SECOND DIVISION

G.R. No. 142565

July 29, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
NESTOR G. SORIANO alias "Boy," Appellant.
DECISION
BELLOSILLO, J.:
WHAT STARTED OUT AS AN ORDINARY LOVERS QUARREL turned out to be a
nightmarish inferno for the residents of Datu Abing Street, Calinan, Davao City. The unmitigated
passion and impulses incessantly burning in the heat of the moment ignited the series of events
that resulted in the conflagration of 18 September 1998 mercilessly destroying the houses along
its path. The age-old forewarning that "he who plays close to the fire shall ultimately be
consumed by its flames" fits literally and figuratively into this tragic tale of lust, love, betrayal
and isolation. After the smoke had dissipated and the heat simmered down, Nestor G. Soriano
found himself charged before the RTC of Davao City with and later convicted of Destructive
Arson penalized under Art. 320 of The Revised Penal Code, as amended by Sec. 10, par. 1, RA
7659, and sentenced to reclusion perpetua.1
The factual backdrop: About midnight of 17 September onto the early dawn of 18 September
1998 accused-appellant Nestor G. Soriano was having an argument with his live-in partner
Honey Rosario Cimagala concerning their son Nestor, Jr., nicknamed "Otoy." Honey worked as
Guest Relations Officer (GRO) in a Metro Manila beer house. The disagreement stemmed from
the fact that Honeys brother, Oscar Cimagala, took their child out without the consent of
accused-appellant who wanted both Honey and Otoy instead to return with him to Manila. But
Honey refused. As their discussion wore on accused-appellant intimated to Honey his desire to
have sex with her, which he vigorously pursued the night before with much success. This time
Honey did not relent to the baser instincts of Nestor; instead, she kicked him as her stern rebuke
to his sexual importuning.
Incensed by her negative response, Nestor nastily retorted: "[S]he is now arrogant and proud of
her brother who now supported (sic) her and her children." 2 He added that since he returned from
Manila, the house had become "unlucky," referring to that belonging to her aunt Fe Cimagila
then occupied by Honey located at Datu Abing Street, Calinan, Davao City.3
In the heated exchanges, Nestor struck Honey in the forehead. "You are hurting me," she snapped
back, "just like what you did to me in Manila."4
Nestor then moved away as he muttered: "It is better that I burn this house," 5 and then took a
match from the top of a cabinet, lighted a cigarette and set fire to the plastic partition that served
as divider of Honeys room.6
With her naked body precariously draped in a towel, Honey instinctively took off her covering
and doused off the flame with it. Then she rushed to her cabinet in the room to get a T-shirt and
put it on. But Nestor did his worst; he went to Honeys room and set on fire her clothes in the
cabinet.

Honey fled to the ground floor; Nestor followed her. As the conflagration was now engulfing the
second story of the house, Honey frantically shouted to her uncle Simplicio Cabrera, who was
residing next door, "Boy is setting the house on fire," referring to Nestor.7
On the ground floor Nestor grappled with Honey and choked her as he dragged her towards the
kitchen. She told him that it would be better for him to kill her than to set the house on fire as it
would endanger the neighboring houses. After initially pointing a knife at Honey, Nestor finally
laid down his knife and hurriedly went back to the second floor only to see the entire area in
flames. They had no choice but to leave as the fire spread rapidly to the neighboring houses. As a
result, the house occupied by Honey was totally burned together with five (5) neighboring
houses8 owned individually by Fructuosa Jambo, Ruth Fernandez, Orlando Braa, Simplicio
Cabrera and Perla Clerigo. 9
Subsequently, on 21 September 1998 an Information was filed against accused-appellant Nestor
G. Soriano alias "Boy" for Arson. 10 On 30 October 1998, the Information was amended to
specify the charge as Destructive Arson 11 under Art. 320, Sec. 10, as amended by RA 7659 and
PD 1613. Again on 18 January 1999,12 upon prior motion of accused through counsel for
reinvestigation, the prosecution filed a second Amended Information charging the accused with
the same crime of arson but "under Art. 320, Sec. 10 as amended by RA 7659 and PD 1744," and
adding the phrase "motivated by spite or hatred towards the occupant of the property," as a
special aggravating circumstance, further including the name of "Orlando Braa" whose house
worth P1,000,000.00 was also burned.
In the trial, Honey Rosario Cimagala, Oscar Cimagala, Fructuosa Jambo, Ruth Fernandez,
Orlando Braa, Simplicio Cabrera and Perla Clerigo, among others, were presented as witnesses
for the prosecution.
Accused-appellant was the lone witness for his defense.
On 3 September 1999, the RTC of Davao City, Branch 17, found Nestor G. Soriano alias Boy
guilty of Destructive Arson as charged pursuant to RA 7659, Sec. 10, par. 1, as amended, and
sentenced him to reclusion perpetua. The court a quo also ordered him to pay the complainants
whose houses were likewise burned together with that of Fe Cimagala in the following manner:
Fructuosa Jambo, Simplicio Cabrera, Perla Clerigo, Orlando Braa and Oscar
Cimagala P1,000,000.00 each as estimated value of their respective houses, including another
amount ofP100,000.00 each as moral damages and P50,000.00 each by way of exemplary
damages, and the costs of suit.
Arson is the malicious burning of property. Under Art. 320 of The Revised Penal Code, as
amended, and PD 1613, Arson is classified into two kinds: (1) Destructive Arson (Art. 320) and
(2) other cases of arson (PD 1613). This classification is based on the kind, character and
location of the property burned, regardless of the value of the damage caused.
Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious
burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft,
factories and other military, government or commercial establishments by any person or group of
persons.13 The classification of this type of crime is known as Destructive Arson, which is
punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively
CRIMLAW (Feb. 2) | 1

discourage and deter the commission of this dastardly crime, to prevent the destruction of
properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves
only destruction and despair in its wake; hence, the State mandates greater retribution to authors
of this heinous crime. The exceptionally severe punishment imposed for this crime takes into
consideration the extreme danger to human lives exposed by the malicious burning of these
structures; the danger to property resulting from the conflagration; the fact that it is normally
difficult to adopt precautions against its commission, and the difficulty in pinpointing the
perpetrators; and, the greater impact on the social, economic, security and political fabric of the
nation.
If as a consequence of the commission of any of the acts penalized under Art. 320, death should
result, the mandatory penalty of death shall be imposed.
On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code
remains the governing law for Simple Arson. This decree contemplates the malicious burning of
public and private structures, regardless of size, not included in Art. 320, as amended by RA
7659, and classified as other cases of arson. These include houses, dwellings, government
buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial
establishments.14 Although the purpose of the law on Simple Arson is to prevent the high
incidence of fires and other crimes involving destruction, protect the national economy and
preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to
be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen
the severity of punishment commensurate to the act or acts committed, depending on the
particular facts and circumstances of each case.
Under Sec. 4 of PD 1613, if special aggravating circumstances are present in the commission of
Simple Arson, the penalty under Sec. 3 shall be imposed in its maximum period: (a) If committed
with intent to gain; (b) If committed for the benefit of another; (c) If the offender is motivated by
spite or hatred towards the owner or occupant of the property burned; and, (d) If committed by a
syndicate, or group of three (3) or more persons. If by reason, or on the occasion of Simple
Arson death results, the penalty of reclusion perpetua to death shall be imposed.
Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of
the accused. There is a presumption that one intends the natural consequences of his act; and
when it is shown that one has deliberately set fire to a building, the prosecution is not bound to
produce further evidence of his wrongful intent. 15If there is an eyewitness to the crime of Arson,
he can give in detail the acts of the accused. When this is done the only substantial issue is the
credibility of the witness. 16 In the crime of Arson, the prosecution may describe the theatre of the
crime and the conditions and circumstances surrounding it. Evidence of this type is part of the
res gestae.17
It is well settled in our jurisdiction that the factual findings of the court a quo as well as the
conclusions on the credibility of witnesses are generally not disturbed. We have no cogent reason
to deviate from this rule in the case at bar.
On the basis of the categorical testimony of Honey Rosario Cimagala positively identifying
accused-appellant as the one responsible for the burning of the house of Fe Cimagala in the early

morning of 18 September 1998, the trial court found the accused Nestor G. Soriano guilty as
charged.
The accuseds denial of the crime cannot be an adequate defense against the charge. In People v.
Mahinay18 we held that mere denial by witnesses particularly when not corroborated or
substantiated by clear and evidencing evidence cannot prevail over the testimony of credible
witnesses who testify on affirmative matters. Denial being in the nature of negative and selfserving evidence is seldom given weight in law. Positive and forthright declarations of witnesses
are even held to be worthier of credence than a self-serving denial.
We agree with the court a quo that the quantum of proof required to convict an accused in a
criminal case has been satisfied in the present dispute. Proof beyond reasonable doubt does not
mean such a degree of proof as, excluding the possibility of error, produces absolute certainty.
Only moral certainty is required, or that degree of proof which produces conviction in an
unprejudiced mind.19
The legal basis of the trial court for convicting accused-appellant is Art. 320, par. 1, of The
Revised Penal Code, as amended by RA 7659, Sec. 10, par. 1. Under this provision, a person
found guilty of Destructive Arson is punishable by reclusion perpetua to death where the
burning affects one (1) or more buildings or edifices, consequent to one single act of burning, or
as a result of simultaneous burnings, or committed on several or different occasions.
However, we believe that the applicable provision of law should be Sec. 3, par. 2, of PD
1613,20 which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of
arson as the properties burned by accused-appellant are specifically described as houses,
contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged
in the second Amended Information particularly refer to the structures as housesrather than as
buildings or edifices. The applicable law should therefore be Sec. 3, par. 2, of PD 1613, and not
Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is wellsettled that such laws shall be construed strictly against the government, and literally in favor of
the accused.
The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and
(b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements
concur in the case at bar.
The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity
or viciousness of the criminal offender. The acts committed under Art. 320 of The Revised Penal
Code constituting Destructive Arson are characterized as heinous crimes "for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered society."21 On
the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser
degree of perversity and viciousness that the law punishes with a lesser penalty. In other words,
Simple Arson contemplates crimes with less significant social, economic, political and national
security implications than Destructive Arson. However, acts falling under Simple Arson may
nevertheless be converted into Destructive Arson depending on the qualifying circumstances
present.
CRIMLAW (Feb. 2) | 2

In the present case, the act committed by accused-appellant neither appears to be heinous nor
represents a greater degree of perversity and viciousness as distinguished from those acts
punishable under Art. 320 of The Revised Penal Code. No qualifying circumstance was
established to convert the offense to Destructive Arson. The special aggravating circumstance
that accused-appellant was "motivated by spite or hatred towards the owner or occupant of the
property burned" cannot be appreciated in the present case where it appears that he was acting
more on impulse, heat of anger or risen temper rather than real spite or hatred that impelled him
to give vent to his wounded ego. 22 Nothing can be worse than a spurned lover or a disconsolate
father under the prevailing circumstances that surrounded the burning of the Cimagala house.
Thus, accused-appellant must be held guilty of Simple Arson penalized under Sec. 3, par. 2, of
PD 1613 for the act of intentionally burning an inhabited house or dwelling.
In addition, we find that there exists a mitigating circumstance that should have been appreciated
by the trial court in determining the penalty to be imposed on the accused-appellant: a
circumstance similar and analogous to passion and obfuscation. 23 An impulse of invidious or
resentful feelings contemplates a situation akin to passion and obfuscation. This circumstance is
mitigating since, like passion and obfuscation, the accused who acts with these feelings suffers
a diminution of his intelligence and intent, a reduction in his mental and rational faculties.
It has been satisfactorily shown by the court a quo that the lovers quarrel between Nestor
Soriano and Honey Rosario Cimagala ignited the chain of events that led to the conflagration
that occurred in the early dawn of 18 September 1998. Passions were inflamed in the evening of
17 September 1998 due to the impending return of Soriano to Manila the following day with the
prospect of leaving behind in Davao his son Otoy who bears his namesake "Nestor Jr." But
reason, unfortunately, did not prevail; emotions took control of the events that were to unfold.
His efforts went to naught; his attempts to win back his forbidden love were likewise thwarted.
Verily, the resentment accused-appellant felt came from the realization that he may never see his
son again once he left Davao; that his utter frustration in trying to convince Honey Rosario
Cimagala to return to Manila with their son brought with it a reduction of his rational faculties
within that moment in time. Although emanating from lawful sentiments, the actuations of
accused-appellant led to his criminal act of burning the Cimagala home, and other neighboring
houses. In other words, accused-appellant was in a state of extreme emotional stress.
Mr. Justice Adam C. Carson, in his concurring opinion in United States v. Butardo,24 gives his
view on the graduation of penalties for the crime of Arson under the Spanish Penal Code. In the
old law on which The Revised Penal Code is based, he comments that the authors clearly had in
mind certain considerations in imposing penalties of exceptional severity in the various cases of
arson. The observations of Mr. Justice Carson in Butardo are thus still relevant in our
contemporary interpretation of criminal law:
The authors of the Spanish Penal Code, in imposing penalties of exceptional severity in certain
cases of arson, clearly had in mind:
First. The extreme danger to which human lives may be exposed by the malicious burning of
dwelling houses and the like;
Second. The danger to property resulting from widespread conflagrations;

Third. The fact that it is extremely difficult to adopt precautions against the commission of the
crime, and to discover the perpetrators after its commission.
Formerly, where these elements marked the commission of the crime, the single penalty
prescribed by law was that of death, but this severity was finally relaxed, and while exceptionally
severe penalties are still imposed in such cases, the authors of the Penal Code appear to have
endeavored to graduate these penalties in accordance with the degree of danger to life and
property, resulting from the commission of the crime.
To this end the severest penalties are prescribed for the malicious burning of edifies in which
large numbers of persons are assembled. Less harsh, but still very severe penalties are imposed
on those setting fire to dwelling houses and other buildings more or less permanently occupied.
Less severe penalties on those guilty of burning unoccupied dwellings, the penalty being more or
less severe as the house appeared to be situated so as to make a widespread conflagration more
or less probable. And finally, sufficient, but not notably harsh penalties are prescribed in cases
where the property of others is set on fire under conditions which do not suggest special danger
to human life or the likelihood of considerable destruction of property.
In a concurring opinion, this time in U.S. v. Burns, Mr. Justice Ignacio Villamor explains the
rationale behind the penalties for Arson:25
In the opinion of Groizard, one of the most famous commentators on the Spanish Penal Code, of
which ours is but a copy, "it is the potential damage that is considered here in fixing the grave
penalty of cadena temporal to cadena perpetua. The risk which a person runs who may be found
in a place that is burned, whether it be a building, a farm-house, a hut or shelter, or a vessel in
port, is what constitutes the gravity which is the object of this crime; just as the damaging intent
of the agent, manifested by his setting fire to a place where he knows there is one or more
persons, gives an idea of his subjective perversity."
The same author adds: "In the classification of the crime attention must be given to the intention
of the author. When fire is used with the intent to kill a determined person who may be in a
shelter, and that object is secured, the crime committed is not that defined herein, but that of
murder, penalized in article 418 (art. 403 of the Penal Code of the Philippines), with the penalty
of cadena temporal in its maximum degree to death" (Groizard, Vol. 8, p. 45).
Accused-appellant is undoubtedly responsible for the fire that occurred in the wee hours of 18
September 1998 that razed to the ground the Cimagala home and a number of other houses in the
vicinity. Still, we believe that the record shows that the elements discussed by Mr. Justice Carson
in his separate concurring opinion in Butardo are wanting. We are therefore not adequately
convinced that imposing the exceptionally severe penalty of reclusion perpetua is proper in the
case at bar.
First. There appears to be no reckless disregard for human lives indicative of a cold, calculating,
wicked and perverse intention to burn the Cimagala home. The action of accused-appellant was
the result of a lovers tiff between him and Honey over their son, Otoy, and concerning the future
of their unbridled relationship. His spontaneous, albeit criminal, act was carried out without any
intention to exterminate human lives. His purpose in going to Davao was to convince his lover to
move back with him to Manila and bringing along their son Otoy.
CRIMLAW (Feb. 2) | 3

Second. Neither was there any reckless disregard for the rights of the neighboring property
owners.1wphi1 The criminal act of burning the Cimagala home was carried out by accusedappellant in a diminished emotional state, which mitigates his criminal liability to a lesser degree
of criminality.
Third. The testimony of Honey clearly points to accused-appellant as the perpetrator of the
crime. However, the conduct of accused-appellant after he consummated the crime, i.e., when he
set fire to the clothes of Honey, is material in determining the severity of the penalty to be
imposed. After his impulsive act of setting fire to both the plastic partition of the room and
Honeys clothes, he attempted to mend his ways immediately by attempting to put out the flames
although it was too late. His act of burning Honeys clothes set in motion a chain of events that
spun out of control and led to the blaze that destroyed houses in its path. However, despite the
mayhem caused by accused-appellant, he never fled the scene of the crime; in fact, he watched
helplessly as the flames consumed the Cimagala home and the neighboring houses. He did not
resist the police authorities when he was invited for questioning at the police station to shed light
on the incident.
Thus, applying Mr. Justice Carsons exceptional severity standard as regards the imposition of
penalties for the crime of Arson, the degree of criminality involved in the accused-appellants act
is lessened by the fact that he acted on an impulse that diminished his reasoning faculties, thus
mitigating the punishment to be imposed. The proper penalty to be imposed should therefore take
into consideration the analogous mitigating circumstance to passion and obfuscation under Art.
13, par. 10, as discussed above, in relation to Art. 64, par. 2, of The Revised Penal Code. 26
Under Sec. 3, par. 2, of PD 1613, in relation to Art. 64, par. 2, of The Revised Penal Code, the
imposable penalty for simple arson is reclusion temporal to reclusion perpetua the range of
which is twelve (12) years and one (1) day to reclusion perpetua. Applying the Indeterminate
Sentence Law, the penalty next lower in degree to the imposable penalty is prision mayor the
range of which is six (6) years and one (1) day to twelve (12) years in any of its periods. Under
the circumstances, it is believed that an indeterminate prison term of six (6) years four (4)
months and twenty (20) days of prision mayor minimum as minimum to fourteen (14) years two
(2) months and ten (10) days of the minimum of reclusion temporal to reclusion perpetua as
maximum may be imposed on the accused.

of P250,000.00 which is considered reasonable under the circumstances should be awarded to

each of the complaining witnesses or their heirs as the case may be.
Exemplary or corrective damages should likewise be awarded as a way to correct future conduct
of this nature and preserve the public good. Such damages are designed to reshape behavior that
is socially deleterious in its consequences. 27 Hence, exemplary or corrective damages in the
amount of P50,000.00 for each of the above-mentioned complaining witnesses or their heirs is
fair and just under the premises.
It must be noted that accused-appellant became an unwitting victim of his own extra-marital
indiscretions. His flawed emotional disposition coupled with a lapse in judgment became his
own undoing as he now languishes in jail for choosing the road to perdition. Although he has no
one to blame but himself for his vicissitudes, we believe that the lessons to be learned from this
sad and miserable chapter of his life are more than adequate from which he can gain insight and
wisdom, while he sits patiently in his prison cell waiting for the day when he can once again
breathe the invigorating air of freedom.
WHEREFORE, Decision of the Regional Trial Court of Davao City finding accused-appellant
Nestor G. Soriano guilty of Destructive Arson is MODIFIED to Simple Arson under Sec. 3, par.
2, of PD 1613, and the penalty imposed on him REDUCED to an indeterminate prison term of
six (6) years four (4) months and twenty (20) days of prision mayor minimum as minimum to
fourteen (14) years two (2) months and ten (10) days of reclusion temporal minimum as
maximum. Temperate damages in the amount of P250,000.00 and exemplary damages
ofP50,000.00 are AWARDED to each of complaining witnesses Fructuosa L. Jambo, Simplicio
B. Cabrera, Francisco Clerigo, Orlando Braa and Oscar T. Cimagala. Costs against accusedappellant.
SO ORDERED.
___________

As to the award of damages, this Court has consistently held that proof is required to determine
the reasonable amount of damages that may be awarded to the victims of conflagration. As a
rule, therefore, actual or compensatory damages must be proved and not merely alleged. We
believe that the records do not adequately reflect any concrete basis for the award of actual
damages to the offended parties. The court a quo granted the award solely on the bare assertions
of the complaining witnesses. Moral damages cannot be awarded in this case, as there is no
evidentiary basis to justify it. However, accused-appellants civil liability is beyond cavil; what
needs to be resolved is the amount of indemnity he should pay to the owners of the burned
houses for the damage caused. In lieu thereof, this Court may award temperate or moderate
damages to the victims of the conflagration in accordance with Art. 2224 of the Civil Code.
Indeed, the records evince that the victims suffered some pecuniary loss although the amount
thereof cannot be proved with certainty. Consequently, temperate damages in the amount
CRIMLAW (Feb. 2) | 4

SECOND DIVISION
G.R. Nos. 104942-43 November 25, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NAPOLEON SUBINGSUBING, accused-appellant.
PADILLA, J.:
Accused-appellant Napoleon Subingsubing was charged with the crime of rape in three (3)
separate informations reading thus:
CRIMINAL CASE NO. 772
That on or about noontime of November 28, 1989 at Barangay Fiangtin, Barlig, Mountain
Province and within the jurisdiction of this Honorable Court, the above-named accused by means
of force, threat and intimidation by poking his garand rifle and then boxing the belly of the
complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then and
there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against
her will and without her consent.
CRIMINAL CASE NO. 773
That on or about the afternoon of November 30, 1989, at Barangay Fiangtin, Barlig, Mountain
Province and within the jurisdiction of this Honorable Court, the above-named accused by means
of force, threat and intimidation by putting over the nose of the victim handkerchief soaked with
chemical which rendered the latter unconscious did then and there willfully, unlawfully and
feloniously have carnal knowledge with the complainant, against her will and without her
consent.
CRIMINAL CASE NO. 774
That on or about noontime of November 25, 1989, at Barangay Fiangtin, Barlig, Mountain
Province, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force, threat and intimidation by poking his garand rifle and then boxing the belly of
the complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then
and there willfully, unlawfully and feloniously have carnal knowledge with the complainant,
against her will and without her consent.
Upon arraignment, the accused entered pleas of not guilty to the three (3) criminal informations
which were then consolidated and tried jointly to expedite proceedings.
After trial on the merits, the trial court found the case meritorious for the prosecution in Criminal
Case Nos. 772 and 774 in view mainly of the testimony of the complainant which was found
credible. Accused-appellant was, therefore, convicted for rape in said cases. However, insofar as
Criminal Case No. 773 was concerned, the trial court found the testimony of the complainant
therein inadequate to sustain conviction and "surmised that perhaps out of her bitterness, the said
complainant wanted to ensure that the accused be meted out the highest penalty possible."
Accused was accordingly acquitted in said Criminal Case No. 773.

Hence, this appeal in Criminal Case Nos. 772 and 774, docketed in this Court as G.R. No.
104942-104943.
The case for the prosecution, anchored mainly on the testimony of the complainant Mary Jane
Espilan, was summarized by the trial court 1 the pertinent portion of which states:
The complainant Mary Jane Espilan in all of these actions is sixteen years old, unmarried and
resident of Philex Mines, Baguio. For the past three years immediately preceding 1990, she
continuously lived with her grandmother at the latter's house at Bo. Fiangtin, Barlig, Mountain
Province while her parents were residing in Baguio. At that time she was a high school student.
The accused Napoleon Subingsubing is the complainant's uncle, the brother of her mother and
the son of her grandmother. Said accused was then living with his mother and his niece in the
same house as mentioned. On Nov. 25, 1989, at 1:00 P.M., Mary Jane and Napoleon were alone
in the house, the grandmother having gone to the fields. When Mary Jane was about to go out to
attend her afternoon classes in school, Napoleon forcibly pulled her to the bedroom of the
grandmother, pointed his Garand rifle at her, then punched her in the stomach as a result of
which the former lost consciousness. When the complainant regained her senses, she noticed that
she was en dishabille and her vagina was bloody. She felt pain in her private parts and is quite
certain she was raped or abused. The accused who was then standing outside the room warned
the complainant not to tell anybody what happened or else he will kill her. Hence Mary Jane did
not report the incident to her grandmother or to anyone for that matter. In the morning of
November 28, 1989, at 10:30 o' clock A.M., Mary Jane arrived from school and Napoleon was
alone in the house. The latter again leveled his Garand Rifle at the former and pushed her into
her bedroom. The complainant tried to get out of the house but the accused held unto her. Inside
the room, the said accused pulled down the skirt of Mary Jane, pushed her down on the floor,
stripped her of her panties and laid down on top of her with the zipper of his pants open. Forcing
the complainant's legs apart, the accused abused or took advantage of the former second time
around. All the while, Napoleon was holding unto his rifle and Mary Jane was afraid to scream
for he might squeeze the trigger. Immediately thereafter, the complainant gathered up all her
clothes and went to their own family house at Bo. Pat-tog, Barlig which is less than a kilometer
away from her grandmother's residence. She wanted to get away from her uncle, hence she
stayed alone in the house until November 30, 1989 in the morning when the accused followed
her. She was then cleaning the ceiling of their house when Napoleon sneaked up behind her, and
when the former tried to scream, the accused placed a piece of cloth with some sort of chemical
over the nose of the complainant and the latter fainted. When she awoke, Mary Jane found
herself lying on the floor stark naked. She felt that she had again been sexually molested. The
accused who was outside the house menacingly ordered the complainant to pack her clothes and
go back home with him. The afternoon of the same day, Mary Jane and Napoleon went back to
the house of the former's grandmother. The complainant did not reveal to anybody the things that
happened to her for fear that the accused might really kill her as the accused had threatened to
do. Months later, when she was with her parents in Baguio, Mary Jane finally divulged
everything to her mother Rosita Espilan. They went back to Barlig and reported the incidents to
the police station where the statement of the complainant was taken (Exhs. "A," Crim. Case No.
772, pp. 4-5; Crim. Cases Nos. 773-774, pp. 2-3). Thereafter, she had herself physically
examined at the Barlig hospital by a government physician and was found pregnant (Exh. "C"; p.
6, Crim. Case No. 772). On August 29, 1990 in Baguio, the complainant delivered a baby boy.
CRIMLAW (Feb. 2) | 5

The latter before all these things happened to her was a virgin with no prior sexual experience.
She did not even have a boyfriend. In open court, Mary Jane Espilan singled out the accused
Napoleon Subingsubing as the culprit in all of the incidents she earlier testified to.
xxx xxx xxx
At the trial, the accused Napoleon Subingsubing denied the charge of rape as narrated above and
proferred a different story. Interposing consent on the part of the complainant as a defense, he
testified 2 that at around 10:00 o' clock in the morning of 25 November 1989, he arrived at his
mother's house at Bo. Fiangtin, Barlig, Mountain Province after fetching wood. Shortly
thereafter, the complainant arrived from school, massaged the back of the accused and then
prepared their lunch. After eating, the accused went to his room to rest but was followed by the
complainant who laid down beside him, placed her hand on the accused's stomach, and then the
pair embraced. They both removed their clothes and then had sexual intercourse. At this time, the
complainant was smiling, tightly embracing the accused. After the intercourse, the complainant
put on her clothes, went to her room to change and then went back to school. That evening, the
accused brought the complainant to attend a wake. The accused also professed that the incident
on 25 November 1989 was the only occasion when he had sexual intercourse with the
complainant.
On 28 November 1989, the complainant asked him to help clean their house located at Pat-tog,
Barlig, Mountain Province, as witnessed by a neighbor's child. The accused denied that he had
sexual intercourse with the complainant on 28 November and 30 November 1989.
To bolster the claim of the accused, his mother, Rufina Subingsubing, who is also the
grandmother of the complainant, testified, 3 among others, that the three (3) of them were living
in one house and that their relationship was happy, even after the month of November 1989; that
the complainant left her house in March 1990 for a vacation and was fetched by her mother; that
the only thing she observed about the complainant was that her breasts were becoming bigger;
that the complainant and the accused got food for the pigs on Saturdays and that when the latter
would receive his monthly salary, the complainant would ask him to take her to the movies.
Three (3) other witnesses for the defense were presented who corroborated the story of the
accused and testified that indeed, the complainant and the accused were seen going out together
and sharing happy moments months after November 1989 (when the alleged rapes were
committed).
It is a fundamental rule in criminal procedure that the prosecution has the onus probandi in
establishing the guilt of the accused, as a consequence of the tenet ei incumbit probatio qui dicit,
non qui negat, that is, he who asserts, not he who denies, must prove. This is especially
significant in rape cases for, generally, in the prosecution thereof, the only two (2) parties who
can testify as to the occurrence are the complainant and the accused. Very often, their respective
testimonies are diametrically contradictory as to what really happened. 4
A careful perusal of the records of the present case reveals, even if were to assume arguendo that
the defense of consent on the part of the complainant was not sufficiently established, that the
evidence for the prosecution cannot, on its own, stand and suffice to establish the guilt of the
accused for the crime of rape beyond reasonable doubt.

Although the general rule is that this Court by and large respects the factual findings of the trial
court because of its better position in assessing the credibility of witnesses through close scrutiny
of their demeanor, mannerism and attitude, the present case falls short of convincing us that it
falls under such general rule.
A perusal of the records and the testimony of the complainant discloses contradictions and
inconsistencies on vital details which lead one to seriously doubt the veracity of her story.
On 05 March 1991, during her direct examination, complainant described the incidents when the
accused allegedly raped her, as follows: 5
Q: Will you tell this Honorable Court what was the incident?
A: When I was about to leave for school (this was on 25 November 1989) and was almost to go
out, my uncle pulled me and when I resisted trying to go out, he poked his gun at me and boxed
me on my stomach and I was unconscious. When I woke up, I was conscious already.
xxx xxx xxx (Emphasis supplied).
Q: When you regain (sic) consciousness miss witness, what was your position?
A: I was naked, sir.
Q: When you say were naked, you mean to say that your panty was removed?
A: Yes.
Q: Your shirt, underwear, and even your panty were removed?
A: Yes, sir.
Q: But before the accused boxed you, do you remember if you were wearing all your clothings?
A: I was wearing my school uniform?
Q: And when you regained consciousness, you noticed that your clothings were removed?
A: Yes.
Q: Do you know who removed your clothings?
A: Yes.
xxx xxx xxx
COURT:
Q: You said that when the accused was on top of (you) you don't (sic) have any underwear?
A: When he was on top of me I was forcing myself to get out.
Q: But you don't (sic) have your panty?
A: He removed my panty.
Q: About him how did he look?
A: Only the zipper of his pant was down.
Q: And when he went on top of you?
A: Yes and I forced to get out but he was strong.
Q: When he was on top of you, you forced yourself to get out, that was all?
A: Yes, sir.
Q: What else happened?
A: He did again what he did to me.
Q: And what is that he did to you?
A: He abused me again, sir.
Q: And what do you mean by abuse?
CRIMLAW (Feb. 2) | 6

A: He took advantage again of me for the second time.

xxx xxx xxx
Q: Did you not shout for help?
A: I tried, sir, but his gun was poked to (sic) me.
xxx xxx xxx
Q: Did he tell you anything?
A: Yes, he said that if I will scream, he will kill me.
xxx xxx xxx
Q: And when you went to your house at Barangay Pat-tog, what happened there, if any?
A: When I went to our house at Pat-tog I did not know that he still followed me there, that was
on the 30th of November, 1989.
Q: He followed you at Barangay Pat-tog on November 30, 1989?
A: Yes.
Q: And when he followed you there, what happened?
A: While I was cleaning the ceiling of our house, I did not know that he entered the second floor
of the house.
Q: And after that what happened?
A: When I was about to shout, he immediately came to me and put a piece of cloth with chemical
on my nose then I felt unconscious already.
Q: And were you able to regain consciousness?
A: I regained consciousness after all the thing happened to me.
Q: And when you regained consciousness, what did you notice?
A: I was lying on the floor naked, sir.
Q: And what do you think happened to you?
ATTY. DOMALSIN:
The witness will be incompetent to answer what happened to her because she was made
unconscious.
COURT:
Being the person herself she is competent to feel what happened to her.
Q: After you regained consciousness, you stated that you were lying on the floor?
A: Yes, sir.
Q: What did you feel at that time?
A: I felt uneasy.
Q: That was all?
A: Yes.
Q: You did not feel what happened to any part of your body?
A: I felt. He did again what he has done to me for the third time.
xxx xxx xxx
Q: Do you remember miss witness if during those times when you said the accused boxed you
and you felt unconscious. . . .?
A: I did not feel anything when I felt unconscious.
Q: When he threatened you telling you that will kill you if you tell anybody what happened, what
did you say?
A: I just kept quiet.
Q: Do you have neighbors?

A: We have neighbors but they were out that time.

xxx xxx xxx
Q: On March (November) 28, 1989, do you remember where were you?
A: I was in the same house of my grandmother.
Q: And what were you were doing at that time?
A: I just arrived from school, sir.
Q: And when you arrived from school, what happened?
A: When I was in the house, he poked his gun at me and stripped my shirt.
Q: Who poked the garand rifle at you?
A: My uncle, sir.
Q: Will you please tell this Honorable Court what happened ?
A: At about 11:30 P.M., I entered the house and my uncle poked his gun at me. I don't know why
he poked his gun at me then he did again what he did to me.
Q: When he poked his gun at you, what did you do?
A: I forced my way out.
Q: And were you able to go out?
A: No, sir because he was strong.
Q: What did he tell you, if any?
A: The same threat as the first.
Q: After he poked his gun at you, what did you do next?
A: He took advantage of me again, sir.
Q: Will you be more specific, miss witness. When you said he took advantage of you, what do
you mean?
A: He did the same thing that he did to me.
Q: What is that thing that he did to you?
A: He again abused my dignity as a woman.
Q: When he poked his gun at you, were you wearing clothes?
A: Yes, sir.
Q: And after that what did he do?
A: He removed my panty.
Q: And after removing your panty, what did he do next?
A: He did it again.
Q: When he removed your panty, what was your position?
A: I was standing and I was forcing to leave when he forced me to remove my panty while his
gun was poked at me.
Q: And after he removed your panty, you said you were standing?
A: Yes.
Q: Then what did he do next?
A: He pushed me down the floor.
Q: And after that what did he do next?
A: He did the same thing to me.
Q: When he pushed you down to the floor, what else happened?
A: He was on top of me.
Q: When he was on top of you, was he wearing clothes at that time.
A: Yes, sir.
CRIMLAW (Feb. 2) | 7

Q: He did not remove any of his clothes.

A: He removed his pants.
Q: What else did he do?
A: He put down the zipper of his pant.
Q: And after he put down the zipper of his pant, what happened next?
A: I tried to get out but he was strong.
Q: And after he removed the zipper of his pant, what did he do?
A: He abused the dignity of my woman (sic).
xxx xxx xxx
Q: Miss witness you said a while back that the accused poked a gun to (sic) you then removed
your panty and then after that he pushed you down the floor?
A: Yes, sir.
Q: Aside from that he also removed the zipper of his pant then went on top of you?
A: I was unconscious.
xxx xxx xxx (Emphasis supplied.)
Q: Aside from going on top of you, what else did he do?
A: He poked his gun at me.
Q: Then what else?
A: He did the same thing.
Q: The specific thing?
A: He raped me again, sir.
xxx xxx xxx
In short, the complainant on 05 March 1991 testified that on 25 November 1989 and 28
November 1989, the accused employed force and threats which rendered her unconscious and
unable to feel anything when ravished by the accused. However, when recalled to the witness
stand on 02 April 1991, the same complainant Mary Jane Espilan testified: 6
Q: Miss Witness, you declared during the prior examination that the accused, Napoleon
Subingsubing raped, abused your dignity or "pinagsamantalahan ka" and that was on March
(November) 28, my question is what do you mean when you said he abused your dignity on
March (November) 28, 1991?
A: He pointed his gun to (at) me, then pushed me to my lola's room, let me down trying to
separate my legs and then he placed his penis into my vagina.
COURT:
Q: When you said that the accused pointed a gun at you, what kind of gun?
A. Rifle, M-14, sir.
Q. When he pushed you down, was he still holding his gun?
A. Yes, sir.
Q. When he was doing the act, was he still holdng his gun?
A. Yes.

Q. You did not resist.

A. I resisted but he was stronger than me.
Q. The second time he did the sme, was he still holding the gun?
A. Yes, sir.
xxx xxx xxx
The complainant's theory of force and intimidation manifested in her sworn statement and her
testimony on 05 March 1991, and which rendered her "unconscious," is belied by her own
testimony on 02 April 1991. Complaint speaks of resistance, intimidation, and loss of
consciousness attributed to accused's violence and threats. However, and this must be carefully
noted, the complainant's testimony on 02 April 1991 gave a detailed description of what
transpired during those incidents.
The Court also cannot help but question the conduct of the complainant after the alleged
incidents of rape. The complainant did not reveal tghe incidents to her randmother allegedly
because the accused told her not to and that he would kill the complainant and her grandmother
if she told anyone. Neither did she tell her mother upon the latter's arrival at barlig on 28 April
1990 or soon after the complainant was brought by her mother to Philex Mines in Baguio City.
The mother was told of the alleged incidents only on 15 May 1990. It is quite unnatural for a girl
not to reveal such assaults on her virtue (if indeed they occurred) immediately after they
happened or when the alleged threat on her life and her grandmother's had ceased, as in this case,
when complainant had gone to Baguio. The complainant likewise admitted that after the alleged
incidents in November 1989, she still went out with the accused to watch betamax movies or get
food for the pigs in the ricefields. Such behaviour directly contradicts the normal or expected
behaviour of a rape victim. There is no way she could possibly forgive, to say the least; and yet,
complainant interacted immediately with her assailant. Viewed in its entirety, such behaviour of
the complainant appears to be inconsistent with her charge of rape.
The accused, on the other hand, while admitting that indeed he had sexual intercourse with the
complainant on 25 November 1989, set up the defense that the latter consented to such act. The
Two (2) succeeding incidents were however denied by the accused. While we find such defenses
weak, we nevertheless stress once more the time-honored principle that the prosecution must rely
on the strength of its evidence rather than on the weakness of the defense.
Appellant's exculpation from the offense of rape does not mean, however, that his responsibility
is merely moral and not penal in character. If that were so, considering the facts of this case, it
may be cause for right-thinking men and women to discern a gap or fissure in the legal order, one
that cries moreover to be bridged. 7
As things stand, for failing to meet the exacting test of moral certainty, it is incumbent upon us to
set aside the trial court's judgments of conviction for rape. However, the Court must state that it
finds conclusive evidence (no less than the accused-appellant's admission) that on 25 November
1989, the accused Napoleon Subingsubing had sexual intercourse with Mary Jane Espilan when
she was only 16 years of age. The complainant and the accused were living in the same house.
The accused is the uncle of the complainant, brother of her own mother.
CRIMLAW (Feb. 2) | 8

Qualified seduction is the act of having carnal knowledge of a virgin over 12 years to 18 years of
age and committed by any of the persons enumerated in Art. 337 of the Revised Penal Code, to
wit: any person in public authority, priest, home-servant, domestic, guardian, teacher, or any
person who, in any capacity, shall be entrusted with the education and custody of the woman
seduced. Abuse of confidence is the qualifying circumstance in the offense. Notably, among the
persons who can commit qualified seduction is a "domestic". And a "domestic," for purposes of
said legal provision, has been interpreted judicially as
. . . Upon the word domestic being employed in said legal provision segregating it from that of a
servant, the term is applied to persons usually living under the same roof, pertaining to the same
house, and constituting, in the sense, a part thereof, distinguishing it from the term servant
whereby a person serving another on a salary is designated; in this manner, it has been properly
used. 8
Under the circumstances of the case at bench, we hold that a conviction for qualified seduction is
proper in Criminal Case No. 774. The verified complaint for rape contains
allegations, sans averment on the use of force, which impute the crime of qualified seduction.
Any deficiency in the complaint is supplied by the supporting affidavit, 9 where complainant
averred that the accused Napoleon Subingsubing, her uncle, 10 who was living in the same house
as the complainant, 11 had sexual intercourse with her. The accused took advantage of his moral
ascendancy if not dominance over the complainant. She was presumably a virgin. As already
stated, the accused was a domestic in relation to the complainant within the meaning of Art. 337
of the Revised Penal Code.
WHEREFORE, in G.R. No. 104943, the judgment of the trial court in Criminal Case No. 774 is
hereby MODIFIED by convicting the accused of the crime of QUALIFIED SEDUCTION
instead of RAPE. The accused is hereby sentenced to an indeterminate penalty of six (6) months
of ARRESTO MAYOR, as minimum to two (2) years, eleven (11) months and ten (10) days
of PRISION CORRECCIONAL as maximum. Accused is likewise ordered to indemnify the
complainant in the amount of P30,000.00 and to support the child of the complainant. Costs
against accused-appellant.
The accused-appellant is ACQUITTED in G.R. No. 104942 (Criminal Case No. 772) based on
reasonable doubt.
Upon the finality of this decision, let the records of this case be remanded to the court of origin
for the sole purpose of determining the amount of support to which the child in Criminal Case
No. 774 is entitled. 12
SO ORDERED.
_____________

CRIMLAW (Feb. 2) | 9

EN BANC
[G.R. No. 139181. October 27, 2003.]
PEOPLE OF THE PHILIPPINES, Appellee, v. JIMMY AQUINO y VIOLA, Appellant.
DECISION

DAVIDE, JR., C.J.:

Before us on automatic review is the 7 June 1999 Decision of the Regional Trial Court of
Malolos, Bulacan, Branch 21, in Criminal Case No. 1310-M-98 convicting appellant Jimmy
Aquino of the crime of statutory rape and sentencing him to the penalty of death. 1chanrob1es
virtua1 1aw 1ibrary
The Information under which Jimmy was charged reads:
That on or about the 24th day of May 1996, in the municipality of San Miguel, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a bladed instrument, did then and there willfully, unlawfully and
feloniously, with lewd designs, by means of force and intimidation have carnal knowledge of the
said Analyn dela Cruz y Viola, 11 years of age, against her will. 2

to remove his clothes and force himself on top of her. With a knife in his right hand pressed
against her left palm, he began to have sexual intercourse with her. Once during the ordeal, he
applied to her genitals the cooking oil she bought. Jimmy stopped his assault only after two
hours, or at around 11:00 a.m., when he heard the voice of his brother-in-law outside the house.
He forthwith ordered Analyn to get dressed and get out of the house. Analyn went home and
reported the rape to her grandmother. 5
Later in the afternoon, Analyn went to the poultry farm where her mother worked and told her
that "Tio Imi" had raped her. 6 Lolita went to the Barangay Council of Sta. Ines and reported the
rape. Councilman Ismael Julian asked Barangay Tanod Rolando Viola to fetch Jimmy. Under
interrogation by Ismael, Jimmy admitted to having asked Analyn to undress. The councilman
prepared a statement, 7 which was signed by him, Jimmy and Lolita, wherein it was stated that
the nature of the complaint was that Jimmy had asked Analyn to remove her clothes because he
wanted to see what her vagina looked like. Even if the statement did not mention rape, Lolita
signed it thinking it would merely be used as evidence that she had made a complaint. 8
Analyn was also sent for, and though she testified to having signed a document upon the request
of the barangay tanods, she did not know what document she signed. 9 Analyns signature does
not appear in the statement signed by her mother and Jimmy.chanrob1es virtua1 1aw 1ibrary
According to Lolita, she was frustrated by the lack of action by the Barangay officials. She
attributed it to the fact that Jimmy was a relative of many of them, and that they wanted her to
settle the case with him. Thinking that Jimmy had fled, she did not pursue the complaint. It was
only on 20 August 1997, Jimmys birthday, that she spotted Jimmy in the house of his
grandmother. Her rage renewed. she tried to go to the police in San Miguel, Bulacan, but the
policemen refused to help her because Jimmy was the nephew of the incumbent barangay captain
at that time. 10

The evidence for the prosecution, culled from the testimonies of the victim Analyn de la Cruz
and her mother Lolita Viola de la Cruz, is as follows:

With the help of her friend Celia Manese, she, together with Analyn, filed on 10 November 1997
a complaint with the Municipal Trial Court (MTC) of San Miguel, Bulacan. The next day,
Analyn was examined at the Philippine National Police Crime Laboratory in Malolos, Bulacan.
11 The examining physician, Dr. Manuel Aves, found old healed hymenal lacerations, which the
parties admitted. 12

Analyn was 10 years and 11 months old on the day of the alleged rape, having been born on 23
June 1985. She filed the complaint with the assistance of her mother, Lolita, who is Jimmys first
cousin. Prior to the filing of this case and the assumption of custody by the Department of Social
Welfare and Development, Analyn lived with her grandmother in Sta. Ines, San Miguel, Bulacan;
while her mother lived with her second husband in another house within the same barangay. 4

For his defense, Jimmy interposed a basic denial. His version of the events is that on 24 May
1996, he was in the house of his sister Nini where he usually stayed during the day, sometimes to
take care of his niece. Around two meters away was Antonio Clemente, a first cousin of Jimmy
and Lolita and a carpenter by profession, who was hired by Nini to put up a fence in the back of
the house. 13

At around 9:00 a.m. of 24 May 1996, while Analyn was playing with her friend near the house of
Jimmys sister Nini in Sta. Ines, San Miguel, Bulacan, Jimmy, who was staying in Ninis house
during the day, called out Analyn to buy cooking oil for him from the store nearby. He gave her
P5.00 and a glass for the cooking oil. When she returned to Ninis house, Jimmy asked her to get
the feeding bottle of his niece near the bed, which was in a slightly elevated portion of the house.
She then went to get the bottle. Jimmy followed her and, producing a knife, ordered Analyn to
remove her shorts and underwear. Fearing for her safety, Analyn acceded. Jimmy then proceeded

At approximately 9:00 a.m., Analyn arrived and watched television with Jimmy. Sometime
between 10:00 and 11:00 a.m., Antonio got hungry and asked Jimmy for merienda. Because none
was available, Antonio gave Jimmy P5.00 to buy ice and some cooking oil to fry camote (sweet
potatoes). Jimmy, in turn, gave Analyn the money and bid her to buy the items in a store nearby.
She returned with the cooking oil worth P3.00 but without the ice, and gave the P2.00 to Jimmy.
14

Upon his arraignment, Jimmy pleaded not guilty to the offense charged. 3 Pre-trial ensued,
followed by the trial on the merits of the case.

CRIMLAW (Feb. 2) | 10

At one point while the camote was being fried, Jimmy became curious about the rumors he had
heard about the beautiful appearance of Analyns private organ. To see it for himself, he asked
Analyn to pull down her shorts. The latter agreed. When Analyns shorts were down, a group of
children entered the house and laughed when they saw Analyn. Among this group were Analyns
younger brother Jonathan Duklayan, and Antonios son Jervy Clemente. Antonio also looked in
to see what was happening. He saw Analyn with her shorts around her knees and her underwear
exposed. The children then asked whether they could have some of the camote being fried.
Antonio playfully asked them to also pull down their shorts as a condition to giving them any.
15
Late that same afternoon, Rolando Viola, a barangay tanod, came and informed him that Lolita
was making a complaint against him (Jimmy) with the barangay councilor. He (Jimmy) went to
where Ismael Julian and Lolita were and, when confronted, admitted to having asked Analyn to
pull down her shorts because he was curious about her. He signed a statement made by Ismael
that was in question-and-answer form, and both he and Lolita were made to sign the same
document. The issue of rape was not discussed during that confrontation, and he had no idea of
the charge until he was arrested in his house on 12 November 1997 and brought to the provincial
jail. 16
Antonio Clemente, a first cousin of both Jimmy and Lolita, corroborated Jimmys story. He
testified that on the day of the alleged rape, he was fixing the fence in the back of Ninis house.
He could see into the house of Nini because the back wall was almost non-existent. At around
10:00 a.m. he asked Jimmy for food and gave him money to buy cooking oil and ice. Afterwards,
he heard children laughing and he saw Analyn with her shorts around her knees. He even
jokingly asked the children to do the same so that they could eat some of the camote. 17
Rolando Viola, a barangay tanod and an uncle of both the appellant and the victims mother,
testified to having seen Antonio fix the house. Sometime before 10:00 a.m., he went looking for
Antonio because he wanted to have his roof fixed. While he was conferring with Antonio, he saw
Analyn and Jimmy watching television inside Ninis house. He also testified that the state of
Ninis house at that time was such that although he was at the back, he could see into the house
and out into the street and at passers-by because the front and back walls were dilapidated and
almost non-existent. 18
He also testified that he was present when Lolita reported to Barangay Councilman Ismael Julian
that Analyn was ordered by the appellant to take off her lower apparel. He was even the one who
fetched the appellant from his house to be investigated. He was likewise present during the
investigation. 19 This testimony was corroborated by Ismael Julian. 20
Alberto Viola, uncle of Jimmy and granduncle of Analyn, declared that he had been taking care
of Jimmy ever since the latter was 10 years old, after Jimmys father died. He testified that at
around 10:30 a.m. of 24 May 1996, while he was cooking lunch in his house, he heard children
laughing. From his kitchen in the back of the house, he had a view of the front of Ninis house,
where he saw children. Noticing nothing extraordinary, he continued cooking. At around noon,
Jimmy came over and ate with him. 21

Teresita Bacuan, another cousin of Analyn and a close friend, testified that at 11:00 a.m. of 24
May 1996, Analyn came by her house to tell her that "Tio Imi" had almost succeeded in raping
her (Analyn). Teresita was worried that a rape had in fact been committed and asked Analyn
whether the latter was just ashamed to admit it. Analyn assured her that nothing happened
because of the timely arrival of one Jervy and other small children. Teresita confronted Jervy
Clemente, who then denied having witnessed any attempt at rape. Teresitas testimony also
included revelations from Analyn that sometime in April of 1997, Analyn was having sexual
intercourse with her boyfriend named Ryan Ramos. 22
The witnesses for the appellant denied Jimmys flight. They testified that they had seen him
working in the field or in a construction, 23 watching television in Ninis house, or buying
something in the store, and sometimes in the company of Analyn. 24
The defense put forward several motives for Lolita to have constrained Analyn to accuse him of
rape. One was for the money that Lolita was claiming to settle the case. After the case was filed,
she wanted P10,000 to settle the case, and later, according to her neighbor Lerma, she wanted
P50,000. 25 The second was because of a land dispute over the inheritance between Lolitas
father Edilberto and Jimmys uncle Alberto. 26 The third was revenge in that Jimmys sister Lala
was instrumental in putting in jail the father of Lolitas friend Celia Manese for raping his
stepdaughter. 27
After trial, the trial court rendered the decision now on review. Convinced of the overall veracity
of Analyns claim, the trial court gave no weight to the testimonies of the witnesses for the
defense because of their relation to Jimmy. Reasoning that lust is not a respecter of time and
place, it found inconsequential the testimonies of the witnesses that the house where the rape was
allegedly committed was located near a store or artesian well. It could find no reason why either
Analyn or her mother Lolita would fabricate a story of rape when to do so would subject Analyn
to an emotional ordeal and humiliation. On Analyns claim that Jimmy raped her for two hours,
the court attributed this to Jimmys youth and strong physical condition as a probable "sexual
athlete," or else to a condition called satyriasis, which describes excessive sexual desire.
Finding, therefore, that rape was committed and that the accused used a deadly weapon in its
commission, the trial court declared:
As to the penalty to be imposed, the law provides that for Statutory Rape, the penalty is
Reclusion Perpetua: whereas if committed with the use of a deadly weapon, it should be
Reclusion Perpetua to Death. Inasmuch as the circumstance of using of the fan knife which is a
deadly weapon, was established, it is hereby deemed to be one that aggravated the commission
of the offense. Accordingly, Accused Jimmy V. Aquino is hereby sentenced to suffer the supreme
penalty of DEATH by lethal injection.
Further, he is hereby ordered to indemnify Analyn dela Cruz the sum of P75,000.00 (in line with
the case of People v. Victor, G.R. No. 127903, July 9, 1998) and to pay moral damages of
P100,000.00.
With costs against the accused.
\SO ORDERED. 28
CRIMLAW (Feb. 2) | 11

The records were elevated to us.

In his Appellants Brief, Jimmy contends that the trial court erred in (1) holding that the
testimonies of the prosecution witnesses are direct and credible, and (2) ignoring the truth and
credibility of the witnesses for the defense. On the other hand, the Office of the Solicitor
General, representing the People of the Philippines, agrees with the trial court in giving full faith
and credence to Analyns narration of the facts that warranted the conviction of the accused.
In reviewing rape cases, three guiding principles must be borne in mind: (1) an accusation for
rape may be made with facility, for 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 where two
persons are involved, the testimony of the complainant must be scrutinized with extreme caution;
and (3) 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 for the defense. 29
Taking into account the totality of the evidence presented, we cannot sustain the conviction of
the appellant for the crime of rape.
The main issue in this case is whether on the day of 24 May 1996, Jimmy Aquino had carnal
knowledge of Analyn de la Cruz. Because Analyn was under 12 years old, her age takes the place
of force and intimidation in vitiating her consent, and only an evidence of carnal knowledge is
necessary. 30 The presence of a deadly weapon only qualifies the offense. 31
Excluding the peripheral motives and actuations of the secondary players in this drama, we are
once again tasked with the duty of weighing the testimony of the victim as against the appellant.
As a general rule the trial courts findings as to the credibility of witnesses are entitled to great
weight and should largely remain undisturbed. 32 On review, an appellate court may reverse
these findings when there appears on record some fact or circumstance of weight and influence
which has been overlooked or misinterpreted that could. affect the result of a case. 33 It is on this
ground that we find that the trial court committed a reversible error in completely disregarding
all other evidence contrary to what was deemed as the irrefutable testimony of the complainant.
The trial court found Analyns demeanor while she testified to the rape as frank, straightforward,
sincere, and unshaken despite the rigid cross-examination. True, the positive testimony of a
credible complainant is sufficient basis for the conviction of rape, for jurisprudence recognizes
that a victim who cries rape, more so if she is a minor, almost always says all that are needed to
signify that the crime has been committed. 34 It is also true that a woman would not make a
charge of rape for reasons other than to seek justice for what is the truth. 35 We must consider,
however, a principle equally fundamental: that evidence to be worthy of credit must not only
proceed from a credible source but must, in addition, be credible in itself. 36 In this regard, the
probability of the testimony of Analyn is suspect in light of the totality of the evidence presented
for and against the Appellant.
Analyn was unyielding on the point that Jimmy did the pumping motion while on top of her for
two hours, from 9:00 to 11:00 a.m. of 24 May 1996. 37 Ordinarily, this improbability would be
attributable to confusion or perhaps a failure to communicate her sense of time or the sequence

of events, especially when accounting for Analyns age. The trial judge, therefore, disregarded
this improbability by factoring in the probability of Jimmys sexual prowess. However, the
adamancy of Analyn as to the continuity of the rape, when confronted with the presence of
children in the same cramped one-room house, as well as the declarations of the other witnesses
who saw Analyn and Jimmy at intervals during that time, creates an uncertainty as to whether a
rape could have occurred during that time.chanrob1es virtua1 1aw 1ibrary
The accused presented Antonio Clemente and Rolando Viola who testified to having seen Analyn
and Jimmy between 9:00 a.m. and 10:00 a.m. watching television. They also testified as to the
arrival or the presence of children in the house of Nini sometime before 10:00 a.m. until 11:00
a.m. Even Analyns mother, Lolita, claimed that her son Jonathan had seen the rape and was the
first to report it to her. Lolitas statement is hearsay, but it indicates, at the very least, Jonathans
presence in Ninis house during that time. Moreover, the statement signed by Jimmy and Lolita
mentions the presence of Jonathan and other children, who laughed at Analyn after seeing her in
a state of undress. 38 Independent is the testimony of Teresita Bacuan that Analyn mentioned the
appearance of Jervy Clemente in Ninis house as the reason why Jimmy was unable to
consummate the rape. It is unfortunate that none of the children could be made to testify. Both
parties show that their presence or absence would have been material. Although the statements of
the children cannot be used for being hearsay, the fact that several witnesses acknowledged their
presence during the time of the rape is noteworthy.
It is also significant to note that both Barangay Councilman Ismael Julian and Barangay Tanod
Rolando Viola testified that what Analyns mother, Lolita, reported to them was that Jimmy
ordered Analyn to undress or in the dialect, "pinaghubo." 39 There is nothing in the record of
such investigation that indicates that she or her mother complained of rape. The record of the
investigation, which bears the signatures of Ismael, Jimmy, and Lolita and was identified and
marked as Exhibit "1" during the trial, reflects Jimmys admission to having asked Analyn to
undress. Lolita, who had finished grade six, 40 testified during her cross-examination that she
knew the contents of the record before she affixed her signature therein. 41 If what Analyn had
reported to her mother was one of rape, the latter would have been so enraged that she would not
sign that document and would have, instead, insisted that the complaint for rape be likewise
reflected in the record. Moreover, it is undisputed that Analyn was present during the
investigation. 42 Analyn would have also seized the opportunity to give her side that what
happened was rape, not just "undressing."cralaw virtua1aw library
Furthermore, it was only one-and-a-half years after the incident, or in November 1997, that a
complaint for rape was filed by Analyn and her mother before the MTC of San Miguel, Bulacan.
We find her reasons for the delay to be unsatisfactory.
We cannot subscribe to the conclusion of the trial court that the witnesses of the appellant should
be discredited or otherwise disregarded because they are his relatives. It must be remembered
that the witnesses presented were as much related to the complainant as they were to the
appellant. On the one hand, a bias in favor of the appellant does not, on its face, exist. On the
other hand, a bias against the complainant cannot be explained on the mere recognition that
society treats with scorn a non-virgin who is deflowered against her will, 43 as declared by the
trial court. There was no malice or favor exhibited by any of the witnesses in favor of the
appellant or against the complainant. Neither was there an indication in the record as to any wish
CRIMLAW (Feb. 2) | 12

to discredit Analyns character. Even the allegation that she had sexual experiences with her
boyfriend at the age of 12 years was only to explain the old healed hymenal lacerations.
In view of the consistency and credibility of the witnesses presented by the defense, who equally
withstood strict scrutiny during trial, we must give weight to the evidence for the defense and
make room for the uncertainty that arises out of it. At most is what has been admitted by the
appellant that he asked Analyn to undress on 24 May 1996. Whether it was a prelude to sexual
intercourse or to truly satisfy his curiosity is debatable. Whether this event continued into the
consummation of the sexual act remains uncertain
From the consistent and credible evidence of the defense, we find that the scales have to be
tipped again, if not in favor of the appellant, then to balance the scales and to reaffirm the precept
that when inculpatory facts and circumstances are capable of two or more explanations, one
consistent with innocence and the other with guilt, such evidence would not meet the test of
moral certainty and would not support a conviction. 44
However, while the appellant cannot be held guilty of the charge of rape on the ground of
reasonable doubt, we find that his act of directing Analyn to remove her lower apparel constitutes
an act of lasciviousness under Article 336 of the Revised Penal Code. Section 4, Rule 120 of the
Revised Rules of Criminal Procedure authorizes, in cases of variance between the offense
charged and that proved, the conviction of an accused of the offense proved which is included in
the offense charged, or of the offense charged which is included in that which is proved. In
People v. Caralipio, 45 we ruled that although an accused is charged in the information with the
crime of rape, he can be convicted of acts of lasciviousness, which is included in
rape.chanrob1es virtua1 1aw 1ibrary

Code prescribes as penalty prision correctional, whose duration is from 6 months and day to 6
years. There being no modifying circumstances, the penalty should be imposed in its medium
period, which ranges from 2 years, 4 months, and 1 day to 4 years and 2 months of
imprisonment. Applying the Indeterminate Sentence Law, the appellant should be made to suffer
an indeterminate penalty ranging from 4 months of arresto mayor, as minimum, to 4 years of
prision correctional, as maximum
WHEREFORE, the decision of the Regional Trial Court of Malolos, Bulacan, Branch 21, in
Criminal Case No. 1310-M-98 finding appellant Jimmy Aquino guilty of the crime of rape is
hereby modified. As modified, said appellant is hereby found guilty beyond reasonable doubt of
the crime of acts of lasciviousness and is sentenced to suffer an indeterminate penalty of four (4)
months of arresto mayor, as minimum, to four (4) years of prision correctional, as maximum. If
he has already served that sentence, his immediate release from custody is hereby ordered unless
he is being held for other legal grounds.
Costs de oficio.
SO ORDERED.
____________

The elements of the crime of acts of lasciviousness are as follows:

1. The offender commits an act of lasciviousness or lewdness;
2. The act is done (a) by using force or intimidation, (b) when the offended party is deprived of
reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and
3. The offended party is another person of either sex. 46
These elements are present in the case at bar. From the environmental circumstance under which
the act was done, lewd design can be imputed to Jimmy. He was alone with Analyn when he
ordered her to remove her drawers. He claimed that his purpose was to see her private organ
because of the alleged rumors that it (Analyns genitalia) was "beautiful and big." 47 Such act
was not out of sheer curiosity but rather out of lascivious curiosity. Notably, on crossexamination, he testified that he never tried "to peep to see the private organs" of his sisters to
confirm whether they were big and beautiful. He also acknowledged that it is "very immoral for
a man to look and stare at the private organ of a lady." 48
In any event, the appellant cannot escape liability for his act of ordering Analyn to undress for
him to see her private part. Such was an act of lewdness perpetrated against Analyn, who at the
time was only 10 years and 11 months old, having been born on 23 June 1985 as evidenced by
her Certificate of Live Birth. 49 For such act of lasciviousness, Article 336 of the Revised Penal
CRIMLAW (Feb. 2) | 13

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this
court denied in a Resolution dated 24 April 1991.
FIRST DIVISION
G.R. No. 96602 November 19, 1991

In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19
February 1991.

EDUARDO
ARROYO,
JR., petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23
May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.

G.R. No. 96715 November 19, 1991

RUBY
VERA-NERI, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, respondents.
RESOLUTION
FELICIANO, J.:p
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC),
Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2
November 1982 in the City of Baguio.
Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby
Vera Neri of adultery as defined under Article 333 of the Revised Penal Code.
The essential facts of the case, as found by the trial court and the Court of Appeals, are as
follows:
... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and
witness Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped
first at the house of Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded
to the Mines View Park Condominium of the Neri spouses. At around 7:00 o' clock in the
evening, accused Eduardo Arroyo arrived at the Neris' condominium. Witness opened the door
for Arroyo who entered, he went down to and knocked at the master's bedroom where accused
Ruby Vera Neri and her companion Linda Sare were. On accused Ruby Vera Neri's request,
Linda Sare left the master's bedroom and went upstairs to the sala leaving the two accused.
About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already
come down. Three of them, thereafter, went up to the sala then left the condominium. (Court of
Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision.
Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a
pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her
husband had later con traded marriage with another woman with whom he is presently cohabiting. Both motions were denied by the Court of Appeals.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in
accordance with long-stand ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case which was then assigned to
the ponente for the writing of the Court's Resolution. 2
On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case
against petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4
Petitioners then filed their respective motions praying for the dismissal or for the granting of new
trial of the case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General
was then asked to comment on the manifestation; hi comment was filed with this Court on 18
October 1991. 5
In October 1991, the consolidated cases were, again in accordance with long-standing practice of
the Court, assigned to the First Division upon the assignment of the ponente to that division. On
4 November 1991, the consolidated cases were re deliberated upon by the members of the First
Division who reached the same conclusion as the members of the Third Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following
contentions:
1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure
misunderstanding' raises questions as to the truth of the alleged admission made by Mrs. Neri;
2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an
illicit affair but not that adultery was committed on the date and place in question;
3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent
marriage to another woman which, if proven would preclude either of the spouses from filing
charges of adultery or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration
and/or new trial of the petitioner;
2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of
petitioner against self-incrimination;
3. The Honorable Court of Appeals erred in failing to take into consideration the material
inconsistencies of the testimony of the complaining witness; and
CRIMLAW (Feb. 2) | 14

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the
physical impossibility of the petitioner to have committed the crime charged. 6

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his
credibility;

the door. Struck by this unusual behavior, Dr. Neri started looking around the dressing room and
he came upon a Kodak envelope with film negatives inside. He took the negatives for printing
and a few days later, armed with the photographs which showed his wife in intimate bedroom
poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri
admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio
on 2 and 3 November 1982.

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

xxx xxx xxx

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal
complaint on the ground of pari delicto; and

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The issues in the consolidated cases may be summarized as follows:

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has
failed to show any ground that would warrant the Court reversing its Resolution dated 24 April
1991; and on the
2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera
Neri has failed to show reversible error on the part of the Court of Appeals in issuing its Decision
dated 21 May 1990 and its Resolution, dated 18 December 1990.
Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on
the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in
the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court.
However, in the Court's Resolution, dated 24 April 1991, dismissing the Petition for certiorari in
G.R. No. 96602, the Court held that:
It has been our constant holding that:
In certiorari proceedings under Rule 45, the findings of fact of the lower court as well
itsconclusions on credibility of witnesses are generally not disturbed, the question before the
court being limited to questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial
court on the credibility of witnesses are given considerable weight, since said court is in the best
position to observe the demeanor, conduct and attitude of witnesses at the trial. (Aguirre v.
People, 155 SCRA 337 [1987]; emphasis supplied)
Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the
Court does not believe that such an admission by an unfaithful wife was inherently improbable
or impossible.7 (Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs.
Neri's constitutional right against self-incrimination had been disregarded when her admission to
her husband in the privacy of their conjugal home that she had indeed lain with petitioner Arroyo
was taken into account by the trial court, to wit:
Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of
1982, he surprised his wife while she was looking at some photographs in their bedroom in their
house in Dasmarias Village, Makati. Accused Ruby Vera Neri then turned pale and started for

The right to counsel attaches upon the start of an investigation, i.e., when theinvestigating
officer starts to ask questions to elicit information and/or confession or admissions from
respondent-accused.(emphasis supplied)
In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a
custodial interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should
have been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
The declaration of an accused expressly acknowledging his guilt of the offense may be given in
evidence against him.
The rule is that any person, otherwise competent as witness, who heard the confession, is
competent to testify as to substance of what he heard if he heard and understood all of it. An oral
confession need not be repeated verbatim, but in such case it must be given in its substance.
Compliance with the constitutional procedures on custodial investigation is not applicable to a
spontaneous statement, not elicited through questioning, but given in an ordinary manner,
whereby the accused orally admitted having slain the victim.
We also note that the husband is not precluded under the Rules of Court from testifying against
his wife in criminal cases for a crime committed by one against the other (Section 22, Rule 129,
Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as
he was a competent witness. Neither was said testimony rendered inadmissible by the
constitutional provision on the right to remain silent and the right to counsel of a "person under
investigation for the commission of an offense."
Petitioner next claims that the trial court erred in convicting him on the basis of the failure of
Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was
held that:
We have held that an accused has the right to decline to testify at the trial without having any
inference of guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction
on the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to
deny the charges against him is a judicial heresy which cannot be countenanced. Invariably, any
such verdict deserves to be reserved.
CRIMLAW (Feb. 2) | 15

Such situation does not obtain, however, in the case at bar. For while the trial court took note of
the failure of defendant to take the witness stand to deny the charge against him,the same was
not the main reason, much less the sole basis, of the trial court in holding, as credible the
testimony of complainant, and in ultimately concluding that the crime of rape had been
committed by the accused-appellant. (Emphasis supplied)
Examination of the trial court decision here shows that said failure to testify was not the sole nor
the main basis of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the
trial court also considered the testimonies of Dr. Neri and other prosecution witnesses and the
photographs of the two accused in intimate poses (and three of which showed them half naked in
bed). 8 (Emphasis supplied)
We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and
concubinage and that in such a case "it would be only a hypocritical pretense for such spouse to
appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case,
the Court found that the complaining husband, by entering into an agreement with his wife that
each of them were to live separately and could marry other persons and by filing complaint only
about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the
adulterous relations existing between the accused, and he is, therefore, not authorized by law to
institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari
delicto but to consent as a bar to the institution of the criminal proceedings. In the present case,
no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri
allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his
complaint after discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article
1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to
contracts with illegal consideration.10 The case at bar does not involve any illegal contract
which either of the contracting parties is now seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which reads:
2. Even before I filed the complaint in court and before the pardon that I had extended to my
wife and her co-accused, I was in reality aware of what was going on between and therefore,
tacitly consented to my wife's infidelity, ...
should result in the dismissal of the case or, at the very least, in the remand of the case for new
trial claiming that in People v. Camara 11 it was held that "the consent of the spouse is valid
defense to a prosecution for adultery and/or concubinage." 12
Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him
before the trial court. It is settled that not all recantations by witnesses should result in the
granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it was held that:
... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle
defendant to a new trial. The question whether a new trial shall be granted on this ground
depends on all the circumstances of the case, including the testimony of the witnesses submitted

on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it
is the duty of the court to deny a new trial where it is not satisfied that such testimony is
true. ... 15 (Emphasis supplied)
Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation.
Dr. Neri had two (2) previous occasions to make the claim contained in his manifestation: first,
in the compromise agreement 16 dated 16 February 1989 submitted before the Regional Trial
Court of Makati, Branch 149 in relation to Civil Case No. M-001; and second, his
affidavit 17 dated 23 November 1988 submitted to the Court of Appeals. Instead, however, these
two (2) documents merely stated that Dr. Neri had pardoned petitioners 18and the complaint was
filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous
relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure
the deficiency noted by the Court in the two (2) previous documents in the disposition of the
petition in G.R. No. 96602:
Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case
based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the
affidavit there expressly stated that the wife had consented to the illicit relationship. In Gomez v.
Intermediate Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case
was dismissed as the affidavit of desistance specifically stated that the accused had nothing to do
whatsoever with the crime charged. In the present case, the pardon did not state that Dr. Neri had
consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state that the case was
filed against the wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of
petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.
Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise
agreement operate as a pardon meriting a new trial. The Court notes that the cases of People v.
Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases
which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held to be
inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised Penal Code which provides:
ART. 344. ... The crime of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both parties, if they
are both alive, nor in any case, if he shall have consented or pardoned the offenders.
xxx xxx xxx
While there is a conceptual difference between consent and pardon in the sense that consent is
granted prior to the adulterous act while pardon is given after the illicit affair, 21 nevertheless,
for either consent or pardon to benefit the accused, it must be given prior to the filing of a
criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23
November 1988 while the compromise agreement was executed only on 16 February 1989, after
the trial court had already rendered its decision dated 17 December 1987 finding petitioners
CRIMLAW (Feb. 2) | 16

guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed after issuance
of our Resolution in G.R. No. 96602 on 24 April 1991.
It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of
adultery cannot be prosecuted without the offended spouse's complaint, once the complaint has
been filed, the control of the case passes to the public prosecutor. 23 Enforcement of our law on
adultery is not exclusively, nor even principally, a matter of vindication of the private honor of
the offended spouse; much less is it a matter merely of personal or social hypocrisy. Such
enforcement relates, more importantly, to protection of the basic social institutions of marriage
and the family in the preservation of which the State has the strongest interest; the public policy
here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there
is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect find strengthen the family as a
basic autonomous social institution ...
The same sentiment has been expressed in the Family Code o the Philippines in Article 149:
The family, being the foundation of the ration, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized or given effect.
In U.S. v. Topio, 24 the Court held that:
... The husband being the head of the family and the only person who could institute the
prosecution and control its effects, it is quite clear that the principal object in penalizing the
offense by the state was to protect the purity of the family and the honor of the husband, but now
the conduct of the prosecution, after it is once commenced by the husband, and the enforcement
of the penalties imposed is also a matter of public policy in which the Government is vitally
interested to the extent of preserving the public peace and providing for the general welfare of
the community. ... 25 (Emphasis supplied)
As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month
after her ceasarian operation, the Court agrees with the Solicitor General that this is a question of
fact which cannot be raised at this stage. In any case, we find no reason to overturn the Court of
Appeals' finding that "a woman who has the staying power to volley tennis bags for fifteen
minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball
play was followed, as noted by the Court of Appeals "by a picture taking of both accused in
different intimate poses." 26
ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack
of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly
DENIED for lack of merit. Costs against petitioners.
Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23
August 1991 be forwarded to the Department of Justice for inquiry into the possible liability of
Dr. Neri for perjury.

CRIMLAW (Feb. 2) | 17