Dr. Humilde Janaban on Elena. In support of his contention, appellant cites the following excerpt from the trial court's decision: A careful perusal of the evidence adduced during the trials conducted in this case, show that the medical certificate of June 2, 1994 which was identified by Dra. Ma. Humilde B. Janaban, showing that the victim, private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration at 6:00 o'clock and 9:00 o'clock positions in her private part which could have been caused by sexual intercourse and /or by the intervention of a blunt object by thrusting and then pulling then thrusting again of a hard blunt object and the presence of spermatozoa confirms the testimony of Ma. Elena Jarcia that she was sexually molested makes such testimony credible. To the mind of the court this [sic] findings are significant to the effect that sexual intercourse was involuntary or through threat and duress. The absence of any kind of external injury in the body of the victim other then those found in her organ is of no consequence. Accused-appellant alleges that Elena encouraged his advances and the sexual intercourse was consensual. He asserts that while the hymenal laceration and the presence of spermatozoa prove the fact of sexual intercourse, they do not ipso facto prove that such act was committed by means of force, in line with our pronouncement in People vs. Godoy[8] that, "Even granting ex gratia argumenti that the medical report and the laceration corroborated the complainant's assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use of force. It has been held that such corroborative evidence is not considered sufficient, since proof of facts constituting one element of the crime is not corroborative proof of facts necessary to constitute another equally important element of the crime." Accused-appellant's contention is misplaced. The trial court's finding of rape in the case at bar, was not based solely on the medical findings showing hymenal laceration and the presence of spermatozoa in the victim's organ. While the excerpt quoted by the accused-appellant from the questioned decision gives the impression that the trial court considered the hymenal laceration and the presence of spermatozoa in the victim's organ as proof of forcible sexual intercourse, the decision read in its entirety shows otherwise. The trial court merely considered the medical findings as corroborative evidence for the complainant's testimony that accused-appellant had sexual intercourse with her. Complainant was forced to accede to accused-appellant's advances because he poked a "buntot page" at her neck and threatened to kill her should she make any noise. With such repeated threats, the hapless girl eventually broke down and cried. Accused-appellant maintains, however, that complainant's testimony is too full of material inconsistencies to deserve belief. For instance, although complainant alleged that she bled after the coitus, the medical examination revealed otherwise; complainant's testimony in court that accused-appellant asked her for sex a second time belies her allegation that accused-appellant forced himself on her; complainant's statement in her affidavit that accused-appellant was armed with a blunt instrument is materially different from her testimony in court that accused-appellant carried with him a "buntot page". Accused-appellant's assertion that the medical record is bereft of any proof corroborating complainant's testimony that she bled after she was raped hardly consideration. The underwear of the complainant which was presented and admitted in court as evidence bore traces of blood.[9] Moreover, the absence of any sign of physical bleeding on the part of the complainant does not necessarily mean that there was no forcible sexual intercourse. For one thing, complainant was threatened with a "buntot page" poked at her neck at the time. Then too, accused-appellant's threat was sufficient enough to intimi-

date a young girl of 14 to force her to submit to his baser instincts. It must be noted that proof of external injuries inflicted on the complainant is not indispensable in a prosecution for rape committed with force or violence. The law does not impose upon a rape victim the burden of proving resistance. Physical resistance need not be established in rape case when intimidation is exercised upon her and she submits herself against her will to the rapist's lust because of fear of life and personal safety. [10] When a woman testifies that she was raped, she says in effect all that is necessary to show that said crime has been committed. Accused-appellant, however, would have us believe that the sexual intercourse was consensual since complainant herself testified during trial that he asked her for a second time during the night in question. While complainant did state during trial that, "After the first incident, he sat down and he again asked me to give him for the second time,"[11] complainant also stated that she was then crying and trembling with fear. Considering the continuing threat on her life if she makes an outcry, complainant had no choice but to accede to the desire of accused-appellant. That he asked her for sex does not necessarily imply that she gave her consent when he succeded in ravishing her again. It is indeed preposterous that a young woman, untrained in the ways of the world and of men would initiate and encourage his advances, as accused-appellant claims, considering especially that he is the husband of her older sister. Accused-appellant nevertheless insists that complainant's testimony does not merit credence because of inconsistencies in her statement regarding the weapon used by the accused-appellant to threaten her on the night of the incident. We are not unaware that complainant stated in her affidavit that accused-appellant was armed with a blunt instrument in contrast with her testimony in court that accused-appellant was armed with a "buntot page." It must be borne in mind, however, that discrepancies between an affidavit and testimony in court occur more often than not since an affidavit is not prepared by the affiant herself but by another who uses his own language in writing the affiant's statement. It might not be amiss to note, at this point, that the instrument which was submitted by complainant to the police and later identified in court as the "buntot page" used by the accused-appellant was described by the Chief of Police in his letter to the prosecutor as "one (1) blunt instrument with black handle.[12] " In the case of People vs. Empleo[13], we had occasion to state that, "the contradiction between the affidavit and the testimony of the witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated." We find merit, however, in accused-appellant's contention that the prosecution failed to adduce clear and positive proof of the qualifying circumstance of relationship between accused-appellant and complainant. It should be noted that the relationship between accused-appellant and the complainant qualifies the crime from rape punishable by reclusion perpetua to rape punishable by death under Republic Act No. 7659. Under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, the death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: x x x 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. Affinity is defined as "the relation which one spouse because of marriage has to blood relatives of the other. The connection existing, in consequence of marriage between each of the married persons and the kindred of the other. The doctrine of affinity grows out of the canonical maxim that marriage makes husband and wife one. The husband has the same relation by affinity to his wife's blood relatives as she has by consanguinity and vice versa."[14] Consequently, to effectively prosecute accused-appellant for the crime of rape committed by a relative by affinity within the third civil degree, it must be established that a) he is legally married to complainant's sister and b) complainant and accused-appellant's wife are full or half blood siblings. The prosecution tried to establish the relationship of accused-appellant to the complainant by asking her the following during trial:

x x x Q:

By the way, do you know the accused in this case by the name of Raul

A:

Yes, I know him, sir

Q:

Why do you know him?

A:

He is the husband of my sister[15]

Complainant's mother also testified: x x x Q:

Do you know the accused in this case, Raul Berana y Guevarra?

A:

Yes, I know him , sir.

Q:

Why do you know him?

A:

Because he is the husband of my daughter

Q:

Whose name is that?

A:

Rosa Jarcia, sir[16]

Based on abovementioned testimonies, as well as accused-appellant's letter to the complainant's parent's addressing them as "mama at papa," and his use of the phrase, "ang inyong manugang, Raul"[17] the trial court convicted him of the crime of rape committed by a relative by affinity within the third civil degree, under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Considering that the relationship of accused-appellant to complainant qualifies the crime of rape punishable by reclusion perpetua to rape punishable by death, it is but proper that a more stringent proof of relationship between the offender and the offended party must be established by the prosecution. Corollarily, a clearer proof of relationship between the complainant and the spouse of accused-appellant must be presented. The relationship of accused-appellant and the complainant, is not adequately substantiated since it is merely based on testimony of the complainant, her mother's testimony and the accused-appellant's use of the words, "mama at papa" in his letters. Needless to say, the evidence presented are not sufficient to dispel doubts about the true relationship of accused-appellant and the complainant, to the benefit of which the accused is entitled. Where the life of an accused-appellant hangs in the balance, a more exacting proof must be adduced. Accused-appellant, in his last submission, insists that the trial court erred in convicting him based solely on a misplaced conclusion that he admitted the offense charged based on the four (4) letters he sent to the parents of the complainant, one of which states: Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta mapapatawad ang nagawa ko pero paano naman po ang kinabukasan nang mga apo at anak ko.[18] Accused-appellant asserts that the letters, in no way, indicate an admission of guilt on his part. In support of his contention, accused-appellant cites the case of United States vs. Maqui[19] where it was held that an accused may show that an offer of compromise on his part was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that an offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom. We are not convinced. The tenor of the letters sent by the accused-appellant to the parents of the complainant, while not explicitly admitting the forcible sexual intercourse, could hardly be considered an admission made merely to avoid the inconvenience of imprisonment. Consider the following excerpts: Mama at Papa, Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng totoo. Nang maganap ang insidenteng iyon. Wala ako sa sarili kong pagkatao. At wala akong matandaan sa nangyari (sic)[20]

And x x x Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat isumbat sa inyo. Napakabait ninyo sa kain. Ewan ko nga lang kung bakit ko nagawa iyon. Kung totoo talagang ako nasa sarili kong pagkatao.[21] Despite his claim that complainant initiated and consented to the sexual intercourse, accused-appellant in his letter never made mention of this fact but has, instead, unceasingly asked for forgiveness from the parents of the complainant, short of admitting categorically the offense charged. Clearly, the unsolicited letters of the accused-appellant cannot be construed as an offer of compromise to avoid the inconvenience of imprisonment but a plea of mercy to save him from the gallows. In view of the fact that relationship between accused-appellant and the complainant was not properly established, we are constrained to reduce the penalty imposed by the lower court from death to reclusion perpetua. Accused-appellant is, however, ordered to pay civil indemnity ex delicto in the amount of P50,000 and the P50,000 imposed by the lower court shall constitute moral damages. The fact that the complainant has suffered the trauma of mental, physical and psychological suffering which constitutes the bases for moral damages is too obvious to still require the recital thereof at the trial by the victim since the court itself assumes and even acknowledges such agony on her part as gauge of her credibility.[22] WHEREFORE, the decision of the Regional Trial Court of Naga City, Branch 25, finding accused-appellant Raul Berana y Guevarra guilty beyond reasonable doubt of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is ordered to pay complainant Ma. Elena M. Jarcia the sum of P50,000 by way of civil indemnity and P50,000 as moral damages. Costs against accused-appellant. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ.,concur. Davide, Jr., C.J., on leave. EN BANC [G.R. No. 126114. May 11, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY SABREDO y GARBO, accused-appellant. D E C I S I O N QUISUMBING, J.: For automatic review is the judgment of the Regional Trial Court of Masbate, Masbate, Branch 44, dated May 13, 1996, in Criminal Case No. 7454, imposing the penalty of death on accused-appellant, Jimmy Sabredo y Garbo, for the complex crime of abduction with rape of complainant Judeliza Sabredo. Edpsc The facts of this case on record are as follows: Appellant is the uncle of complainant. He is the younger brother of her father. In 1993, Jimmy arrived from Masbate to reside with Judeliza's family in Cagtagong, Caguyong, Borbon, Cebu, where he stayed with them for more than a year. On June 27, 1994, Judeliza went to the well near their house, to take a bath. There, Jimmy grabbed and forcibly dragged her at knife's point, to the highway where he made her board a truck for Bogo, Cebu. Impelled by fear, she complied, since Jimmy continuously poked a knife under cover of his jacket at her. From Bogo, he took her by passenger motorboat to Placer, Masbate. Thence he brought her to Estampar, Cataingan, Masbate, where they stayed at the house of Conchita Tipnit. Conchita was Jimmy's sister and Judeliza's aunt, though aunt and niece did not know each other. In Estampar, Judeliza tried to escape but was caught by Jimmy, who severely mauled her until she lost consciousness. Scedp Suspecting that Conchita would report the matter to the police, Jimmy took Judeliza by jeepney to Cagba, Tugbo, Masbate. They stayed with Roberto Sabredo, his nephew and Judeliza's first cousin. The two cousins, however, had not met before and Jimmy was able

to pass her off as his wife. They stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding Judeliza. Calrspped On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually assaulted Judeliza. He covered her mouth to prevent her from shouting. After satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and cruelly pinched it. Judeliza screamed and cried for help. Their host, Roberto, was awakened but could not do anything to assist her. Later, Jimmy struck Judeliza with a piece of wood, rendering her unconscious. Much later, he brought her to the house of his sister, Nilda Polloso, also at Cagba. Nilda noticed the victim's weak and wan condition and offered her medicine. Catching Jimmy in the act of boiling water, she asked what it was for and was told that it would be poured over Judeliza to finish her off. Nilda, however, stopped him. On July 8, 1994, Judeliza recovered sufficiently from her injuries. Nilda brought her to the police where Judeliza reported her ordeal. That same day, while Jimmy was sleeping, Nilda managed to take away from him the blade, made of stainless steel, which he had used in the rape of Judeliza. After the initial police investigation, Judeliza was brought to Masbate Provincial Hospital, where she was confined for four days. The medico-legal officer, Dr. Artemio Capellan, examined her. Sccalr On August 11, 1994, the Provincial Prosecutor of Masbate filed an information for forcible abduction with rape, which alleged: "That on or about June 27, 1994, and days thereafter from sitio Caglagang, barangay Caguyong, Burbon, Cebu the said accused with force and intimidation and against the consent of complainant Judeliza E. Sabredo abduct the latter to sitio Cagba, barangay Tugbo, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court and on (sic) the house of one auntie Nilda, accused with a bolo did then and there, willfully, unlawfully and feloniously have sexual intercourse of (sic) said Judeliza E. Sabredo on the night of July 4, 1994, against her will and consent. "Contrary to law."[1] At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on the merits then ensued. Calrsc Jimmy admitted having sexual relations with Judeliza, but insisted that it was consensual. He claimed that they were lovers and had been engaging in sexual intimacies for three months before running away. He explained that they had gone to Masbate after Judeliza had revealed to him that she was not really her father's daughter. They then lived together as husband and wife. He admitted having boxed and kicked her but claimed that he got mad at her after she confided that she really was his niece, contrary to what she earlier told him. He likewise admitted having pinched the victim's vagina, but only to punish her for deceiving him about their kinship. He claimed the instant case was filed against him because of the maltreatment she received. Appellant likewise admitted that he was facing another rape case before Branch 45 of the same court, which a certain Juanita Turing had filed against him in 1992. He, however, denied having fled to Cebu to escape prosecution for said case. Sppedsc The trial court found appellant's version of the incident preposterous and his defense untenable. Choosing to believe the prosecution, the trial judge convicted appellant, and sentenced him thus: "WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the complex crime of forcible abduction with rape under Article 48 in relation to Article[s] 335 and 342 of the Revised Penal Code and is meted the extreme penalty of death. "The accused is likewise ordered to pay Judeliza Sabredo the amount of FIFTY THOUSAND PESOS (P50,000.00) by way of moral damages. "SO ORDERED." Before us, on automatic review of the case, appellant assigns the following errors: I

THE TRIAL COURT GRAVELY ERRED IN ITS EVALUATION OF THE HONESTY OF PRIVATE COMPLAINANT, IN EFFECT GIVING FULL WEIGHT AND CREDENCE TO THE EVIDENCE OF THE PROSECUTION THAN THAT OF THE DEFENSE. II THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. In sum, the issues for resolution now concern the credibility of the testimony of the offended party; the correctness of appellant's conviction for forcible abduction with rape, and the propriety of the imposition of the death penalty on him. Sdjad Appellant submits that Judeliza was neither a reliable nor credible witness since both the information and her affidavit[2] showed that the rapetook place in Nilda's residence, while on direct examination, Judeliza testified that she was raped at Roberto's house. He claims these inconsistencies cast doubt on Judeliza's credibility. However, we have previously held that some discrepancies between the affidavit and the testimony of the witness in open court do not necessarily impair credibility of the testimony, for affidavits are generally taken ex parte and are often incomplete or even inaccurate for lack of searching inquiries by the investigating officer.[3] Note that here both the affidavit and the testimony of complainant in open court are consistent as to the fact that Jimmy raped her while he threatened her with a deadly weapon on July 4, 1994. Her sworn affidavit and her testimony in open court establish the basic elements of rape. These are: the commission of sexual intercourse, by the accused against complainant, with the use of force and intimidation, without her consent and against her will. Suffice it to stress that the trial court found that the accused abducted his niece by force, mauled and maltreated her repeatedly, instilling fear in her, dragged her to different places and any house he pleased, and ravished her on the night of July 4, 1994. Whether the house belonged to Nilda or Roberto, both of whom they had stayed with, is not here crucial, for the houses are both in Cagba, Tugbo, Masbate. Here, the trial court's assessment of the credibility of complainant's testimony is entitled to great weight, absent any showing that some facts were overlooked which, if considered, would affect the outcome of the case.[4] We find no reason to overturn the trial court's detailed evaluation of the evidence for both the prosecution and the defense. Complainant Judeliza's testimony was given in a straightforward, clear, and convincing manner, which remained consistent even under cross-examination. The trial court found her testimony believable and convincing, while appellant's version of events incredible and outrageous. Moreover, as testified by the medico-legal officer, he found that her body bore evidences of physical and sexual assault. Appellant's bare denial could not prevail over said positive evidence. Appellant next insists that the intercourse between him and Judeliza was consensual, since they were sweethearts. A "sweetheart defense" should be substantiated by some documentary and/or other evidence of the relationship.[5] In this case, there is no showing of mementos, love letters, notes, pictures, or any concrete proof of a romantic nature. Besides, as observed by the trial judge, it is contrary to human experience that a naive rural lass like Judeliza, barely nineteen years old, would willingly consent to be her uncle's paramour. Nor, would he if he were indeed her sweetheart maltreat her repeatedly for no justifiable cause, without over-straining our credulity. Misact Was appellant's conviction by the trial court for the complex crime of forcible abduction with rape correct? The elements of forcible abduction are: (1) that the person abducted is any woman, regardless of age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs. The prosecution's evidence clearly shows that the victim was forcibly taken at knifepoint from Borbon, Cebu by appellant and through threats and intimidation brought to various towns in Masbate, where he passed her off as his "wife". That appellant was moved by lewd designs was shown in regard to rape by his having carnal knowledge of private complainant, against her will, on July 4, 1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible abduction, as defined and penalized by Article 342 of the Revised Penal Code was also committed, we are not totally disposed to convict appellant for the complex crime of forcible abduction with rape. We note that while the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate, the same fails to allege "lewd designs." When a complex crime under Article 48 of the Revised Penal Code is charged, such

as forcible abduction with rape, it is axiomatic that the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of the crime of rape.[6] When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction.[7] Hence, the crime committed by appellant is simple rape only. Acctmis The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the rape.[8] Under Article 63 of the Revised Penal Code, the crucial factor in determining whether appellant should be meted the death penalty is the presence of an aggravating circumstance which attended the commission of the crime.[9] A perusal of the record shows that none of the aggravating circumstances enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved in the commission of the offense, the lesser penalty shall be applied. Newmiso In sentencing appellant to death, the trial court noted that the victim was his niece, a relative by consanguinity within the third civil degree. Section 11 (1) of R.A. No. 7659 imposes the death penalty when the rape victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. However, R.A. No. 7659 cannot be made to apply in the instant case for two reasons: First, at the time the rape was committed, private complainant was already more than eighteen years of age.[10] Second, the information did not allege that offender and offended party were relatives within the third degree of consanguinity. We have held that the seven circumstances in R.A. No. 7659 which warrant the automatic imposition of the death penalty partake of the nature of qualifying circumstances and as such should be alleged in the information to be appreciated as such.[11] In view of the failure of the information to comply with this requirement, said degree of relation could not be taken into account in considering the penalty to be imposed. For these reasons, the sentence on appellant should only be reclusion perpetua. Jjlex We note that the trial court did not award any indemnity ex delicto, which current jurisprudence has fixed at P50,000.00. Accordingly, appellant is further sentenced to indemnify private complainant in the amount of P50,000.00 for the rape he committed against her. As to moral damages, we find the trial court's award of P50,000.00 in her favor duly supported by evidence on record and is in order. Misjuris WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate, Branch 44, in Criminal Case No. 7454, is hereby MODIFIED.Appellant Jimmy Sabredo y Garbo is declared guilty beyond reasonable doubt of simple rape only as defined and penalized under Article 335 of the Revised Penal Code. The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the amount of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity, and to pay her FIFTY THOUSAND (P50,000.00) PESOS as moral damages. Costs against appellant. Jurissc SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Kapunan, J., no part. Did not participate in the deliberations. Purisima, J., on leave. EN BANC [G.R. No. 130593. June 19, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO ARILLAS Y MONTOYA, accused-appellant. D E C I S I O N PUNO, J.: In a sworn complaint,[1] Amor O. Arillas accused her father, Romeo Arillas y Montoya, of raping her on two occasions when she was barely 16 years old. The trial court found her

father guilty beyond reasonable doubt. It sentenced him to suffer the penalty of death. These cases[2] are now before the Court on automatic review. Amor Arillas alleged in her complaint[3] that in December 1995 and on February 10, 1996, her father sexually abused her while they were alone in their house at Barangay Sto. Niño, Bula, Camarines Sur. Through the use of force, violence and intimidation, he succeeded in having carnal knowledge of her. Based on the sworn complaint, two informations were filed against appellant by the Assistant Provincial Prosecutor of Camarines Sur. The information in Criminal Case No. P-2532, filed in Branch 33, Regional Trial Court, Pili, Camarines Sur, reads: "That sometime in December, 1995 in the Barangay of Sto. Niño, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor A. Arillas against her will and consent, to the damage and prejudice of the offended party."[4] and the information in Criminal Case No. P-2533, filed in Branch 31 of the same court, reads: "That on or about the 10th day of February, 1996 in the Barangay of Sto. Niño, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor Arillas y Onquit, against her will and consent, to the damage and prejudice of the offended party.[5] On motion by the counsel of the appellant, the cases were consolidated in Branch 33. It appears that in the morning of December 23, 1995, while Amor Arillas was sweeping their backyard, her father told her to go inside their house to prepare their breakfast. At that time, her brothers were grazing their carabao in the mountains, her sisters were washing clothes in a creek about 300 to 400 meters away from their house and her mother was selling soft drink and bread in the rice field.[6] She was alone with her father in their house. While doing her chore; her father came near her, embraced and forcibly kissed her. She resisted but her father kicked her on the right buttocks. The force of the blow threw her beside the stairs of their house. Her father embraced her again and dragged her towards their room. She tried to run away but she could not escape as her father held her hands. Inside the room, her father undressed her and forced her to lie down. Her gallant resistance proved futile. He was able to take her maidenhood. She bled and felt pain all over her body. In Amor's words, it was her first experience.[7] Appellant threatened Amor that something bad would happen if she reports the incident to anyone. He became strict with her. She was afraid of her father and did not want her family broken. Hoping that the bestial act would not be repeated, she kept silent.[8] Amor's hope was not to happen. On February 10, 1996, while preparing lunch inside their house, her father approached her, embraced and kissed her. She resisted by pushing him but he held her tight and continuously touched her private part. He dragged her inside their room, undressed her and forced her to lie down. He slapped her when she refused. Amor fought hard to free herself but she was no match against the appellant who was heavy and very strong. He mounted her and violated her. She felt pain all over her body. Appellant again threatened her that he would kill them if she would reveal the incident to anyone. He began harming her and her brothers and sisters. He also forbade her to go out of their house. Amor suspected that he still wanted to ravish her.[9] She finally found the courage to report the incident on April 1, 1996. She narrated her ordeal to their barangay captain Domingo Arevalo.[10] A complaint was filed against the appellant. Amor then underwent a medical examination. Dr. Mylene Chavez Milla, Municipal Health Officer of Bula, Camarines Sur found five old lacerations in the hymen of Amor Arillas at 10:00 o'clock, 2:00 o'clock, 9:00 o'clock, 5:00 o'clock and 6:00 o'clock positions. She said that these lacerations might have been caused by inserting a hard object like a male organ. She also testified that her hymen admits two fingers with ease which indicates that penetration was made more than once.[11]

To prove the age of Amor, He testified that despite book. However, when shown office. The date of birth was May 10, 1980.[13]

Romeo Decena, Assistant Local Civil Registrar, was presented. diligent search, he failed to find her name in the registry her birth certificate,[12] he confirmed its issuance by their of private complainant, as indicated in her birth certificate,

Romeo Arillas interposed the defense of denial and alibi. Allegedly, on December 23, 1995, he was in the farm and on February 10, 1996, he was repairing an irrigation pump in San Jose, Minalabac, Camarines Sur. He claimed that the charges against him were due to the anger of her brothers and sisters and parents-in-law with him. This arose when he left his brother-in-law drunk during a fiesta celebration in San Ramon, Bula. From then on, his relationship with his in-laws soured.[14] On June 26, 1997, the trial court rendered a joint judgment[15] on the two cases convicting the appellant. It held that appellant was positively identified by the complainant as the culprit. It ruled that the fact of carnal knowledge is supported by the presence of laceration in the victim's hymen. It further explained that the testimony of the complainant, coupled with the absence of any motive on her part to falsely testify against her father, is more than sufficient to convict the appellant.[16] The imputed ill-motive on the part of his in-laws, emanating from the alleged quarrel between him and his brother-in-law, was held as too insignificant to cause his daughter to falsely charge him with such a serious crime. The appellant was sentenced to death. It considered Section 11 of R.A. 7659, calling for the imposition of the death penalty when the victim is under 18 years of age and the offender is her parent or ascendant. The dispositive portion of the joint judgment reads: "WHEREFORE, in view of the foregoing, joint judgment is hereby rendered in these two (2) cases finding the accused ROMEO ARILLAS Y MONTOYA, guilty beyond reasonable doubt of the two charges of rape filed against him, defined and punished under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 and is hereby sentenced to suffer the penalty of death. And as civil liability to pay Amor O. Arillas the amount of P100,000.00 for actual and moral damages. "Let the entire records of these cases be forwarded immediately to the Honorable Supreme Court for automatic review pursuant to Sec. 22 of Republic Act No. 7659, amending Article 47 of the Revised Penal Code."[17] Against this judgment, accused-appellant assigns a single error, viz.: "THE COURT OF ORIGIN HAS COMMITTED AN ERROR IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE PRESENCE OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME."[18] In his brief, accused-appellant insists that even if his defense is merely denial and alibi, reasonable doubt exists as to his guilt.[19] He maintains that these cases were filed against him out of spite. They were the end result of the quarrel between him and an uncle of the private complainant. He argued that his testimony to this effect was never rebutted by the prosecution. We are not persuaded. It is the teaching of countless cases that for the defense of alibi to prosper, it must be proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the place where the crime was committed. In the cases at bar, appellant's bare allegations that he was in the rice field when his daughter was raped on December 23, 1995 and that he was in San Jose, Minalabac, Camarines Sur when his daughter was again raped on February 10, 1996 cannot exculpate him. The positive assertions of his daughter that he raped her is entitled to greater weight. Her candid and straightforward testimony that she lost her virginity is supported by the medical findings of the Municipal Health Officer. The claim of the appellant that the cases at bar were filed out of spite did not convince the trial court, and so are we not convinced. Aside from the fact that he failed to substantiate this claim, it is highly inconceivable why Amor would falsely accuse appellant, her father, just to advance the interest of her uncle in a quarrel. More worthy of cre-

dence is the statement of Amor that she filed these cases because she could no longer bear the conduct of her father. After his bestial acts, he did not allow her to go out of their house and he inflicted harm on her and her siblings. She feared that he still wanted to ravish her.[20] Needless to state, appellant cannot contend that the prosecution failed to rebut the motive he ascribed to the relatives of Amor. The prosecution does not have to rebut his outlandish claim. An allegation that does not merit any credence need not be rebutted. Be that as it may, the trial court erred when it imposed the death penalty on accused-appellant. We make the correction motu proprio for an appeal in a criminal proceeding throws the whole case open for review.[21] It is the duty of the appellate court to correct any error in the judgment whether assigned or not. When the offenses at bar were committed, rape is defined and punished by Article 335 of the Revised Penal Code as amended by Section 11 of Republic Act No. 7659, which reads: "Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1.....By using force or intimidation; 2.....When the woman is deprived of reason or otherwise unconscious; and 3.....When the woman is under twelve years of age or is demented. 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 bereclusion 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 bereclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 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, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." The trial court imposed the death penalty[22] for the reason that the victim was under eighteen years old at the time of the commission of the offense and the offender was her father. In People vs. Garcia,[23] we held that these circumstances should be considered as special qualifying circumstances as they change the nature of simple rape by punishing the offender with the penalty of death. For a crime to be elevated in its qualified form, the circumstance that qualifies it should be alleged in the information. If the qualifying aggravating circumstance is not alleged but proved, it shall only be, considered as an aggravating circumstance since the latter may be proven even if not alleged.[24] It follows that in such cases, the accused can not be convicted of the crime in its qualified form. It is fundamental that every element of an offense must be alleged in the com-

plaint or information. The purpose of the rule is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.[25] Thus, we ruled that it is a denial of the right of an accused to be informed of the nature of the accusation against him, and consequently, a denial of due process if he is convicted of a crime in its qualified form notwithstanding the fact that the information, on which he was arraigned, charges him only of the crime in its simple form by not specifying the circumstance that qualifies the crime.[26] The informations in these cases alleged that the victim is the daughter of the appellant but it did not allege that the victim is under eighteen (18) years old. Hence, the appellant was only charged with simple rape and its penalty is reclusion perpetua. Finally, the trial court awarded P100,000.00 as actual and moral damages. We note that the prosecution failed to present any evidence regarding actual damages and hence, the award cannot be sustained. However, the amount of P50,000.00 may be retained as an award for moral damages as it requires no proof of mental and physical suffering. It is now the ruling case law that the victim's injury is inherently concomitant with, and necessarily resulting from, the odious crime of rape to justify per se an award for moral damages. [27] Considering that the offender is the father of the victim, we also find the appellant liable for P25,000.00 as exemplary damages for each rape committed. We also award a civil indemnity of P50,000.00 for each count of rape.[28] IN VIEW WHEREOF, we find Romeo rrArillas guilty of simple rape under Crim. Case Nos. P2532 and P-2533 and he is sentenced to suffer the penalty of reclusion perpetua in each case and to pay the offended party, for each count of rape, the amount of P50,000.00 as civil indemnity,P50,000.00 as moral damages and P25,000.00 as exemplary damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Vitug, J., on official leave. EN BANC [G.R. No. 122485.

February 1, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO, accused-appellant. D E C I S I O N PER CURIAM: A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways of worldly pleasures is a harrowing experience that destroys not only her future but of the youth population as well, who in the teachings of our national hero, are considered the hope of the fatherland. Once again, the Court is confronted by another tragic desecration of human dignity, committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock on the portals of womanhood, and met her untimely death as a result of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist any other rational justification other than lust. But those who lust ought not to lust. The Court quotes with approval from the People's Brief, the facts narrating the horrible experience and the tragic demise of a young and innocent child in the bloody hands of appellant, as such facts are ably supported by evidence on record:[1] * "Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1993. His task was to take care of Isip's house which was under construction adjacent to her old residence situated inside a compound at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela , Metro Manila. But he stayed and slept in an apartment also owned by Isip, located 10 meters away from the unfinished house (TSN, September 6, 1995, pp. 5-10).

"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor used to pass by Isip's house on her way to school and play inside catching maya birds together with other children. While they were always around washing his clothes. Inside the compound yard was a gust 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22).

in Dian Street. She the compound yard, playing, appellant was septic tank (TSN, Au-

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to go out with his friends (TSN, September 6, 1995, pp. 9-11). "Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the compound, saw Ma. Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.9-11). "On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his inlaw's house between 6 to 7 o'clock p.m. to call his office regarding changes on the trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17). "Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to buy lugaw. Norgina Rivera informed appellant that there was none left of it. She notice that appellant appeared to be uneasy and in deep thought. His hair was disarrayed; he was drunk and was walking in a dazed manner. She asked why he looked so worried but he did not answer. Then he left and walked back to the compound (TSN, September 18, 1995, pp. 48; 12-14). "Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33). "Isip testified that appellant failed to show up for supper that night. On the following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of the bridge of the North Expressway and had thereafter disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp. 14-17). "That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria inside the septic tank. Boy immediately reported what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13). "With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved from the septic tank. She was wearing a printed blouse without underwear. Her face bore bruises. Results of the autopsy revealed the following findings: Cyanosis, lips and nailbeds, Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right, Anterior aspect, middle third, 4.5 x 3.0 cm. Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm. elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd , 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm. Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm. Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial hemorrhages.

Hemorrhage, subdural, left fronto-parietal area. Tracheo-bronchial tree, congested. Other visceral organs, congested. Stomach, contain 1/4 rice and other food particles. CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury, Contributory. REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock position corresponding to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126) "Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According to her, it was unlikely for appellant to just disappear from the apartment since whenever he would go out, he would normally return on the same day or early morning of the following day (TSN, September 6, 1995, pp. 6-11-27). "SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded to said place. The owner of the factory confirmed to them that appellant used to work at the factory but she did not know his present whereabouts. Appellant's townmate, on the other hand, informed them that appellant could possibly be found on 8th Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9). "The policemen returned to the scene of the crime. At the second floor of the house under construction, they retrieved from one of the rooms a pair of dirty white short pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside another room a pair of blue slippers which Isip identified as that of Appellant. Also found in the yard, three armslength away from the septic tank were an underwear, a leather wallet, a pair of dirty long pants and a pliers positively identified by Isip as appellant's belongings. These items were brought to the police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25). "A police report was subsequently prepared including a referral slip addressed to the office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17). "After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, Batangas. He was brought to Valenzuela Police Station. On July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an extra-judicial confession wherein he narrated in detail how he raped and killed the victim. Also, when appellant came face to face with the victim's mother and aunt, he confided to them that he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)." Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which reads:[2] "That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court the above-named accused, by means of force and intimidation employed upon the person of MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said MARIA VICTORIA CHAN y CABALLERO against her will and without her consent; that on the occasion of said sexual assault, the above-named accused, choke and strangle said MARIA VICTORIA CHAN y CABALLERO as a result of which, said victim died. "Contrary to law."[3] to which he pleaded not guilty. After trial, the lower court rendered a decision convicting appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision states: "WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the amount

of P50,000.00 and to pay the further sum of P23,000.00 for the funeral, burial and wake of the victim. "Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for the automatic review in accordance to Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No. 7659. "SO ORDERED."[4] Upon automatic review by the court en banc pursuant to Article 47 of the Revised Penal Code (RPC), as amended,[5] appellant insists that the circumstantial evidence presented by the prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony summarized by the trial court, appellant offered his version of what transpired as follows: “(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellant’s employer. After consuming three cases of red horse beer, he was summoned by Isip to clean the jeepney. He finished cleaning the jeepney at 12 o’clock noon. Then he had lunch and took a bath. Later, he asked permission from Isip to go out with his friends to see a movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-5). “At 2 o’clock in the afternoon, appellant, instead of going out with his friend, opted to rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one case of red horse beer. Around 6 o’clock p.m., Zaldy, a co-worker, fetched him at Gregorio Rivera’s house. They went to Zaldy’s house and bought a bottle of gin. They finished drinking gin around 8 o’clock p.m. After consuming the bottle of gin, they went out and bought another bottle of gin from a nearby store. It was already 9 o’clock in the evening. While they were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7). “On his way home, appellant passed by Norgina Rivera’s store to buy lugaw. Norgina Rivera informed him that there was none left of it. He left the store and proceeded to Isip’s apartment. But because it was already closed, he decided to sleep at the second floor of Isip’s unfinished house. Around 10 o’clock p.m., Zaldy and Boyet arrived carrying a cadaver. The two placed the body inside the room where appellant was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead body of the child or they would kill him. He, However, refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing the dead body downstairs. He obliged and helped dump the body into the septic tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again, they would kill him. At 4 o’clock the following morning, he left the compound and proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13). “Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas. The police officers allegedly brought him to a big house somewhere in Manila. There, appellant heard the police officer’s plan to salvage him if he would not admit that he was the one who raped and killed the victim. Scared, he executed an extra-judicial confession. He claimed that he was assisted by Atty. Restituto Viernes only when he was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).”[6] This being a death penalty case, the Court exercises the greatest circumspection in the review thereof since “there can be no stake higher and no penalty more severe x x x than the termination of a human life.”[7] For life, once taken is like virginity, which once defiled can never be restored. In order therefore, that appellant’s guilty mind be satisfied, the Court states the reasons why, as the records are not shy, for him to verify. The proven circumstances of this case when juxtaposed with appellant’s proffered excuse are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence of any direct evidence relative to the commission of the crime for which he was prosecuted. Absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence[8] and pursuant to settled jurisprudence, [9] conviction may be had on circumstantial evidence provided that the following requisites concur: 1.

there is more than one circumstance;

2. 3.

the facts from which the inferences are derived are proven; and the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.[10]Facts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.[11] In the case at bench, the trial court gave credence to several circumstantial evidence, which upon thorough review of the Court is more than enough to prove appellant’s guilt beyond the shadow of reasonable doubt. These circumstantial evidence are as follows: “FIRST – Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the unfinished big house where the crime happened and the septic tank where the body of Maria Victoria Chan was found in the morning of June 26, 1995 is located, categorically testified that at about 9:00 in the evening on June 25, 1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law Maria Isip where the unfinished big house is situated buying rice noodle (lugaw). That she noticed the accused’s hair was disarranged, drunk and walking in sigsaging manner. That the accused appeared uneasy and seems to be thinking deeply. That the accused did not reply to her queries why he looked worried but went inside the compound. “SECOND – Prosecution 25, 1995 between 6:00 accused Larry Mahinay about 50 to 75 meters victim Maria Victoria between 8:00 and 9:00

witness Sgt. Roberto G. Suni, categorically, testified that on June and 7:00 in the evening, on his way to his in-law’s house, he met walking on the road leading to his in-law’s residence which is away to the unfinished big house of Maria Isip. That he also saw Chan standing at the gate of the unfinished big house of Maria Isip in the same evening.

“THIRD – Prosecution witness Maria Isip, owner of the unfinished big house where victim’s body was found inside the septic tank, testified that accused Larry Mahinay is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from her to leave. That after finishing some work she asked him to do accused Larry Mahinay left. That it is customary on the part of Larry Mahinay to return in the afternoon of the same day or sometimes in the next morning. That accused Larry Mahinay did not return until he was arrested in Batangas on July 7, 1995. “FOURTH – Prosecution witness Fernando Trinidad, a passenger route Karuhatan-Ugong and vice versa which include Diam St., Metro Manila, pinpointed the accused Larry Mahinay as one of his passenger jeepney on June 26, 1995 at 2:00 early morning overpass of the North Expressway.

jeepney driver plying the Gen. T. de Leon, Valenzuela, the passengers who boarded and alighted on top of the

“FIFTH – Personal belongings of the victim was found in the unfinished big house of Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a clear indication that the victim was raped and killed in the said premises. “There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or there was any reason for them to testify falsely against the accused. The absence of any evidence as to the existence of improper motive sustain the conclusion that no such improper motive exists and that the testimonies of the witnesses, therefore, should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276, 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756). “SIXTH – Accused Larry Mahinay during the custodial investigation and after having been informed of his constitutional rights with the assistance of Atty. Restituto Viernes of the Public Attorney’s Office voluntarily gave his statement admitting the commission of the crime. Said confession of accused Larry Mahinay given with the assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily given. That accused did not complain to the proper authorities of any maltreatment on his person (People vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even informed the Inquest Prosecutor when he sworn to the truth of his statement on July 8, 1995 that he was forced, coersed or was promised of reward or leniency. That his confession abound with details

know only to him. The Court noted that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and explained to the accused his constitutional rights and was present all throughout the giving of the testimony. That he signed the statement given by the accused. Lawyer from the Public Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical conditions of the accused. The post mortem findings shows that the cause of death Asphyxia by manual strangulation; Traumatic Head injury Contributory substantiate. Consistent with the testimony of the accused that he pushed the victim and the latter’s head hit the table and the victim lost consciousness. “Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na siya.” “There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical certificate submitted by the accused to sustain his claim that he was mauled by the police officers. There being no evidence presented to show that said confession were obtained as a result of violence, torture, maltreatment, intimidation, threat or promise of reward or leniency nor that the investigating officer could have been motivated to concoct the facts narrated in said affidavit; the confession of the accused is held to be true, correct and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.) “SEVENTH – Accused Larry Mahinay testified in open Court that he was not able to enter the apartment where he is sleeping because it was already closed and he proceeded to the second floor of the unfinished house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it inside his room. That at the point of a knife, the two ordered him to have sex with the dead body but he refused. That the two asked him to assist them in dumping the dead body of the victim in the septic tank downstairs. (Tsn pp8-9 October 16, 1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and not in the unfinished house. That he slept in the said unfinished house only that night of June 25, 1995 because the apartment where he was staying was already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the unfinished house. “Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room at the second floor of the unfinished house where accused Larry Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be disposed/dumped later in the septic tank located in the ground floor. Boyet and Zaldy can easily disposed and dumped the body in the septic tank by themselves. “It is likewise strange that the dead body of the child was taken to the room where accused Larry Mahinay was sleeping only to force the latter to have sex with the dead body of the child. “We have no test to the truth of human testimony except it’s conformity to aver knowledge observation and experience. Whatever is repugnant to these belongs to the miraculous. (People vs. Santos L-385 Nov. 16, 1979)” “EIGHT – If the accused did not commit the crime and was only forced to disposed/dumpted the body of the victim in the septic tank, he could have apprise Col. Maganto, a high ranking police officer or the lady reporter who interviewed him. His failure and omission to reveal the same is unnatural. An innocent person will at once naturally and emphatically repel an accusation of crime as a matter of preservation and self-defense and as a precaution against prejudicing himself. A person’s silence therefore, particularly when it is persistent will justify an inference that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978). “NINTH – The circumstance of flight of the accused strongly indicate his consciousness of guilt. He left the crime scene on the early morning after the incident and did not return until he was arrested in Batangas on July 7, 1995.”[12] Guided by the three principles in the review of rape cases, to wit:[13] 1). An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove;

2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and 3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense. the foregoing circumstantial evidence clearly establishes the felony of rape with homicide defined and penalized under Section 335 of the Revised Penal Code, as amended by Section 11, R.A. 7659, which provides: “When and how rape is committed – Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 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 or is demented. 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 reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 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, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2.) When the victim is under the custody of the police or military authorities. 3.) When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4.) When the victim is a religious or a child below seven (7) years old. 5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6.) When committed by any member of the Armed Forces of the Philippines or Philippine National Police or any law enforcement agency. 7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.[14] At the time of the commission of this heinous act, rape was still considered a crime against chastity,[15] although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint filed by the offended party. The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force and without consent.[16] (Under the new law, rape may be committed even by a woman and the victim may even be a man.)[17] If the woman is under 12 years of age, proof of force and consent becomes immaterial[18] not only because force is not an element of statutory rape,[19] but the absence of a free consent is presumed when the woman is below such age. Conviction will therefore lie, provided sexual intercourse is be proven. But if the woman is 12 years of age or over at the time she was violated, as in this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrator’s evil acts with the offended party was done through

force, violence, intimidation present in this case.

or

threat

needs

to

be

established.

Both

elements

are

Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is shown from the testimony of the medical doctor who conducted post mortem examination on the child’s body: Q: And after that what other parts of the victim did you examine? A: Then I examined the genitalia of the victim. Q: And what did you find out after you examined the genitalia of the victim? A: The hymen was tall-thick with complete laceration at 4:00 o’clock and 8:00 o’clock position and that the edges were congested. Q: Now, what might have caused the laceration? A: Under normal circumstances this might have (sic) caused by a penetration of an organ. Q: So, the laceration was caused by the penetration of a male organ? A: Adult male organ, sir. Q: You are very sure of that, Mr. Witness? A: I am very sure of that.[20] Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had sexual congress with the unconscious child. “15. T: Ano ang nangyari ng mga sandali o oras na iyon? S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya. “16. T: Ano ang suot nung batang babae na sinasabi mo? S: Itong short na ito, (pointing to a dirty white short placed atop this investigator’s table. Subject evidence were part of evidences recovered at the crime scene). “17. T: Bakit mo naman ni rape yung batang babae? S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko. “18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing? S: Red Horse po at saka GIN. “19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae? S: Sa kuwarto ko po sa itaas. “20. T: Kailan ito at anong oras nangyari? S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong petsa, basta araw ng Linggo. “21. T: Saan lugar ito nangyari? S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M. “22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo? S: Hindi ko po alam. “23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ba ito? S: Oho.

“24. T: Nung ma-rape mo, nakaraos ka ba? S: Naka-isa po. “25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng ‘NAKARAOS’, maaari bang ipaliwanag mo ito? S: Nilabasan po ako ng tamod. “26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari? S: Nakapasok po doon sa ari nung babae. “27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa? S: Natulak ko siya sa terrace. “28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace? S: Inilagay ko po sa poso-negra. “29. T: Saan makikita yung poso-negra na sinasabi mo? S: Doon din sa malaking bahay ni ATE MARIA. “30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra? S: Doon ko lang po inilagay. “31. T: Bakit nga doon mo inilagay siya? S: Natatakot po ako. “32. T: Kanino ka natatakot? S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis. “33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra? S: Hindi ko po alam dahil nung pagbagsak niya inilagay

ko na siya sa poso-negra.

“34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama? S: Nag-iisa lang po ako. “35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o patay na? S: Buhay pa po. “36. T: Papaano mo siya pinatay? S: Tinulak ko nga po siya sa terrace.”[21] In proving sexual intercourse, it is not full or deep penetration of the victim’s vagina; rather the slightest penetration of the male organ into the female sex organ is enough to consummate the sexual intercourse.[22] The mere touching by the male’s organ or instrument of sex of the labia of the pudendum of the woman’s private parts is sufficient to consummate rape. From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust. Moreover, from appellant’s own account, he pushed the victim causing the latter to hit her head on the table and fell unconscious. It was at that instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time of her penile invasion, was unconscious, it could safely be concluded that she had not given free and voluntary consent to her defilement, whether before or during the sexual act. Another thing that militates against appellant is his extrajudicial confession, which he, however, claims was executed in violation of his constitutional right to counsel. But his contention is belied by the records as well as the testimony of the lawyer who assisted, warned and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As testified to by the assisting lawyer:

“Q – Will you please inform the Court what was that call about? “A – We went to the station, police investigation together with Atty. Froilan Zapanta and we were told by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I think, rape with homicide. “Q – And upon reaching the investigation room of Valenzuela PNP who were the other person present? “A – Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation room and the parents of the child who was allegedly raped. “Q- And when you reached the investigation room do you notice whether the accused already there? “A – The accused was already there. “Q – Was he alone? “A – he was alone, sir. “Q – So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what did they tell you, if any? “A – They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the crime charged, sir. “Q – By the way, who was that Atty. Zapanta? “A – Our immediate Superior of the Public Attorney’s Office. “Q – Was he also present at the start of the question and answer period to the accused? “A – No more, sir, he already went to our office. I was left alone. “Q – But he saw the accused, Larry Mahinay? “A – Yes, sir. “Q – Now, when Atty. Zapanta left at what time did the question and answer period start? “A – If

I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.

“Q – And when this question and answer period started, what was the first thing that you did as assisting lawyer to the accused? “A – First, I tried to explain to him his right, sir, under the constitution. “Q –What are those right? “A – That he has the right to remain silent. That he has the right of a counsel of his own choice and that if he has no counsel a lawyer will be appointed to him and that he has the right to refuse to answer any question that would incriminate him. “Q – Now, after enumerating these constitutional rights of accused Larry Mahinay, do you recall whether this constitutional right enumerated by you were reduced in writing? “A – Yes, sir, and it was also explained to him one by one by Police Officer Alabastro. “Q – I show to you this constitutional right which you said were reduced into writing, will you be able to recognize the same? “A – Yes, sir. “Q – Will you please go over this and tell the Court whether that is the same document you mentioned? “A – Yes, sir, these were the said rights reduced into writing. ATTY. PRINCIPE: May we request, Your Honor, that this document be marked as our Exhibit A proper.

“Q – Do you recall after reducing into writing this constitutional right of the accused whether you asked him to sign to acknowledge or to conform? “A – I was the one who asked him, sir. It was Police Officer Alabastro. “Q – But you were present? “A – I was then present when he signed. “Q – There is a signature in this constitutional right after the enumeration, before and after there are two (2) signatures, will you please recognize the two (2) signatures? “A – These were the same signatures signed in my presence, sir. “Q – The signature of whom? “A – The signature of Larry Mahinay, sir. “ATTY. PRINCIPE: May we request, Your Honor, that the two (2) signatures identified by my compañero be encircled and marked as Exhibit A-1 and A-2. “Q – After you said that you apprised the accused of his constitutional right explaining to him in Filipino, in local dialect, what was the respond of the accused? “A- Larry Mahinay said that we will proceed with his statement. “Q – What was the reply? “A – He said “Opo”. “Q – Did you ask him of his educational attainment? “A – It was the Police Officer who asked him. “Q – In your presence? “A – In my presence, sir. “Q – And when he said or when he replied “Opo” so the question started? “A – Yes, sir. “Q – I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he signed this waiver? “A – Yes, sir, I was also present. “Q – Did you explain to him the meaning of this waiver? “A – I had also explained to him, sir. “Q – In Filipino? “A – In Tagalog, sir. “Q – And there is also a signature after the waiver in Filipino over the typewritten name Larry Mahinay, “Nagsasalaysay”, whose signature is that? “A – This is also signed in my presence. “Q – Why are you sure that this is his signature? “A – He signed in my presence, sir. “Q – And below immediately are the two (2) signatures. The first one is when Larry Mahinay subscribed and sworn to, there is a signature here, do you recognize this signature? “A – This is my signature, sir.

“Q – And immediately after your first signature is a Certification that you have personally examined the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial Confession, do you recognize the signature? “A – This is also my signature, sir.”[23] (emphasis supplied). Appellant’s defense that two other persons brought to him the dead body of the victim and forced him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor Van Fleet of New Jersey,[24] “Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself- such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance.” Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses’ department on the stand while testifying, which opportunity is denied to the appellate courts.[25] In this case, the trial court’s findings, conclusions and evaluation of the testimony of witnesses is received on appeal with the highest respect,[26] the same being supported by substantial evidence on record. There was no showing that the court a quo had overlooked or disregarded relevant facts and circumstances which when considered would have affected the outcome of this case[27] or justify a departure from the assessments and findings of the court below. The absence of any improper or ill-motive on the part of the principal witnesses for the prosecution all the more strengthens the conclusion that no such motive exists.[28] Neither was any wrong motive attributed to the police officers who testified against appellant. Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 “when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death.” This special complex crime is treated by law in the same degree as qualified rape -- that is, when any of the 7 (now 10) “attendant circumstances” enumerated in the law is alleged and proven, in which instances, the penalty is death. In cases where any of those circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly appreciated as an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper penalty in accordance with Article 63 of the RPC. However, if any of those circumstances proven but not alleged cannot be considered as an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty because Articles 63 of the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it is not so alleged, it may be considered as an aggravating circumstance, in which case the only penalty is death – subject to the usual proof of such circumstance in either case. Death being a single indivisible penalty and the only penalty prescribed by law for the crime of “rape with homicide”, the court has no option but to apply the same “regardless of any mitigating or aggravating circumstance that may have attended the commission of the crime”[29] in accordance with Article 63 of the RPC, as amended.[30] This case of rape with homicide carries with it penalty of death which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which provides: “The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua.” (emphasis supplied). In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter his date of birth to show that he was only 17 years and a few months old at the time he committed the rape and thus, covered by the proscription on the

imposition of death if the guilty person is below eighteen (18) years at the time of the commission of the crime.[31] Again, the record rebuffs appellant on this point considering that he was proven to be already more than 20 years of age when he did the heinous act. Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by present amended law, the civil indemnity for the victim shall be not less than seventyfive thousand pesos (P75,000.00).[32] In addition to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil Code[33] in such amount as the court deems just, without the necessity for pleading or proof of the basis thereof.[34] Civil Indemnity is different from the award of moral and exemplary damages.[35] The requirement of proof of mental and physical suffering provided in Article 2217 of the Civil Code is dispensed with because it is “recognized that the victim’s injury is inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of moral damages”.[36] Thus, it was held that a conviction for rape carries with it the award of moral damages to the victim without need for pleading or proof of the basis thereof.[37] Exemplary damages can also be awarded if the commission of the crime was attended by one or more aggravating circumstances pursuant to Article 2230 of the Civil Code[38] after proof that the offended party is entitled to moral, temperate and compensatory damages.[39] Under the circumstances of this case, appellant is liable to the victim’s heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages. Lastly, considering the heavy penalty of death and in order to ensure that the evidence against and accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation[40] in accordance with the Constitution, jurisprudence and Republic Act No. 7438: [41] It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1.

The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;

2.

He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;

3.

He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;

4.

He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;

5.

That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;

6.

The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means – telephone, radio, letter or messenger – with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished;

7.

He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;

8.

In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;

9.

That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun;

10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. Four members of the Court – although maintaining their adherence to the separate opinions expressed in People v. Echegaray[42] that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional – nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil indemnity for the heinous rape which is INCREASED toP75,000.00, PLUS P50,000.00 moral damages. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena, andGonzaga-Reyes, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 126148 May 5, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO QUIÑANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accused-appellants. VITUG, J.: In People vs. Orita, 1 this Court has declared that the crime of frustrated rape is nonexistent. The pronouncement, notwithstanding, on 01 March 1996, more than six years after the promulgation of the decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted accused Agapito Quiñanola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the crime of frustrated rape, principally on the strength of People vs. Eriñia 2 which this Court, in the Orita decision, has considered to be a "stray" decision. The 1st March 1996 decision of the RTC of Cebu City imposing upon each

of the accused the penalty of reclusion perpetua "of Forty (40) Years," has been brought up by them to this Court. The appeal opens up the whole case for review. The information, dated 06 April 1994, charging the two accused with the crime of rape reads: That on or about the 5th day of March, 1994, at about 11:30 o'clock in the evening, more or less, at Barangay Tangil, Municipality of Dumanjug, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of the offended party Catalina Carciller, fifteen (15) years of age, against her will and consent. CONTRARY TO LAW. 3 Already in force and effect at the time of the averred commission of the crime are the provisions of Republic Act No. 7659, amending the Revised Penal Code, which define and penalize rape, as follows: Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. 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 reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 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-lawspouse of the parent of the victim. 2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. when the victim is a religious or a child below seven (7) years old. 5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.

Duty assisted by counsel the two accused pleaded not guilty to the crime charged. During the trial that ensued, the prosecution and the defense presented respective versions of the case. The story of prosecution was the first to be told. Catalina Carciller her cousin 15-year-old Rufo Ginto and another male companion named Richard Diaz, went to attend a dance at around ten o'clock in the evening of 05 March 1994 in Sitio Bangag Tangil, Dumanjug, Cebu. Catalina born on 09 November 1978, 4 was just then fifteen (15) years and four (4) months old. She was a student at the Bito-on National vocational School at Dumanjug Cebu. About an hour later they left the party and were soon on their way home. The three unsuspecting youngsters stopped momentarily to rest at a waiting shed beside the Tangil Elementary School. Accused Agapito Quiñanola a.k.a. "Petoy" and accused Eduardo Escuadro a.k.a. "Botiquil" who were both armed with guns suddenly turned up Quiñanola beaming his flashlight at the trio while Escuadro stood by focused his attention on Catalina. Quiñonala announced that he and Escuardo were members of New People's Army ("NPA"). Quiñonala instructed Escuadro to take care of the male companions of Catalina while he (Quiñanola) held the latter at gunpoint. Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face down on the ground and then urinated at them. While Escuadro was fixing the zipper of his pants, Diaz and Ginto were bale to escape and ran away. Meanwhile Quiñanola with his gun pointed at Catalina, forcibly brought her towards the nearby school. Catalina heard a gunfire but Quiñanola assured her that it was only an exploding firecracker. When Escuadro again showed up, Catalina asked about her two friends. Quiñanola replied that he had ordered them to go home. Catalina begged that she herself be allowed to leave. Pretending to agree, they walked the path towards the road behind the school. Then, unsuspectingly, Quiñanola forced Catalina to sit on the ground. She resisted but Quiñanola, pointing his gun at her, warned her that if she would not accede to what he wanted he would kill her. Catalina started to cry. Quiñanola told Escuadro to remove her denim pants. Catalina struggled to free herself from Escuadro's hold but to no avail. Escuadro ultimately succeeded in undressing her. Quiñanola unzipped his pants and laid on top of her while Escuadro held her legs Quiñanola "started to pump, to push and pull" 5 even as Catalina still tried desperately to free herself from him. She felt his organ "on the lips of (her) genitalia." 6 When Quiñanola had satisfied his lust, Escuadro took his turn by placing himself on top of Catalina. Catalina could feel the sex organ of Escuadro "on the lips of (her) vulva" 7 while he made a push and pull movement. Quiñanola, who stood by, kept on smoking a cigarette. Escuadro and Quiñanola scampered immediately after Catalina's ordeal. Failing to find her pair of pants and panty. Catalina was left wearing her T-shirt and brassieres. Catalina just then sat down, not knowing what to do, until she finally started to run home fearing that she might be followed. Upon reaching home, Catalina went upstairs and, afraid that the culprit would still come after her, hid herself behind the door. Baffled by Catalina's strange behavior, her mother and her elder sister took turns interrogating her. Catalina finally said that she was raped but she would not reveal the names of the persons who had committed the dastardly act because of their threat.1âwphi1.nêt Guillermo Zozobrado learned from his wife, Catalina's sister, that Catalina had been raped. He promptly repaired to the municipal hall of Dumanjug to report the crime. Policemen were immediately dispatched to the Carcillers' residence. Still in a state of shock, Catalina initially kept mum about it; later, when the police officers returned at daytime, she was able to respond to questions and to disclose that "Petoy," referring to Agapito Quiñanola, and "Botiquil," the other accused Eduardo Escuadro, were the persons who ravished her. The officers later invited her to the police station to identify a suspect whom she positively identified to be "Botiquil" or Eduardo Escuadro. Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P. Refe, medico-legal officer of the National Bureau of Investigation ("NBI") of Region 7, Central Visayas, who conducted the physical examination of Catalina on 07 March 1994, showed that there was "no evidence of extragenital physical injury noted on the body of the Subject." 9 The genital examination yielded the following findings on the victim: Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick, wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in di-

ameter with moderate resistance. Vaginal walls, tight and rogusities, prominent. 10 (Emphasis supplied.) The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was "so small as to preclude complete penetration of an average-size adult penis in erection without producing laceration." 11 Against the evidence submitted by the prosecution, the accused, in their defense, interposed alibi, ill motive on the part of an "uncle" of the complainant, and insufficient identification. Accused Agapito Quiñanola, a member of the Philippine National Police stationed at Naga, Cebu, testified that it was his day-off on 05 March 1994. At about 8:30 a.m., he and his wife, Leticia, who had just arrived in Naga from Cebu City, proceeded to the house of his parents in Panla-an, Dumanjug, to attend to the construction of their unfinished house. Quiñanola helped Vidal Lañojan and Nicasio Arnaiz in cementing the kitchen floor of their house. The work was finished at around 11:00 o'clock in the evening. After Vidal and Nicasio had gone home, Quiñanola went to bed with his wife around midnight until the following morning of 06 March 1994. He denied having been in the company of his co-accused, Escuadro a.k.a. "Botiquil," at any time during the whole day and night of 05 March 1994. According to him, Guillermo Zozobrado, Catalina's brother-in-law, concocted the rape charge to get even with him because of an incident in August 1993 at a fiesta dance in upper Tangil, Panla-an, when George Camaso, the husband of his sister Jinga, got into trouble with Samuel Escuadro. Quiñanola tried to pacify George Camaso who was then drunk but Camaso suddenly hit him. He parried the blow and slapped Camaso on the face. Zozobrado joined the fray and tried to hit Quiñanola but because Zozobrado was drunk, he stumbled when Quiñanola had pushed him. 12He admitted that he had no misunderstanding of any kind with the complainant and her parents themselves. Leticia Quiñanola the wife of accused Agapito Quiñanola, testified to attest to her husband's "good moral character" and to corroborate his testimony. Leticia said that after the workers had left their house at around midnight she and appellant talked for a while and then made love. Vidal Lañojan the carpenter was presented to state that Quiñanola was at home helping the carpenters until past 11 o'clock on the night of the incident. Nicasio Arnaiz a farmer and store cutter added that work in the Quiñanola's house had started late in the morning of 05 March 1994 since they still waited for Quiñanola and his wife Patsy to arrive. Work in the house, he said had stopped at about 11 o'clock that night. Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at about seven o'clock in the evening of 05 March 1994 he and Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu until about ten o'clock that evening. After partaking of supper at around 11:30 p.m., they had a drinking spree and went to bed at 12:00 midnight waking up at 6:30 a.m. the following day. He denied having been in the company of Quiñanola and insisted that the rape charge had been the result of a mere mistaken identity. Pablito Cuizon, Jr., corroborated Escuadro's story about their being together up until they parted company after a drinking spree. The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato Mascarinas, Jr., who took part in the investigation of the crime, and Margarito Villaluna, a suspect at the early stages of the police investigation who was in the frequent company of the accused. According to PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the rape incident to him at midnight of 05 March 1994. He entered the report in the "temporary blotter because the suspect was unknown then." 13 Accompanied by the two tanods, he went to the residence of the victim and when he asked Catalina if she was able to recognize the malefactors, she kept silent and continued crying. SPO2 Liberato Mascarinas, Jr., asserted that, in the early morning of 06 March 1994, Gilly and George Zozobrado went to the police station and named "Pitoy Quiñanola, Margarito Villaluna and Batiquil or Escuadro" as being the suspects in the rape incident. While on their way to the latter's respective residences, the team met Catalina Carciller and party who were themselves about to repair to the police headquarters. Mascarinas asked Catalina about the identities of the rapists. She named "Pitoy Quiñanola" but said she did not know the names of "the other persons" although she could recognize them by face. Botiquil was later brought to the police station Pitoy Quiñanola by that time had already gone to Naga. Margarito Villaluna declared that he had been in Panla-an, Negros Oriental, from 05 March 1994 until 09 March 1994 until harvesting corn. His sister, Mercy Villaluna testified that, in the morning of 06 March 1994, policemen in the company of barangay

tanods including Gilly Zozobrado and his son Marcelo, came to their house looking for her brother Margarito. Shortly after the group had left, another policeman, in the company of one Erwin Quirante also came looking for her brother. The arrival of the policemen prompted her to verify from the Coast Guard whether her brother had indeed left for Negros Oriental. She was told that her brother was in the boat that departed for Negros in early dawn of 02 March 1994. Still unsatisfied with the result of her queries, Mercy went to Guinholngan where she met Margarito. Following the trial and submission of the case for decision, the court a quo, 14 on 01 March 1996, found the two accused guilty beyond reasonable doubt of the crime of "frustrated rape" and sentenced them accordingly; thus: WHEREFORE, premises considered, the Court hereby finds guilty beyond reasonable doubt the two accused Agapito "Petoy" Quiñanola and Eduardo Escuadro, alias "Batiquil", as principals by direct participation and indispensable cooperation of the frustrated rape of the complaining witness Catalina "Cathy" Carciller, and considering the attendance in the commission of the crime of the six (6) aggravating circumstances aforementioned, not offset by any mitigating circumstance, hereby sentences these two accused individually toReclusion Perpetua of Forty (40) Years, plus all the accessory penalties prescribed by law, and to pay the offended party civil indemnity in the amount of P50,000.00 each. The Court also hereby recommends that under no circumstance should the two accused be granted parole or conditional or absolute pardon, in view of the extreme moral turpitude and perversity which they exhibited in the commission of the crime — not until they shall have served at least thirty (30) years of the full range of forty (40) years of reclusion perpetua meted out against them in this case. They should be interdicted for that length of time from the usual and normal liasons (sic) and dealings with their fellowmen and their community so as to protect the latter from their pernicious and insidious examples. This is the most generous and charitable recommendation that the Court can make for these two malefactors, short of imposing upon them the supreme penalty of death, which the Court in other times and conditions might have been compelled, as a matter of inexorable duty, to mete out against them, in obedience to the implacable and peremptory demands and dictates of retributive justice. Costs shall also be taxed against the two accused. SO ORDERED. 15 The trial court ruled that the accused were liable for the crime of frustrated rape "with an eye to extending to the two accused the benefit of the principle that in case of doubt criminal justice naturally leans in favor of the milder form of penalty" 16 but that, because of the existence of "at least six (6) aggravating circumstances, 17 not offset by any mitigating circumstance," 18 the accused should each be meted the penalty of reclusion perpetua. It explained: Now, the crime of rape had it been consummated and had it been committed with the attendance of the above-mentioned aggravating circumstances, with absolutely no offsetting mitigating circumstances, ought to be punished with the mandatory penalty of death under the pertinent provisions of Section 11 and 23 of Republic Act No. 7659, which amended Article 335 of the Revised Penal Code, and further amplified the aggravating circumstances enumerated in Article 14 of the same code. But because the crime committed here is "merely" frustrated rape for the reasons heretofore discussed, attended by the aforementioned six aggravating circumstances, not offset by even one mitigating circumstance, the proper penalty to be imposed upon the two principals, the two accused herein, both co-conspirators, by direct participation and indispensable cooperation, of the frustrated rape, should be one degree lower than the indivisible afflictive penalty of death, which is also the indivisible afflictive penalty of reclusion perpetua which, under Section 21 of the amendatory statute, shall range from twenty years and one day to forty years. 19

In their appeal to this court, the two convicted accused interposed the following assignment of errors: I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF THE PROSECUTION WITNESSES WHICH IF THOROUGHLY CONSIDERED COULD HAVE ALTERED THE DECISION IN FAVOR OF THE ACCUSED. II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE CLOUDED WITH GRAVE INCONSISTENCIES. III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS. IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF THE SAME WERE NOT CONTROVERTED. V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE TESTIMONIES OF THE POLICEMEN WHICH WERE UNCONTROVERTED AND WITH PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTIES. VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF FRUSTRATED RAPE AND SENTENCING THEM TO 40 YEARS of RECLUSION PERPETUA. 20 In reviewing rape cases, this Court must again say that it has been continually guided by the principles (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves only two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense. 21 Expectedly, courts would scrupulously examine the testimony of the complainant with the thought always in mind that the conviction of the accused would have to depend heavily on the credibility of the offended woman. It is not much different in this instance for, at bottom, appellants assail the credibility of the prosecution witnesses, particularly that of the complainant, in seeking a reversal of the judgment of conviction. The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and will not be disturbed on appeal in the absence of any clear showing that the trial court has "overlooked, misunderstood or misapplied facts or circumstances of weight and substance" that could have consequential effects. The stringency with which appellate tribunals have observed this rule is predicated on the undisputed vantage of the trial court in the evaluation and appreciation of testimonial evidence. 22 In assailing Catalina's credibility, as against the assessment made by the trial court which has described the victim's testimony to be impressed with "candor, spontaneity and naturalness," appellants theorize that the sexual intercourse, if indeed true, could have only been committed against Catalina in a sitting position, contrary to her declaration of having been made to lie on the ground because her T-shirt, marked Exhibit E, is "not tainted with mud at all especially the back if she were made to lie down." 23 The Court finds this so-called incongruity committed by the complainant to a feeble attempt to discredit her testimony. The Court is convinced of the sexual assault made against her. Here follows the testimony of Catalina on this score. Q You said that you were forced by Agapito Quiñanola to sit down, where were you forced to sit down, in what particular place or area? A Just behind the back of the school. Q You were forced to sit down on the ground? A Yes. Q In effect did you sit down as ordered by him? A I resisted. COURT: Q How did you resist? A I said I will not sit down.

TRIAL PROS. NAZARENO: Q What did Agapito Quiñanola do, if any, when you resisted? A He pointed his gun to me. Q When he pointed a gun at you, referring to Agapito Quiñanola, what did he say? A He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me. Q What did you do when you heard those words coming from Agapito Quiñanola? A I cried. Q When you cried what did Agapito Quiñanola do, if any? A He ordered Eduardo Escuadro to remove my pants and panty. COURT Q Why what were you wearing at that time? A Pants. Q What kind of pants? A Denim. TRIAL PROS. NAZARENO Q Now, after Agapito Quiñanola ordered Eduardo Escuadro to remove your pants and panty what did Eduardo Escuadro do, if any? A He did what Agapito Quiñanola commanded him. COURT: Q How about you, what (sic) were you doing at that time? A I cried and tried to free myself. TRIAL PROS. NAZARENO Q Now, when Eduardo Escuadro removed your pants and panty where was Agapito Quiñanola and what did Agapito Quiñanola do? A He unzipped his pants. Q After that what happened? In effect, were your pants and panty removed by Eduardo Escuadro? A Yes. Q Now, you said Agapito Quiñanola opened his fly or unzipped his pants, when Agapito Quiñanola already unzipped his pants, what did he do? A He approached me and lay on top of me. Q When Agapito Quiñanola approached you and laid on top of you, what did Eduardo Escuadro do? A He was holding on to my legs. Q Then what happened after that? A Agapito Quiñanola started to pump, to push and pull. Q What did you do when Agapito Quiñanola was already on top of you and made a push and pull on you? A I struggled to free myself. Q After that what happened when Agapito Quiñanola was already on top of you and kept on making a push and pull? A Eduardo Escuadro took his turn.

Q What do you mean by took his turn, please specify what did Escuadro do? He did what Agapito had just done to you? COURT: Q What did Agapito Quiñanola do to you actually? A He lay on top of me and did a push and pull movement. TRIAL PROS. NAZARENO: Q When Agapito Quiñanola lay on top of you and made a push and pull movement, do you mean to say that he inserted his penis into your vagina? A I felt something hard on the lips of my genitals. Q What is this something hard that you felt that touched the lips of your vagina or vulva? A His organ or penis. Q When Agapito Quiñanola unzipped his pants, did you see his penis? A Yes. Q You also said that Eduardo Escuadro took his turn and laid on top of you and made a push and pull on you, specifically what did Eduardo Escuadro do? A The same as Agapito did, he was doing the push and pull movement. Q What did you feel when Eduardo Escuadro was already on top of you and made a push and pull on you? A I held my breath. Q Did you see the penis Eduardo Escuadro? A No. Q Now, did you feel that the penis of Escuadro inserted into your vagina? A I felt it on the lips of my vulva. 24 The fact that she must have been lying down when violated has even more been made clear by the defense on cross-examination. Thus: Q Did you say any testimony in the direct that you were on the ground at the time when you were raped by these two accused? A They pointed a gun at me and ordered me to lie down. Q Lie on the ground? A Yes. 25 And on why her T-shirt was no longer soiled with mud when presented in court, Catalina creditably explained that when it was offered in evidence, she had already dusted and rid it of grass particles. At all events, whether appellants spent their lust on Catalina in a sitting position or lying down would not be of any real moment for what remained clear, established rather convincingly by the prosecution, was that appellants had forced carnal knowledge of the victim. The reliance being made by appellants on the affidavit of Catalina in order to discredit her is likewise futile. The Court has consistently ruled that discrepancies between the statement of an affiant in an affidavit and those made on the witness stand do not necessary downgrade testimonial evidence. Ex parte affidavits are usually incomplete and frequently prepared by an administrating officer and cast in the latter's language and understanding of what the affiant has said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or to her. 26 Not much differently could be said of Catalina's identification of appellants as being her ravishers. On the witness stand, Catalina explained that while she gave appellant Es-

cuadro's nickname "Botiquil" to the investigating police officer, the latter did not mention that name in the affidavit because, according to the officer, the affidavit was merely a "shortcut". In her testimony, she was categorical that she had known appellants even before the rape incident. She knew that appellant Quiñanola was a policeman and a "popular maldito" (nasty) in the locality. 28Catalina knew that appellant Escuadro, a resident of Punla-an far from her own abode, was commonly known as "Batiquil" (Botiquil). She could not have been mistaken in the identification of the culprits since appellants themselves held a flashlight which they used that added to the illumination shed by a fluorescent lamp and two bulbs on the side of a house only some meters away. As regards the allegation of appellants that the testimony of Catalina contradicted in certain respects that of prosecution witness Rufo Ginto, suffice it to say that the testimony of Rufo Ginto (who was noted by the trial court not to be "an intelligent witness" 29) was merely corroborative in nature and neither dealt with the actual commission of the crime nor delved on material points. Catalina's candid and straightforward narration of the two sexuals assaults perpetrated on her on the night of the incident unmistakably deserves credence. It is unbelievable that a young barrio lass would concoct a tale of defloration publicly admit having been ravished and her honor tainted allow the examination of her private parts, and undergo all the trouble and inconvenience not to mention the trauma and scandal of a public trial had she not in fact been raped and truly moved to protect and preserve her honor as well as to obtain justice, for the wicked acts committed against her. 30 There is no plausible reason why Catalina should testify against appellants, imputing upon them so grave a crime as rape if it did not happen. This Court has consistently held that where there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith and credit. 31 So, also, the Court has repeatedly said that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction. 32 The positive identification of appellants as being the perpetrators of the crime effectively effaces their alibi. 33 The rule is that affirmative testimony is far weightier than a mere denial, especially when it comes from the mouth of a credible witness. 34 Moreover, alibi might be aptly considered only when an accused has been shown to be in some other place at the crucial time and that it would have been physically impossible for him to be at the locus criminis or its immediate vicinity at the time of the commission of the crime. 35 In the context it is used in the Revised Penal Code, "carnal knowledge" unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the vagina be penetrated or that the hymen be ruptured. 36 The crime of rape is deemed consummated even when the man's penis merely enters the labia or lips of the female organ 37 or, as once so said in a case, by the "mere touching of the external genitalia by a penis capable of consummating the sexual act." 38 In People vs. Escober, 39 in convicting a father of having raped twice his 1l-year-old daughter, the Court has said: While the evidence may not show full penetration on both occasions of rape the slightest penetration is enough to consummate the offense in fact there was vulva penetration in both cases. The fact that the hymen was intact upon examination does not belie rape for a broken hymen is not an essential element of rape not does the fact that the victim has remained a virgin negate the crime. What is fundamental is that the entrance of at least the introduction, of the male organ into the labia of the pudendum is proved. As in the case at bar it can be said that there was penetration although incomplete, and it was sufficient to prove carnal knowledge of a child under twelve years of age. A medical examination is not an indispensable element in a prosecution for rape. The accused may be convicted on the sole basis of complainant's testimony of credible and the findings of the medico-legal officer do not disprove the commission of rape. There are half measures or even quarter measures nor is their gravity graduated by the inches of entry. Partial penile penetration is as serious as full penetration. The rape is deemed consummated in either case. In a manner of

speaking, bombardment of the drawbridge is invasion enough even if the troops do not succeed in entering the castle. 40(Emphasis supplied.) In another case, People vs. Gabayton, 41 where the accused has been found guilty of raping his daughter then less than twelve years old, the Court has observed: Accused appellant draws attention to the fact that based on the medico-legal findings, there is no showing that his daughter's hymen was penetrated, nor was there any evidence of injuries inflicted. However, jurisprudence is wellsettled to the effect that for rape to be consummated, rupture of the hymen is not necessary, nor is it necessary that the vagina sustained a laceration especially if the complainant is a young girl. The medical examination merely stated that the smallness of the vaginal orifice only precludes COMPLETE penetration. This does not mean that rape has not been committed. The fact that there was no deep penetration of the victim's vagina and that her hymen was intact does not negate rape, since this crime is committed even with the slightest penetration of a woman's sex organ. Presence of a laceration in the vagina is not an essential prerequisite to prove that a victim has been raped. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymen. Entry of the labia or lips of the female organ merely, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. What must be proven in the crime of rape is merely the introduction of the male organ into the labia of the pudendum and not the full penetration of the complainant's private part. As we held inBaculi: "there could still be a finding of rape even if despite the repeated intercourse over a period of four years the complainant still retained an intact hymen without signs of injury." In the case at bench, Summer's testimony has established without a doubt that accused-appellants organ managed to come into contact with her vagina, enough to cause her pain. 42 (Emphasis supplied.) In its recent holding in People vs. Echegaray, 43 the Court has declared that "a mere knocking at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction." The trial court appellants only frustrated rape, ruled that there was no "conclusive evidence of penetration of the genital organ of the offended party 44 in the (a) Catalina had admitted that she did not spread her legs and (b) the medico-legal officer's findings showed she did not sustain any extragenital injuries and her hymenal orifice was so small that an erect average-size penis would not have completely penetrated it would causing laceration. It would seem that the trial court failed to consider Catalina's testimony in its entirely she testified: Q And when he mounted on top of you Escuadro was holding on to your two feet and all the time that he Quiñanola, was making a push and pull on you Escuadro was holding on to your two feet? A Yes. COURT: Q Your two feet? A Yes. ATTY. CREEP: Q Now in other words since your two feet were held and Eduardo Escuadro was waving (sic [moving]) slightly to your left as you demonstrated your two feet became closer to each other, it could not be spread? A I was still struggling at that time to free myself and I do not know whether my legs were speared out or not. Q Did you spread your legs? A No.

Q Since you did not spread your legs and Quiñanola was on top of you, did you not bother to pull your legs, kick the one holding it and pushed Quiñanola or do any harm to him? A No, because I was already frightened considering that there were two of them and they were armed. 45 This testimony would indicate that Catalina, considering her struggle to free herself, understandably failed to notice whether her legs were spread apart or close together during her ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs when Quiñanola took her. Thus — Q At that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly so that he will refrain from raping you? A I was not able to think of that because of my fear and besides that Eduardo Escuadro was holding on to both my legs. Q Now if Eduardo Escuadro was the one holding on both your two legs how was Quiñanola able to place himself on top of you? A It was because Eduardo Escuadro had already released my hands and Quiñanola was the one holding on to it already, afterwards Eduardo Escuadro transferred to hold both my legs. 46 Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, 47 the Court has explicitly pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505). We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559, People vs. Rabadan, et al., 53 Phil. 694; Unites States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People vs. Eriñia, 50 Phil. 998 [1927] where, We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriñia case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws. 48 The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize

it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language. Each appellant is liable for two counts of consummated rape on account of a clear conspiracy between them shown by their obvious concerted efforts to perpetrate, one after the other, the crime. Each of them therefore is responsible not only for the rape committed personally by him but also for the rape committed by the other as well. 49 Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 when rape is committed with the use of a deadly weapon or by two persons, the crime is punishable by reclusion perpetuata to death. Even while the information has failed to allege the use of a deadly weapon in the commission of the rape, appellants can, nonetheless, be held accountable under that provision since the information has likewise averred that the "above-named accused," referring to the two appellants, have conspiratorially committed the crime. Article 14 of the Revised Penal Code, 50 includes among its enumeration of generic aggravating circumstances the fact that the crime is committed with the aid of armed men or persons who insure or afford impunity. The fact alone, then, that a malefactor has sported a firearm does not, by itself, militate to aggravate crime. As regards appellant Quiñanola, the aggravating circumstance of his being a member of the Philippine National Police would have exposed him to the penalty of death 51 under the amendatory provisions of Article 335 by Republic Act No. 7659, had this circumstance been properly alleged in the information. The description by the trial court of appellants as being "powerfully, built, brawny and mean-looking" as against the "short slender easily cowed" 15-year-old victim would not here warrant a finding that abuse of superior strength has aggravated the commission of the crime. The law should be deemed to have already considered this circumstance in qualifying the crime to its "heinous" character rendering in that context abuse of superior strength has an inherent element thereof. Neither may nighttime be considered an aggravating circumstance in the absence of proof of its having been deliberately sought out by appellants to by appellants to facilitate the commission of the offense. 52 Craft fraud or disguise 53 is a species of aggravating circumstance that denotes intellectual trickery or cunning resorted to by an accused to aid in the execution of his criminal design or to lure the victim into a trap and to conceal the identity of the accused. The fact that one of the appellants has pretended to be a member of the New People's Army does not necessarily imply the use of craft, fraud or disguise, in the commission of the crime Finally, the Court does not subscribe to the view of the trial court that accused-appellants have employed means which added ignominy to the natural effects of the crime, particularly in "stripp(ing) the victim of her denim parts and panties and then sending her home in this humiliating and distressing condition. 54 There is nothing on record that even remotely suggests that accused-appellants so deliberately sought to leave Catalina with bottoms bare that she might be left alone in shame with only her Tshirt and brassieres on. The absence of any aggravating circumstance in the commission of a crime punishable by two (2) indivisible penalties, such as reclusion perpetua to death would justify even without any mitigating circumstance, the imposition of the lesser penalty of reclusion perpetua. The trial court has ordered appellants to each pay the offended party and indemnity in the amount of P50,000.00. Prevailing jurisprudence 55 likewise allowsthe victim is have an award of moral damages for having evidently undergone mental physical and psychological sufferings. The availability of appellants being on delict is solidary. 56 WHEREFORE, appellants Agapito Quiñanola y Escuadro and Eduardo Escuadro y Floro are each found guilty beyond reasonable doubt of two (2) counts of consummated rape and accordingly, sentenced to the penalty of reclusion perpetua in each case. Said appellants are ordered to pay jointly and severally Catalina Carciller the sum of P100,000.00 by way of indemnity ex delictu for the two counts of consummated rape plus P60,000.00 moral damages. Costs against appellants.1âwphi1.nêt SO ORDERED. Romero, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur. FIRST DIVISION [G.R. No. 121519.

October 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE TY and CARMEN TY, accused-appellants. D E C I S I O N KAPUNAN, J.: Vicente Ty AND Carmen Ty were charged with the crime of kidnapping and failure to return a minor in an information filed by 2nd Assistant City Prosecutor of Kalookan City Rosauro J. Silverio, the accusatory portion of which reads: That on or about the month of April 1989, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being then the owners, proprietors, managers and administrators of Sir John Clinic and as such said accused had the custody of Arabella Somblong, a minor, conspiring together and mutually helping one another and with deliberate intent to deprive the parents of the child of her custody, did then and there willfully, unlawfully and feloniously fail to restore the custody of said Arabella Sombong to her parents by giving said custody of subject minor to another person without the knowledge and consent of her parents. Contrary to Law.[1] Both accused were arrested, and then arraigned on October 27, 1992 when they pleaded not guilty to the crime charged. After trial, on May 31, 1995, a decision was rendered by the Regional Trial Court of Kalookan City, Branch 123, the decretal portion of which disposes as follows: WHEREFORE, this Court finds both accused Spouses Vicente Ty and Carmen Ty guilty beyond reasonable doubt of the crime of kidnapping a minor and failure to return the same as defined and penalized by Article 270 of the Revised Penal Code and hereby sentences them to suffer imprisonment of reclusion perpetua. The accused are hereby ordered to pay the private complainant the sum of P100,000.00 by way of moral damages caused by anxiety, by her being emotionally drained coupled by the fact that up to this date she could not determine the whereabouts of her child Arabella Sombong. SO ORDERED.[2] The accused now interposes this appeal alleging the ensuing assignment of errors, viz: I THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS ‘DELIBERATELY FAILED TO RESTORE THE CHILD TO HER MOTHER,’ AND CONVICTING THEM UNDER ART. 270 OF THE REVISED PENAL CODE, AND SENTENCING THEM TO ‘RECLUSION PERPETUA’; II THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CRIME COMMITTED, IF ANY, IS THAT DEFINED AND PENALIZED UNDER ART. 227 OF THE REVISED PENAL CODE; III THE TRIAL COURT ERRED IN NOT RECOMMENDING EXECUTIVE CLEMENCY PURSUANT TO PRECEDENT IN ‘PEOPLE vs. GUTIERREZ,’ 197 SCRA 569; and IV THE TRIAL COURT ERRED IN AWARDING ‘COMPLAINANT THE SUM OF P100,000.00 BY WAY OF MORAL DAMAGES.’[3] The relevant antecedents surrounding the case are as follows: On November 18, 1987, complainant Johanna Sombong brought her sick daughter Arabella, then only seven (7) months old, for treatment to the Sir John Medical and Maternity Clinic located at No. 121 First Avenue, Grace Park, Kalookan City which was owned and operated by the accused-appellants. Arabella was diagnosed to be suffering bronchitis and diarrhea, thus complainant was advised to confine the child at the clinic for speedy recovery. About three (3) days later, Arabella was well and was ready to be discharged but complainant was not around to take her home. A week later, complainant came back but did

not have enough money to pay the hospital bill in the amount of P300.00. Complainant likewise confided to accused-appellant Dr. Carmen Ty that no one would take care of the child at home as she was working. She then inquired about the rate of the nursery and upon being told that the same was P50.00 per day, she decided to leave her child to the care of the clinic nursery. Consequently, Arabella was transferred from the ward to the nursery.[4] Thereafter, hospital bills started to mount and accumulate. It was at this time that accused-appellant Dr. Ty suggested to the complainant that she hire a “yaya” for P400.00 instead of the daily nursery fee of P50.00. Complainant agreed, hence, a “yaya” was hired. Arabella was then again transferred from the nursery to the extension of the clinic which served as residence for the hospital staff.[5] From then on, nothing was heard of the complainant. She neither visited her child nor called to inquire about her whereabouts. Her estranged husband came to the clinic once but did not get the child. Efforts to get in touch with the complainant were unsuccessful as she left no address or telephone number where she can be reached. This development prompted Dr. Ty to notify the barangay captain of the child’s abandonment.[6] Eventually, the hospital staff took turns in taking care of Arabella.[7] Sometime in 1989, two (2) years after Arabella was abandoned by complainant, Dr. Fe Mallonga, a dentist at the clinic, suggested during a hospital staff conference that Arabella be entrusted to a guardian who could give the child the love and affection, personal attention and caring she badly needed as she was thin and sickly. The suggestion was favorably considered, hence, Dr. Mallonga gave the child to her aunt, Lilibeth Neri.[8] In 1992, complainant came back to claim the daughter she abandoned some five (5) years back. When her pleas allegedly went unanswered, she filed a petition for habeas corpus against accused-appellants with the Regional Trial Court of Quezon City. Said petition was however denied due course and was summarily dismissed without prejudice on the ground of lack of jurisdiction, the alleged detention having been perpetrated in Kalookan City. Thereafter, the instant criminal case was filed against accused-appellants. Complainant likewise filed an administrative case for dishonorable conduct against accused-appellant Dr. Carmen Ty before the Board of Medicine of the Professional Regulation Commission. This case was subsequently dismissed for failure to prosecute. On October 13, 1992, complainant filed a petition for habeas corpus with the Regional Trial Court of Quezon City, this time against the alleged guardians of her daughter, namely, Marietta Neri Alviar and Lilibeth Neri. On January 15, 1993, the trial court rendered a decision granting the petition and ordering the guardians to immediately deliver the person of Cristina Grace Neri to the complainant, the court having found Cristina to be the complainant’s child. On appeal to the Court of Appeals, however, said decision was reversed on the ground that the guardians were not unlawfully withholding from the complainant the rightful custody of Cristina after finding that Cristina and complainant’s daughter are not one and the same person. On January 31, 1996, this Court in Sombong v. Court of Appeals[9] affirmed the Court of Appeals’ decision. In this appeal, accused-appellants would want us to take a second look and resolve the issue of whether or not they are guilty of kidnapping and failure to return a minor. Accused-appellants of course contend that they are not guilty and the Solicitor General agrees. In its Manifestations and Motion in lieu of Appellee’s Brief, the Office of the Solicitor General recommends their acquittal. We agree. As we have mentioned above, this Court in Sombong v. Court of Appeals[10] affirmed the decision of the Court of Appeals reversing the trial court’s ruling that complainant has rightful custody over the child, Cristina Grace Neri, the latter not being identical with complainant’s daughter, Arabella. The Court discoursed, thusly: Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not been shown to be petitioner’s

daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is the same person as Cristina. xxx In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioner’s child, Arabella, from that of private respondents’ foster child, Cristina. We note, among others, that Dr. Trono, who is petitioner’s own witness, testified in court that, together with Arabella, there were several babies left in the clinic and so she could not be certain whether it was Arabella or some their baby that was given to private respondents. Petitioner’s own evidence shows that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic. This corroborates the testimony of petitioner’s own witness, Dra. Ty, that Arabella was physically confined in the clinic from November, 1987 to April, 1989. This testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the hospital until April, 1989. All this, when juxtaposed with the unwavering declaration of private respondents that they obtained custody of Cristina in April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the conclusions that Cristina is not Arabella. Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing on August 30, 1993 primarily for the purpose of observing petitioner’s demeanor towards the minor Cristina. She made the following personal but relevant manifestation: The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly in the person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late, and she walked inside the courtroom looking for a seat without even stopping at her alleged daughter’s seat; without even casting a glance on said child, and without even that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout the proceedings, the undersigned ponente noticed no signs of endearment and affection expected of a mother who had been deprived of the embrace of her little child for many years. The conclusion or finding of undersigned ponente as a mother, herself, that petitioner-appellee is not the mother of Cristina Neri has been given support by aforestated observation xxx. xxx Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken identity, it cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this juncture, we need not inquire into the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina. xxx Under the facts and ruling in Sombong, as well as the evidence adduced in this case accused-appellants must perforce be acquitted of the crime charged, there being no reason to hold them liable for failing to return one Cristina Grace Neri, a child not conclusively shown and established to be complainant’s daugther, Arabella. The foregoing notwithstanding, even if we were to consider Cristina Grace Neri and Arabella Sombong as one and the same person, still, the instant criminal case against the accused-appellants must fall. Before a conviction for kidnapping and failure to return a minor under Article 270 of the Revised Penal Code can be had, two elements must concur, namely: (a) the offender has been entrusted with the custody of the minor, and (b) the offender deliberately fails to restore said minor to his parents or guardians. The essential element herein is that the offender is entrusted with the custody of the minor but what is actually punishable is not the kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the custodian of the minor to restore the latter to his parents or guardians.[11] Said failure or refusal, however, must not only be deliberate but must also be persistent as to oblige the parents or the guardians of

the child to seek the aid of the courts in order to obtain custody.[12] The key word therefore of this element is deliberate and Black’s Law Dictionary defines deliberate as: Deliberate, adj. Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. Carried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v. Thomas, 25 Cal. 2d 880, 156 P. 2d 7, 17, 18. By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called into use by deliberation and the consideration and weighing of motives and consequences. [13] Similarly, the word deliberate is defined in Corpus Juris Secundum as: DELIBERATE. As a Verb The word is derived from two Latin words which mean literally ‘concerning’ and ‘to weigh,’ it implies the possession of a mind capable of conceiving a purpose to act, and the exercise of such mental powers as are called into use by the consideration and weighing of the motives and the consequences of the act; and has been defined as meaning to consider, reflect, take counsel, or to weigh the arguments for and against a proposed course of action; to consider and examine the reasons for and against, consider maturely, ponder, reflect upon, or weigh in the mind; to reflect, with a view to make a choice; to weigh the motives for an act and its consequences, with a view to a decision thereon. As an Adjective The word, used adjectively, implies action after thought and reflection, and relates to the end proposed; indicates a purpose formed in a mind capable of conceiving a purpose; and is based upon an intention accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design. It has been defined as meaning carefully considered; circumspect; entered upon after deliberation and with fixed purpose, formed after careful consideration, and fully or carefully considering the nature or consequences of an act or measure; maturely reflected; not sudden or rash, carefully considering the probable consequences of a step; premeditated; slow in determining; weighing facts and arguments with a view to a choice of decision; well-advised. Under some circumstances, it has been held synonymous with, or equivalent to, ‘intentional,’ ‘premeditated,’ and ‘willful.’ Under other circumstances, however, it has been compared with, or distinguished from, ‘premeditated,’ ‘sudden,’ and ‘willful.’[14] Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate, headstrong, foolishly daring or intentionally and maliciously wrong. In the case at bar, it is evident that there was no deliberate refusal or failure on the part of the accused-appellants to restore the custody of the complainant’s child to her. When the accused-appellant learned that complainant wanted her daughter back after five (5) long years of apparent wanton neglect, they tried their best to help herein complainant find the child as the latter was no longer under the clinic’s care. Accused-appellant Dr. Ty did not have the address of Arabella’s guardians but as soon as she obtained it from Dr. Fe Mallonga who was already working abroad, she personally went to the guardians’ residence and informed them that herein complainant wanted her daughter back. Dr. Ty testified as follows:

Q:

Now, since you said a while ago that when you placed the child under the (sic) guardianship, you are (sic) aware that the natural mother will get back the child, why did you not return the minor to the natural mother?

A:

During that time mam, the resident physician who will (sic) discharged the baby was not present because she was abroad.

Q:

But then madam witness, are you aware where the child was and to whom it was given?

A:

The exact address was not given to me, mam, before the resident physician left for abroad so, I asked the PAO to give me one month to have (sic) a long distance call to this doctor and asked her for the whereabout(s) of the child.

Q: A: Q:

And where you granted the thirty-day period by the Officer of the PAO? Yes, mam. What happened if any during that thirty-day period?

A:

I was able to talk to Fe Mallonga in Bahrain and she told me the exact address of the guardian, mam.

Q:

Were (sic) you informed (of) the exact address of the guardian, did you informed (sic) the PAO?

A:

Yes, mam.

ATTY. WARD: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Then, what happened next, madam witness? I was the one who went to the address to be sure that the child was really there, mam. And did you see the child? Yes, mam. What did you do with the child? I just tell (sic) the child. ‘Ay and laki mo na pala.’ I just told the child like that and I’ve (sic) talked also to the guardian during that time, mam. And what did you tell the guardian? I told the guardian that the rightful mother was claiming for the child and that we should talked (sic) with each other at the PAO for the decision, mam. Did the guardian bring the child to the PAO’s Office (sic)? No mam, she did not appear. Why? They told me first that they are (sic) going to contact a lawyer but for (sic) several days, she did not respond anymore, mam.[15]

When the guardians refused to return the child, accused-appellant Dr. Ty sought the assistance of the National Bureau of Investigation (NBI) which conducted a conference among the parties but since a case was yet to be filed, the custody of the minor remained with the guardians. This fact is evident from the following testimony, thus: Q:

You testified on cross-examination that you located the whereabouts of the child sometime later, what steps did you take up (sic) after you found the child?

A:

I explained to the guardian that the verbal agreement between the supposed to be guardianship was only a plain guardianship and not as an adoption, sir.

Q:

You said you went to the NBI after you found the child, why did you go to the NBI?

A:

Because the guardian are (sic) not willing to surrender the child to the PAO’s Office (sic). that is why I asked their help, sir.[16] xxx

Q:

Now, when you informed the present custodian that the natural mother is now claiming the child, why were you not able to get the minor?

A:

I was not able to get the minor so I asked the help of the NBI to have the child surrender (sic), mam.

ATTY. WARD: Q: A: Q: A: Q: A:

And what happened when you get (sic) the assistance of the NBI? They were the ones who asked the guardian to surrender the child, mam. You stated a while ago that there was no written agreement between you or your hospital and the guardian of the minor, is that correct? Yes, mam. For what reason if you know, why (did) the guardian did (sic) not follow you or obey you when you want (sic) to get back the child? I don’t know of any reason, mam.[17]

The efforts taken by the accused-appellants to help the complainant in finding the child clearly negate the finding that there was a deliberate refusal or failure on their part to restore the child to her mother. Evidence is simply wanting in this regard. It is worthy to note that accused-appellants’ conduct from the moment the child was left in the clinic’s care up to the time the child was given up for guardianship was motivated by nothing more than an earnest desire to help the child and a high regard for her welfare and well-being. WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant VICENTE TY and CARMEN TY are hereby ACQUITTED of the crime charged and are ordered to be released immediately unless they are being detained for other lawful causes. Costs de oficio. SO ORDERED. Padilla (Chairman), Bellosillo, Vitug and Hermosisima, Jr., JJ., concur. FIRST DIVISION [G.R. Nos. 147656-58.

May 9, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. BERNABE GUTIERREZ y GUTIERREZ, appellant. D E C I S I O N YNARES-SANTIAGO, J.: Appellant Bernabe Gutierrez y Gutierrez appeals the joint decision[1] dated November 24, 2000 of the Regional Trial Court of Dagupan City, Branch 42, in Criminal Cases Nos. 99-03160-D, 99-03161-D and 99-03162-D, finding him guilty beyond reasonable doubt of three counts of rape committed against complainant Gina Alcantara y Velasquez; sentencing him to suffer the penalty of reclusion perpetua for each count; and ordering him to pay the complainant the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for each count plus costs. In three separate Informations, similarly worded except for the dates and times of the commission of the offense, appellant was charged with rape committed as follows: That on or about July 24, 1999 at around 3:00 o’clock in the afternoon[2] at barangay Salaan, municipality of Mangaldan, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of com-

plainant, armed with a knife and by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of her niece GINA V. ALCANTARA, against her will and without her consent, to the damage and prejudice of the latter. CONTRARY to Art. 335 of the Revised Penal Code, as amended by R.A. 7659.[3] Appellant pleaded not guilty to the crimes charged. and jointly tried.

The three cases were consolidated

Complainant is appellant’s niece; her grandmother is the sister of appellant’s mother, Francisca Gutierrez. Together with her sister, Matet, complainant worked in appellant’s house in Barangay Salaan, Mangaldan, Pangasinan, where they took care of appellant’s bedridden mother. On July 24, 1999, at 3:00 p.m., appellant sent Matet to buy medicine in Dagupan City. After Matet left, appellant dragged complainant to his room, where he pointed a knife at her and ordered her to remove her shorts and panties. She pleaded for him to stop but he ignored her. He took off his shorts and briefs, made her lie on the bed, lay on top of her and inserted his penis into her vagina. After performing sexual intercourse with complainant, appellant told her not to tell anyone what happened, otherwise he will kill her and her family.[4] On July 30, 1999, at 5:00 p.m., complainant was in the kitchen of appellant’s house preparing the meal for his mother. Again, appellant pulled her into his room, pointed a knife at her and ordered her to undress. Overwhelmed with fear, she acceded to his demands. He then removed his shorts and briefs and had sexual intercourse with her on the bed. As in the previous incident, he threatened to kill complainant and her family if she told anyone about the incident.[5] In the afternoon of August 12, 1999, complainant was in her house in Barangay Salay, Mangaldan, attending a prayer for the death anniversary of her deceased mother, who died on August 12, 1985. At 4:30 p.m., Matet, who was in appellant’s house, sent word to her that appellant was very angry at her. She arrived at his house at 5:00 p.m. to relieve Matet of her duties. She found that appellant was indeed very angry at her and asked her why she was late. At 6:00 p.m., after Matet was gone, appellant pulled her inside the room and forced her to take off her clothes while pointing a knife at her. He pushed her to the bed, lay on top of her and raped her.[6] On August 15, 1999, appellant again tried to sexually molest complainant but she was able to run to the room of his mother before he could draw his knife. That same day, appellant’s brother, Boyet, arrived from Hawaii and stayed in his house for four days. Before Boyet left for Manila on August 19, 1999, complainant mustered the courage to tell him what appellant had done to her. Boyet decided to take complainant to the house of her sister, Brenda, in Pasay City. On August 23, 1999, complainant was accompanied by her aunt, Beatriz Saclao, to Mangaldan, where they filed formal complaints against appellant for rape with the police. Upon advice of the police, complainant underwent physical examination.[7] Dr. Revelina A. Millan, Medical Officer III of Region I Medical Center, conducted the examination on complainant and found the following: -

GO LMP-August 17-21, 1999

-

PMP – July 13-17, 1999

-

Conscious, coherent, not in distress

-

Skin, (-) abrasions, (-) hematoma

-

Genitalia – with hymenal laceration at 3 o’clock,

-

5 o’clock and 7 o’clock position introitus admits

-

2 fingers with ease

-

for vaginal smear for presence of spermatozoa

-

Results:- Negative for the presence of spermatozoa[8]

Appellant denied the charges of rape and alleged that all his sexual encounters with complainant were consensual.[9] He presented the testimonies of his two nieces, Irene and Daisy, both surnamed Gutierrez, to corroborate his claim.

Irene testified that between the months of July and August 1999, she took care of her grandmother, Francisca Gutierrez, together with her sisters, Marissa and Daisy, and complainant and Matet, in appellant’s house. There, she observed that complainant was always happy and acted sweet towards appellant. Sometime between May and June, when their grandmother was confined at Nazareth General Hospital in Dagupan City, they stayed in the hospital while complainant and appellant slept in the house.[10] Daisy testified that she also took care of her grandmother, Francisca Gutierrez. When the latter was in the hospital, she sometimes slept in appellant’s house together with him and complainant. She noticed that complainant and appellant were very sweet to each other. She even saw her place her leg on top of appellant’s legs while they slept.[11] On November 24, 2000, the trial court rendered judgment, the decretal portion of which reads: WHEREFORE, the accused in the above-entitled cases, BERNABE GUTIERREZ, is hereby found guilty beyond reasonable doubt of three (3) counts of consummated rape as charged in the above-entitled three (3) cases and as defined by Article 335 of the Revised Penal Code and penalized by Republic Act 7659, otherwise known as the Heinous Crime Law, and there being no mitigating or aggravating circumstance to be considered, he is hereby sentenced to suffer RECLUSION PERPETUA in each of the herein three (3) cases. He is also required to indemnify Gina Alcantara P50,000.00 and to pay her P50,000.00 as moral damages as well as P25,000.00 as exemplary damages in each case plus costs. SO ORDERED.[12] Hence, this appeal based on the following assignment of errors: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ASSUMED JURISDICTION OVER THE THREE (3) COUNTS OF RAPE CHARGED AGAINST THE ACCUSED-APPELLANT DESPITE THE PATENT DEFECT IN ALL THE THREE (3) INFORMATIONS, i.e., SAID INFORMATION DO NOT CHARGE AN OFFENSE AT ALL. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO MENTION IN ITS JOINT DECISION ANY EXISTING LAW UPON WHICH HIS DECISION WAS BASED. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONVICTING ACCUSED-APPELLANT DESPITE THE FACT THAT PRIVATE COMPLAINANT FAILED TO ESTABLISH THAT DEGREE OF THREAT, FORCE, OR INTIMIDATION SUFFICIENT TO COMPEL HER TO SUBMIT TO THE ACCUSED-APPELLANT. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONVICTING ACCUSED-APPELLANT WITH THREE (3) COUNTS OF RAPE DESPITE THE FACT THAT PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT CONSIDER THE UNNATURAL AND UNCOMMON BEHAVIOR OF PRIVATE COMPLAINANT AFTER THE ALLEGED RAPE/S. VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ARRIVING AT AN ERRONEOUS CONCLUSION THAT THE FACT THE PRIVATE COMPLAINANT HAD HYMENAL LACERATIONS WAS CONSISTENT AND CONCLUSIVE WITH HER ALLEGATIONS THAT SHE WAS RAPED. VII. THE COUNSEL FOR THE ACCUSED-APPELLANT DID NOT EXERCISE THE REQUIRED ORDINARY DILIGENCE OR THAT REASONABLE DEGREE OF CARE AND SKILL EXPECTED FROM HIM RELATIVE TO HIS CLIENT’S DEFENSE WHEN HE OPTED NOT TO PRESENT THE ACCUSED-APPELLANT TO REFUTE THE TESTIMONY OF THE PRIVATE COMPLAINANT AND TO PRESENT ANY EVIDENCE TO DEFEND HIS CLIENT.[13] Prefatorily, appellant contends that the Informations were all invalid for not substantially conforming to the prescribed form, particularly as to the designation of the offense by the statute. He argues that the three Informations cited Article 335 of the

Revised Penal Code which, however, had already been repealed at the time of filing of the Informations by Republic Act No. 8353 or The Anti-Rape Law of 1997. Furthermore, he asserts that the decision failed to comply with the constitutional mandate that a judgment of conviction must state clearly and distinctly the facts and the law on which it is based. We are not persuaded. A complaint or information is sufficient if it states (a) the name of the accused; (b) the designation of the offense given by the statute; (c) the acts or omissions complained of as constituting the offense; (d) the name of the offended party; (e) the approximate date of the commission of the offense; and (4) the place where the offense was committed. [14] With respect to the designation of the offense, Rule 110, Section 8 of the Revised Rules of Criminal Procedure provides: Designation of the offense. – The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. A simple reading of the foregoing rules shows that only the designation of the offense given by the statute is necessary. In the case at bar, the designation of the offense is rape, which is clearly indicated in the caption as well as in the preamble of each Information. It is only when there is no specific name given to the offense that reference to the section or subsection of the statute punishing it may be made. This usually applies to offenses under special laws, in which case the offense is described as a violation of the statute which defines and penalizes it. Moreover, the real nature of the criminal charge is determined not from the caption or preamble of the Information, nor from the specification of the provision of law alleged to have been violated, as these are mere conclusions of law. Rather, the nature of the accusation is determined by the actual recital of facts in the complaint or information. [15] It is not even necessary for the protection of the substantial rights of the accused or the effective preparation of his defense that the accused be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged.[16] We likewise do not agree with appellant’s assertion that the decision failed to state clearly and distinctly the facts and the law on which it is based. Contrary to his bare allegation, we find that the decision sufficiently set forth in detail the facts alleged by both parties and laid down the applicable law and jurisprudence on which the trial court based its judgment of conviction, as well as the penalty and civil liability imposed on appellant. Appellant admits that he had sexual intercourse with complainant on several occasions but denies that the same was attended by force or intimidation. He points out that complainant neither resisted nor shouted for help, considering that the room of her grandmother was adjacent to his room. Further, no physical injuries were found on her body to show force or intimidation. The contentions are without merit. The seeming lack of an effective struggle did not mean that appellant’s sexual advances did not constitute rape. Physical resistance need not be proved in rape when intimidation is exercised upon the victim and she submits herself, against her will, to the rapist’s advances because of fear for her life and personal safety. It suffices that the intimidation produces fear in the mind of the victim that if she did not submit to the bestial demands of the accused, something worse would befall her at the time she was being molested.[17] In the case at bar, appellant pointed a knife at complainant while raping her. Threatening the victim with bodily injury while holding a knife or a bolo constitutes intimidation sufficient to bring a woman to submission to the lustful desires of the molesters.[18] In such a case, the absence of external signs or physical injuries on the victim does not negate the commission of rape.[19] More importantly, appellant was complainant’s uncle, who exercised moral ascendancy over her. It is a settled rule that

in rape committed by a close kin, moral ascendancy takes the place of violence and intimidation.[20] Complainant remained steadfast in her testimony that appellant raped her on three occasions despite rigorous cross-examination. She cried during her testimony when she could no longer control the outbursts of her emotion, thereby indicating that she was telling the truth.[21]These facts cannot simply be overturned by a mere blanket denial and assertion on appellant’s part that all their sexual encounters were consensual. Verily, rape is not a simple physical violation. It debases a woman’s dignity, leaving a stigma on her honor and scarring her psyche for life. The fact that it was committed by a relative, whether close or distant, makes it even more abhorrent. Certainly, no woman in her right mind would fabricate a story of bestiality against her own relative that could sully her reputation and expose herself, as well as her family, to all sorts of public aspersions if she were not motivated to seek justice for a wrong committed against her.[22] Complainant’s tale of defloration was found by the trial court to be credible, thus, it is sufficient to warrant a judgment of conviction.[23] Needless to state, the oft-repeated principle is that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by a trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under examination. Its findings on such matters are binding and conclusive on appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.[24] Complainant’s failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is baseless and fabricated.[25] It is not uncommon for young girls to conceal for some time the assault on their virtues because of the rapist’s threat on their lives, more so when the offender is someone whom she knew and who was living with her.[26] The delay in this case was sufficiently explained and, hence, did not destroy complainant’s credibility. Appellant assails the trial court’s finding that the lacerations in complainant’s hymen were consistent to her claim that she was raped, saying that there was no testimony given to this effect by the medico-legal officer. This argument deserves scant consideration. In a prosecution for rape, the material fact or circumstance to be considered is the occurrence of the rape.[27] The medical examination of the victim, as well as a medical certificate, is merely corroborative in character and is not an essential element of rape.[28] Finally, we are not persuaded by appellant’s argument that he was deprived of the opportunity to submit his evidence and to disprove the evidence for the prosecution due to the inefficiency and negligence of his former counsel, who prematurely terminated his direct examination after asking him a few irrelevant questions. It is a well-settled rule that the client is bound by his counsel’s conduct, negligence, and mistakes in handling the case and the client cannot be heard to complain that the result might have been different had his lawyer proceeded differently.[29] The trial court, thus, correctly found appellant guilty beyond reasonable doubt of three counts of rape. Under Article 266-B of the Revised Penal Code, where the rape was committed with the use of deadly weapon, the penalty shall be reclusion perpetua to death. Article 63 of the Revised Penal Code provides that where the penalty prescribed by law is composed of two indivisible penalties and there are neither mitigating nor aggravating circumstance in the commission of the crime, the lesser penalty shall be imposed. Hence, the trial court was correct in sentencing appellant to suffer the penalty of reclusion perpetua for each count of rape.[30] As to the civil liability, the trial court was also correct in awarding to the complainant the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages for each act of rape. Civil indemnity[31] and moral damages[32] are automatically granted once the fact of rape had been established. However, the award of exemplary damages must be deleted. Under Article 2230 of the Civil Code, exemplary damages may be awarded only where an aggravating circumstance attended the commission of the offense. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Dagupan City, Branch 42, in Criminal Case Nos. 99-03160-D, 99-03161-D and 99-03162-D, finding

appellant Bernabe Gutierrez y Gutierrez guilty beyond reasonable doubt of three counts of rape, sentencing him to suffer the penalty of reclusion perpetua for each count and ordering him to pay complainant Gina Alcantara the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages in each case, is AFFIRMED with the MODIFICATION that the award of exemplary damages is DELETED for lack of legal basis. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur. SECOND DIVISION [G.R. No. 107462.

August 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELIA REYES y DELA CRUZ, accused-appellant REY ARNEL REYES y GARBONELLA, accused. D E C I S I O N PUNO, J.: Appellant Delia Reyes y dela Cruz and accused Rey Arnel Reyes y Garbonella were both charged with the crime of kidnapping in an information that reads as follows: "That on or about the 8th day of May 1991, in the City of Angeles, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being both private individuals and one of them a former housemaid of the parents of the victim, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously and for still unknown purpose or reason kidnap ASNIA (Malagu) MOHAMAD, a minor of 4 1/2 years of age, permanently separating said female child from her parents Rasmia and Almadin Mohamad since then to the present time."[1] The prosecution established that on May 8, 1991 at about 11:00 A.M., appellant went to the house of Almadin and Rasmia Mohamad in Angeles City, Pampanga to reapply as housemaid. Appellant was a former housemaid of the Mohamads and was immediately accepted as the Mohamads had then no househelp.[2] Appellant performed her chores, cleaned the house and attended to the Mohamads' six children. At about 3:00 in the afternoon, while Rasmia was in the market and Almadin was praying at the mosque in the upper floor of their house, appellant invited the couple's three daughters, namely, Aslima,[3] Badudin,[4] and Asnia, nicknamed Malagu, aged four and a half, to watch a movie in Dau, Mabalacat, Pampanga. The children readily agreed and they all left the house without telling their destination to anyone.[5] They had not walked too far when appellant remembered they forgot to lock the door of the house. She instructed Aslima and Badudin to go back to the house and lock the door. Aslima and Badudin did as they were told but when they returned to the place where they left appellant and their sister, the two were no longer there.[6] Aslima immediately informed her parents of the disappearance of appellant and Asnia. The Angeles City police searched for them but to no avail. The Mohamad couple organized a massive manhunt. They sought the help of approximately 100 persons composed of relatives, friends and police and intelligence officers in Manila and the neighboring provinces. They used the broadcast and print media. The search dragged on for almost two months until the police came upon accused Rey Arnel Reyes, appellant's cousin and also a former employee of the Mohamads. On interrogation, Rey Arnel gave leads as to appellant's whereabouts. It was at this time that the information charging appellant of kidnapping was filed in court. Rey Arnel Reyes was included as a co-accused. Following Rey Arnel Reyes' leads, the police arrested appellant in Manila on July 7, 1991. The missing child, Asnia, was later found in the custody of an old lady in a squatter's area in Barangay Mabiga, Mabalacat, Pampanga.[7] Asnia was embraced by her crying father who noticed that she had become "very thin and very pale."[8] Asked why she kidnapped Asnia, appellant replied "wala lang."[9]

Almadin and Rasmia Mohamad spent P300,000.00 more or less for reward money, transportation, board and lodging expenses in searching for Asnia. The couple also suffered mental and emotional anguish and spent sleepless nights worrying over their lost daughter. [10] Appellant denied she kidnapped Asnia. She claimed that on May 8, 1991, at about 3:00 p.m., she asked permission from Almadin to take his three daughters for a walk. Almadin consented but told her not to walk too far away from the house. She took the children to the market where they purchased a pair of slippers. She met there a friend, Agnes Viriales. Agnes told appellant to go to Mabalacat to get the latter's clothes. Thereupon, appellant instructed the two older children to go home while she took Asnia with her to Mabalacat. She did not ask further permission from Almadin as he was praying in the mosque. Appellant saw her sister, Clarita Reyes, who just arrived from La Union, in Agnes' house in Mabalacat. She was informed by Clarita that their mother died the previous day. She and her sister immediately left for San Fernando, La Union after instructing Agnes to bring Asnia to her family. Agnes and the Mohamads were acquaintances. After her mother's burial, appellant did not return to Angeles City but proceeded to Manila where she worked as an ago-go dancer.[11] During the trial, accused Rey Arnel Reyes escaped from prison and was tried in absentia. On September 3, 1992, the trial court rendered judgment acquitting accused Rey Arnel Reyes for lack of evidence but convicting appellant of the crime of kidnapping. Appellant was sentenced to reclusion perpetua and ordered to indemnify the Mohamad couple actual and moral damages in the total amount of P300,000.00, thus: "WHEREFORE, for lack of evidence, accused Rey Arnel Reyes y Garbonella is hereby ACQUITTED of the crime charged. On the other hand, this Court finds accused Delia Reyes y dela Cruz guilty beyond reasonable doubt as charged in the information for kidnapping. There being no modifying circumstance in attendance, the penalty of reclusion perpetua is hereby imposed upon said accused Delia Reyes y dela Cruz. She is also hereby ordered to indemnify the spouses Almadin and Rasmia Mohamnad the sum of P200,000.00 as actual damages for expenses they incurred in the search for the victim, and P100,000.00 as moral damages, and also to pay the costs. SO ORDERED."[12] Hence, this appeal where she contends: I THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED INSPITE OF PROSECUTION'S FAILURE TO PROVE HER GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONCLUDING THAT ACCUSED DELIBERATELY FAILED TO RESTORE THE MINOR/VICTIM TO HER PARENTS." The crime of kidnapping under Article 270 of the Revised Penal Code is committed: (1) when the offender is entrusted with the custody of a minor person; and (2) the offender deliberately fails to restore the said minor to his parents or guardian.[13] Appellant concedes that she was hired by the Mohamad family as a housemaid and that she was entrusted with the care of their children. She claims that the prosecution failed to prove that she deliberately and intentionally failed to return Asnia to her parents. She contends that the death of her mother left her confused and bewildered. She rushed to La Union to see her mother's remains and relied on her friend, Agnes, to return Asnia to her parents. In wrongfully trusting her friend, she contends she could not be convicted of kidnapping.[14] We find appellant's excuse incredible. To start with, appellant failed to corroborate the alleged death of her mother. Moreover, it is hard to believe that the news about the mother's death would so unsettle appellant that she had to rush to La Union without first returning Asnia to her parents in Angeles City. Asnia was a mere four and a half-year old child entrusted to her care and Angeles City is but a few kilometers away from Ma-

balacat. It would have taken appellant a few minutes to return to Angeles and tell the Mohamads about her predicament. We hold that appellant's negligence is wanton and gross as to amount to a deliberate and willful scheme to take the child away from her parents. This willfulness is sufficiently established by the following circumstances: (1) appellant lured Asnia and her sisters into leaving their house; (2) she instructed the two elder sisters to go home but kept the youngest with her; (3) she and Asnia could not be located despite extensive search by the authorities and the widespread publicity generated through the television, radio and print media; (4) the child was found two months later and only after the arrest of appellant; and (5) appellant harbored ill-feelings against the Mohamad family. She revealed on the witness stand that the Mohamads did not pay her salary for five months when she worked for them in 1989.[15] In contrast, there is nothing to show that the witnesses for the prosecution were impelled by improper motives to testify falsely against appellant.[16] The non-presentation of Asnia and Agnes Viriales to whom appellant entrusted Asnia, does not weaken the case for the prosecution. Even without their testimonies, there is sufficient evidence to prove appellant's guilt. If appellant believed that their testimonies could have exculpated her, she could have availed of the coercive processes of the court to have them produced as witnesses.[17] She failed to do so. Their non-presentation will not exculpate her. IN VIEW WHEREOF, the decision of the Regional Trial Court Branch 58, Angeles City in Criminal Case No. 91-476 is affirmed. Costs against appellant. SO ORDERED. Regalado (Chairman), Mendoza and Torres, Jr., JJ., concur. Romero, J., on leave. FIRST DIVISION [G.R. No. 130843. January 27, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZOILO "Sonny" BORROMEO Y ALFARO, accused-appellant. ULANDU D E CI S I O N PER CURIAM: The Regional Trial Court of Pasay City found the accused Zoilo A. Borromeo alias "Sonny" guilty of kidnapping a minor for ransom and sentenced him to death and to pay the offended parties moral damages of P250,000.00 and the costs of suit.[1] The conviction of the accused Zoilo Borromeo is based on these factual findings of the trial court: On 3 January 1996 at around four o’clock in the afternoon Rowena Hernandez, owner and operator of a bakeshop in Pasay City, left with a friend to buy shoes for her son Kenneth. The little boy who at that time was one (l)-year and seven (7)-months old was then sleeping at the bakeshop under the watchful eye of his yaya, Annabelle Ponon. Outside the store was seated the accused, a bakery helper of Rowena who had earlier been discharged by her due to negative attitude problems. When the child woke up Annabelle took him home. Some fifteen (15) minutes later Zoilo arrived at the Hernandez residence and told the nursemaid that "Ate Weng" (Rowena's nickname) had sent him to fetch Kenneth and bring him to her for shoe measurement. Annabelle gave Kenneth to Zoilo but shortly thereafter she realized that she should not have done so. Suspecting that something wrong was happening, she immediately reported the incident to Kenneth's father, Nelson, who was minding his watch repair store nearby. They looked for Kenneth but their initial search and inquiry yielded negative results. Kenneth could not be found. Nelson and Annabelle proceeded to the Pasay City Police Station to report the matter to the authorities. At around seven o'clock that evening Rowena arrived. She was immediately informed by her husband that their son was missing. Distraught, they began a long search for Kenneth with the help of some relatives but to no avail. They could not find the boy. All the police could do was to advise them to go home and wait perhaps for a telephone call from the kidnapper. True enough, in the afternoon of the following day, 4 January 1996, Rowena received a telephone call. It was from accused Zoilo Borromeo who demanded ransom from her

for the release of her son Kenneth. Zoilo told her, "Pasensiya ka na, Ate Weng, kailangan ng boss ko ang P300,000.00. Paghahatian ng grupo (I am sorry, Ate Weng, my boss needs P300,000.00. This will be divided among the members of the group)." Sâdjad Rowena agreed to give the money on the condition that the child would not be harmed. Zoilo promised to call back. The. next day, he did. It was Nelson who answered the telephone as Rowena had gone to the police station. The accused reiterated his earlier demand for ransom but Nelson informed him that he could produce only P250,000.00. Zoilo called back about noon of the following day. He agreed to the reduced amount. He specifically instructed Nelson to immediately bring the money with him to the parking lot in front of "Max's Restaurant" near the Baclaran Church in Pasay City. Meanwhile, Nelson reported his telephone conversations with Zoilo to the police who hatched an entrapment scheme by preparing six (6) bundles of bogus bills, each bundle topped by a genuine five-hundred peso (P500.00) bill, which Nelson would hand over to Zoilo. The Pasay police also dispatched a team of law enforcers to the designated meeting site for the apprehension in flagrante of the accused and the rescue of the kidnapped child. The policemen positioned themselves strategically at the vicinity of the restaurant where the exchange was to take place, ready to arrest Zoilo as soon as he received the money. At around two o'clock in the afternoon of that day, the accused arrived at the designated place. The policemen chosen to witness and assist in the entrapment personally saw Nelson hand over to Zoilo the "ransom money." As the two (2) men then walked away from the restaurant and were about to cross Roxas Boulevard, two (2) of the assigned policemen accosted them and swiftly nabbed Zoilo. At the Pasay City police station, Zoilo disclosed that the little boy Kenneth was in Sitio Kawilihan in Barangay Ipil, Alfonso, Cavite. Forthwith, the police, the Hernandez spouses and Zoilo left for Cavite, and found the kidnap victim inside a hut owned by Ernesto and Arsenia Viray. Ernesto executed a written statement that Zoilo had told them that Kenneth was his son and that he was leaving the boy with them as he was going back to Manila to get some clothes for the child. On the witness stand Zoilo gave a different account of the incident. He admitted that he was with the child on 3 January 1996. He however claimed that it was because the child's parents, Rowena and Nestor, allowed him to take Kenneth out for a leisurely stroll. When he and the child reached Baclaran Church, they took a bus to Tagaytay where his aunt lived. He said that he failed to return Kenneth to his parents soon enough because he was hurrying to report for work in Cainta, Rizal. He remonstrated however that he had called up Rowena and apologized to her for his failure to bring Kenneth home immediately.[2] The trial court found this defense insipid, weak and totally insufficient to overthrow the quantum of evidence adduced by the prosecution which established the guilt of the accused beyond reasonable doubt. Consequently, it held the accused liable for kidnapping Kenneth, a minor, for ransom under Art. 267 of the Revised Penal Code as amended.[3] The accused assails the court a quo for having seriously erred in convicting him on the basis of the weakness of his evidence and not on the strength of the prosecution's cause. He argues pointedly that the questioned decision dwells largely on discrediting his defense with nothing much said about the credibility of the testimonies of the witnesses for the prosecution. We disagree with this postulation. A meticulous evaluation of the case yields the indisputable conclusion that the prosecution sufficiently proved its case against the accused. We are in no way disposed to disturb the findings of the court a quo. The identity of the accused, much less his guilt, has been adequately established by clear and convincing evidence. Taken altogether - the testimony of complainant Rowena Hernandez that Zoilo was seated outside her bakeshop that fateful afternoon of 3 January 1996; that it was Zoilo who called her on 4 January 1996 apologizing for having taken Kenneth with him and demanding money in exchange for the child's freedom purportedly because "kailangan ng boss ko angP300,000.00. Paghahatian ng grupo;" and, that it was Zoilo who led them to Alfonso, Cavite where he hid Kenneth; the unshaken avowal by Annabelle Ponon that it was Zoilo who took Kenneth from her on the pretext that the little boy was going to have his shoe measurement taken; the positive uncontested declarations of the police officers that Nelson Hernandez informed them that Zoilo called and instructed him to bring the money to a designated meeting place after agreeing to reduce the amount by P50,000.00; that they forthwith prepared bogus bills as ransom to be brought by Nelson

Hernandez to his rendezvous with Zoilo; that they saw the transaction between Nelson and Zoilo actually take place; and, that their colleagues, apprehended the accused after he took the money from Nelson Hernandez -all these constitute persuasive, unassailable proof of the commission of the crime by the accused himself. Set against the solid evidence for the prosecution, the defense of the accused, which notably remains uncorroborated, must crumble and fall apart. Zoilo's insistence that the parents of Kenneth allowed him to take the child for a walk to the Baclaran Church flies in the face of the contrary testimony of Annabelle that Zoilo had told her that he was taking Kenneth to his mother upon the latter's instructions for the purpose of measuring the size of his feet for a pair of shoes. Moreover, it was highly improbable that Rowena would give permission to Zoilo to bring the child out for a walk, more so to Alfonso, Cavite. Had she done so she would not have been so terrified and alarmed as to immediately report to the police when she got home from the shoe store and learned that her baby Kenneth was missing and that Zoilo was the person who kidnapped the boy. It was also quite inconceivable that Rowena, and Nelson for that matter, would entrust their one (1)year and seven (7)-month old baby boy to Zoilo, whom they earlier dismissed as their baker "due to negative attitude problems," for a promenade to Baclaran since the child was in the care of the nursemaid Annabelle with whom the child was more comfortable, having been his nanny already for sometime. CÓ alrsc The accused next argues that he failed to return Kenneth promptly to his parents because he had to leave hurriedly for work in Cainta, Rizal. This is a feeble attempt to tone down his culpability. For if he had no evil design on Kenneth and his parents, he could very well have brought Kenneth back to his Pasay home from Baclaran Church en route to his work, if indeed he was employed, in Cainta, Rizal, a town located northeast of Pasay, instead of bringing the baby down south to Tagaytay, a place very far away from Cainta. Most detrimental to the case of the accused is his barefaced denial that he extorted ransom from the Hernandez spouses despite his being caught red handed in the entrapment. The testimonies of prosecution witnesses SPO1 Quirino Glico, police investigator,[4] and Police Inspector Rolando Bihasa[5] who personally witnessed the accused receiving the ransom, bogus as it was, from the child's father at the parking lot in front of "Max's Restaurant" remained unchallenged and uncontroverted throughout the proceedings. The accused never exerted any effort to rebut these declarations. The essence of the crime of kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of intent of the accused to effect the same.[6]And if the person detained is a child, the question that needs to be addressed is whether there is, evidence to show that in taking the child, there was deprivation of the child's liberty and that it was the intention of the accused to deprive the mother of the child's custody. [7] Sccalä r We find abundant evidence of this fact in this case. It has been established with great certainty that Kenneth was deprived of his liberty, having been taken by the accused without the consent of the child's parents who had custody over him. The accused had to employ artifice and subterfuge to get hold of the victim, taking him from his nanny on his false posturing that it was on the orders of the child's mother. It finally dawned on the nanny later that this could not be so because Rowena had left more than an hour ago for a department store in Makati City to buy shoes for the boy! Zoilo then kept the child for two (2) days in a far-flung place south of Manila in the care of a couple while negotiating with his parents for the payment of ransom. Discernible from this fact is the intent of the accused to keep the child under detention for as long as no ransom was paid to him for his release. Then again, there was no voluntary restoration by the accused of the child to his parents. Kenneth was recovered only after the police intervened and the accused was apprehended. When taken to the police station for the requisite investigation, Zoilo confessed that he brought the baby boy to a remote barangay in Alfonso, Cavite, and that he demanded money from the parents for the release of their child so that he could start a bakery business. There is no question that the elements of kidnapping for ransom were sufficiently established: (a) the accused is a private individual; (b) the accused kidnapped or detained the victim and deprived him of his liberty; and, (c) the deprivation of the victim's liberty was illegal. As provided for in Art. 267 of the Revised Penal Code as amended, the imposition of the death penalty is mandatory if the victim is a minor. In this case, the minority of Kenneth Hernandez was never disputed. Assumingarguendo that minority was not

proved, still under the same provision of law, obligatory if the kidnapping was committed for victim or any other person. This was certainly and the demand for the payment of ransom, both were clearly established by the State, free of

the imposition of the death penalty is the purpose of extorting ransom from the so in this case. To recapitulate, minority specifically described in the Information, any scintilla of doubt. Calrspä ped

In light of these premises, the Court finds no reversible error in the questioned decision of the trial court. Consequently, it is left with no alternative but to sustain the imposition of the death penalty upon the accused as it is proper and in accordance with law. Four (4) Justice of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the Decision of the Regional Trial Court of Pasay City, Branch 119, finding accused Zoilo Borromeo y Alfaro, also known as "Sonny," GUILTY beyond reasonable doubt of kidnapping a minor for ransom and sentencing him to death is AFFIRMED, with the MODIFICATION that the award of moral damages is reduced to P100,000.00. Costs against the accused. In accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of RA 7659, upon the finality of this decision let the records of this case be forthwith forwarded to His Excellency, the President, for the possible exercise of his pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.2/17/00 9:56 AM