Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-36461 June 29, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HERNANDO DIO, accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial District, which imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971, against Danilo Tobias and a John Doe. The order to arrest Tobias was
returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name Hernando Dio as the John Doe, the appellant herein. As amended, the information
reads:
That on or about the 24th day of July 1971, in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused
Danilo Tobias @ Danny Kulot and Hernando Dio @ Way Kaon, conspiring and confederating together and mutually helping one another, with intent
to gain and without the knowledge and consent of the owner, and with the use of 'balisong', one of the accused was provided with, and by means
of force, threats and intimidation employed upon the latter, did then and there wilfully, unlawfully and feloniously take, steal and rob away from
one Crispulo P. Alega, one Seiko brand men's wrist watch (recovered); and the said accused in accordance with and pursuant to their conspiracy,
and in order to carry out their avowed purpose, with intent to kill did then and there wilfully, unlawfully and feloniously attack, assault and stab for
several times Crispulo P. Alega, and which "balisong" was directly aimed at the vital portions of the body of said Crispulo P. Alega, thus performing
all the acts of execution causing his instantaneous death. (Expediente, p. 68.)
Accused Hernando Dio pleaded not guilty when he was arraigned and after trial the court rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable doubt, of the crime of Robbery with Homicide as defined under Article
294 of the Revised Penal Code, as charged in the Amended Information, the Court hereby sentences him to suffer the penalty of DEATH; to
indemnify the heirs of the victim, Crispulo Alega the amount of P12,000.00; to pay moral damages in the amount of P10,000.00 and another
P10,000.00, as exemplary damages; and to pay the costs. (Id., pp. 105-106.)
The People's version of the facts is as follows:
At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession working at the Sugar Construction Company, with a salary of
more than P500.00 a month went to the Southeastern College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year high school student
thereat (pp. 55, 59, 63-64, 11 1973). They proceeded to the Pasay City Public Market. As they were going up the stairs leading to the Teresa and
Sons Restaurant, Remedios, who was was about an arms-length ahead of Crispulo suddenly heard the dropping of her folders and other things,
being carried by Crispulo. When she looked back, she saw a man — later Identified as Danilo Tobias but still at large — twisting the neck of
Crispulo, while the appellant was holding his (Crispulo's) two hands (pp. 56-57, 61, tsn., Id.). The appellant and his companion tried to divest
Crispulo of his "Seiko" wrist watch, but Crispulo resisted their attempt and fought the robbers. At this juncture, the man who was twisting the neck
of Crispulo stabbed the latter on the left side of his chest. Crispulo ran down the stairs followed by Remedies who shouted for help. When he
reached the front of the Pasay Commercial Bank he fell down and expired. At the time of his death, the "Seiko" watch was strapped to his wrist.
(pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22, 1973).lwphl@itç
An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal officer of the NBI revealed that the cause of death was a stab wound
at the region below his left breast which penetrated the heart. Said doctor opined that judging from the natural appearance of the stab wound, it
must have been caused by a single-bladed pointed instrument (pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1, p. 87, rec.). The necropsy report
(Exh. A, p. 85, rec.) stated that the decease sustained the following injuries:
Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right side 1.7 x 1.4 come forearm right, upper third, posterolateral aspect, 0.6 x 0.4
clean and left, lower third, posterior aspect, 0.4 x 0.2 come right knee, 0.6 x 0.4 come right leg, upper third, anterior aspect, 1.4 x 0.8
Incise wounds, neck, left supers-lateral aspect, two in number, 2.5 and 1.2 crime in lengths, both superficial
Stab wound: left inframammary region, level of the 5th intercostal space along the parasternal line, 6.0 cm. from the anterior midline, 0.5 crime
below the left nipple, elliptical in shape, 3.0 cm. long extended laterally by 3.0 crime long rising slightly downwards, medially edges, clean cut,
sutured, medial extremity of which is blunt and lateral extremity, sharp; directed upwards, medially and backwards involving, among others, the
soft tissues, thru the 5th intercostal muscles, grazing the 6th rib superiorly, perforating the left pleural cavity only, into the middle mediastinum by
penetrating the pericardium antero-inferiorly, perforating the interventricular system and penetrating the left ventricle of the heart at its apical
portions, approximate depth 11.0 cm.
After the appellant's arrest on October 24, 1972, he was investigated at the Detective Bureau of the Pasay City Police Department and gave a
statement (Exh. D, p. 90, rec.) in the presence of Pat. Arturo Rimorin admitting that on the date and nine of the incident, he and his co-accused,
Danilo Tobias administrative Kardong Kaliwa alias Danny Kulot, held up a man and a woman; that they did not get the watch of the man; that he
held the victim's hands but the latter was able to free himself; that Danny Kulot stabbed the man, that when the victim ran, they also ran away; and
that he did not know what happened to the victim (Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 1, tsn., Jan. 11, 1973). (Brief, pp. 2-6.)
Atty. Luis R. Feria, counsel de oficio of the appellant, states:
After a careful, considered and conscientious examination of the evidence adduced in the instant case, undersigned counsel is constrained to
conclude that the findings of fact of the trial court, upholding the version of the prosecution as against that of the defense, must have to be
sustained. As against the sole and uncorroborated testimony of appellant merely denying any participation in the commission of the crime imputed
to him (while admitting that he was present at the scene of the crime), there is a formidable array of evidence against him consisting of the clear
and convincing testimony of Remedios Maniti, who was in the company of the deceased at the time he was killed and an eyewitness to the entire
incident; the extra-judicial written confession of defendant-appellant (Exhibit D) admitting participation in the commission of the crime; the
testimony of Patrolman Arturo Rimorin who conducted the investigation of, and before whom Exhibit D was executed and signed by, defendant-
appellant, as well straight the testimony of Sgt. Geronimo de los Santos of the Pasay Police to whom defendant-appellant orally admitted that he
held the victim's hands although he had no part in the actual stabbing of the deceased.
With respect to the testimony of the eyewitness Remedios Maniti there is absolutely nothing in the record (except perhaps that she was the
sweetheart of the deceased) to show, or even hint, that she had any reasons to perjure herself by falsely incriminating defendant-appellant in such
a grievous crime, no bias, interest or prejudice against the latter as would move or induce her to faithlessly accuse him of a crime which he had not
committed. More than ever, the time-honored ruling of this Honorable Court, too elemental to require citations, that the findings of the trial court
on the question of credibility of the witnesses, having had the advantage of observing their demeanor and manner of testifying, should not be
disturbed in the absence of strong and cogent reasons therefor, applies fully to the case at bar. No such reasons can be found herein.
The same observations may be made with respect to the testimonies of Patrolman Rimorin and Sgt. de los Santos. Moreover, as has been held by
this Honorable Court, where the prosecution witnesses, being government employees who testified as to what transpired in the performance of
their duties, were neutral and disinterested and had no reason to falsely testify against the accused, and did not subject him to any violence,
torture or bodily harm, their testimonies should be given more weight than that of the accused (P. v. Pereto, 21 SCRA 1469: P. v. Del Castillo, 25
SCRA 716.)
Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True it is that, belatedly during the trial, appellant claimed that his
answers appearing in Exhibit D were given because he was afraid as he was intimidated and struck on the buttock with a long piece of wood (pp.
32-34, t.s.n. Ses. of January 22, 1973). It is submitted that this last-minute, desperate and uncorroborated claim falls flat in the face not only of the
presumption of voluntariness in the execution of confessions, but also of the testimony of Patrolman Rimorin to the effect that Exhibit D was
executed voluntarily and that defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11, 1973), and the latter's own
admission that before he signed Exhibit D, its contents were first read to him in Tagalog and that he fully understood the same (pp. 24, t.s.n. Ses. of
January 22, 1973), and his further admission that he has not filed any case against those who had allegedly maltreated him (p. 33, t.s.n, Id.).
Moreover, where the alleged confession reveals spontaneity of the declarations belying the claim that they were concocted or dictated by the
police, the court win reject the case that the confession was involuntary (P. v. Castro, 11 SCRA 699).lwphl@itç (Brief, pp. 3-5.)
Notwithstanding the foregoing factual admission, Atty. Feria makes the following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS DEFINED
AND PENALIZED UNDER ART. 294, PAR. 1, OF THE REVISED PENAL CODE.
2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-APPELLANT IS ROBBERY WITH HOMICIDE, THE TRIAL COURT ERRED IN
SENTENCING HIM TO SUFFER THE DEATH PENALTY.
We have scrutinized the record, particularly the testimonial evidence, and indeed there is no doubt that the appellant had a hand in the death of
Crispulo Alega. There remains to be considered, however, the claims of the appellant which are made in the assignment of errors.
The appellant claims in his first assignment of error that he should not have been convicted of the special complex crime of robbery with homicide
because the robbery was not consummated. He states that there was only an attempted robbery.
The Solicitor General states:
... We are constrained to agree with defense' contention. The evidence adduced show that the appellant and his companion were unsuccessful in
their criminal venture of divesting the victim of his wrist watch so as to constitute the consummated crime of robbery. Indeed, as adverted to
earlier, when the victim expired, the 'Seiko' watch was still securely strapped to his wrist (p. 59, t.s.n., Jan. 11, 1973). The killing of Crispulo Alega
may be considered as merely incidental to and an offshoot of the plan to carry out the robbery, which however was not consummated because of
the resistance offered by the deceased. Consequently, this case would properly come under the provision of Art. 297 of the Revised Penal Code
which states that —
When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offenses shall be
punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under
the provisions of this Code. (Brief, pp. 5-6.)
In his second assignment of error the appellant claims that the information does not allege any aggravating circumstance nor was any proved
during the trial.
Again the Solicitor General states:
We likewise agree with the contention of counsel in his second assigned error that the evidence presented by the prosecution did not show the
attendance of any aggravating circumstance in the commands of the crime and neither did the court a quo make any finding in this respect (pp. 7-
8, appellant's brief). (Id, p. 6.)
The crime committed by the appellant is attempted robbery with homicide and the penalty prescribed by law is reclusion temporal in its maximum
period to reclusion perpetua. Since there was no attendant mitigating nor aggravating circumstance, the penalty should be applied in its medium
period, i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Sentence Law has also to be applied.
WHEREFORE, the judgment of the trial court is hereby modified; the appellant is found guilty beyond reasonable doubt of the special complex
crime of attempted robbery with homicide and he is sentenced to suffer an indeterminate penalty of 10 years and 1 day of prision mayor as
minimum to 20 years of reclusion temporal as maximum, to indemnify the heirs of Crispulo Alega in the amount of P30,000.00, and to pay one-half
of the costs. SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.
FIRST DIVISION
[G.R. No. 122099. July 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela
Torre, George dela Torre, Bonifacio Bancaya and several others who are still at large were charged in two (2) separate Amended Informations with
Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information[1] for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, all armed with
bladed weapons and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of superior strength did then and there
willfully, unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his body, thereby inflicting upon the latter
mortal wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction this Honorable
Court, the above-named accused, conspiring, confederating together, mutually helping and aiding one another, with intent to kill did then and
there willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions of his
body, thereby inflicting serious and mortal wounds which would have cause[d] the death of the said victim thus performing all the acts of execution
which should have produce[d] the crime of Homicide as a consequence but nevertheless did not produce it by reason of causes independent of
their will, that is by timely and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their other co-
accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito Listerio because his co-accused Samson dela
Torre escaped during the presentation of the prosecutions evidence and he was not tried in absentia. The dispositive portion of the decision[3]
reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one (1) day as minimum, to
four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.[4]
Dissatisfied, accused Agapito Listerio interposed this appeal alleging that
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND
AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness account of Marlon Araque
discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money
from a certain Tino.[5] Having failed to collect anything from Tino, Marlon and Jeonito then turned back.[6] On their way back while they were
passing Tramo near Tinos place,[7] a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio
Bancaya[8] blocked their path[9] and attacked them with lead pipes and bladed weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed Jeonito Araque from behind.[11]
Jeonito sustained three (3) stab wounds on the upper right portion of his back, another on the lower right portion and the third on the middle
portion of the left side of his back[12] causing him to fall down.[13] Marlon Araque was hit on the head by Samson dela Torre and Bonifacio
Bancaya with lead pipes and momentarily lost consciousness.[14] When he regained his senses three (3) minutes later, he saw that Jeonito was
already dead.[15] Their assailants then fled after the incident.[16] Marlon Araque who sustained injuries in the arm and back,[17] was thereafter
brought to a hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-PGH, [19] who thereafter issued a Medical
Certificate[20] indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in length located in the center
(mid-parietal area) of the ear.[21] The second lacerated wound measuring 2 centimeters in length is located at the mid-frontal area commonly
known as the forehead.[22] A third lacerated wound measuring 1.5 centimeters long is located at the forearm[23] and a fourth which is a stab
wound measuring 3 centimeters is located at the right shoulder at the collar.[24] Elaborating on the nature of Marlon Araques injuries, Dr.
Manimtim explained in detail during cross-examination that the two (2) wounds on the forearm and the shoulder were caused by a sharp object
like a knife while the rest were caused by a blunt instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito Araque[26] and prepared an Autopsy Report[27] of
his findings. The report which contains a detailed description of the injuries inflicted on the victim shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or any similar
instrument.[28] The first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the lower lobe of the
left lung and the thoracic aorta.[29] Considering the involvement of a vital organ and a major blood vessel, the wound was considered fatal.[30]
The second wound, measuring 2.4 centimeters, affected the skin and underlying soft tissues and did not penetrate the body cavity.[31] The third
wound measuring 2.7 centimeters was like the second and involved only the soft tissues.[32] Unlike the first, the second and third wounds were
non-fatal.[33] Dr. Munoz averred that of the three, the first and second wounds were inflicted by knife thrusts delivered starting below going
upward by assailants who were standing behind the victim.[34]
On the other hand, accused-appellants version of the incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by
selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At around 2:00 oclock Accused-appellant went to his house and slept.[36]
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke him up and told him there was a quarrel near the railroad track.[37]
4. At around 6:00 oclock two (2) policemen passed by going to the house of Samson de la Torre while Accused-appellant was chatting with Edgar
Remolador and Andres Gininao. These two (2) policemen together with co-accused Samson de la Torre came back and invited Accused-appellant
for questioning at the Muntinlupa Police Headquarters together with Edgar Demolador and Andres Gininao. Subsequently, Edgar Demolador and
Andres Gininao were sent home.[38]
5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the death of
Jeonito Araque and the frustrated murder of Marlon Araque. Accused-Appellant confronted Marlon Araque as to why he was being included in the
case. Marlon Araque answered because you eject[ed] us from your house.[39]
Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated testimony failed to clearly and positively identify him as
the malefactor responsible for his brothers death. In fine, he insists that Marlons testimony is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single, trustworthy and credible witness could be
sufficient to convict an accused.[40] More explicitly, the well entrenched rule is that the testimony of a lone eyewitness, if found positive and
credible by the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been
delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be weighed not numbered; hence, it is
not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness.[41]
The trial court found Marlon Araques version of what transpired candid and straightforward. We defer to the lower courts findings on this point
consistent with the oft-repeated pronouncement that: the trial judge is the best and the most competent person who can weigh and evaluate the
testimony of witnesses. His firsthand look at the declarants demeanor, conduct and attitude at the trial places him in a peculiar position to
discriminate between the true and the false. Consequently appellate courts will not disturb the trial courts findings save only in cases where
arbitrariness has set in and disregard for the facts important to the case have been overlooked.[42]
The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was given in a categorical, convincing and
straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir Hinarang po kami.
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion of the left side
at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away.[43]
Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon Araque an admission that he and the
deceased had a drinking spree with their attackers prior to the incident, proved futile as Marlon steadfastly maintained on cross examination that
he and his brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.[44]
That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a natural knack for remembering the
faces of the attackers and they, more than anybody else, would be concerned with obtaining justice for the victim by the felons being brought to
the face of the law.[45] Indeed, family members who have witnessed the killing of a loved one usually strive to remember the faces of the
assailants.[46] Marlons credibility cannot be doubted in this case because as a victim himself and an eyewitness to the incident, it can be clearly
gleaned from the foregoing excerpts of his testimony that he remembered with a high degree of reliability the identity of the malefactors.[47]
Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against accused-appellant. Being a victim
himself, he is expected to seek justice. It is settled that if the accused had nothing to do with the crime, it would be against the natural order of
events to falsely impute charges of wrongdoing upon him.[48] Accused-appellant likewise insists on the absence of conspiracy and treachery in the
attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots.[49] Conspiracy
may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of
a joint purpose, concert of action and community of interest.[50] Indeed
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To establish
the existence of a conspiracy, direct proof is not essential since it may be shown by facts and circumstances from which may be logically inferred
the existence of a common design among the accused to commit the offense charged, or it may be deduced from the mode and manner in which
the offense was perpetrated.[51]
More explicitly
conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts,
conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to
establish a conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be indicative of a common
design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy can be established.[52]
Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime itself.[53] In
the absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and
community of interest.[54] Hence, it is necessary that a conspirator should have performed some overt acts as a direct or indirect contribution in
the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself,
or it may consist of moral assistance to his con-conspirators by being present at the commission of the crime or by exerting moral ascendancy over
the other co-conspirators.[55]
Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the
common design and purpose.[56] Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.[57] From
the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its
execution.[58] In this case, the presence of accused-appellant and his colleagues, all of them armed with deadly weapons at the locus criminis,
indubitably shows their criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path of the victims and as a group attacked them
with lead pipes and bladed weapons. Accused-appellant and his companions acted in concert during the assault on the victims. Each member of
the group performed specific and coordinated acts as to indicate beyond doubt a common criminal design or purpose.[59] Thus, even assuming
arguendo that the prosecution eyewitness may have been unclear as to who delivered the fatal blow on the victim, accused-appellant as a
conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in conspiracy, the act of one is
the act of all.[60]
As to the qualifying circumstances here present, the treacherous manner in which accused-appellant and his group perpetrated the crime is shown
not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the deliberate manner in which
the assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed with bladed weapons and lead pipes,
blocked (hinarang) the path of the victims effectively cutting off their escape.[61] In the ensuing attack, the deceased was stabbed three (3) times
from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or similar instrument[62] while Marlon Araque
sustained lacerated wounds in the head caused by blows inflicted by lead pipes as well as stab wounds on the shoulder and forearm which were
caused by a sharp object like a knife.[63]
It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased were clearly meant to kill without posing
any danger to the malefactors considering their locations and the fact that they were caused by knife thrusts starting below going upward by
assailants who were standing behind the victim.[64] Treachery is present when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.[65] That circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his companions
were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes, purposely used force
out of proportion to the means of defense available to the persons attacked. However, this aggravating circumstance is already absorbed in
treachery.[66] Furthermore, although alleged in the information, evident premeditation was not proved by the prosecution. In the light of the
finding of conspiracy, evident premeditation need not be further appreciated, absent concrete proof as to how and when the plan to kill was
hatched or what time had elapsed before it was carried out.[67]
In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-appellant proffers the defense of alibi. At the risk
of sounding trite, it must be remembered that alibi is generally considered with suspicion and always received with caution because it can be easily
fabricated.[68] For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was present at another place at the time of the
perpetration of the offense; and b.] it would thus be physically impossible for him to have been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the accused as one of the perpetrators of the
crime by the prosecution eyewitness, absent any showing of ill-motive, must prevail over the weak and obviously fabricated alibi of accused-
appellant.[70] Furthermore, as aptly pointed out by the trial court [t]he place where the accused was at the time of the killing is only 100 meters
away. The distance of his house to the place of the incident makes him physically possible to be a participant in the killing [of Jeonito] and [the]
wounding of Marlon.[71]
All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accused-appellant is guilty as charged for Murder in
Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial court convicted accused-appellant of
Attempted Homicide only on the basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds inflicted which determines whether a felony is
attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed. By subjective phase is meant
[t]hat portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by
the offender which, with the prior acts, should result in the consummated crime. From that time forward, the phase is objective. It may also be said
to be that period occupied by the acts of the offender over which he has control that period between the point where he begins and the point
where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance,
the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is
frustrated.[72]
It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of execution which would produce the felony;
2.] the felony is not produced due to causes independent of the perpetrators will.[73] On the other hand, in an attempted felony: 1.] the offender
commits overt acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution which should produce the
felony; and 3.] his failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance.[74] The
distinction between an attempted and frustrated felony was lucidly differentiated thus in the leading case of U.S. v. Eduave:[75]
A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his
will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose
of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all the
acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of crime and the moment when all the acts have been performed which should result in the
consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due
to something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries should be punished as attempted or
frustrated murder, homicide, parricide or consummated physical injuries.[76] Homicidal intent must be evidenced by acts which at the time of their
execution are unmistakably calculated to produce the death of the victim by adequate means.[77] Suffice it to state that the intent to kill of the
malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given the prevailing facts of the case. It also can
not be denied that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as
a result of which he lost consciousness and fell, Marlons attackers apparently thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open for review[78] and the reviewing tribunal can correct errors, though unassigned in
the appealed judgement[79] or even reverse the trial courts decision on the basis of grounds other than those that the parties raised as errors.[80]
With the foregoing in mind, we now address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case, may impose upon the person guilty of
the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that
which should be imposed under the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under article 51 should be imposed for an
attempt to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the penalty one degree lower would be prision mayor.[83] With the presence of the
aggravating circumstance of abuse of superior strength and no mitigating circumstances, the penalty is to be imposed in its maximum period.[84]
Prision mayor in its maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying further the Indeterminate Sentence
Law,[85] the minimum of the imposable penalty shall be within the range of the penalty next lower in degree, i.e. prision correccional in its
maximum period which has a range of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial court with regard to the civil aspect of the case for the death
of Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses or those which appear to have been
genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts.[86] In this case, the expenses
incurred for the wake, funeral and burial of the deceased are substantiated by receipts.[87] The trial courts award for actual damages for the death
of Jeonito Araque should therefore be affirmed.
In line with current jurisprudence,[88] the award of P50,000.00 as civil indemnity ex delicto must also be sustained as it requires no proof other
than the fact of death of the victim and the assailants responsibility therefor.[89] The award for moral damages for the pain and sorrow suffered by
the victims family in connection with his untimely death must likewise be affirmed. The award is adequate, reasonable and with sufficient basis
taking into consideration the anguish and suffering of the deceaseds family particularly his mother who relied solely upon him for support.[90] The
award of exemplary damages should likewise be affirmed considering that an aggravating circumstance attended the commission of the crime.[91]
The trial court, however, correctly ignored the claim for loss of income or earning capacity of the deceased for lack of factual basis. The estimate
given by the deceaseds sister on his alleged income as a pre-cast businessman is not supported by competent evidence like income tax returns or
receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of damages[92] and as such requires due proof
thereof.[93] In short, there must be unbiased proof of the deceaseds average income.[94] In this case, the victims sister merely gave an oral, self-
serving and hence unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same is supported by documentary evidence.[95]
With regard to moral and exemplary damages, the same being distinct from each other require separate determination.[96] The award for moral
damages must be struck down as the victim himself did not testify as to the moral suffering he sustained as a result of the assault on his person. For
lack of competent proof such an award is improper.[97] The award for exemplary damages must, however, be retained considering that under
Article 2230 of the Civil Code, such damages may be imposed when the crime is committed with one or more aggravating circumstances.[98]
Finally, this Court has observed that the trial court did not render judgment against accused Samson dela Torre, notwithstanding that he was
arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in absentia and, considering
the evidence presented by the prosecution against him, convicted of the crime charged together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an
indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render judgment based
on the evidence against Samson dela Torre y Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
EN BANC
[G.R. Nos. 141154-56. January 15, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO "Ando" COSTALES and FERNANDO RAMIREZ (at-large), accused.
FERNANDO "Ando" COSTALES, accused-appellant.
DECISION
BELLOSILLO, J.:
Traditionally, religious fervor nourishes love, respect and concern for one another among brethren; it was not so however in the case of one whose
adherence to his faith became the harbinger of his tragic end, sending his wife hanging by the thread of death, and worse, the crimes were
perpetrated apparently by their brethren professing to be "denizens of the temple."
Accused Fernando "Ando" Costales and Fernando Ramirez, the latter being still at large, stood charged with the murder of Miguel Marcelo and the
frustrated murder of Crispina Marcelo. As the perpetrators were found to be in unlawful possession of firearms they were also charged with
violation of PD 1866, as amended by RA 8294.
Since accused Fernando Ramirez remained at large, only accused Fernando "Ando" Costales was arraigned and tried.
For violation of Sec. 1, PD 1866, as amended (Crim. Case No. T-2054), accused Fernando "Ando" Costales was found guilty and sentenced[1] to an
indeterminate penalty of six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum, and to pay a fine of
P30,000.
For the murder of Miguel Marcelo (Crim. Case No. T-2057), accused Fernando "Ando" Costales was found guilty and meted the ultimate penalty of
death.
For the frustrated murder of Crispina Marcelo (Crim. Case No. T-2056) he was found guilty only of attempted murder and sentenced to an
indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. Additionally, he was
ordered "to pay the heirs of the two (2) victims P250,000.00 in damages to be shared by and among them in a manner that suits them best."
Sitio Raniag, Barangay Capas, was a placid but forlorn barrio in Pangasinan where the spouses Miguel and Crispina Marcelo resided in a small one-
room shanty with concrete flooring and cogon roofing. Although their married daughters Donabel, Jessie and Erlinda already had their own houses
they would spend the night with them every once in a while. And so it was on the night of 27 November 1997.
Jessie Molina recalled that at around 11:30 o'clock in the evening of 27 November 1997, she and her sisters Donabel and Erlinda together with
their parents Miguel and Crispina had taken their own corners of their small house to prepare for the night. Miguel laid in a folding bed beside the
door while the others occupied a bamboo bed with the exception of Jessie who for want of available space settled instead on the concrete floor.
Jessie and Erlinda had just watched tv when two (2) persons suddenly barged into their house passing through the door kept ajar by sacks of palay
and strangled her father Miguel. Jessie readily recognized the two (2) intruders because the entire room was illuminated by a nightlamp which the
family kept burning overnight.
Jessie narrated that Fernando "Ando" Costales, one of the assailants, poked a gun at the head of her father and shot him once in cold blood.
Thereafter the other assailant Fernando Ramirez sprayed on their faces what she described as "something hot and pungent," and with his firearm
pumped a bullet on her mother's chest.
Erlinda Marcelo was also awakened when the two (2) accused suddenly entered their house and strangled their father after which Fernando
Costales shot him point blank in the head. According to Erlinda, when tear gas was sprayed by Ramirez, she ducked and almost simultaneously she
heard a gunshot towards the direction of her mother. When she opened her eyes, she saw her mother Crispina clutching her breast, reeling from
the blow and collapsing on the floor in a heap. In her testimony Crispina herself confirmed that Ramirez shot her once on the right chest which
caused her to bleed and lose consciousness.
Both Jessie and Erlinda affirmed that they were familiar with the two (2) accused because, like the rest of the family, they were members of the
"Baro a Cristiano" also known as Lamplighter, of which Fernando "Ando" Costales and Fernando Ramirez were the high priests in their respective
areas. According to Jessie, her parents decided to quit the brotherhood because Ramirez warned them not to sever their ties with the sect if they
did not want any harm to befall them. In fact, according to her, a month earlier Ramirez even threatened her sister Erlinda with bodily harm.
Like her sister, Erlinda stated that their family distanced themselves from the congregation when Ramirez threatened her father. According to her,
on 16 November 1997, Miguel tried to fetch her from the house of Ramirez but Miguel relented only after Ramirez threatened her with a bolo. Her
father tried to get her when he learned that Ramirez was molesting her every time his wife was away. She however did not report this matter
immediately to the authorities because she feared for her life.
Dr. Alex E. Trinidad, Rural Health Physician of Umingan, Pangasinan, after conducting an autopsy on the body of Miguel Marcelo reported: (a) The
gunshot wound penetrating the left lobe of the liver of deceased Miguel Marcelo was fatal; (b) Considering the trajectory of the gunshot wound,
the assailant was probably pointing slightly downward; (c) The cause of death of the deceased was internal hemorrhage arising from the gunshot
wound; and, (d) Considering the wound of the victim, he could have survived for a few minutes after he was shot.
To show that he could not have been a party to the crimes charged, accused Fernando Costales gave a detailed account of his activities by retracing
his steps from late afternoon of 27 November 1997 until dawn of the following day. He narrated that at 5:00 o'clock in the afternoon of 27
November he was irrigating his land in Barangay Libeg, then proceeded to a nearby chapel to pray. At past 7:00 o'clock in the evening, he went to
see a certain Isidro who was irrigating his own land with the use of his (Fernando's) water pump. That being done he went back home.
A couple of hours later, in the company of his wife and children, he returned to the mission house to attend another religious service. At past 9:00
o'clock that same evening he dropped by Isidro's farmland to verify if the latter had finished irrigating. He went back home at around 11:00 o'clock
to sleep and was awakened by Isidro at about 11:45 o'clock only to inform him that he (Isidro) was through. When Isidro left, Fernando went back
to sleep only to be roused again by Gregorio Baguio who also wanted to borrow his water pump. With his sleep disrupted, he decided around
midnight to visit as he did the nearby mission house to pray. Shortly after, he resumed his sleep but woke up again at 4:00 o'clock in the morning to
see if Baguio had already finished watering his farm.
Defense witnesses Isidro Costales and Gregorio Baguio corroborated the claim of Fernando Costales that he could not have perpetrated the crimes
as he was with them all the time they were irrigating their farms. Likewise, Elvie Costales, wife of accused Fernando Costales, presented an
"attendance notebook," purportedly prepared by her, showing that her husband, who was the chapter's religious leader, was worshipping in the
Barangay Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37 o'clock at daybreak,[2] from 7:22 to 8:00 o'clock after sunset,[3] and from
12:10 to 12:15 o'clock midnight[4] of 27 November 1997, although he would periodically leave the prayer meeting to check if Isidro had already
finished watering his farm so that Baguio could also use the pump.
But the trial court viewed the alibi of the defense with askance and assigned full credit to the declarations of the prosecution witnesses.
In disbelieving the veracity of the "attendance notebook," the court a quo opined that Exh. "2" could have been more impressive had it borne the
confirming signatures or thumbmarks of the "Baro a Cristiano" faithful, including their leader Fernando Costales, or had Exhs. "2-B" and "2-C" been
corroborated on the witness stand by a less interested member, or had the church secretary who allegedly kept record of attendance been some
member other that Mrs. Costales or the nearest of kin.[5]
The court below also virtually jettisoned the testimonies of Isidro Costales and Gregorio Baguio when it said that "they had every reason to come to
the rescue of the accused Costales, their admittedly common nephew." Further, it pointed out that the accused and his witnesses issued
contradictory and irreconcilable statements when, on one hand Isidro testified that before midnight of 27 November 1997 he went to the house of
his nephew Fernando Costales to inform him that the irrigation of his farm was already through; on the other hand, Baguio claimed that at around
11:00 o'clock that night he roused the accused who thereafter went to operate the pump and stayed put beside it until Baguio's farm was
completely irrigated at 4:00 o'clock the next morning.
The above statements, the court a quo observed, did not jibe with those made by the accused that his uncle Isidro woke him up at around 11:45
o'clock in the evening and told him that the irrigation of his farm was finished, after which he returned to bed and when he awakened at past 4:00
o'clock the following morning, he met Baguio who told him that he too was through irrigating.
In contrast, the trial court saw no dark motives behind the respective testimonies of Crispina Marcelo and her two (2) daughters. The Costaleses
and the Marcelos used to be members of the same religious sect and accused "Ando" Costales even stood as a sponsor at the wedding of Jessie
Marcelo, and again when Crispina's brother got married. In short, the Marcelos could not have mistaken "Ando" Costales and Fernando Ramirez for
other felons.
In this automatic review, accused Fernando Costales takes exception to the findings of the trial court and thus seeks reversal of his convictions on
the ground that it erred: (a) in according credence to the testimonies of the prosecution witnesses although the same are perforated with material
inconsistencies and bias; (b) in not giving weight to the defense of alibi despite the weakness of the prosecution evidence; (c) in convicting him of
violation of Sec. 1, PD 1866, as amended, since the same was absorbed in the crime of murder; (d) in finding that the crime was attended by
conspiracy despite the fact that no aggravating circumstance was established beyond reasonable doubt; and, (e) in not appreciating the mitigating
circumstance of voluntary surrender in his favor.
The first and second assigned errors will be discussed jointly since they are interrelated.
Accused-appellant argues that the seemingly flawless and unwavering testimonies of the three (3) key prosecution witnesses on the assault of the
Marcelo household are obviously biased that they invite suspicion and disbelief.
Concededly, the prosecution witnesses gave almost uniform observations on how the malefactors carried out their detestable crimes, i.e., the
identity of the assailants, that Miguel was strangled by both intruders and almost simultaneously shot on the head, that one of them sprayed a
chemical on the other occupants of the house and after a split second fired at Crispina. Such consistency and uniformity may be irregular at first
blush, but accused-appellant failed to take into account the following factors which account for the "near flawless" statements of the prosecution
witnesses: (a) the one-room shanty was very small with no substantial obstruction to impede the vision of the occupants; (b) the room was lighted
by a kerosene lamp sufficient enough for the occupants to recognize accused-appellant and his cohort, especially so since the assailants were
prominent and venerated leaders of their church; and, (c) at the time of the incident the Marcelo spouses and their children were lying very near
each other because of the very limited space of their shanty such that every perceived action could be seen, felt, or at least sensed, by all of them.
Accused-appellant is seeing ghosts where there is none. Contrary to his submission, it would be highly irregular indeed if the prosecution witnesses
failed to observe the events that transpired on that fateful night of 27 November 1997 and their statements did not dovetail, at least on material
points, despite very favorable conditions for a fairly accurate observation.
Neither should we ascribe importance, as the accused-appellant seems to suggest, to an apparent "inconsistency" by witness Jessie Molina when
she mentioned that the unwanted intrusion occurred shortly after she turned off the television set, contrary to her earlier claim that barangay
Capas was without electricity. Jessie Molina dispelled this obscurity when she clarified that the television set was powered by Motolite battery
which is in fact a common practice in unenergized "barrios," as the trial court would put it,[6] and Sitio Raniag, Barangay Capas did not still have
electricity at that time.
Clearly, the straightforward and consistent narration of facts, as the trial court observed, by the three (3) prosecution witnesses, especially Crispina
Marcelo, a victim herself, immensely fortifies the conclusion that accused-appellant is guilty as charged. Moreover, no impure motive on their part
has been established by the defense to sully their truthfulness and erode their credibility.
Accused-appellant cannot insist on his alibi, especially so since he and his co-accused were positively identified by the prosecution witnesses. More
so when it is undisputed that the proximity of their place to the scene of the crimes did not preclude the possibility that they were in fact present
at the time of their commission.
On the third issue, accused-appellant decries the Decision of the court a quo in qualifying the crimes of murder and attempted murder with illegal
possession of firearm and at the same time convicting him for violation of PD 1866, as amended.
We agree. Although the prosecution duly established that the crime of illegal possession of firearm under PD 1866 was committed, RA 8294, which
took effect 7 July 1997, amended the decree and now considers the use of unlicensed firearm as a special aggravating circumstance in murder and
homicide, and not as a separate offense.[7]
As it should be, possession and use of firearm without license should aggravate the crimes of murder and frustrated murder as herein charged but,
fortunately for accused-appellant, Secs. 8 and 9 of the Revised Rules on Criminal Procedure, which took effect 1 December 2000, now require the
qualifying as well as aggravating circumstances to be expressly and specifically alleged in the complaint or information, otherwise the same will not
be considered by the court even if proved during the trial. Withal, in the absence of any allegation in the Information in Crim. Case No. T-2057 that
accused-appellant committed murder with the use of unlicensed firearm, the same cannot be appreciated in imposing the proper penalty.
Moving now to the modifying circumstances raised under the fourth assigned error, accused-appellant points out that the trial court grievously
erred in appreciating unlicensed firearm, evident premeditation and nighttime which were alleged in the Informations in Crim. Case No. T-2056 for
frustrated murder and Crim. Case No. T-2057 for murder.
While we yield to the trial court's finding of treachery, we take exception to its view that evident premeditation and nighttime also aggravated the
offenses. Without doubt, treachery has been established by the prosecution evidence which showed that accused-appellant Fernando Costales and
his confederate Fernando Ramirez swiftly and unexpectedly barged into the Marcelo residence in the middle of the night, shot Miguel Marcelo to
death as well as his wife Crispina who almost lost her life, and sprayed a substance which temporarily blinded the other occupants of the house.
The suddenness of the attack gave the victims no opportunity whatsoever to resist or parry the assault thereby ensuring the accomplishment of
their dastardly deed without risk to themselves. Since the attack on the victims was synchronal, sudden and unexpected, treachery must be
properly appreciated.
We cannot however give our assent to the view that nighttime and evident premeditation accompanied the commission of the crimes. The
aggravating circumstance of nighttime is absorbed by treachery,[8] while evident premeditation cannot be appreciated in the absence of proof of
the planning and preparation to kill or when the plan was conceived.[9]
The convergence of the wills of the two (2) executioners amply justifies the imputation that they acted in concert and in unity in their unlawful
objective when in the stillness of the night they both crashed into the Marcelo residence, strangulated the victim Miguel, then one of them shot
him in the head while the other sprayed tear gas on the other members of the family obviously to disable them, and thereafter pumped a bullet at
the horrified Crispina. This series of actions betrays a concerted design and concurrence of sentiments to cause mayhem and murder. Accordingly,
conspiracy was properly appreciated by the trial court.
Neither can we sympathize with accused-appellant's misplaced sentiment that he had been denied the mitigating circumstance of voluntary
surrender. As found by the trial court, his alleged surrender was made too late, and in a place too distant from the crime site as well as his place of
residence.[10]
We observe that the trial court awarded P250,000.00 to the heirs of the deceased on the justification that the same had been stipulated upon by
the parties. This is patently wrong. Award of damages is dictated, not by the agreement of the parties; worse, "in a manner that suits them
best,"[11] but by the mandate of law and jurisprudence. Accordingly in conformity with established law and jurisprudence, the award of
P50,000.00 as civil indmenity and another P50,000.00 as moral damages should be awarded to the heirs of the victim.
Pursuant to Art. 248 of The Revised Penal Code as amended by RA 7659, the penalty for murder is reclusion perpetua to death. There being no
modifying circumstances found in Crim. Case No. T-2057, and applying par. 2 of Art. 63 of the Code, the lesser penalty of reclusion perpetua shall
be imposed.
In Crim. Case No. T-2056, accused-appellant was charged by the trial court with frustrated murder but was convicted only for attempted murder. In
its Decision, the trial court explained that the failure of the prosecution to present a medical certificate or competent testimonial evidence showing
that Crispina would have died from her wound without medical intervention, justified the accused's conviction for attempted murder only.
We call to mind People v. De La Cruz11 where this Court ruled that the crime committed for the shooting of the victim was attempted murder and
not frustrated murder for the reason that "his injuries, though no doubt serious, were not proved fatal such that without timely medical
intervention, they would have caused his death." In fact, as early as People v. Zaragosa,[12] we enunciated the doctrine that where there is nothing
in the evidence to show that the wound would be fatal if not medically attended to, the character of the wound is doubtful; hence, the doubt
should be resolved in favor of the accused and the crime committed by him may be declared as attempted, not frustrated murder.
WHEREFORE, the assailed Decision finding accused-appellant Fernando "Ando" Costales guilty of murder and attempted murder is AFFIRMED with
the following MODIFICATION: In Crim. Case No. T-2057, the crime of murder not being considered to have been attended by any generic mitigating
or aggravating circumstances, accused-appellant Fernando "Ando" Costales is sentenced to suffer only the penalty of reclusion perpetua. In Crim.
Case No. T-2056, the crime of attempted murder not likewise considered to have been attended by any generic mitigating or aggravating
circumstances, accused-appellant Fernando "Ando" Costales is accordingly sentenced in addition to his penalty imposed in Crim. Case No. T-2057
herein before mentioned, to suffer an indeterminate prison term of two (2) years and four (4) months of prision correccional medium as minimum,
to eight (8) years and six (6) months of prision mayor minimum as maximum;
Accused-appellant Fernando "Ando" Costales is further ordered to pay the heirs of the victim Miguel Marcelo P50,000.00 as death indemnity and
another P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez,
and Carpio, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.

MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of the body. The
aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself up he declared that he had
killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her from behind, in
part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-half inches long and two
inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally before the
local officials with having raped her and with being the cause of her pregnancy. He was her mother's querido and was living with her as such at the
time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is contended, in
the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second place, that it is attempted and
not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow
in the back and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and that being so the crime would have
been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the acts of
execution which constitute the felony by reason of some cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts
it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when
all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender
does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart
from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due
to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the offender over which he has control — that period between the point
where he begins and the points where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of
his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs
the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.
FIRST DIVISION
G.R. No. 165483 September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent behavior resulting in people coming to
blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo each other in
their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the Decision of the Regional Trial
Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5 finding
petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Frustrated
Homicide under Article 249 in relation to Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate Informations6 for two
(2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC Resolution No. 29587 relative to Article 22,
Section 261, of the Omnibus Election Code,8 allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the
above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then
and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot wound penetrating
perforating abdomen, urinary bladder, rectum bullet sacral region," the accused having thus performed all the acts of execution which would have
produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the
accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his damage and
prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the
above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then
and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on the right
shoulder, the accused having thus performed all the acts of execution which would have produced the crime of murder as a consequence, but
which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the medical assistance
rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the
above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then
and there willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot wounds in the head
and right thigh which caused the instantaneous death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first
securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand,11 the four cases
were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12
The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the Solicitor
General,13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking spree in
their house because [Melton], who was already living in San Fernando, La Union, visited his three brothers and mother at their house in Sitio
Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the
corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they were having a
good time, singing and drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer
brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang
along with him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and said in
Pangasinan dialect "As if you are tough guys." Jaime further said "You are already insulting me in that way." Then, Jaime struck Servillano Ferrer
with the microphone, hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the
other hand. Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however pursued
by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went back
inside the bar and continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch was missing.
Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal
Street. Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara",
meaning "They are the ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on
the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told Michael
"Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place. Afterwards, the police
officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered
that [Melton] was fatally hit in the head while Michael was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony), Servillano (Junior) and
Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty
minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that
of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third song [My Way], Jaime
was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony,
saying, "You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases on the
other. Jaime was mauled and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric, stirred from his
sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that
place. Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so he turned
around and struggled to run towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run
towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a
gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to retreat. Much
to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times. Unable to bear
the pain, he closed his eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated
Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus
Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him.17
In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the trial court
explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and Michael.18 According to
the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!"
(They are the ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It also took note of the fact that petitioner
was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by
Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and
without any prior plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for
wounding Servillano and Michael, and that Ferdinand is not criminally responsible for the act of petitioner.
Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers were given
the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand.19 It reasoned that the sudden and
unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident
premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the petitioner for help up to the point of
the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard Ferdinand calling him for help. Immediately,
petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the
videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the
sequence of the events are so fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the
shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his life at the time
he and Ferdinand saw the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer brothers outside
the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting
them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable
means to prevent the attack of the Ferrer brothers since the latter were only equipped with stones, and that the gun was deadlier compared to
stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court acquitted the
petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities.23 In conclusion, the trial court
held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder)
with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas
to suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum
of P7,791.50 as actual medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON];
P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum
period or 12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses and P50,000.00 for exemplary
damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum
period or 12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary
damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in
CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of
Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its Decision dated 30
September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the Decision of the trial court, the
appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be
appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to its issuance
of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law should be applied in imposing the penalty upon the
petitioner.26 The dispositive portion of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be imposed for the crimes which
the appellant committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as minimum
to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil
indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual damages in the amount of
P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of four (4) years and two (2)
months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual
damages in the amount of P2,259.35 and moral damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four (4) years and two (2)
months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual
damages in the amount of P163,569.90 and moral damages in the amount of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal on all the
charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer
brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate
court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows that there
was slug embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the height from which the slug was taken was about seven
feet from the ground; that if it was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to
shoot them, then the trajectory of the bullets would have been either straight or downward and not upward considering that the petitioner and
the Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner;
and, that if this exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there would have
been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial court
proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the
"warning shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly
considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. – The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself. x x x.
As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which
places the defendant's life in actual peril.31 It is an act positively strong showing the wrongful intent of the aggressor and not merely a threatening
or intimidating attitude.32 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of
the person attacked.33
There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of weapon.34 In order to constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in shooting
them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke bar and
saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not carrying any
weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting of the
Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger
considering the wide distance (4-5 meters) of the latter from the location of the former.37 Petitioner was not cornered nor trapped in a specific
area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running away or by taking cover.
He could have also called or proceeded to the proper authorities for help. Indeed, petitioner had several options in avoiding dangers to his life
other than confronting the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers, does not
signify that he was a victim of unlawful aggression or that he acted in self-defense.38 There is no evidence to show that his wounds were so serious
and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones,40 will not matter
exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones thrown by the
Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however,
opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to Melton, a bullet
hit his right thigh, and another bullet hit his head which caused his instant death.41 As regards Servillano, a bullet penetrated two of his vital
organs, namely, the large intestine and urinary bladder.42 He underwent two (2) surgeries in order to survive and fully recover.43 Michael, on the
other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke bar,
which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe that the Ferrer
brothers were the unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it
defies reason why he had to shoot the victims at the vital portions of their body, which even led to the death of Melton who was shot at his
head.45 It is an oft-repeated rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered
important indicia to disprove a plea of self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element in self-defense.47 It is an essential and indispensable requisite, for without
unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-defense.48 Without unlawful
aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other
elements are present.49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case.
The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent
or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical
condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.50 In
the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means of repelling the aggression allegedly
initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer
brothers.51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful options than
to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful
aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where an accused
admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-
defense.52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own
evidence and not on the weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in shooting
them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable means of
repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the trial court and the appellate court
found that petitioner failed to established by clear and convincing evidence his plea of self-defense. In this regard, it is settled that when the trial
court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.54 In the present
case, we find no compelling reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is
entitled to an acquittal on the ground of lawful self-defense.
On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the death of
Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-9608, we do
not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U-9609.
We hold that petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason
or causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in
attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other
hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender's own spontaneous
desistance.
In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a
deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime
committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the
Revised Penal Code are present.55 However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime
committed is only attempted murder or attempted homicide.56 If there was no intent to kill on the part of the accused and the wound/s sustained
by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter was admitted
and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the shooting of
petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and that the treatment duration
for such wound would be for six to eight days only.59 Given these set of undisputed facts, it is clear that the gunshot wound sustained by Michael
in his right shoulder was not fatal or mortal since the treatment period for his wound was short and he was discharged from the hospital on the
same day he was admitted therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No.
U-9609.
With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and the appellate
court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed against him before
the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and not a generic aggravating
circumstance.
Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6,
9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot
increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order
to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and
complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.61 It must always be alleged
and charged in the information, and must be proven during the trial in order to be appreciated.62 Moreover, it cannot be offset by an ordinary
mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case
of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No.
1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or qualifying."65 Thus, it ruled
that "when the law is silent, the same must be interpreted in favor of the accused."66 Since a generic aggravating circumstance is more favorable
to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by
degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic
aggravating circumstance.67 This interpretation is erroneous since we already held in several cases that with the passage of Republic Act. No. 8294
on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic aggravating circumstance.
As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary surrender of
petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of use of
unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its
maximum period.69
As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and that the proper
amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.70 However, based on the receipts for hospital, medicine, funeral
and burial expenses on record, and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead of
P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate
the same.71 Although there may be exceptions to this rule,72 none is availing in the present case. Nevertheless, since loss was actually established
in this case, temperate damages in the amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil
Code, temperate or moderate damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be
proved with certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use
of unlicensed firearm was already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is
P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount since the
same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing jurisprudence. However,
exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already
established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide shall be
P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the following
MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the petitioner is
prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the use of an unlicensed
firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as
minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to
pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court
of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayor under Article 50 of the
Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate
Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years of prision mayor as maximum
period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of
P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the Revised Penal
Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As regards
the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals. The actual damages likewise awarded by the Court of Appeals is hereby
reduced to P42,374.18.
SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 126148 May 5, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGAPITO QUIÑANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accused-appellants.

VITUG, J.:
In People vs. Orita, 1 this Court has declared that the crime of frustrated rape is non-existent. The pronouncement, notwithstanding, on 01 March
1996, more than six years after the promulgation of the decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted
accused Agapito Quiñanola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the crime of frustrated rape, principally on the strength
of People vs. Eriñia 2 which this Court, in the Orita decision, has considered to be a "stray" decision. The 1st March 1996 decision of the RTC of
Cebu City imposing upon each of the accused the penalty of reclusion perpetua "of Forty (40) Years," has been brought up by them to this Court.
The appeal opens up the whole case for review.
The information, dated 06 April 1994, charging the two accused with the crime of rape reads:
That on or about the 5th day of March, 1994, at about 11:30 o'clock in the evening, more or less, at Barangay Tangil, Municipality of Dumanjug,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie
and succeed in having carnal knowledge of the offended party Catalina Carciller, fifteen (15) years of age, against her will and consent.
CONTRARY TO LAW. 3
Already in force and effect at the time of the averred commission of the crime are the provisions of Republic Act No. 7659, amending the Revised
Penal Code, which define and penalize rape, as follows:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to
death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion
perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law-spouse of the parent of the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.
Duty assisted by counsel the two accused pleaded not guilty to the crime charged. During the trial that ensued, the prosecution and the defense
presented respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller her cousin 15-year-old Rufo Ginto and another male companion named Richard Diaz, went to attend a dance at around ten
o'clock in the evening of 05 March 1994 in Sitio Bangag Tangil, Dumanjug, Cebu. Catalina born on 09 November 1978, 4 was just then fifteen (15)
years and four (4) months old. She was a student at the Bito-on National vocational School at Dumanjug Cebu. About an hour later they left the
party and were soon on their way home. The three unsuspecting youngsters stopped momentarily to rest at a waiting shed beside the Tangil
Elementary School. Accused Agapito Quiñanola a.k.a. "Petoy" and accused Eduardo Escuadro a.k.a. "Botiquil" who were both armed with guns
suddenly turned up Quiñanola beaming his flashlight at the trio while Escuadro stood by focused his attention on Catalina. Quiñonala announced
that he and Escuardo were members of New People's Army ("NPA"). Quiñonala instructed Escuadro to take care of the male companions of
Catalina while he (Quiñanola) held the latter at gunpoint.
Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face down on the ground and then urinated at them.
While Escuadro was fixing the zipper of his pants, Diaz and Ginto were bale to escape and ran away. Meanwhile Quiñanola with his gun pointed at
Catalina, forcibly brought her towards the nearby school. Catalina heard a gunfire but Quiñanola assured her that it was only an exploding
firecracker. When Escuadro again showed up, Catalina asked about her two friends. Quiñanola replied that he had ordered them to go home.
Catalina begged that she herself be allowed to leave. Pretending to agree, they walked the path towards the road behind the school. Then,
unsuspectingly, Quiñanola forced Catalina to sit on the ground. She resisted but Quiñanola, pointing his gun at her, warned her that if she would
not accede to what he wanted he would kill her. Catalina started to cry. Quiñanola told Escuadro to remove her denim pants. Catalina struggled to
free herself from Escuadro's hold but to no avail. Escuadro ultimately succeeded in undressing her. Quiñanola unzipped his pants and laid on top of
her while Escuadro held her legs Quiñanola "started to pump, to push and pull" 5 even as Catalina still tried desperately to free herself from him.
She felt his organ "on the lips of (her) genitalia." 6 When Quiñanola had satisfied his lust, Escuadro took his turn by placing himself on top of
Catalina. Catalina could feel the sex organ of Escuadro "on the lips of (her) vulva" 7 while he made a push and pull movement. Quiñanola, who
stood by, kept on smoking a cigarette.
Escuadro and Quiñanola scampered immediately after Catalina's ordeal. Failing to find her pair of pants and panty. Catalina was left wearing her T-
shirt and brassieres. Catalina just then sat down, not knowing what to do, until she finally started to run home fearing that she might be followed.
Upon reaching home, Catalina went upstairs and, afraid that the culprit would still come after her, hid herself behind the door. Baffled by Catalina's
strange behavior, her mother and her elder sister took turns interrogating her. Catalina finally said that she was raped but she would not reveal the
names of the persons who had committed the dastardly act because of their threat.1âwphi1.nêt
Guillermo Zozobrado learned from his wife, Catalina's sister, that Catalina had been raped. He promptly repaired to the municipal hall of Dumanjug
to report the crime. Policemen were immediately dispatched to the Carcillers' residence. Still in a state of shock, Catalina initially kept mum about
it; later, when the police officers returned at daytime, she was able to respond to questions and to disclose that "Petoy," referring to Agapito
Quiñanola, and "Botiquil," the other accused Eduardo Escuadro, were the persons who ravished her. The officers later invited her to the police
station to identify a suspect whom she positively identified to be "Botiquil" or Eduardo Escuadro.
Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P. Refe, medico-legal officer of the National Bureau of Investigation ("NBI") of Region 7,
Central Visayas, who conducted the physical examination of Catalina on 07 March 1994, showed that there was "no evidence of extragenital
physical injury noted on the body of the Subject." 9 The genital examination yielded the following findings on the victim:
Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen,
moderately thick, wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with moderate resistance. Vaginal walls, tight and
rogusities, prominent. 10 (Emphasis supplied.)
The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was "so small as to preclude complete penetration of an average-size
adult penis in erection without producing laceration." 11
Against the evidence submitted by the prosecution, the accused, in their defense, interposed alibi, ill motive on the part of an "uncle" of the
complainant, and insufficient identification.
Accused Agapito Quiñanola, a member of the Philippine National Police stationed at Naga, Cebu, testified that it was his day-off on 05 March 1994.
At about 8:30 a.m., he and his wife, Leticia, who had just arrived in Naga from Cebu City, proceeded to the house of his parents in Panla-an,
Dumanjug, to attend to the construction of their unfinished house. Quiñanola helped Vidal Lañojan and Nicasio Arnaiz in cementing the kitchen
floor of their house. The work was finished at around 11:00 o'clock in the evening. After Vidal and Nicasio had gone home, Quiñanola went to bed
with his wife around midnight until the following morning of 06 March 1994. He denied having been in the company of his co-accused, Escuadro
a.k.a. "Botiquil," at any time during the whole day and night of 05 March 1994. According to him, Guillermo Zozobrado, Catalina's brother-in-law,
concocted the rape charge to get even with him because of an incident in August 1993 at a fiesta dance in upper Tangil, Panla-an, when George
Camaso, the husband of his sister Jinga, got into trouble with Samuel Escuadro. Quiñanola tried to pacify George Camaso who was then drunk but
Camaso suddenly hit him. He parried the blow and slapped Camaso on the face. Zozobrado joined the fray and tried to hit Quiñanola but because
Zozobrado was drunk, he stumbled when Quiñanola had pushed him. 12 He admitted that he had no misunderstanding of any kind with the
complainant and her parents themselves.
Leticia Quiñanola the wife of accused Agapito Quiñanola, testified to attest to her husband's "good moral character" and to corroborate his
testimony. Leticia said that after the workers had left their house at around midnight she and appellant talked for a while and then made love.
Vidal Lañojan the carpenter was presented to state that Quiñanola was at home helping the carpenters until past 11 o'clock on the night of the
incident. Nicasio Arnaiz a farmer and store cutter added that work in the Quiñanola's house had started late in the morning of 05 March 1994 since
they still waited for Quiñanola and his wife Patsy to arrive. Work in the house, he said had stopped at about 11 o'clock that night.
Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at about seven o'clock in the evening of 05 March 1994 he and Pablito Cuizon, Jr., went
fishing in Tangil Dumanjug Cebu until about ten o'clock that evening. After partaking of supper at around 11:30 p.m., they had a drinking spree and
went to bed at 12:00 midnight waking up at 6:30 a.m. the following day. He denied having been in the company of Quiñanola and insisted that the
rape charge had been the result of a mere mistaken identity. Pablito Cuizon, Jr., corroborated Escuadro's story about their being together up until
they parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato Mascarinas, Jr., who took part in the investigation of the
crime, and Margarito Villaluna, a suspect at the early stages of the police investigation who was in the frequent company of the accused. According
to PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the rape incident to him at midnight of 05 March 1994. He entered the
report in the "temporary blotter because the suspect was unknown then." 13 Accompanied by the two tanods, he went to the residence of the
victim and when he asked Catalina if she was able to recognize the malefactors, she kept silent and continued crying. SPO2 Liberato Mascarinas, Jr.,
asserted that, in the early morning of 06 March 1994, Gilly and George Zozobrado went to the police station and named "Pitoy Quiñanola,
Margarito Villaluna and Batiquil or Escuadro" as being the suspects in the rape incident. While on their way to the latter's respective residences,
the team met Catalina Carciller and party who were themselves about to repair to the police headquarters. Mascarinas asked Catalina about the
identities of the rapists. She named "Pitoy Quiñanola" but said she did not know the names of "the other persons" although she could recognize
them by face. Botiquil was later brought to the police station Pitoy Quiñanola by that time had already gone to Naga. Margarito Villaluna declared
that he had been in Panla-an, Negros Oriental, from 05 March 1994 until 09 March 1994 until harvesting corn. His sister, Mercy Villaluna testified
that, in the morning of 06 March 1994, policemen in the company of barangay tanods including Gilly Zozobrado and his son Marcelo, came to their
house looking for her brother Margarito. Shortly after the group had left, another policeman, in the company of one Erwin Quirante also came
looking for her brother. The arrival of the policemen prompted her to verify from the Coast Guard whether her brother had indeed left for Negros
Oriental. She was told that her brother was in the boat that departed for Negros in early dawn of 02 March 1994. Still unsatisfied with the result of
her queries, Mercy went to Guinholngan where she met Margarito.
Following the trial and submission of the case for decision, the court
a quo, 14 on 01 March 1996, found the two accused guilty beyond reasonable doubt of the crime of "frustrated rape" and sentenced them
accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds guilty beyond reasonable doubt the two accused Agapito "Petoy" Quiñanola and
Eduardo Escuadro, alias "Batiquil", as principals by direct participation and indispensable cooperation of the frustrated rape of the complaining
witness Catalina "Cathy" Carciller, and considering the attendance in the commission of the crime of the six (6) aggravating circumstances
aforementioned, not offset by any mitigating circumstance, hereby sentences these two accused individually to Reclusion Perpetua of Forty (40)
Years, plus all the accessory penalties prescribed by law, and to pay the offended party civil indemnity in the amount of P50,000.00 each.
The Court also hereby recommends that under no circumstance should the two accused be granted parole or conditional or absolute pardon, in
view of the extreme moral turpitude and perversity which they exhibited in the commission of the crime — not until they shall have served at least
thirty (30) years of the full range of forty (40) years of reclusion perpetua meted out against them in this case. They should be interdicted for that
length of time from the usual and normal liasons (sic) and dealings with their fellowmen and their community so as to protect the latter from their
pernicious and insidious examples. This is the most generous and charitable recommendation that the Court can make for these two malefactors,
short of imposing upon them the supreme penalty of death, which the Court in other times and conditions might have been compelled, as a matter
of inexorable duty, to mete out against them, in obedience to the implacable and peremptory demands and dictates of retributive justice.
Costs shall also be taxed against the two accused.
SO ORDERED. 15
The trial court ruled that the accused were liable for the crime of frustrated rape "with an eye to extending to the two accused the benefit of the
principle that in case of doubt criminal justice naturally leans in favor of the milder form of penalty" 16 but that, because of the existence of "at
least six (6) aggravating circumstances, 17 not offset by any mitigating circumstance," 18 the accused should each be meted the penalty of
reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it been committed with the attendance of the above-mentioned aggravating
circumstances, with absolutely no offsetting mitigating circumstances, ought to be punished with the mandatory penalty of death under the
pertinent provisions of Section 11 and 23 of Republic Act No. 7659, which amended Article 335 of the Revised Penal Code, and further amplified
the aggravating circumstances enumerated in Article 14 of the same code. But because the crime committed here is "merely" frustrated rape for
the reasons heretofore discussed, attended by the aforementioned six aggravating circumstances, not offset by even one mitigating circumstance,
the proper penalty to be imposed upon the two principals, the two accused herein, both co-conspirators, by direct participation and indispensable
cooperation, of the frustrated rape, should be one degree lower than the indivisible afflictive penalty of death, which is also the indivisible afflictive
penalty of reclusion perpetua which, under Section 21 of the amendatory statute, shall range from twenty years and one day to forty years. 19
In their appeal to this court, the two convicted accused interposed the following assignment of errors:
I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF THE PROSECUTION WITNESSES WHICH IF THOROUGHLY CONSIDERED COULD
HAVE ALTERED THE DECISION IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE CLOUDED WITH GRAVE
INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF THE SAME WERE NOT
CONTROVERTED.
V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE TESTIMONIES OF THE POLICEMEN WHICH WERE UNCONTROVERTED AND WITH
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTIES.
VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF FRUSTRATED RAPE AND SENTENCING THEM TO 40 YEARS of RECLUSION PERPETUA. 20
In reviewing rape cases, this Court must again say that it has been continually guided by the principles (a) that an accusation of rape can be made
with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of
the crime which usually involves only two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the
evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the
defense.21 Expectedly, courts would scrupulously examine the testimony of the complainant with the thought always in mind that the conviction
of the accused would have to depend heavily on the credibility of the offended woman. It is not much different in this instance for, at bottom,
appellants assail the credibility of the prosecution witnesses, particularly that of the complainant, in seeking a reversal of the judgment of
conviction.
The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and will not be disturbed on appeal in the
absence of any clear showing that the trial court has "overlooked, misunderstood or misapplied facts or circumstances of weight and substance"
that could have consequential effects. The stringency with which appellate tribunals have observed this rule is predicated on the undisputed
vantage of the trial court in the evaluation and appreciation of testimonial evidence.22
In assailing Catalina's credibility, as against the assessment made by the trial court which has described the victim's testimony to be impressed with
"candor, spontaneity and naturalness," appellants theorize that the sexual intercourse, if indeed true, could have only been committed against
Catalina in a sitting position, contrary to her declaration of having been made to lie on the ground because her T-shirt, marked Exhibit E, is "not
tainted with mud at all especially the back if she were made to lie down."23 The Court finds this so-called incongruity committed by the
complainant to a feeble attempt to discredit her testimony. The Court is convinced of the sexual assault made against her. Here follows the
testimony of Catalina on this score.
Q You said that you were forced by Agapito Quiñanola to sit down, where were you forced to sit down, in what particular place or area?
A Just behind the back of the school.
Q You were forced to sit down on the ground?
A Yes.
Q In effect did you sit down as ordered by him?
A I resisted.
COURT:
Q How did you resist?
A I said I will not sit down.
TRIAL PROS. NAZARENO:
Q What did Agapito Quiñanola do, if any, when you resisted?
A He pointed his gun to me.
Q When he pointed a gun at you, referring to Agapito Quiñanola, what did he say?
A He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me.
Q What did you do when you heard those words coming from Agapito Quiñanola?
A I cried.
Q When you cried what did Agapito Quiñanola do, if any?
A He ordered Eduardo Escuadro to remove my pants and panty.
COURT
Q Why what were you wearing at that time?
A Pants.
Q What kind of pants?
A Denim.
TRIAL PROS. NAZARENO
Q Now, after Agapito Quiñanola ordered Eduardo Escuadro to remove your pants and panty what did Eduardo Escuadro do, if any?
A He did what Agapito Quiñanola commanded him.
COURT:
Q How about you, what (sic) were you doing at that time?
A I cried and tried to free myself.
TRIAL PROS. NAZARENO
Q Now, when Eduardo Escuadro removed your pants and panty where was Agapito Quiñanola and what did Agapito Quiñanola do?
A He unzipped his pants.
Q After that what happened?
In effect, were your pants and panty removed by Eduardo Escuadro?
A Yes.
Q Now, you said Agapito Quiñanola opened his fly or unzipped his pants, when Agapito Quiñanola already unzipped his pants, what did he do?
A He approached me and lay on top of me.
Q When Agapito Quiñanola approached you and laid on top of you, what did Eduardo Escuadro do?
A He was holding on to my legs.
Q Then what happened after that?
A Agapito Quiñanola started to pump, to push and pull.
Q What did you do when Agapito Quiñanola was already on top of you and made a push and pull on you?
A I struggled to free myself.
Q After that what happened when Agapito Quiñanola was already on top of you and kept on making a push and pull?
A Eduardo Escuadro took his turn.
Q What do you mean by took his turn, please specify what did Escuadro do? He did what Agapito had just done to you?
COURT:
Q What did Agapito Quiñanola do to you actually?
A He lay on top of me and did a push and pull movement.
TRIAL PROS. NAZARENO:
Q When Agapito Quiñanola lay on top of you and made a push and pull movement, do you mean to say that he inserted his penis into your vagina?
A I felt something hard on the lips of my genitals.
Q What is this something hard that you felt that touched the lips of your vagina or vulva?
A His organ or penis.
Q When Agapito Quiñanola unzipped his pants, did you see his penis?
A Yes.
Q You also said that Eduardo Escuadro took his turn and laid on top of you and made a push and pull on you, specifically what did Eduardo
Escuadro do?
A The same as Agapito did, he was doing the push and pull movement.
Q What did you feel when Eduardo Escuadro was already on top of you and made a push and pull on you?
A I held my breath.
Q Did you see the penis Eduardo Escuadro?
A No.
Q Now, did you feel that the penis of Escuadro inserted into your vagina?
A I felt it on the lips of my vulva.24
The fact that she must have been lying down when violated has even more been made clear by the defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were on the ground at the time when you were raped by these two accused?
A They pointed a gun at me and ordered me to lie down.
Q Lie on the ground?
A Yes. 25
And on why her T-shirt was no longer soiled with mud when presented in court, Catalina creditably explained that when it was offered in evidence,
she had already dusted and rid it of grass particles. At all events, whether appellants spent their lust on Catalina in a sitting position or lying down
would not be of any real moment for what remained clear, established rather convincingly by the prosecution, was that appellants had forced
carnal knowledge of the victim.
The reliance being made by appellants on the affidavit of Catalina in order to discredit her is likewise futile. The Court has consistently ruled that
discrepancies between the statement of an affiant in an affidavit and those made on the witness stand do not necessary downgrade testimonial
evidence. Ex parte affidavits are usually incomplete and frequently prepared by an administrating officer and cast in the latter's language and
understanding of what the affiant has said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or to her.26
Not much differently could be said of Catalina's identification of appellants as being her ravishers. On the witness stand, Catalina explained that
while she gave appellant Escuadro's nickname "Botiquil" to the investigating police officer, the latter did not mention that name in the affidavit
because, according to the officer, the affidavit was merely a "shortcut". In her testimony, she was categorical that she had known appellants even
before the rape incident. She knew that appellant Quiñanola was a policeman and a "popular maldito" (nasty) in the locality.28 Catalina knew that
appellant Escuadro, a resident of Punla-an far from her own abode, was commonly known as "Batiquil" (Botiquil). She could not have been
mistaken in the identification of the culprits since appellants themselves held a flashlight which they used that added to the illumination shed by a
fluorescent lamp and two bulbs on the side of a house only some meters away.
As regards the allegation of appellants that the testimony of Catalina contradicted in certain respects that of prosecution witness Rufo Ginto,
suffice it to say that the testimony of Rufo Ginto (who was noted by the trial court not to be "an intelligent witness"29) was merely corroborative in
nature and neither dealt with the actual commission of the crime nor delved on material points.
Catalina's candid and straightforward narration of the two sexuals assaults perpetrated on her on the night of the incident unmistakably deserves
credence. It is unbelievable that a young barrio lass would concoct a tale of defloration publicly admit having been ravished and her honor tainted
allow the examination of her private parts, and undergo all the trouble and inconvenience not to mention the trauma and scandal of a public trial
had she not in fact been raped and truly moved to protect and preserve her honor as well as to obtain justice, for the wicked acts committed
against her.30 There is no plausible reason why Catalina should testify against appellants, imputing upon them so grave a crime as rape if it did not
happen. This Court has consistently held that where there is no evidence to show any dubious reason or improper motive why a prosecution
witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith and credit.31 So, also, the
Court has repeatedly said that the lone testimony of the victim in a rape case, if credible, is enough to sustain a
conviction.32
The positive identification of appellants as being the perpetrators of the crime effectively effaces their alibi.33 The rule is that affirmative testimony
is far weightier than a mere denial, especially when it comes from the mouth of a credible witness.34 Moreover, alibi might be aptly considered
only when an accused has been shown to be in some other place at the crucial time and that it would have been physically impossible for him to be
at the locus criminis or its immediate vicinity at the time of the commission of the crime.35
In the context it is used in the Revised Penal Code, "carnal knowledge" unlike its ordinary connotation of sexual intercourse, does not necessarily
require that the vagina be penetrated or that the vagina be penetrated or that the hymen be ruptured.36 The crime of rape is deemed
consummated even when the man's penis merely enters the labia or lips of the female organ37 or, as once so said in a case, by the "mere touching
of the external genitalia by a penis capable of consummating the sexual act."38 In People vs. Escober,39 in convicting a father of having raped twice
his 1l-year-old daughter, the Court has said:
While the evidence may not show full penetration on both occasions of rape the slightest penetration is enough to consummate the offense in fact
there was vulva penetration in both cases. The fact that the hymen was intact upon examination does not belie rape for a broken hymen is not an
essential element of rape not does the fact that the victim has remained a virgin negate the crime. What is fundamental is that the entrance of at
least the introduction, of the male organ into the labia of the pudendum is proved. As in the case at bar it can be said that there was penetration
although incomplete, and it was sufficient to prove carnal knowledge of a child under twelve years of age. A medical examination is not an
indispensable element in a prosecution for rape. The accused may be convicted on the sole basis of complainant's testimony of credible and the
findings of the medico-legal officer do not disprove the commission of rape.
There are half measures or even quarter measures nor is their gravity graduated by the inches of entry. Partial penile penetration is as serious as
full penetration. The rape is deemed consummated in either case. In a manner of speaking, bombardment of the drawbridge is invasion enough
even if the troops do not succeed in entering the castle.40 (Emphasis supplied.)
In another case, People vs. Gabayton,41 where the accused has been found guilty of raping his daughter then less than twelve years old, the Court
has observed:
Accused appellant draws attention to the fact that based on the medico-legal findings, there is no showing that his daughter's hymen was
penetrated, nor was there any evidence of injuries inflicted. However, jurisprudence is well-settled to the effect that for rape to be consummated,
rupture of the hymen is not necessary, nor is it necessary that the vagina sustained a laceration especially if the complainant is a young girl. The
medical examination merely stated that the smallness of the vaginal orifice only precludes COMPLETE penetration. This does not mean that rape
has not been committed. The fact that there was no deep penetration of the victim's vagina and that her hymen was intact does not negate rape,
since this crime is committed even with the slightest penetration of a woman's sex organ. Presence of a laceration in the vagina is not an essential
prerequisite to prove that a victim has been raped. Research in medicine even points out that negative findings are of no significance, since the
hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymen. Entry of
the labia or lips of the female organ merely, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. What
must be proven in the crime of rape is merely the introduction of the male organ into the labia of the pudendum and not the full penetration of the
complainant's private part. As we held in Baculi: "there could still be a finding of rape even if despite the repeated intercourse over a period of four
years the complainant still retained an intact hymen without signs of injury." In the case at bench, Summer's testimony has established without a
doubt that accused-appellants organ managed to come into contact with her vagina, enough to cause her pain.42 (Emphasis supplied.)
In its recent holding in People vs. Echegaray,43 the Court has declared that "a mere knocking at the doors of the pudenda, so to speak, by the
accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction."
The trial court appellants only frustrated rape, ruled that there was no "conclusive evidence of penetration of the genital organ of the offended
party 44 in the (a) Catalina had admitted that she did not spread her legs and (b) the medico-legal officer's findings showed she did not sustain any
extragenital injuries and her hymenal orifice was so small that an erect average-size penis would not have completely penetrated it would causing
laceration. It would seem that the trial court failed to consider Catalina's testimony in its entirely she testified:
Q And when he mounted on top of you Escuadro was holding on to your two feet and all the time that he Quiñanola, was making a push and pull
on you Escuadro was holding on to your two feet?
A Yes.
COURT:
Q Your two feet?
A Yes.
ATTY. CREEP:
Q Now in other words since your two feet were held and Eduardo Escuadro was waving (sic [moving]) slightly to your left as you demonstrated
your two feet became closer to each other, it could not be spread?
A I was still struggling at that time to free myself and I do not know whether my legs were speared out or not.
Q Did you spread your legs?
A No.
Q Since you did not spread your legs and Quiñanola was on top of you, did you not bother to pull your legs, kick the one holding it and pushed
Quiñanola or do any harm to him?
A No, because I was already frightened considering that there were two of them and they were armed.45
This testimony would indicate that Catalina, considering her struggle to free herself, understandably failed to notice whether her legs were spread
apart or close together during her ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs when
Quiñanola took her. Thus —
Q At that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly so that he will refrain from raping you?
A I was not able to think of that because of my fear and besides that Eduardo Escuadro was holding on to both my legs.
Q Now if Eduardo Escuadro was the one holding on both your two legs how was Quiñanola able to place himself on top of you?
A It was because Eduardo Escuadro had already released my hands and Quiñanola was the one holding on to it already, afterwards Eduardo
Escuadro transferred to hold both my legs.46
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita,47 the
Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527;
People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505). We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of
the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil.
559, People vs. Rabadan, et al., 53 Phil. 694; Unites States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender
merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People vs. Eriñia, 50 Phil. 998 [1927] where, We found the offender guilty of
frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a
"stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriñia case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.48
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with
reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress
sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a
persistent lapse in language.
Each appellant is liable for two counts of consummated rape on account of a clear conspiracy between them shown by their obvious concerted
efforts to perpetrate, one after the other, the crime. Each of them therefore is responsible not only for the rape committed personally by him but
also for the rape committed by the other as well.49
Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 when rape is committed with the use of a deadly weapon or by
two persons, the crime is punishable by reclusion perpetuata to death. Even while the information has failed to allege the use of a deadly weapon
in the commission of the rape, appellants can, nonetheless, be held accountable under that provision since the information has likewise averred
that the "above-named accused," referring to the two appellants, have conspiratorially committed the crime.
Article 14 of the Revised Penal Code, 50 includes among its enumeration of generic aggravating circumstances the fact that the crime is committed
with the aid of armed men or persons who insure or afford impunity. The fact alone, then, that a malefactor has sported a firearm does not, by
itself, militate to aggravate crime. As regards appellant Quiñanola, the aggravating circumstance of his being a member of the Philippine National
Police would have exposed him to the penalty of death51 under the amendatory provisions of Article 335 by Republic Act No. 7659, had this
circumstance been properly alleged in the information. The description by the trial court of appellants as being "powerfully, built, brawny and
mean-looking" as against the "short slender easily cowed" 15-year-old victim would not here warrant a finding that abuse of superior strength has
aggravated the commission of the crime. The law should be deemed to have already considered this circumstance in qualifying the crime to its
"heinous" character rendering in that context abuse of superior strength has an inherent element thereof. Neither may nighttime be considered an
aggravating circumstance in the absence of proof of its having been deliberately sought out by appellants to by appellants to facilitate the
commission of the offense.52 Craft fraud or disguise53 is a species of aggravating circumstance that denotes intellectual trickery or cunning
resorted to by an accused to aid in the execution of his criminal design or to lure the victim into a trap and to conceal the identity of the accused.
The fact that one of the appellants has pretended to be a member of the New People's Army does not necessarily imply the use of craft, fraud or
disguise, in the commission of the crime Finally, the Court does not subscribe to the view of the trial court that accused-appellants have employed
means which added ignominy to the natural effects of the crime, particularly in "stripp(ing) the victim of her denim parts and panties and then
sending her home in this humiliating and distressing condition.54 There is nothing on record that even remotely suggests that accused-appellants
so deliberately sought to leave Catalina with bottoms bare that she might be left alone in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the commission of a crime punishable by two (2) indivisible penalties, such as reclusion perpetua to
death would justify even without any mitigating circumstance, the imposition of the lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended party and indemnity in the amount of P50,000.00. Prevailing jurisprudence55
likewise allows the victim is have an award of moral damages for having evidently undergone mental physical and psychological sufferings. The
availability of appellants being on delict is solidary.56
WHEREFORE, appellants Agapito Quiñanola y Escuadro and Eduardo Escuadro y Floro are each found guilty beyond reasonable doubt of two (2)
counts of consummated rape and accordingly, sentenced to the penalty of reclusion perpetua in each case. Said appellants are ordered to pay
jointly and severally Catalina Carciller the sum of P100,000.00 by way of indemnity ex delictu for the two counts of consummated rape plus
P60,000.00 moral damages. Costs against appellants.1âwphi1.nêt
SO ORDERED.
THIRD DIVISION
PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,
- versus -
CHRISTOPHER AVILES,Accused-Appellant.
G.R. No. 172967

DECISION

CHICO-NAZARIO, J.:

This is an appeal from the Decision[1] of the Court of Appeals affirming with modification the Decision[2] of the Regional Trial Court of Urdaneta
City, Branch 46, convicting accused-appellant Christopher Aviles y Molina Alias Topeng (Aviles) of the crimes of murder and slight physical injuries.

Aviles was charged with the crimes of murder and frustrated murder in two separate Informations, allegedly committed as follows:

Criminal Case No. U-12011

xxxx

That on or about 7:30 oclock in the evening of June 19, 2002 at Alexander St., Poblacion, Urdaneta City, Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a sharp bladed and pointed knife, with intent to kill, and treachery, did then and
there willfully, unlawfully and feloniously attack, assault, and stab Danilo Arenas, inflicting upon him the following:

- Wound, hook-shaped 26.5 x 4cms., left thigh middle 3rd antero-medial aspect.
- Chopping wound 15 x 2.5 cm., left leg upper 3rd below knee.
- Chopping wound 4 x 1 cm., right leg middle 3rd anterior aspect.
- Wound semilunar 3 x 0.5 cm., right foot dorum.
- Hacking wound 3 cm. x 0.5 cm. left hand dorsum, near wrist.

resulting to Irreversible shock due to arterial hemorrhage due to severe branch of fermoral artery, which caused his death, to the damage and
prejudice of his heirs.

CONTRARY To Art. 249, Revised Penal Code as amended by R.A. 7659.

Criminal Case No. U-12385

That on or about 7:30 oclock in the evening of June 19, 2002 along Alexander Street, Poblacion, Urdaneta City, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with intent to kill and treachery, did then and there,
willfully, unlawfully and feloniously stab and hit NOVELITO CONTAPAY y CALICA, inflicting upon him a stab wound in the left knee, the accused
having thus commenced by overt act the commission of the crime of Murder but did not perform all the acts of execution which would have
produced the felony by reason of some cause or accident other than accused[s] spontaneous desistance, to the damage and prejudice of said
Novelito Contapay y Calica.

CONTRARY to Article 248 in relation to Article 6 of the Revised Penal Code.[3]

The evidence for the prosecution shows that on 19 June 2002 at around 7:30 p.m., Novelito Contapay (Contapay) was driving his passenger jeep
along Alexander Street, Poblacion, Urdaneta City, at less than ten kilometers per hour due to heavy traffic in front of Magic Mall. His lone
passenger, the deceased Danilo Arenas, was seated beside him. Arenas suddenly shouted apaya.[4] Contapay turned his head and saw Christopher
Aviles stabbing Arenas. Aviles upper body was already inside the jeep with one foot on the running board. Contapay halted the jeep and tried to
help Arenas by holding the hand of Aviles, but the latter stabbed Contapay on his left knee. Contapay pushed Aviles who ran away. Contapay
alighted from the jeepney, but he was not able to chase Aviles because of his bleeding left knee. Contapay noticed that Arenas was already
unconscious, and he brought the latter to the Urdaneta Sacred Heart Hospital.

SPO2 Asterio Dismaya, SPO2 Ernesto Contaoi, SPO1 Rodolfo Febreo, PO3 Dennis Torres and a certain SPO2 Cachuela investigated the stabbing
incident. SPO2 Dismaya and his companions went to the Urdaneta Sacred Heart Hospital but they were not able to interview Danilo Arenas. A
nurse informed SPO2 Dismaya that it was Novelito Contapay who brought Arenas to the hospital. SPO2 Dismaya interviewed Contapay who was
still in the premises.

Thereafter, the policemen went to the scene of the incident. SPO2 Dismaya was able to talk to Rufina Calvero, a balut vendor, who told him that
she noticed Aviles and the latters half-brother, George Cresencia (Cresencia), pass by her going southwards. Rufina Calvero also told SPO2 Dismaya
that her husband had a drinking spree with Aviles and Cresencia.

SPO2 Dismaya was also able to talk to Patricio Oliveros who informed him that Aviles created trouble at the parking lot for tricycles by chasing
other tricycle drivers, but was pacified by Cresencia.

Meanwhile, Contapay, realizing the lack of doctors in Sacred Heart Hospital, proceeded to the Villasis Polymedic Hospital and Trauma Center to
have his left knee treated. Contapay stayed in the hospital until the following day, incurring medical and hospital expenses.[5] Arenas, however,
died at 2:00 in the morning of 20 June 2002. The Certificate of Death stated that the immediate cause of death was cardio-respiratory arrest and
the antecedent cause was hemorrhagic shock due to stab wound on the medial side of the thigh.

Also on 20 June 2002, SPO2 Dismaya and other policemen went to the residence of Aviles in Jungle Town, San Vicente, Urdaneta City, but did not
find him there. Aviles mother accompanied the policemen to the house of Aviles father-in-law, where they finally saw Christopher Aviles. They
invited Aviles to the police station in connection with the stabbing incident. Aviles denied participation in the stabbing incident and claimed that it
was his half-brother, Cresencia, who stabbed Arenas.

Upon the request of Police Superintendent Jessie Lorenzo Cardona, Chief of Police of the Urdaneta City Police Station, City Health Physician of
Urdaneta City, Dr. Ramon B. Gonzales, Jr. conducted an autopsy on the body of Arenas. The Autopsy Report[6] reads:
SIGNIFICANT EXTERNAL FINDINGS:

- Plaster cast on left lower extremity.

Upon removing cast:
- Sutured wound left thigh middle 3rd antero-medial aspect.
Upon opening sutured wound:
Wound hook-shaped 26.5 x 4 cm.
- Sutured wound left leg upper 3rd below knee
Upon opening sutured wound:
Chopping wound 15 x 2.5 cm.

- Sutured wound right leg middle 3rd anterior aspect.

Upon opening sutured wound:
- Chopping wound 4 x 1 cm.

- Sutured wound right foot, dorsum.

Upon opening sutured wound
- Sutured wound semilunar 3 x 0.5 cm.

- Sutured wound left hand dorsum, near wrist.

Upon opening sutured wound:
- Hacking wound 3 cm. x 0.5 cm.

SIGNIFICANT INTERNAL FINDINGS:

Severed branch of femoral artery.

CAUSE OF DEATH:

Irreversible shock due to arterial hemorrhage due to severed branch of femoral artery.

During the trial, the father of Danilo Arenas, Victorio, testified that he and his wife, Lagremas, spent P52,524.00 for the treatment of Danilo Arenas
at the Urdaneta Sacred Heart Hospital, P50,000.00 during the wake, and another P38,000.00 paid to the Enriquez Funeral Home. These amounts
were supported by official receipts.

The widow of Danilo Arenas, Sophia, testified that her late husband was a businessman who used to earn around P9,000.00 a month. Besides
Sophia, Danilo Arenas is survived by his three children: Mark Joseph (10 years old), Mary Jane (9 years old), and Jeremias (6 years old).

Accused-appellant Christopher Aviles, who testified that he was a shoe repairer and fish vendor, claimed that at around 5:00 p.m. on 19 June 2002,
he, George Cresencia, Romeo Aquino, Maria Aquino and several other persons were drinking in front of the Magic Mall in Urdaneta City. He
allegedly left the group to accompany someone to the municipal hall, after which, he returned to the place where the group was drinking. He then
told Cresencia that he was going home, but the latter asked him to stay and continue drinking with them. After 30 minutes, he finally left in order
to go home. While he was walking towards the public market near Rocca Theater, he saw Cresencia running towards him. Cresencia, who had
blood stains on his t-shirt, told him that he (Cresencia) stabbed someone. Aviles revealed that he did not ask Cresencia who the victim was and
proceeded on his way home. He did not tell his mother or his wife that Cresencia stabbed someone. The following day, on 20 June 2002, at 6:00
a.m., he was arrested and brought to the municipal hall.

Renton and Criselda Aviles, who are Christopher Aviles brother and sister-in-law, testified that on 19 June 2002, Cresencia arrived drunk in their
house at around 9 p.m., with blood stains on his shirt. Cresencia allegedly told them that he was involved in a fight and that he might have stabbed
someone. Cresencia spent the night at their house and left the following morning.

On 21 July 2003, the trial court rendered a Joint Decision convicting Christopher Aviles of the crimes of murder and slight physical injuries, thus:

WHEREFORE, premises considered, the court finds accused CHRISTOPHER AVILES Y MOLINA ALIAS TOPENG

1. CRIMINAL CASE NO. U-12011:

GUILTY beyond reasonable doubt of the crime of MURDER and, there being no mitigating or aggravating circumstance, he is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA; and is hereby ordered to indemnify the heirs of the victim of Danilo Arenas in the amount of FIFTY
THOUSAND PESOS (P50,000.00), to pay funeral expenses of Thirty Eight Thousand Pesos (P38,000.00), to pay medical expenses of Fifty Two
Thousand Five Hundred Twenty Four Pesos (P52,524.00), to pay P50,000.00 by way of moral and exemplary damages, all without subsidiary
imprisonment;

2. CRIMINAL CASE NO. U-12385:

GUILTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES and is hereby sentenced to suffer imprisonment of thirty (30) days of
Arresto Menor, and is hereby ordered to pay medical expenses of Six Thousand Eight Hundred Ninety Eight Pesos (P6,898.00);

and to pay the costs.

The accused shall be credited in full with the period of his preventive imprisonment in the service of his sentence.[7]

Aviles appealed to this Court. Conformably with this Courts ruling in People v. Mateo,[8] we resolved[9] to transfer the appeal to the Court of
Appeals.

On 23 December 2005, the Court of Appeals rendered its Decision affirming with modification the trial courts Decision, thus:
WHEREFORE, the Joint Decision dated July 21, 2003 is AFFIRMED, with the MODIFICATION that accused-appellant Christopher Aviles y Molina is
ordered to pay the heirs of Danilo Arenas the amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages.[10]

Aviles now comes before us, assigning the following errors to the Court of Appeals:

I.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN ITS FINDING THAT THE QUALIFYING CIRCUMSTANCE OF TREACHERY ATTENDED THE COMMISSION OF THE
CRIMES CHARGED.[11]

Christopher Aviles argues that the identification made by the lone eyewitness, Contapay, is doubtful. Contapay testified that when he heard the
deceased Arenas shout Apaya, he turned his head and saw Aviles stabbing the deceased several times. He tried to hold Aviles but was, however,
stabbed on the knee, prompting him to kick Aviles out of the jeepney. According to Aviles, when confronted with a situation like this, it is more
consistent with human nature that a persons attention would be caught up in the on-going struggle and confusion, rather than in trying to
recognize the attacker. Aviles points out that he and Contapay did not know each other prior to the stabbing incident and, thus, the only basis of
Contapays memory of Aviles appearance was the span of time when the incident transpired.

Aviles further calls our attention to the investigation conducted by prosecution witness SPO2 Dismaya, who had interviewed balut vendor Rufina
Calvero, tricycle driver Romeo Aquino, and Aviles half-brother Cresencia. Aviles asserts that these three people were never presented in court to
affirm their statements.

We do not find Aviles assertions to be sufficient to reverse the outcome of the case.

Aviles may be correct that when the prosecution has at its disposal disinterested witnesses to the alleged crime but fails to produce them at the
trial, such failure, although not fatal, seriously weakens the case against the accused.[12] However, that is not the case here. The statements of
Rufina Calvero, Romeo Aquino and George Cresencia, while instrumental in the identification of Christopher Aviles for the purpose of his arrest,
were neither necessary nor beneficial for the identification of Aviles in trial.

SPO2 Dismayas testimony centered on his investigation of the crime which led to the arrest of Aviles. This investigation started with SPO2 Dismayas
interview of Contapay who knew neither the name nor the residence of Aviles. SPO2 Dismaya and his companions thus proceeded to the scene of
the crime, which led to their discovery of witnesses who indicated Aviles presence therein and possible participation in the stabbing incident. This
eventually led to the arrest of Aviles who was identified by Contapay as the person who stabbed him and Arenas.

During the trial, when Aviles was already in custody, testimonies merely pointing to a possibility that Aviles participated in the stabbing incident
was supplanted by the eyewitness account of Contapay that Aviles himself had performed the stabbing. The trial court found Contapays testimony
to be credible. It is settled that the appellate courts will generally not disturb the findings of the trial court considering that the latter is in a better
position to determine the same, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial,
unless certain facts of value have been plainly overlooked, which if considered, might affect the result of the case.

It must also be considered that, as elucidated by the statements of Aviles himself, he and Contapay had never met before the stabbing incident.
Contapay cannot therefore, could not have been impelled by ill will or evil intent in testifying against Aviles whom he did not know prior to the
incident.

Neither are we persuaded by Aviles argument that it is more consistent with human nature that a persons attention would be caught up in the
ongoing struggle, rather than in trying to recognize the attacker. Different people react differently to a given situation, and there is no standard
form of behavioral response when one is confronted with a strange, startling or frightful experience. Witnessing a crime is one novel experience
which elicits different reactions from witnesses for which no clear-cut standard of behavior can be drawn. This is especially true if the assailant is
physically near the witness.[13] In People v. Aquino,[14] we even held that:

There is no standard rule by which witnesses to a crime may react. Often, the face and body movements of the assailant create an impression
which cannot be easily erased from the memory of witnesses x x x.

This finding of credibility on the part of Contapay likewise obliges us to affirm the ruling of the trial court and the Court of Appeals finding Aviles
guilty of slight physical injuries. Contapays testimony was the evidence presented to prove not only the killing of Arenas, but likewise the stabbing
of Contapay himself who had tried to help Arenas.

We also agree with the trial court that the crime proven to have been committed by Aviles in stabbing Contapay is only slight physical injuries.
While the prosecution sufficiently established that Aviles stabbed Contapay, it failed to prove intent to kill, which is an element of both frustrated
and attempted homicide. On the contrary, the evidence appears to show that Aviles stabbed Contapay on the knee only for the purpose of
preventing the latter from further helping Arenas. Since there was no proof either as to the extent of the injury or the period of incapacity for labor
or of the required medical attendance, Aviles can only be convicted of slight physical injuries.

Anent the second assigned error, Aviles claims that the trial court erred in its finding that the qualifying circumstance of treachery attended the
commission of the crime, as Contapay did not testify as to how the attack on Arenas was initiated.

There is treachery when the following requisites are present: (1) the employment of means, methods, or manner of execution to ensure the safety
of the malefactor from defensive or retaliatory action on the part of the victim and (2) the deliberate or conscious adoption of such means, method
or manner of execution.[15]

The Court of Appeals ruled that the fact that Arenas shouted Apaya (perhaps a shortened form of apay aya, which is more accurately translated in
Filipino as bakit ba) showed that he was probably surprised to see Aviles trying to get inside the jeepney which was moving slowly because of heavy
traffic. The testimony of Contapay that after hearing Arenas shout Apaya, he saw Aviles already stabbing Arenas, showed that the attack was
sudden and unexpected.

We agree with Aviles on this score. Although Contapay testified that he turned around immediately when the deceased shouted Apaya, he did not
testify as to how the attack was initiated. Also, considering that he was driving the jeepney when Arenas was attacked, he could not even have
known how the attack was initiated.

For treachery to be appreciated, it must be present at the inception of the attack. If the attack is continuous and treachery was present only at a
subsequent stage and not at the inception of the attack, it cannot be considered.[16] Rather than being an expression of surprise at the presence of
Aviles as held by the Court of Appeals, the shout Apaya or Apay aya, when translated as Bakit ba, connotes confusion as to why the person to
whom it is spoken is acting the way he is acting. This implies the lapse of several moments between the commencement of the attack and Arenas
shouting.

Qualifying circumstances must be proven beyond reasonable doubt as the crime itself.[17] It cannot be considered on the strength of evidence
which merely tends to show that the victim was probably surprised to see the assailant trying to get inside the jeepney. As discussed above, Arenas
shout can be interpreted in different ways. In fact, prosecution witness Dr. Ramon Gonzales even testified that it was possible that Aviles and
Arenas were having a fight:

Atty. Florendo: You also found a wound on the left wrist of the cadaver, Doctor?
A: Yes sir.
Q: Would you consider it as a defensive wound, Doctor?
A: Yes sir.
Q: When you said it was a defensive wound, it is possible that the victim and the assailant was having a fight?
A: Yes sir.[18]

Neither does the fact that Arenas was in between Contapay and Aviles conclusively prove the presence of treachery. While this situation proved
fatal to Arenas who had nowhere to run, there was no evidence that this situation was deliberately and consciously adopted to ensure safety of the
malefactor from defensive or retaliatory action on the part of the victim. As we have similarly held in People v. Latag,[19]

Furthermore, no other circumstance attendant to the shooting supports the allegation that appellant carefully and deliberately planned the killing
in a manner that would ensure his safety and success. There were no indications that he had deliberately chosen the place, the time or the method
of killing. In addition, there was no showing that the meeting between him and the victim had been planned. The fact that the former was seen by
Atienza behind some shrubs after a gunshot had rung out does not, by itself, compel a finding of treachery. Such a finding must be based on some
positive proof, not merely on an inference drawn more or less logically from a hypothetical fact. Apparent from the assailed Decision of the trial
court is that it simply surmised that treachery had attended the killing.

As no qualifying circumstance attended the killing, Christopher Aviles can only be convicted of homicide. Homicide is punishable by reclusion
temporal.[20] There being no mitigating or aggravating circumstances proven in the case at bar, the penalty should be applied in its medium period
of 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law, the maximum penalty will be selected from
the above range, with the minimum penalty being selected from the range of the penalty one degree lower than reclusion temporal, which is
prision mayor (six years and one day to 12 years). We find the indeterminate sentence of 10 years and one day of prision mayor, as minimum to 14
years and one day of reclusion temporal, as maximum to be sufficient.

Finally, the absence of qualifying circumstances also warrants the deletion of the exemplary damages.

WHEREFORE, the Decision of the Court of Appeals is MODIFIED. The Court finds accused-appellant Christopher Aviles y Molina guilty beyond
reasonable doubt of the crime of HOMICIDE, and is hereby sentenced to suffer an indeterminate penalty ranging from 10 years and one day of
prision temporal as minimum to 14 years and one day of reclusion temporal as maximum. The penalty imposed by the courts a quo for the crime of
slight physical injuries as well as all civil indemnities imposed by the courts a quo are AFFIRMED, with the exception of the P25,000.00 imposed on
accused-appellant Aviles by way of exemplary damages, which is hereby DELETED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 173479 July 12, 2007
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JUAN CABBAB, JR., Accused-Appellant.
DECISION
GARCIA, J.:
Before the Court on automatic review is the decision1 dated February 22, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00968 which
affirmed, with modification, an earlier decision of the Regional Trial Court (RTC) of Bangued, Abra, Branch 2, in Criminal Case No. 687, finding
appellant Juan Cabbab, Jr., guilty beyond reasonable doubt of the crime of Robbery with Homicide and Attempted Murder and sentencing him to
suffer the penalty of reclusion perpetua.
Pursuant to our pronouncement in People v. Mateo2 which modified the provisions of the Rules of Court insofar as they provide for direct appeals
from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was
earlier3 referred to the CA, whereat it was docketed as CA-G.R. CR-H.C. No. 01978, for appropriate action and disposition.
The Case
In the court of origin, appellant Juan Cabbab, Jr., along with his cousin-in-law Segundino Calpito, was charged with the crimes of Double Murder
and Attempted Murder with Robbery in an Information4 alleging, as follows:
That on or about April 22, 1988, in Sitio Kayawkaw, Barangay Kimmalasag, Municipality of San Isidro, Province of Abra, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with the intent to kill, treachery and evident premeditation, while armed with a
firearm (not-recover), conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully and feloniously assault,
attack and shot from ambush WINNER AGBULOS and EDDIE QUINDASAN, consequently inflicting thereby multiple gunshot wounds on the different
parts of their bodies, killing Winner Agbulos on the spot and causing the death of Eddie Quindasan shortly thereafter, then and there willfully,
unlawfully and feloniously, with intent to kill, shot William Belmes, said accused having commenced the execution of Murder by overt acts but
were unable to perform all the acts of execution, which would have produced the crime of Murder as a consequence thereof, due to alertness of
victim William Belmes to roll and poor marksmanship of the accused thus prevented his death, then and there willfully and unlawfully and
feloniously, with the intent of gain, take, steal and carry away the money of Winner Agbulos in the amount of Twelve Thousand Pesos (P12,000.00),
Philippine currency..
ALL CONTRARY TO LAW with the aggravating circumstance of: (1) uninhabited place.
On arraignment, appellant Juan Cabbab, Jr. and accused Segundino Calpito separately entered their pleas of "Not Guilty" to the crimes charged.
Thereafter, trial on the merits ensued, in the course of which the prosecution presented the oral testimonies of M/Sgt. Godofredo Tubadeza, a
police investigator at Camp Villamor, Bangued, Abra; PO William Belmes, a member of the Integrated National Police at the Villaviciosa Police
Station; Vidal Agbulos, father of the victim Winner Agbulos; Dra. Leona Garcia-Beroña, medico-legal officer who conducted an autopsy on the body
of Winner Agbulos; and Dr. Godofreco Gasa, a physician at the Abra Provincial Hospital.
For its part, the defense presented the appellant himself; accused Segundino Calpito; and George de Lara, a Forensic Chemist of the National
Bureau of Investigation (NBI).
The Evidence
The People’s version of the incident is succinctly summarized by the Office of the Solicitor General (OSG) in its Appellee’s Brief,5 to wit:
In the morning of 22 April 1988, father and son Vidal Agbulos and Winner Agbulos, together with Eddie Quindasan, Felipe Abad and Police Officer
(PO) William Belmes, went to Barangay Kimmalasag, San Isidro, Abra to attend a "fiesta" celebration. Upon arrival in the area, they found out that
the fiesta celebration was already over, thus, they decided to go home in Villaviciosa, Abra. Since it was already lunchtime, the group took their
lunch at Sitio Turod, located in the same area of Barangay Kimmalasag. After taking their lunch and on their way home, they were met by accused-
appellant Juan Cabbab, Jr. and Segundino Calpito who invited them to play "pepito," a local version of the game of "russian poker."
Only Winner Agbulos and Eddie Quindasan played "pepito" with the group of accused-appellant. Winner Agbulos played the dealer/banker in the
game while accused-appellant and Segundino Calpito acted as players therein. Around 3:00 o’clock p.m., PO William Belmes told Winner Agbulos
and Eddie Quindasan that they should be going home after three (3) more deals. About 3:30 p.m., Winner Agbulos’s group wrapped-up the game
and were set for home together with his group. Winner Agbulos won the game.
While walking on their way home from Sitio Turod, PO William Belmes, who was behind Winner Agbulos and Eddie Quindasan picking-up guava
fruits from a tree, saw accused-appellant, accused Segundino Calpito and a companion running up a hill. Suddenly, he heard gunshots and saw
Winner Agbulos and Eddie Quindasan, who were then walking ahead of the group, hit by the gunfire.
By instant, PO William Belmes dove into a canal to save himself from the continuous gunfire of accused-appellant. PO William Belmes ran towards
Vidal Agbulos and Felipe Abad, who were walking behind the group, and informed the two that Winner Agbulos and Eddie Quindasan were
ambushed by accused-appellant and Segundino Calpito. The three (3) proceeded to the crime scene where they saw the dead body of Winner
Agbulos together with Eddie Quindasan whom they mistook for dead. The three sought help from the police authorities of Pilar, Abra and returned
to the scene of the crime where they found Eddie Quindasan who was still alive and who narrated that it was Juan Cabbab, Jr. and Segundino
Calpito who ambused them and took the money, estimated at ₱12,000.00, of Winner Agbulos which he won in the card game. Eddie Quindasan
was brought to the Abra Provincial Hospital but died the following day.
Postmortem examination of Winner Agbulos showed that the cause of his death was "cardio respiratory arrest secondary to hemorrhage due to
multiple gunshot wounds." On the other hand, Eddie Quindasan’s cause of death was "cardio respiratory arrest secondary to hypovolemic shock
due to multiple gunshot wounds."
For the defense, appellant himself took the witness stand claiming that in the morning of April 22, 1988, he went to Palao, Baddek, Bangued, Abra
to visit his friends Romeo, Demetrio and Restituto, all surnamed Borreta. He stayed there almost the entire day and left only at around 5:00 p.m.
He arrived home in Kimmalasag, San Isidro, Abra at around 5:30 p.m. He declared that his co-accused Calpito was not with him that day. He
likewise averred that he did not know prosecution witnesses PO William Belmes and Vidal Agbulos nor did he know of any motive for them to
testify against him.
Appellant’s co-accused Calpito denied having committed the crimes charged. He testified that at around 8:30 a.m. of April 22, 1988, he went fishing
at Kimmalasag, San Isidro, Abra until 4:00 a.m. of the following day.
George de Lara, Forensic Chemist of the NBI, testified that he conducted an examination on the paraffin cast taken from appellant to determine the
presence of gunpowder residue or nitrates on appellant’s hands. The results of the said examination showed that appellant was negative of
nitrates. He opined that certain factors may affect the result of the test such as perspiration, wind velocity, humidity or the type of gun used. He
also theorized that a paraffin test would yield a negative result if fertilizers or cosmetics are applied to the hands before the cast is taken.
The Trial Court’s Decision
In a decision6 dated August 26, 1997, the trial court acquitted Segundino Calpito but found appellant Juan Cabbab, Jr. guilty of two crimes, i.e. (1)
robbery with double homicide and (2) attempted murder. Dispositively, the decision reads:
WHEREFORE, the court finds accused Juan Cabbab, Jr. guilty beyond reasonable doubt of double murder with robbery or better put, robbery with
double homicide and attempted murder as defined in Art. 248 of the Revised Penal Code in relation to Art. 294 of the same Code or robbery with
double homicide defined and penalized under Art. 248 in relation to Art. 6 of the Same Code with aggravating circumstance of uninhabited place
with no mitigating circumstances and sentences him with the penalty of reclusion perpetua for each of the killing of Winner Agbulos and for
robbing the said victim after killing him and for the killing of Eddie Quindasan. The court likewise finds the accused Juan Cabbab, Jr. guilty beyond
reasonable doubt of the attempted murder defined and penalized in Art. 48 in relation to Art. 6 of the Revised Penal Code. These offenses
attended by the aggravating circumstance of uninhabited place with no mitigating circumstances and sentence him to suffer an indeterminate
penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as
maximum.
He is hereby ordered to pay the heirs of the victims P50,000.00 for each of them plus P20,000.00 also for each of them as actual expenses and
finally, the amount of P100,000.00 also for each of them as moral and exemplary damages and to pay the costs of this suit.
Accused Segundino Calpito is acquitted for insufficiency of evidence.
SO ORDERED.
The records of the case were then transmitted to this Court on automatic review. As stated at the onset hereof, the Court, in its Resolution7 of
January 17, 2006 and pursuant to its ruling in People v. Mateo,8 referred the case and its records to the CA for appropriate action and disposition,
whereat it was docketed as CA-G.R. CR-H.C. No. 00968.
In a decision dated February 22, 2006, the CA modified the trial court’s decision and found appellant guilty of the special complex crime of Robbery
with Homicide and imposed upon him the penalty of reclusion perpetua. The CA also affirmed appellant’s conviction, as well as the penalty
imposed, for the separate crime of attempted murder.
From the CA, the case was then elevated to this Court for automatic review. In its Resolution9 of September 20, 2006, the Court resolved to require
the parties to submit their respective supplemental briefs.
In a Manifestation dated November 16, 2006, the OSG, in behalf of appellee People, informed the Court that it is no longer filing a supplemental
brief and was merely adopting its appellee’s brief before the CA as its supplemental brief.
Appellant, on the other hand, filed on December 18, 2006 his supplemental brief on the lone assigned error, that:
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED-APPELLANT, DESPITE
THE FACT THAT THE VERSION IS MORE CREDIBLE AND SUPPORTED BY EVIDENCE.
Insisting that the prosecution failed to prove his guilt beyond reasonable doubt, appellant pleads for acquittal. He avers that the witnesses for the
prosecution failed to positively identify him as the perpetrator of the crime as they did not actually see him shoot the victims. Appellant also relies
on the results of the paraffin test showing that he was negative of gunpowder nitrates.
The appeal must fail.
Appellant’s contention that the witnesses for the prosecution failed to identify him as the perpetrator of the crime is belied by the testimony of PO
William Belmes, who was with the victims when the incident happened. We quote from the transcripts of the stenographic notes:
William Belmes on Re-direct Examination
FISCAL FLORES:
Q. Mr. Witness, when you gave your statement on April 30, 1988, exactly eight (8) days after the incident when the incident wherein you were
investigated upon still very very fresh in your mind (sic). Now, in your statement which you gave to the investigator, Pat. Tubadeza, you stated that
you saw the persons shot at Winner Agbulos and Eddie Quindasan and after the two (2) had fell down then you also likewise saw them shot at you
at the time you were rolling to the ground. Do you affirm and confirm this statement of yours which you subscribed before Fiscal Ricarte Valera?
ATTY. YANURIA:
Your Honor, it is misleading, we object, in so far as the shooting of Eddie Quindasan and Winner Agbulos was not seen. He only saw the persons
who were firing at him namely: Juan Cabbab and Segundino Calpito.
COURT:
In his testimony before the court he testified before the court that he saw Juan Cabbab and Segundino Calpito shot at Eddie Quindasan and Winner
Agbulos. Reform the question.
FISCAL FLORES:
Q. However, you saw these two (2) accused, Juan Cabbab and Segundino Calpito shoot at you?
A. Yes, sir.
Q. Will you tell the court if how far were these two (2) accused when they were firing at you?
A. Eight (8) meters, sir.
Q. And therefore what time is it when they were firing at you?
A. If I’m not mistaken it was 4:00 o’clock in the afternoon.10
xxx xxx xxx
William Belmes on cross-examination
ATTY. YANURIA:
Q. In other words, it was you being shot out by Segundino Calpito and Juan Cabbab but you did not see them shoot at Winner Agbulos and Eddie
Quindasan?
A. I saw Juan Cabbab and Segundino fire at Winner Agbulos and Eddie Quindasan (the witness using the word "banat") and when they already fell
down, they continued firing attempt and in my case I rolled and they also fired at me.11
The above testimony adequately showed that Belmes was able to look at and see appellant at the time he perpetrated the crime. To our mind,
Belmes could not have made a mistake with respect to appellant’s identity, what with the fact that just a few hours before the incident, it was even
appellant himself who invited Belmes and his group to play poker. For sure, Belmes had a face-to-face encounter with appellant before the assault
and thus would be able to unmistakably recognize him especially because at the time of the attack, Belmes was just eight (8) meters away from
appellant and conditions of visibility were very good at the time of the incident as it was only around 4:00 in the afternoon. Jurisprudence
recognizes that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe
the manner in which the crime was committed.12
Belmes’ testimony was corroborated by that of Vidal Agbulos who was also with the group when the robbery and shooting took place. Again, we
quote from the transcripts of stenographic notes:
Vidal Agbulos on direct examination
FISCAL FLORES:
Q. What did you do next when Felipe Abad informed you again that your son was already killed and Eddie Quindasan was injured?
A. Even if he told me about that I just went ahead.
Q. What happened next when he told you that?
A. When I went ahead I saw Juan Cabbab took the wallet from my son.
COURT:
Q. At that time, Winner Agbulos was already prostrate on the ground?
A. Yes, sir, my son was lying on the ground facing down.13
Clearly, then, Vidal Agbulos positively identified appellant as the person who robbed his son, Winner, of his winnings. Just like Belmes, Agbulos
could also not have been mistaken as to appellant’s identity considering that it was appellant who personally approached Agbulos’ group and
invited them to play poker just a few hours prior to the commission of the crime. Further, Agbulos testified that he was familiar with appellant as
he would often see him in a cockpit in San Isidro, Abra.
To be sure, the trial court which had the unique opportunity to observe at first hand the demeanor of witnesses Belmes and Agbulos and asses
whether they are telling the truth or not, gave full faith and credence to their testimonies. Finding no facts and circumstances of weight and
substance that would otherwise warrant a different conclusion, the Court accords the highest respect to the trial court’s evaluation of the
credibility of these witnesses.
Appellant likewise capitalizes on the results of the paraffin test showing that both his hands yielded no trace of gunpowder residue. Unfortunately
for appellant, the results of the paraffin test would not exculpate him. The negative findings of said test do not conclusively show that a person did
not discharge a firearm at the time the crime was committed. This Court has observed that it is quite possible for a person to discharge a firearm
and yet exhibit no trace of nitrates: when, e.g., the assailant fired the weapon while wearing gloves or where the assailant thoroughly washes his
hands thereafter.14 As George de Lara of the NBI stated in his testimony before the trial court, if a person applies cosmetics on his hands before
the cast is taken, gunpowder residue would not be found in that person’s hands. He also testified that certain factors could contribute to the
negative result of a paraffin test such as perspiration, humidity or the type of firearm used. In fine, a finding that the paraffin test on the person of
the appellant yielded negative results is not conclusive evidence to show that he indeed had not fired a gun.
Too, appellant has not shown any evidence of improper motive on the part of prosecution witnesses Belmes and Agbulos that would have driven
them to falsely testify against him. In fact, appellant himself declared that he did not know of any reason why Belmes and Agbulos would implicate
him in the crime. Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their positive and
categorical declarations on the witness stand under the solemnity of an oath deserve full faith and credence.15
Interjected as a defense is alibi, appellant claiming that he went to Palao, Baddek, Bangued, Abra to visit his friends in the morning of April 22, 1988
and returned home only at around 5:30 p.m. For alibi to prosper, however, the hornbook rule requires a showing that the accused was at another
place at the time of the perpetration of the offense and that it was physically impossible for him to be at the scene of the crime at the time of its
commission.16 Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.17
Here, the evidence shows that Palao, Baddek, Bangued, Abra where appellant allegedly visited his friends was only 30 minutes drive from Barangay
Kimmalasag, San Isidro, Abra where the crime was committed. In short, appellant failed to establish by clear and convincing evidence the physical
impossibility of his presence at the scene of the crime on the date and time of its commission.
The weakness of appellant’s alibi is heavily underscored by the fact that appellant was positively identified by witnesses Belmes and Agbulos who
were with the victims at the time of the incident. For sure, appellant’s positive identification as the perpetrator of the crime renders his defense of
alibi unworthy of credit.18
The crime committed by appellant was correctly characterized by the appellate court as Robbery with Homicide under Article 294, paragraph 1 of
the Revised Penal Code (RPC) which reads:
Art. 294. Robbery with violence against or intimidation of persons — Penalties.— Any person guilty of robbery with the use of violence against any
person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional mutilation or arson.
To warrant conviction for the crime of Robbery with Homicide, the prosecution is burdened to prove the confluence of the following elements:
(1) the taking of personal property is committed with violence or intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is characterized by intent to gain or animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is committed.19
In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial
that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are
killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery
with Homicide.20
Here, the prosecution adduced proof beyond reasonable doubt that appellant, having lost to Winner Agbulos in the game of poker, intended to
divest Agbulos of his winnings amounting to ₱20,000.00. In pursuit of his plan to rob Agbulos of his winnings, appellant shot and killed him as well
as his companion, Eddie Quindasan.
The prescribed penalty for Robbery with Homicide under Article 294 of the RPC, as amended by R.A. No. 7659 (Death Penalty Law), is reclusion
perpetua to death. In the application of a penalty composed of two indivisible penalties, like that for Robbery with Homicide, Article 63 of the RPC
provides that "when in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied." In
this case, the aggravating circumstance of treachery attended the commission of the crime, as appellant’s attack on the victims who were then
unsuspectingly walking on their way home was sudden and done without any provocation, thus giving them no real chance to defend themselves.
However, considering that the crime was committed in 1988 or prior to the effectivity of R.A. No. 7659,21 the trial court and the CA correctly
imposed upon appellant the lesser penalty of reclusion perpetua.1avvphi1
The Court feels, however, that the two courts below erred in convicting appellant of the separate crime of attempted murder for the shooting of
PO William Belmes. Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in
the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides
or injuries committed in connection with the robbery.22
We now come to the award of damages.
Conformably with existing jurisprudence, the heirs of Winner Agbulos and Eddie Quindasan are each entitled to civil indemnity in the amount of
₱50,000.00,23 to moral damages in the amount of ₱50,000.00,24 and to exemplary damages in the sum of ₱25,000.00.25
With respect to actual damages, Winner’s father, Vidal Agbulos, testified that he spent a total of ₱50,000.00 as burial expenses but he failed to
present receipts therefor. In People v. Abrazaldo, 26 we laid down the doctrine that where the amount of actual damages for funeral expenses
cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of ₱25,000.00. Thus,
in lieu of actual damages, temperate damages in the amount of ₱25,000.00 must be awarded to the heirs of Winner because although the exact
amount was not proved with certainty, it was reasonable to expect that they incurred expenses for the coffin and burial of the victim. We,
however, cannot grant the same to the heirs of Eddie Quindasan for their failure to testify on the matter. Finally, appellant is obliged to return to
the heirs of Winner Agbulos the amount of ₱20,000.00 he had taken from Winner.
WHEREFORE, the decision dated February 22, 2006 of the CA in CA-G.R. CR-H.C. No. 00968 is hereby AFFIRMED with the following MODIFICATIONS:
1. Appellant Juan Cabbab, Jr. is found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced to suffer the penalty of reclusion
perpetua.
2. Appellant is hereby ordered to return to the heirs of Winner Agbulos the amount of ₱20,000.00 representing the amount stolen from him. He is
likewise ordered to indemnify the heirs of Winner Agbulos the following: (a) ₱50,000.00 as civil indemnity; (b) ₱50,000.00 as moral damages, (c)
₱25,000.00 as exemplary damages; and (c) ₱25,000.00 as temperate damages.
3. Appellant is further ordered to pay the heirs of Eddie Quindasan ₱50,000.00 as civil indemnity, another ₱50,000.00 as moral damages, and
₱25,000.00 as exemplary damages.
4. For reasons herein stated, appellant is ACQUITTED of the separate crime of attempted murder against the person of PO William Belmes.
Costs de oficio.
THIRD DIVISION
[G.R. NO. 183619 : October 13, 2009]
PEOPLE OF THE PHILIPPINES, Appellee, v. SALVINO SUMINGWA, Appellant.
DECISION
NACHURA, J.:
On appeal before us is the January 31, 2008 Court of Appeals (CA) Decision1 in CA-G.R. CR No. 30045 affirming with modification the February 14,
2006 Regional Trial Court2 (RTC) Consolidated Judgment3 against appellant Salvino Sumingwa in Criminal Case Nos. 1644 and 1645 for Acts of
Lasciviousness; 1646, 1649 and 1654 for Rape; 1651 for Attempted Rape; and 1655 for Unjust Vexation. Assailed also is the June 5, 2008 CA
Resolution4 denying appellant's motion for reconsideration.
In twelve Informations, the prosecution charged appellant with two (2) counts of Acts of Lasciviousness,5 four (4) counts of Rape,6 three (3) counts
of Unjust Vexation,7 one (1) count of Other Light Threats,8 one (1) count of Maltreatment,9 and one (1) count of Attempted Rape10 for acts
committed against his minor11 daughter AAA from 1999-2001.
Appellant pleaded "not guilty" to all the charges. On September 24, 2004, the RTC dismissed12 Criminal Case Nos. 1647 for Rape; 1648 for Unjust
Vexation; 1650 for Other Light Threats; 1652 for Unjust Vexation; and 1653 for Maltreatment, on the basis of the Demurrer to Evidence13 filed by
appellant.
Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA, together with her brothers and her father, appellant herein, was in their
residence in Mountain Province, watching television. Appellant called AAA and ordered her to sit in front of him. As she was sitting, appellant told
her that it was not good for a girl to have small breasts. Suddenly, he inserted his hands into AAA's shirt then fondled her breast. AAA resisted by
moving her hands backwards.14
One afternoon in September 1999, AAA's mother and brothers went to school leaving AAA and appellant in their house. While in the master's
bedroom, appellant ordered AAA to join him inside. There, appellant removed his undergarments then forced her to grasp and fondle his penis
until he ejaculated. Appellant thereafter told her not to be malicious about it.15
The same incident took place in August 2000. This time, appellant forced AAA to lie down on the bed, went on top of her, removed her short pants
and panty, then rubbed his penis against her vaginal orifice. AAA resisted by crossing her legs but appellant lifted her right leg and partially inserted
his penis into her vagina. As she struggled, appellant stood up then ejaculated. AAA felt numbness on her buttocks after the bestial act committed
against her.16
Appellant repeated his dastardly act against AAA on separate occasions in September and November 2000. During these times, appellant satisfied
himself by rubbing his penis against AAA's vagina without trying to penetrate it. After reaching the top of his lust, he used AAA's short pants to
wipe his mess. Instead of keeping her harrowing experience to herself, AAA narrated it to her best friend.17
On November 24, 2000, appellant approached AAA and told her that he wanted to have sex with her. When she refused, appellant forcibly
removed her pants and boxed her right buttock. AAA still refused, which angered appellant. He then went to the kitchen and returned with a bolo
which he used in threatening her. Luckily, AAA's grandmother arrived, prompting appellant to desist from his beastly desires.18
On December 20, 2000, AAA and her best friend were doing their school work in front of the former's house. When appellant arrived, he embraced
AAA. He, thereafter, pulled her inside the house and kissed her on the lips.19
The last incident occurred inside the comfort room of their house on May 27, 2001. When AAA entered, appellant pulled down her short pants and
panty, unzipped his trousers, brought out his penis, then repeatedly rubbed it on her vagina while they were in a standing position.20
AAA decided to report the sexual abuses to her grandmother who forthwith brought her to the National Bureau of Investigation where she was
examined by the medico-legal officer. It was found during the examination that there were no extragenital physical injuries on AAA's body but
there were old, healed, and incomplete hymenal lacerations.21
Appellant denied all the accusations against him. He claimed that in August and September 1999, he was at the house of his mistress in Antipolo
City. He also explained that in August 2000, he stayed in Baguio City and worked there as a karate instructor. He added that he only went home in
September 2000 but left again in October for Quirino, Ilocos Sur where he stayed for three weeks. When he went back home, his wife informed
him that AAA had not been coming home. Thereafter, appellant went to Baguio City to buy medicine for his wife, then returned home again on the
third week of December 2000. While there, he was confronted by his wife about his womanizing. His wife got mad and refused to forgive him
despite his repeated pleas. Consequently, he became furious and almost choked his wife to death when she ignored and refused to talk to him.
This prompted him to leave and go back to Baguio.22
Sometime in April 2001, appellant went back home to reconcile with his wife. While talking to his wife and the latter's family, his mother-in-law
berated him and demanded his separation from his wife. Appellant got mad and threatened to kill his wife's family. His mother-in-law, in turn,
threatened to file charges against him.23
To belie the claim of AAA that she was sexually abused in August, November and December 2000, allegedly during school hours, her teacher
testified that the former was not absent in class during those times.24
On November 24, 2004, AAA executed an Affidavit of Recantation25 claiming that while appellant indeed committed lascivious acts against her,
she exaggerated her accusations against him. She explained that appellant did not actually rape her, as there was no penetration. She added that
she charged appellant with such crimes only upon the prodding of her mother and maternal grandmother.
On February 14, 2006, the RTC rendered a decision convicting appellant of six (6) counts of acts of lasciviousness,26 one (1) count of attempted
rape27 and one (1) count of unjust vexation,28 the dispositive portion of which reads:
WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino Sumingwa to suffer '
1. The penalty of six (6) months of [arresto mayor] as minimum to six (6) years of [prision correccional] as maximum; and ordering him to pay the
offended party P10,000.00 [as] indemnity [ex-delicto], P10,000.00 as moral damages and P5,000.00 as exemplary damages for each count of Acts
of Lasciviousness charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;
2. The penalty of six (6) years of [prision correccional] as minimum to twelve (12) years of [prision mayor] as maximum; and ordering said offender
to pay the victim P15,000.00 as indemnity [ex-delicto], P15,000.00 as moral damages and P10,000.00 as exemplary damages in Crim. Case 1651 for
Attempted Rape; andcralawlibrary
3. The penalty of thirty (30) days of [arresto menor] and fine of P200.00 for Unjust Vexation in Crim. Case 1655.
SO ORDERED.29
The trial court gave credence to AAA's testimonies on the alleged lascivious acts committed against her. In view of the withdrawal of her earlier
claim of the fact of penetration, the court sustained the innocence of appellant on the rape charges and concluded that the crime committed was
only Acts of Lasciviousness.
In Criminal Case No. 1651, the RTC found that appellant committed all the acts of execution of the crime of Rape, but failed to consummate it
because of the arrival of AAA's grandmother. Hence, he was convicted of attempted rape. In embracing and kissing AAA in full view of the latter's
best friend, appellant was convicted of Unjust Vexation.
On appeal, the CA affirmed the conviction of appellant, except that in Criminal Case No. 1646; it convicted him of Qualified Rape instead of Acts of
Lasciviousness. The pertinent portion of the assailed decision reads:
WHEREFORE, premises considered, herein appeal is hereby DISMISSED for evident lack of merit and the assailed Consolidated Judgment dated 14
February 2006 is hereby AFFIRMED with the following MODIFICATION:
1. The Appellant SALVINO SUMINGWA is hereby convicted of the crime of QUALIFIED RAPE in Criminal Case No. 1646 and the penalty of
RECLUSION PERPETUA is hereby imposed upon him. The Appellant is likewise ordered to pay the Victim, [AAA], civil indemnity in the amount of
Php75,000.00 as well as moral damages in the amount of Php50,000.00, in conformity with prevailing jurisprudence.
2. In Criminal Case No. 1651 for Attempted Rape, the Appellant, is hereby ordered to indemnify the victim [AAA] in the sum of P30,000.00 as civil
indemnity, plus the sum of P25,000.00 as moral damages.
SO ORDERED.30
The appellate court concluded that, notwithstanding AAA's retraction of her previous testimonies, the prosecution sufficiently established the
commission of the crime of Rape. It added that the qualifying circumstances of minority and relationship were adequately proven.
Hence, this appeal.
First, in light of the recantation of AAA, appellant questions the credibility of the prosecution witnesses and insists that his constitutional right to be
presumed innocent be applied.31 Second, he argues that in Criminal Case No. 1651 for Attempted Rape, he should only be convicted of Acts of
Lasciviousness, there being no overt act showing the intent to have sexual intercourse.32 Lastly, he insists that he could not be convicted of all the
charges against him for failure of the prosecution to show that he employed force, violence or intimidation against AAA; neither did the latter offer
resistance to appellant's advances.33
In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the complainant's
testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for herself. When a rape victim's
testimony is straightforward and marked with consistency despite grueling examination, it deserves full faith and confidence and cannot be
discarded.34 If such testimony is clear, consistent and credible to establish the crime beyond reasonable doubt, a conviction may be based on it,
notwithstanding its subsequent retraction. Mere retraction by a prosecution witness does not necessarily vitiate her original testimony.35
A retraction is looked upon with considerable disfavor by the courts.36 It is exceedingly unreliable for there is always the probability that such
recantation may later on be repudiated. It can easily be obtained from witnesses through intimidation or monetary consideration.37 Like any other
testimony, it is subject to the test of credibility based on the relevant circumstances and, especially, on the demeanor of the witness on the
stand.38
As correctly held by the CA, AAA's testimony is credible notwithstanding her subsequent retraction. We quote with approval its ratiocination in this
wise:
Clearly, the retraction made by the Victim is heavily unreliable. The primordial factor that impelled the Victim to retract the rape charges against
her father was her fear and concern for the welfare of her family especially her four (4) siblings. It does not go against reason or logic to conclude
that a daughter, in hopes of bringing back the harmony in her family tormented by the trauma of rape, would eventually cover for the dastardly
acts committed by her own father. Verily, the Victim's subsequent retraction does not negate her previous testimonies accounting her ordeal in the
hands for (sic) her rapist.39
We now proceed to discuss the specific crimes with which appellant was charged.
Criminal Case Nos. 1646, 1649 and 1654 for Rape
The CA correctly convicted appellant of Qualified Rape in Criminal Case No. 1646, and of Acts of Lasciviousness in Criminal Case Nos. 1649 and
1654.
The crime of rape is defined in Article 266-A of the Revised Penal Code (RPC), as amended by the Anti-Rape Law of 1997, as follows:
ART. 266-A. Rape, When and How Committed. - Rape is committed'
1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:
A. Through force, threat or intimidation.
In her direct testimony, AAA stated that appellant removed her short pants and panty, went on top of her and rubbed his penis against her vaginal
orifice. She resisted by crossing her legs but her effort was not enough to prevent appellant from pulling her leg and eventually inserting his penis
into her vagina. Clearly, there was penetration.
It is noteworthy that appellant pulled AAA's leg, so that he could insert his penis into her vagina. This adequately shows that appellant employed
force in order to accomplish his purpose. Moreover, in rape committed by a father against his own daughter, the former's moral ascendancy and
influence over the latter may substitute for actual physical violence and intimidation. The moral and physical dominion of the father is sufficient to
cow the victim into submission to his beastly desires, and no further proof need be shown to prove lack of the victim's consent to her own
defilement.40
While appellant's conviction was primarily based on the prosecution's testimonial evidence, the same was corroborated by physical evidence
consisting of the medical findings of the medico-legal officer that there were hymenal lacerations. When a rape victim's account is straightforward
and candid, and is corroborated by the medical findings of the examining physician, the same is sufficient to support a conviction for rape.41
Aside from the fact of commission of rape, the prosecution likewise established that appellant is the biological father of AAA and that the latter was
then fifteen (15) 42 years old. Thus, the CA aptly convicted him of qualified rape, defined and penalized by Article 266-B of the RPC, viz.:
ART. 266-B. Penalties. - x x x.
xxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common law spouse of the parent of the victim.
In view of the effectivity of Republic Act (R.A.) 9346, appellant was correctly meted the penalty of reclusion perpetua, without eligibility for parole.
As to damages, appellant should pay AAA P75,000.00 as civil indemnity, which is awarded if the crime is qualified by circumstances that warrant
the imposition of the death penalty.43 In light of prevailing jurisprudence,44 we increase the award of moral damages from P50,000.00 to
P75,000.00. Further, the award of exemplary damages in the amount of P30,000.0045 is authorized due to the presence of the qualifying
circumstances of minority and relationship.46
In Criminal Case Nos. 1649 and 1654, although appellant was charged with qualified rape allegedly committed on the second week of November
2000 and May 27, 2001, he should be convicted with Acts of Lasciviousness committed against a child under Section 5(b), Article III of R.A. 7610,47
which reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited
in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse:
Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x. (Italics supplied.)
The elements of sexual abuse under the above provision are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age.48
AAA testified that in November 2000, while she and appellant were inside the bedroom, he went on top of her and rubbed his penis against her
vaginal orifice until he ejaculated.49 She likewise stated in open court that on May 27, 2001, while inside their comfort room, appellant rubbed his
penis against her vagina while they were in a standing position.50 In both instances, there was no penetration, or even an attempt to insert his
penis into her vagina.
The aforesaid acts of the appellant are covered by the definitions of "sexual abuse" and "lascivious conduct" under Section 2(g) and (h) of the Rules
and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of R.A. 7610:
(g) "Sexual abuse" includes the employment, use,persuasion, inducement, enticementor coercionof a child to engage in, or assist another person to
engage in, sexualintercourse or lascivious conductor the molestation, prostitution, or incestwith children;
(h) "Lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals
or public area of a person.
Following the "variance doctrine" embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal Procedure, appellant can be
found guilty of the lesser crime of Acts of Lasciviousness committed against a child. The pertinent provisions read:
Sec. 4. Judgment in case of variance between allegation and proof. - When there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. - An offense charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.
As the crime was committed by the father of the offended party, the alternative circumstance of relationship should be appreciated. In crimes
against chastity, such as Acts of Lasciviousness, relationship is always aggravating.51
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its medium period to reclusion perpetua. Since there is an aggravating
circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period - - - reclusion perpetua for each count.52
Consistent with previous rulings53 of the Court, appellant must also indemnify AAA in the amount of P15,000.00 as moral damages and pay a fine
in the same amount in Criminal Case Nos. 1649 and 1654.
Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness
Appellant is likewise guilty of two (2) counts of Acts of Lasciviousness under Section 5(b), Article III, R.A. 7610 committed against AAA on the second
week of August 1999 and on the first week of September 1999. AAA testified that in August, appellant, with lewd design, inserted his hands inside
her shirt then fondled her breasts; and in September, he forced her to hold his penis until he ejaculated.
The trial and the appellate courts were correct in giving credence to the victim's testimony, in dismissing appellant's defense of denial and alibi, and
in disbelieving that AAA initiated the criminal cases only upon the prodding of the latter's grandmother. Settled jurisprudence tells us that the mere
denial of one's involvement in a crime cannot take precedence over the positive testimony of the offended party.54
We are not unmindful of the fact that appellant was specifically charged in an Information for Acts of Lasciviousness defined and penalized by
Article 336 of the RPC. However, the failure to designate the offense by statute, or to mention the specific provision penalizing the act, or an
erroneous specification of the law violated, does not vitiate the information if the facts alleged clearly recite the facts constituting the crime
charged.55 The character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision
of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.56
In the present case, the body of the information contains an averment of the acts alleged to have been committed by appellant which
unmistakably refers to acts punishable under Section 5(b), Article III, R.A. 7610.
Appellant should, therefore, be meted the same penalties and be made to answer for damages as in Criminal Case Nos. 1649 and 1654.
Criminal Case No. 1651 for Attempted Rape
AAA testified that on November 24, 2000, while AAA and her brothers were sleeping inside their parents' bedroom, appellant entered and asked
AAA to have sex with him. When AAA refused, appellant forcibly removed her clothes and boxed her right buttock. As she still resisted, he took a
bolo, which he poked at her. Appellant desisted from committing further acts because of the timely arrival of AAA's grandmother. With these,
appellant was charged with Other Light Threats in Criminal Case No. 1650; Attempted Rape in Criminal Case No. 1651; Unjust Vexation in Criminal
Case No. 1652; and Maltreatment in Criminal Case No. 1653.
On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650, 1652 and 1653 for insufficiency of evidence. Criminal Case No. 1651, among
others, proceeded, however. Eventually, appellant was convicted of Attempted Rape, which the CA affirmed.
A careful review of the records reveals, though, that the evidence is insufficient to support appellant's conviction of Attempted Rape.
Rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous desistance.57 The prosecution must, therefore, establish the following elements
of an attempted felony:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.58
The attempt that the RPC punishes is that which has a logical connection to a particular, concrete offense; and that which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation.59 In the instant case, the primary
question that comes to the fore is whether or not appellant's act of removing AAA's pants constituted an overt act of Rape.
We answer in the negative.
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.60
The evidence on record does not show that the above elements are present. The detailed acts of execution showing an attempt to rape are simply
lacking. It would be too strained to construe appellant's act of removing AAA's pants as an overt act that will logically and necessarily ripen into
rape. Hence, appellant must be acquitted of Attempted Rape.
Neither can we hold appellant liable for Other Light Threats for threatening AAA with a bolo; for Unjust Vexation for undressing her without her
consent, causing disturbance, torment, distress, and vexation; nor for Maltreatment for boxing the right side of AAA's buttocks. Although all of the
above acts were alleged in the Information for Attempted Rape in the Order dated September 24, 2004, Criminal Case Nos. 1650, 1652 and 1653
involving the above crimes were dismissed for insufficiency of evidence based on the demurrer to evidence filed by appellant.
The order granting appellant's demurrer to evidence was a resolution of the case on the merits, and it amounted to an acquittal. Any further
prosecution of the accused after an acquittal would violate the proscription on double jeopardy.61 Accordingly, appellant's conviction of any of the
above crimes, even under Criminal Case No. 1651, would trench in his constitutional right against double jeopardy.
Criminal Case No. 1655 for Unjust Vexation
Appellant was charged with Unjust Vexation, defined and penalized by Article 287 of the RPC, which reads:
ART. 287. Light coercions. - Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the
same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing,
but in no case less than 75 pesos.
Any other coercion or unjust vexation shall be punished by arresto menor or a fine ranging from 5 to 200 pesos, or both.
The second paragraph of this provision is broad enough to include any human conduct that, although not productive of some physical or material
harm, could unjustifiably annoy or vex an innocent person. The paramount question to be considered is whether the offender's act caused
annoyance, irritation, torment, distress, or disturbance to the mind of the person to whom it was directed.62
Appellant's acts of embracing, dragging and kissing AAA in front of her friend annoyed AAA. The filing of the case against appellant proved that AAA
was disturbed, if not distressed by the acts of appellant.
The penalty for coercion falling under the second paragraph of Article 287 of the RPC is arresto menor or a fine ranging from P5.00 to P200.00 or
both. Accordingly, appellant is sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof.
WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of Appeals Decision in CA-G.R. CR No. 30045 with MODIFICATIONS. The Court finds
appellant Salvino Sumingwa:
1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646. He is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole
and ordered to pay AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages.
2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under Section 5 (b) Article III of R.A. 7610 in Criminal Case Nos. 1644, 1645, 1649, and
1654. He is sentenced to suffer the penalty of reclusion perpetua and ordered to pay AAA P15,000.00 as moral damages and a fine of P15,000.00,
for EACH COUNT.
3. NOT GUILTY in Criminal Case No. 1651.
4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655. He is sentenced to suffer 30 days of arresto menor and to pay a fine of P200.00, with the
accessory penalties thereof.
SO ORDERED.
EN BANC
[G.R. No. 126124. January 20, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZALDY P. PADILLA, accused-appellant.
DECISION
MENDOZA, J.:
For review in this case is a decision, dated May 8, 1997, of the Regional Trial Court, Branch XLV, at Urdaneta City, Pangasinan, finding accused-
appellant Zaldy P. Padilla guilty of rape and imposing on him the penalty of death. The trial court also ordered accused-appellant Padilla to
indemnify the offended party, Maria Aurora B. Bautista, in the amount of P50,000.00 and to pay the costs.
The evidence for the prosecution shows that at around 5 oclock in the afternoon on April 27, 1995, Maria Aurora, a 13-year old retardate, was in
the citrus farm owned by a neighbor, Jose Sagun, when accused-appellant accosted her. The latter, who is married with two children, was then 26
years old and employed by Sagun as a farmhand. Armed with a scythe and a knife, accused-appellant forced Maria Aurora to undress and lie down
on the grass. As she lay on there, accused-appellant forced himself on her, saying: Kantot tayo (Lets have sexual intercourse). Maria Aurora resisted
accused-appellants advances, but she proved to be no match for him. Accused-appellant succeeded in ravishing her.
Maria Aurora told her father, Engracio L. Bautista, what happened to her in the evening. She was taken to the Governor Teofilo Sison Memorial
Hospital, where she was examined by Dr. Luisa F. Cayabyab. Afterwards, the matter was reported to the Pozorrubio Police Station.[1]
On May 2, 1995, Engracio filed a complaint[2] in the Municipal Circuit Trial Court, Pozorrubio, Pangasinan. After a preliminary investigation, the
court found probable cause that the crime had been committed and that accused-appellant was guilty thereof. Accordingly, the case was referred
to the Office of the Provincial Prosecutor, Urdaneta City, Pangasinan which on May 26, 1995 filed an information[3] for rape in the Regional Trial
Court, Branch XLV, at Urdaneta City against accused-appellant, the pertinent portion of which reads:
The undersigned upon previous complaint sworn to by the father of the offended party accuses ZALDY PADILLA Y PILONGO alias LABO, of the crime
of RAPE, committed as follows:
That on or about the 27th day of April, 1995 at Barangay Bobonan East, Municipality of Pozorrubio, Province of Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the complainant, Maria Aurora Bautista, a minor of about 13 years old, against the latters will.
CONTRARY to Article 335, Revised Penal Code.
Urdaneta, Pangasinan, May 26, 1995.
Upon being arraigned, accused-appellant pleaded not guilty to the charge, whereupon hearings were held on December 6, 1995, January 23,
January 31, February 22, and March 27, 1996. On May 8, 1996, judgment was rendered finding accused-appellant Zaldy Padilla guilty of rape and
sentencing him to death:
WHEREFORE, the Court finds the accused ZALDY PADILLA Y PILONGO GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized
under Republic Act No. 7659, the offense having been committed with the attendant circumstances of use of a deadly weapon, disregard of the
respect due to the offended party on account of her age, and abuse of superior strength; and hereby sentences him to suffer the supreme penalty
of DEATH, to be executed pursuant to R.A. No. 8177, otherwise known as the Lethal Injection Law, and to pay the complainant MA. AURORA
BAUTISTA in the amount of P50,000.00 as damages, and to pay the costs.
Hence, this appeal. Accused-appellant raises this lone assignment of error:
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE AGAINST THE ACCUSED-APPELLANT THE TESTIMONY OF THE ALLEGED VICTIM DESPITE THE
FACT THAT THE LATTER IS INCOMPETENT TO TESTIFY DUE TO HER MENTAL HANDICAP.
Accused-appellants contention is without merit.
First. The basic test of a witness qualification is of course whether he can perceive and, perceiving, can make known his perception to others.[4]
Negatively put, Rule 130, 21 of the Revised Rules of Court provides:
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known
their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating
them truthfully.
Hence, a mental retardate is not, by reason of such handicap alone, disqualified from testifying in court. He or she can be a witness, depending on
his or her ability to relate what he or she knows. If the testimony of a mental retardate is coherent, the same is admissible in court.[5] Thus, we
have in several cases[6] upheld the conviction of the accused based mainly on statements given in court by the victim who was a mental retardate.
Trial courts, which have the opportunity to observe the facial expressions, gestures, and tone of voice of a witness while testifying, are competent
to determine whether his or her testimony will be given credence.[7] In the instant case, the trial court accorded weight to the testimony of Maria
Aurora. Indeed, the complainants truthfulness is evident in her testimony:
Prosecutor Emiliano M. Matro:
Now, on April 27, 1995, between 4 and 5 oclock in the afternoon, can you recall where you were?
A: I was at the calamansi orchard.
Q: Who owns that calamansi orchard?
A: Tiaging.
Q: What were you doing there at that time?
A: I was looking for my scythe.
Q: What happened, did you find your scythe?
A: I was undressed.
Q: Who undressed you?
A: Labo.
Q: Do you know the real name of Labo?
A: Zaldy Padilla.
Q: If Zaldy Padilla alias Labo is now in the courtroom, can you identify him?
A: That person.
(The witness pointed at a person who, when asked his name, answered Zaldy Padilla.)
Q: You mentioned something about a scythe. Were you able to find it?
A: It was in the possession of Labo.
Q: You said that Zaldy Padilla alias Labo undressed you. What did you do after that?
A: He pulled me.
Judge Costales:
At this point, the public is hereby directed to go outside. Close the door. Even the father and mother of the complainant should go outside.
Q: After Labo pulled you, what did you do, if anything?
A: He brought out a knife and tried to stab me.
....
Q: You were undressed at that time?
A: Yes.
Q: After that, what did you do?
A: He told me, Kantot tayo.
Q: Did he have sexual intercourse with you?
A: Yes.
Q: How did he do that with you?
A: He made me lie down.
Judge Costales:
How about the knife?
A: I bled.
Q: Where did you bleed?
A: Here. (The witness pointed at her vagina).
Q: What did you feel while Labo was having sexual intercourse with you?
A: It hurt. It was painful.
Q: How long did Labo had (sic) sexual intercourse with you?
A: For a short time only.
Q: After that, what did he do?
A: Nothing more.
....
Q: Will you describe the organ of Labo?
A: It was big. (The witness demonstrated a length of about 4 to 5 inches)
....
Q: Did you scream when he inserted his penis?
A: Yes.[8]
The complainants testimony is corroborated by the finding of Dr. Luisa F. Cayabyab, who examined Maria Aurora in the evening of April 27, 1995.
Dr. Cayabyab found fresh lacerations in her hymen, most probably caused by the entrance of a hardened penis.[9] The relevant portions of the
medical certificate,[10] dated April 28, 1995, which Dr. Cayabyab issued after examining Maria Aurora read:
Perineum : no sign of external injury
Hymen : with fresh lacerations at 3 and 9 oclock positions
Vagina : admits 1 finger
Cervix : close
Uterus : small
Spermatozoa : negative
Second. During the trial, the prosecution presented evidence tending to show that Maria Aurora is a mental retardate.[11] Significantly, accused-
appellant also admitted this point during his direct examination.[12] It is settled that sexual intercourse with a woman who is a mental retardate
constitutes statutory rape, which does not require proof that the accused used force or intimidation in having carnal knowledge of the victim for
conviction.[13] However, this fact was not alleged in the information[14] in this case and, therefore, cannot be the basis for conviction. At any rate,
there is adequate evidence to show that the accused-appellant used force and intimidation in committing the crime of rape in this case.
The defense makes much of Maria Auroras admission that she did not put up a determined resistance against accused-appellant. For instance, she
answered at one point that she did not fight back when accused-appellant laid her down on the grass.[15] However, the law does not impose a
burden on the rape victim to prove resistance.[16] The fact that the victim did not resist the accused by struggling or shouting for help does not
negate the use of force and intimidation.[17] The use of a knife and the threat of harm may be sufficient to intimidate the victim to obedience.[18]
Maria Aurora, a minor, cannot be expected to react under such circumstances like a mature woman. Because of her immaturity, she can be easily
intimidated, subdued, and terrified by a strong man like accused-appellant Padilla.[19] There can be no doubt that Maria Aurora was forced by
accused-appellant to have sexual intercourse with him, and that she eventually submitted to him out of fear from the following answers she gave
to the trial court:
Q: Why did you not fight Labo?
A: I was afraid, he might maul me.
....
Q: Where was the knife or the scythe you were mentioning at that time?
A: It was in his possession, sir.
Q: He was holding it?
A: Yes.
Q: What hand?
A: Right hand.
Q: Was it a knife or a scythe?
A: Scythe. No, he had no scythe in his possession.
Q: When he was having sexual intercourse with you?
A: Yes.
Q: However, he had a knife at that time, only he laid it on the ground when he had sexual intercourse with you.
A: Yes.
Q: And because he had a scythe, you were afraid that he might kill you if you resist?
A: Yes.[20]
There are minor inconsistencies in the testimony of Maria Aurora, such as her confusion whether it was a knife or a scythe which accused-appellant
placed on the grass above her head after he had forced her to lie down. However, as we have held in a number of cases, such inconsequential
lapses can be expected of a young girl who was raped, in view of the harrowing experience she is called upon to recall.[21] Such minor
inconsistencies, far from detracting from the veracity of her testimony, in fact tend to bolster it.[22]
Third. To rebut the evidence presented against him, accused-appellant claimed that, at the time of the rape, he was in their hut preparing supper
with two other farmhands.[23] One of the farmhands, Santiago Sagun, corroborated accused-appellants claim.[24] This claim cannot prevail over
the positive identification of accused-appellant.[25] In the instant case, Maria Aurora pointed out accused-appellant in open court as the person
who had molested her.[26] Furthermore, for the defense of alibi to be given weight, it must be shown that it was impossible for the accused to
have been present at the place where the crime was perpetrated at the time of its commission.[27] But in this case, the hut where accused-
appellant claimed he was in with the two other farmhands is only a short distance from the scene of the rape.[28] Hence, the trial court correctly
rejected his alibi.
The trial court also correctly found that the rape was committed with the use of a deadly weapon and, therefore, the imposable penalty is reclusion
perpetua to death.[29] However, it erred in appreciating the aggravating circumstances of disregard of the respect due to the victim by reason of
his or her age and abuse of superior strength. Although disregard of the respect due to the victim by reason of his or her age can be taken into
account where the victim is of old age as well as of tender age,[30] the same can be considered only in cases of crimes against persons and
honor.[31] At the time of the rape on April 27, 1995, rape was classified as a crime against chastity. R.A. No. 8353 classifying it as a crime against
persons took effect only on October 22, 1997 and cannot therefore be given retroactive effect so as to justify the consideration of disregard of the
respect due to the victim by reason of his or her age. Even if such aggravating circumstance could be considered in this case, it nonetheless cannot
be appreciated because nothing appears in the record from which it may be presumed that in the commission of the crime, accused-appellant
deliberately intended to offend or insult the age of the offended party.[32] Nor can the aggravating circumstance of abuse of superior strength be
appreciated as the trial court did, since the consideration of the same requires evidence of the relative physical conditions of the assailant and the
victim, which the prosecution failed to present.[33] As the penalty for rape when committed with the use of a deadly weapon is reclusion perpetua
to death, the penalty of reclusion perpetua should be imposed in the absence of any aggravating circumstances.[34]
It is also to be noted that the trial court ordered accused-appellant to pay the complainant only the civil liability arising from the offense in the
amount of P50,000.00. This is equivalent to actual or compensatory damages in civil law. However, in addition to such amount the offended party
is entitled to moral damages, which is automatically granted in rape cases without need of any proof. Currently, moral damages for rape is fixed at
P50,000.00.[35] Hence, the additional sum of P50,000.00 should be awarded to Maria Aurora B. Bautista.
WHEREFORE, the decision dated May 8, 1996 of the Regional Trial Court, Branch XLV, Urdaneta City, Pangasinan is hereby AFFIRMED, with the
modification that accused-appellant is sentenced to reclusion perpetua and is ordered to pay P50,000.00 to Maria Aurora B. Bautista by way of
moral damages in addition to the amount of P50,000.00 which the trial court ordered accused-appellant to pay as indemnity.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes,
JJ., concur.
EN BANC
[G.R. Nos. 132875-76. November 16, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G. JALOSJOS, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them
present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human
dignity. No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the
peace and good order of the community.[1]
Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.[2]
In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always
scrutinized with extreme caution.[3]
In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the
facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12)
years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her
own guardian whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of
lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been
charged and convicted by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his
congressional office, the duties of which he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media
and public attention. In the words of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified into that of a
dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires.[4] This Court, therefore, punctiliously considered
accused-appellants claim that he suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has ascertained that the
extensive publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce
his defenses.
This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting
accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and
96-1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of
Republic Act No. 7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was
acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory
portion of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of
the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her
will, with damage and prejudice.
CONTRARY TO LAW.[6]
In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of
the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her
will, with damage and prejudice.
CONTRARY TO LAW.[7]
For acts of lasciviousness, the informations[8] under which accused-appellant was convicted were identical except for the different dates of
commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of
the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of
Children against Abuse, Exploitation and Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said
complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his finger and then his tongue into her vagina, place
himself on top of her, then insert his penis in between her thighs until ejaculation, and other similar lascivious conduct against her will, to her
damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant
P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the
trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A
to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of
Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey
apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual
whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the
skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young
age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio
whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known
as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio
were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn become an
actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio answered, 10. She is going to be 11 on May 11. Accused-
appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love Me. Accused-appellant then
asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes.
Accused-appellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast.
Thereafter, accused-appellant assured them that he would help Rosilyn become an actress as he was one of the producers of the TV programs,
Valiente and Eat Bulaga.
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, said that he
would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went
home, accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant
and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn,
Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-appellant referred the
preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards
the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When
accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After
a while, accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then
left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied,
Halik lang naman.
Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out
clad in a long white T-shirt on which was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he
wanted to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-appellant answered, Daddy mo
naman ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, Huwag po. Again,
accused-appellant told her, After all, I am your Daddy. Accused-appellant then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and
kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama na po.
Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her
hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyns body, he
caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms
and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a
shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in
front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn
P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The
two of them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz
Towers. Simplicio told her that everything was alright as long as accused-appellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant
removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside
Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then,
accused-appellant removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her
thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair,
and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed
her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to
just wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her
vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in his
bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with a
long T-shirt on which was printed a picture of accused-appellant and a woman, with the caption, Cong. Jalosjos with his Toy. They watched
television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned
himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This
caused Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier
that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went
off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers.
Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching television for a while, accused-
appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between
Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She, however, ignored
him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar,
when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose
with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without
showing her pubis, and finally, while straddled on a chair facing the backrest, showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning,
she woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody caressing
her breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between
12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant
kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in
pain. Accused-appellant stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina.
Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon
as Simplicio arrived, Rosilyn gave her the money and then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes,
including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed
Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and
placed a pillow under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After
that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant made thrusting motions, which caused Rosilyn
pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found
P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to
come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City
Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social
Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of
criminal charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no secretions
could be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in between.
On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep healed laceration at 8
o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal
speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.[9]
During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom Rosilyn
had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates
Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to
extort money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his
political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog.
He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board Flight PR 165; the
said flights passengers manifest,[11] where the name JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents
welcoming his arrival and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met
Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as
Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30
p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay
House in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which
lasted till the afternoon. In the evening, he went home and slept in the Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the Barangay House.
On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish
Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in
Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996,
when he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was
flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one, and not accused-appellant, whom Rosilyn met on
three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar
were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio
followed up the proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling
potentials. His testimony made no mention of any sexual encounter with Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y
GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. He is hereby
declared CONVICTED in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt the
guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of the Revised
Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of
these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision mayor in its
medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages for each of the cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable doubt
the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the
accused in these cases is hereby ACQUITTED.
SO ORDERED.[12]
Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT,
CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE
COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSED-
APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE
CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]
In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of
innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the
prosecution must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an
inevitable consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of
private complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of
lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her
stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus
in uno falsus in omnibus (false in part, false in everything).[14]
The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern
jurisprudence.[15] Thus, in People v. Yanson-Dumancas,[16] citing People v. Li Bun Juan,[17] this Court held that:
... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly
reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46
O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:
18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said; they may accept
some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth
Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their
uncorroborated testimony, but may credit such portions as they deem worthy of belief. (p. 945)[18]
Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony
of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which,
as oft-repeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:
Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped. Testimonies of
rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that no
woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial
if she was not motivated solely by the desire to have the culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her
testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-examination
made by the defense counsel.[19]
Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points to the supposed
hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such as, Ano po?,
Parang po, Medyo po, and Sa tingin ko po.
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact
firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural
words customary of children of her age. The above phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the
Solicitor General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer
merely to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested
and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes
makes mistakes and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs
of veracity.[20]
Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as
well as in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following
documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed,
without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and
consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of
rape. This is especially true in the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the
victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims
vagina to qualify a sexual act to rape.
In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis. There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no
showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the
NBI agents and DSWD social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing his sex
organ against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide
apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the woman.
It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs. Mangalino,
182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of the female
organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530).
Hence, with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to (itinutok) Rosilyns vagina his sexual organ on two (2)
occasions, two (2) acts of rape were consummated.[22]
Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to
charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus
no occasion for her to narrate the details of her sexual encounter with accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional
and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence
thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual
molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns
declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her
testimonies given in open court, the latter commands greater weight than the former.[23]
In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her
abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was
merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented
his brother, Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who allegedly met and
interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented
to Rosilyn for identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein, accused-appellant claims that the
resulting cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun
Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the
courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant
as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-
appellants office. Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still
identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,[24] ruled that:
It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary person in making
inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-appellant as their
assailant.
Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his identification, this Court said that even assuming that the
out-of-court identification of accused-appellant was defective, their subsequent identification in court cured any flaw that may have initially
attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the credibility of her
unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic sketch which, incidentally,
resembles accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial
features. Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower right jaw, cannot
affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old
person. As to accused-appellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns
attention and memory. When she was asked to give additional information about accused-appellant, Rosilyn described him as having a prominent
belly. This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words idinikit, itinutok, and idiniin-diin, which Rosilyn used to describe what accused-
appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see
accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her
thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns
external genitals, the same is not enough to establish the crime of rape.
True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the external genitalia by the penis capable of consummating
the sexual act is sufficient to constitute carnal knowledge, means that the act of touching should be understood here as inherently part of the entry
of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does
not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia
majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of
the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.[27]
In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond strafing of the citadel of passion or shelling
of the castle of orgasmic potency, as depicted in the Campuhan case, and progressed into bombardment of the drawbridge [which] is invasion
enough,[28] there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between
Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally
wide open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his penis or
that of someone who looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact
between accused-appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina
when the idiniin part of accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated?
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-dikit niya yong ari niya sa ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or ari was being touched by the ari or penis?
xxxxxxxxx
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa ari ko?
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you, idinikit-dikit
niya yong ari niya sa ari mo?
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position?
Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa ari ko?
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
xxxxxxxxx
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed.
xxxxxxxxx
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe what was done to
you?
A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutok niya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parang idinidiin po niya.
Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya?
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya?
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
xxxxxxxxx
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
xxxxxxxxx
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself.
(Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)[29]
Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave and uninitiated to
conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced
between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while
accused-appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-
appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
xxxxxxxxx
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide
apart, what else did he do?
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko.
Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: idinikit-dikit niya yong ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?
A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.
Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing that act,
what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward
movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or ang ari niya ay nakatutok at idinidiin-
diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.[30]
The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-
diin niya was succeeded by Masakit po. Pain inside her ari is indicative of consummated penetration.
The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June
21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile, somehow made it
inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein
perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the
victim was passive and even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of
holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely
result in even the slightest contact between the labia of the pudendum and accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is
highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully
consummating the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural
the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and
desisted from fully penetrating her, when Rosilyn was then entirely at his disposal.
The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual
perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would
call downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to
others. For all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and
maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child
from the womb of a minor; or because of his previous agreement with his suking bugaw, Simplicio Delantar, that there would be no penetration,
otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it
is bad if accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate
her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the
peculiarity of prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there
was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not
the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the
victims thighs would not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from the above-
quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even if
she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster
the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31]
(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32]
(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;[33]
(4) Marked pages of the Cord Dressing Room Book;[34]
(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar) patient file
number (39-10-71);[35]
(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-14,
1985.[36]
It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar,
accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has
already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-
81893, dated April 11, 1997.[37] However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10,
1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305.
Pending the final outcome of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding
that Rosilyn was indeed eleven years old at the time she was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,[38] we ruled that the birth certificate, or in lieu thereof, any
other documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of
similar nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live
Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of
birth was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and
corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined
by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally
or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be
kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept.
Thus, official registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.[40]
Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal
keeper thereof.[41] It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the
entry may be admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the
reasons for this exception to the hearsay rule.[42]
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates hospitals to report and register with the local civil
registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more
than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of
failure to make the necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing
Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of
the hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory
to registration of said entries with the local civil registrar, in compliance with a duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985,
but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record
itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their
admissibility. What is important is that the entries testified to by Avenante were gathered from the records of the hospital which were
accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and
material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the
preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as
to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up,
particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by
Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even
with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they
were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-
1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the defense was able
to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed.
The evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and
July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable
doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and
21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful
review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time
these crimes were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail
over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was impossible for
him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40
a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts on the victim before he went off to the airport is not at
all precluded. For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when the sexual
abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx xxx xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse;
Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis
supplied.)
In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of the offense of violation of Section 5 (b) of R.A.
7610, or the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct
(a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children
are persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of their age or mental disability or condition.
Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as follows:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis
between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted
accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-
1992, and 96-1993, charging him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its
medium period.
The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These
insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis
into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against persons. Any public
prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised
Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant the maximum
penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium period of reclusion temporal
medium, pursuant to our ruling in Dulla v. Court of Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a
minimum term of the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code.[47] However,
the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in degree to reclusion temporal medium is
reclusion temporal minimum, the range of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for
violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of
reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended
Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her
consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent
consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still
considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of
struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.[49]
In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the
prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual advances of accused-appellant, was of no moment. The fact that
accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the
penalty of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under
Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as
moral damages for each count of statutory rape was correct.
In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we held that the indemnity authorized by our criminal
law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven
actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of
rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court
in the exercise of sound judicial discretion.[54] Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil
indemnity for each count of rape and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant
Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for
each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988,
96-1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is
AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate
penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of
reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of
P50,000.00 as civil indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts
of lasciviousness is increased to P50,000.00.
SO ORDERED.
Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and
Carpio, JJ., concur.
FIRST DIVISION
G.R. No. 202060, December 11, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERDINAND BANZUELA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:

The accused-appellant Ferdinand Banzuela (Banzuela) challenges in this appeal the August 31, 2011, Decision1 promulgated by the Court of
Appeals in CA-G.R. CR.-H.C. No. 03868, wherein he was convicted for Rape and Acts of Lasciviousness.

On July 25, 2003, Banzuela was charged with Rape and Attempted Rape under Article 335 of the Revised Penal Code in relation to Republic Act No.
76102 before Branch 209, Regional Trial Court (RTC) of Mandaluyong City. The Informations read as follows:

I. For Rape (Criminal Case No. MC03-919-FC-H)

That sometime [i]n February 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, with lewd designs and by means of force and intimidation, did, then and there willfully, unlawfully and feloniously have carnal
knowledge with [AAA3], minor (6 years old), against her will and consent, thus debasing and/or demeaning the intrinsic worth and dignity of the
child as a human being.4
II. For Attempted Rape (Criminal Case No. MC03-918-FC-H)
That sometime in February 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously attempt to have carnal knowledge of [BBB], a girl seven (7) years of age, by then
and there bringing her to a grassy portion of Mandaluyong Cemetery, made to lie down, undressed her, thus directly by overt acts but failed to
perform all acts of execution when a third party helped the victim to get away from the accused.5
Banzuela pleaded not guilty to both charges during his arraignment on November 20, 2003.6 After the completion of the pre-trial conference on
January 22, 2004,7 trial on the merits ensued.

The following narration of facts was made by the RTC and the Court of Appeals:

Version of the Prosecution

Sometime in February 2003, while six-year old AAA and seven-year old BBB were watching TV in AAA’s house, Banzuela approached them and
asked them to go with him to the nearby cemetery. AAA and BBB refused, but Banzuela carried AAA away prompting BBB to follow suit. Upon
reaching the cemetery, Banzuela blindfolded BBB, who thereafter removed the blindfold and looked for AAA and Banzuela. Meanwhile, Banzuela
laid AAA on a dirty tomb, pulled up her dress, and removed her underwear. He thereafter removed his shorts and briefs, mounted AAA, kissed her,
inserted his penis in her vagina, and moved his body up and down against the crying AAA. He threatened to kill her entire family if she ever spoke
of the incident. When BBB finally found them, Banzuela hurriedly pulled up his briefs and shorts and then ran away. BBB approached AAA and saw
that there was blood on the tomb from AAA’s vagina. They wiped the blood with a banana leaf, then proceeded to BBB’s house, where AAA
washed her bloodied dress and underwear before going back to AAA’s house.8

After the incident with AAA, Banzuela used the same method on BBB, the daughter of his mother’s half-brother. One morning in February 2003,
Banzuela asked BBB to go with him to the cemetery. When BBB refused, Banzuela carried her out of the house and brought her to the cemetery.
BBB cried, but Banzuela proceeded to lay her down on the ground, pulled her dress up, removed her underwear, and kissed her. However, before
Banzuela could do anything more, a man passed by causing Banzuela to flee the scene. The man thereafter instructed BBB to go home. Upon
reaching her house, Banzuela, who was already there, threatened her against telling anyone of the incident, otherwise, he would kill everyone in
their house.9

AAA, with her mother, submitted herself for examination but both the Initial Medico-Legal Report10 and the Medico-Legal Report No. M-0914-
0311 stated that AAA was physically in a virgin state, and her hymen “intact.”

Version of the Defense

Banzuela denied the accusations against him, claiming that he was working for at least twelve (12) hours a day at Bestflow Purified Drinking Water
Refilling Station the whole month of February 2003. To prove this, he submitted photocopies of his Daily Time Record (DTR) from November 2002
to February 2003.12 Banzuela added that he did not go to the cemetery the entire February of 2003.13

Ruling of the RTC

On February 27, 2009, the RTC convicted Banzuela of the crimes of rape of AAA and attempted rape of BBB. The dispositive portion of the
Decision14 reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. MC03-919-FC-H, finding accused FERDINAND BANZUELA guilty beyond reasonable doubt of the crime of RAPE under Article
335 of the Revised Penal Code, as amended by R.A. 7659 and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to indemnify
the victim, [AAA], of the sum of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity; [and]

2. In Criminal Case No. MC03-918-FC-H, finding accused FERDINAND BANZUELA guilty beyond reasonable doubt of the crime of ATTEMPTED RAPE,
and there being no mitigating or aggravating circumstances and pursuant to Article 51, in relation to Article 335 of the Revised Penal Code, as
amended, is hereby sentenced to suffer an indeterminate penalty of two (2) years, four (4) months and one (1) day of pris[i]on correccional as
minimum to ten years and one (1) day of prision mayor as maximum and to indemnify the victim, [BBB] of the sum of FIFTEEN THOUSAND
(P15,000.00) PESOS.15 (Emphases supplied.)
In AAA’s charge of rape, the RTC deemed as insignificant the results of the medical examination that AAA’s hymen was still intact. The RTC,
invoking established jurisprudence, said that the mere touching of the labia consummates rape, and that a broken hymen is not an essential
element of rape. The RTC added that a medical examination, in any event, was not essential in the prosecution of a rape case, being merely
corroborative in character.16

The RTC also found the prosecution to have proved its charge of attempted rape against BBB as it was clear that Banzuela intended to have sexual
congress with BBB had he not been unexpectedly disturbed.17
Anent Banzuela’s defense of alibi, the RTC did not give it merit for being weak. The RTC shot down the DTRs Banzuela presented for not having
been authenticated and verified, and for having been weakened by his own testimony.18

In essence, the RTC decided in favor of the prosecution due to AAA’s and BBB’s testimonies, to wit:
The testimonies of AAA and BBB are worthy of credence as they were straightforward, spontaneous and “bore the hallmarks of truth.” More
notable is that they were able to withstand the rigors of cross-examination without wavering or being caught in inconsistencies. Indeed, it defies
belief that these victims, who were below 12 years old, would fabricate a sordid tale of sexual abuse and indict their very own cousin. Their
testimonies of the separate incidents of sexual abuse that happened to them recounted vivid details that could not have been concocted by girls of
tender age. The testimony of the complainants are consistent, clear and free of serious contradictions.19
Ruling of the Court of Appeals

Having lost in the RTC, Banzuela appealed to the Court of Appeals,20 which, on August 31, 2011, rendered a verdict no better than the RTC’s, viz:
FOR THE STATED REASONS, the assailed Decision of the Regional Trial Court (Branch 209) of Mandaluyong City is AFFIRMED with the following
MODIFICATION:

1. In Criminal Case No. MC03-919-FC-H, Ferdinand Banzuela is sentenced to suffer the penalty of reclusion perpetua without parole and to
indemnify AAA the amounts of P75,000.00 as civil indemnity ex delicto, P75,000.00 as moral damages, and P25,000.00 as exemplary damages.

2. In Criminal Case No. MC03-918-FC-H, Ferdinand Banzuela is found guilty beyond reasonable doubt of acts of lasciviousness and sentenced to an
indeterminate penalty of 12 years, and 1 day of reclusion temporal, as minimum, to 16 years, reclusion temporal, as maximum and to indemnify
BBB the amounts of P25,000.00 as moral damages and P10,000.00 as exemplary damages.21 (Citation omitted.)
In agreeing with the RTC’s finding of guilt, the Court of Appeals said that Banzuela failed to destroy the victims’ credibility or taint their
straightforward and categorical testimonies.22

However, the Court of Appeals did not agree with the RTC’s finding that Banzuela attempted to rape BBB. The Court of Appeals, alluding to
jurisprudence, said that “[a]ttempted rape is committed when the ‘touching’ of the vagina by the penis is coupled with the intent to penetrate;
otherwise, there can only be acts of lasciviousness.” Thus, the Court of Appeals declared, that because Banzuela’s intent to rape BBB was not
clearly established, he could only be convicted of acts of lasciviousness.23

Issues

Undaunted, Banzuela elevated his case to this Court,24 assigning the same errors he did before the appellate court, to wit:
ASSIGNMENT OF ERRORS

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE MATERIALLY INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE PROSECUTION
WITNESSES.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.25
Banzuela is attacking the credibility of the witnesses for being “highly inconsistent, unusual, doubtful and thus insufficient to sustain a conviction.”
Banzuela claimed that AAA’s testimony was full of inconsistencies and contradictions, such as how she managed to remove his hand from her
mouth and yet she did not shout for help, how Banzuela managed to blindfold BBB while still carrying her, and more importantly, how confused
she was as to whether his penis actually penetrated her or simply touched her groin area. Banzuela argued that the fact that AAA was still a virgin
was confirmed by the medico-legal examination, and as the medico legal officer said during his testimony, although the consensus was that it is
possible for a woman to remain a virgin physically despite penetration, he himself has had no personal encounter of such a case.26

Moreover, Banzuela said, even BBB’s actions were highly unusual, considering the circumstances of her situation. First, Banzuela said, BBB
continued to follow him and AAA despite being blindfolded, instead of turning back and calling for help. Second, in view of what BBB witnessed
happened to AAA earlier that month, it was contrary to human nature, Banzuela averred, that she did not resist or try to attract the attention of
her neighbors when he brought her to the cemetery.27

Finally, Banzuela reasoned, the prosecution cannot profit from the weakness of his defense in light of their failure to establish his guilt beyond
reasonable doubt. Thus, he said, he should be acquitted of the charges against him.28

Ruling of this Court

We find no reason to reverse the conviction of Banzuela.

In essence, Banzuela’s appeal is hinged on the proposition that the victims were not credible witnesses for having made several inconsistent
statements when they testified in court.

We do not agree.

Credibility of the witnesses

The guidelines to follow, when this Court is confronted with the issue of credibility of witnesses on appeal, are established in jurisprudence. In
People v. Sanchez,29 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s evaluation of the testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best position to determine the truthfulness of
witnesses.

Second, absent any substantial reason which would justify the reversal of the RTC’s assessments and conclusions, the reviewing court is generally
bound by the lower court’s findings, particularly when no significant facts and circumstances, affecting the outcome of the case, are shown to have
been overlooked or disregarded.
And third, the rule is even more stringently applied if the CA concurred with the RTC. (Citations omitted.)
It is well-settled in this jurisdiction that the determination of the credibility of the witnesses is correctly assigned to the trial court, which is in the
best position to observe the demeanor and bodily movements of all the witnesses.30 Elucidating on the rationale for this rule, this Court, in People
v. Sapigao, Jr.,31 said:
It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its
unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination. These are
important in determining the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. For, indeed,
the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness’ credibility, and the trial court has the opportunity and
can take advantage of these aids. These cannot be incorporated in the record so that all that the appellate court can see are the cold words of the
witness contained in transcript of testimonies with the risk that some of what the witness actually said may have been lost in the process of
transcribing. As correctly stated by an American court, “There is an inherent impossibility of determining with any degree of accuracy what credit is
justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a
corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that
betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very
nature of things cannot be transcribed upon the record, and hence they can never be considered by the appellate court.” (Citations omitted.)
In the case at bar, both the RTC and the Court of Appeals found the testimonies of the witnesses to be credible. Furthermore, this Court’s own
independent examination of the records leads us to the same conclusion.32 As the Court of Appeals said, both AAA’s and BBB’s testimonies were
straightforward, detailed, and consistent.33 Their credibility is further strengthened by their clear lack of ill motive to falsify such a charge against
their cousin, who shattered their youth and innocence.34

The inconsistencies in AAA’s testimony, as catalogued by Banzuela in his brief,35 have no bearing in the determination of his guilt or innocence,
and are too trivial in character to damage AAA’s credibility. The material details of the rape were clearly established,36 and BBB corroborated
AAA’s testimony on every relevant point. As this Court stated in People v. Saludo37:
Rape is a painful experience which is oftentimes not remembered in detail. For such an offense is not analogous to a person’s achievement or
accomplishment as to be worth recalling or reliving; rather, it is something which causes deep psychological wounds and casts a stigma upon the
victim, scarring her psyche for life and which her conscious and subconscious mind would opt to forget. Thus, a rape victim cannot be expected to
mechanically keep and then give an accurate account of the traumatic and horrifying experience she had undergone. (Citation omitted.)
BBB was likewise candid, straightforward, and detailed in her narration of not only how AAA was raped, but also of how she almost suffered the
same fate. Her alleged unusual actions during AAA’s ordeal, and later hers, are not enough to discredit her. It has been established that a victim of
a heinous crime such as rape cannot be expected to act with reason or in conformity with society’s expectations. This acquires greater significance
where the victim is a child of tender age. The workings of a human mind placed under emotional stress cannot be predicted; and people cannot be
expected to act as usual in an unfamiliar situation. Furthermore, it is not accurate to say that there is a standard reaction or norm of behavior
among rape victims, as each of them had to deal with different circumstances.38

Crime of Rape proven beyond reasonable doubt

Sexual intercourse with a woman below 12 years of age, whether she consented to it or not, is punishable as rape under our laws. As such, proof
of force, threat, or intimidation is unnecessary in cases of statutory rape, they, not being elements of the crime. When the complainant is below 12
years old, the absence of free consent is conclusively presumed as the law supposes that a woman below this age does not possess discernment
and is incapable of giving intelligent consent to the sexual act.39

In order to successfully convict an accused of statutory rape, the prosecution must prove the following:
The age of the complainant;

The identity of the accused; and

The carnal knowledge between the accused and the complainant.40

The first element was established by the prosecution upon the presentation and submission to the court of a Certification from the Office of the
Municipal Civil Registrar of Mandaluyong City dated August 24, 2004 stating that AAA was born on September 10, 1996.41 Hence, she was only 6
years old when the rape was committed in February 2003.

The second element was clearly satisfied when AAA positively and consistently identified Banzuela as her offender.42

As regards the third element, it is instructive to define “carnal knowledge” in the context it is used in the Revised Penal Code:
‘[C]arnal knowledge,’ unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the
hymen be ruptured. The crime of rape is deemed consummated even when the man’s penis merely enters the labia or lips of the female organ or,
as once so said in a case, by the ‘mere touching of the external genitalia by a penis capable of consummating the sexual act.43 (Citations omitted.)
This element was proven when AAA detailed in open court how Banzuela forcefully inserted his sex organ into her genitalia in February 2003 and
how she felt pain during her ordeal.

Banzuela makes much of the fact that the medico-legal examination yielded negative results, i.e., that AAA remained a virgin. This Court, in People
v. Boromeo,44 suitably refuted that argument, viz:
Proof of hymenal laceration is not an element of rape. An intact hymen does not negate a finding that the victim was raped. To sustain a
conviction for rape, full penetration of the female genital organ is not necessary. It is enough that there is proof of entry of the male organ into the
labia of the pudendum of the female organ. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is
enough to constitute rape, and even the briefest of contact is deemed rape. As long as the attempt to insert the penis results in contact with the
lips of the vagina, even without rupture or laceration of the hymen, the rape is consummated. x x x. (Citations omitted.)
Significantly, as this Court has held before,45 the pain that AAA suffered is, in itself, an indicator of the commission of rape. Moreover, AAA’s
ordeal was witnessed by BBB, who in fact was the one who told AAA’s mother about the incident. Thus, contrary to Banzuela’s assertions, this
Court is convinced that the prosecution was able to establish that he had carnal knowledge of AAA, making him guilty beyond reasonable doubt of
the crime of rape.

Crime of Attempted Rape not established but crime of Acts of Lasciviousness proven beyond reasonable doubt

Upon appeal, the Court of Appeals found no evidence to prove with the moral certainty required by law that Banzuela intended to have carnal
knowledge of BBB, thus, it modified the crime the RTC convicted Banzuela of from Attempted Rape under Article 266-A, paragraph 1(d) in relation
to Article 51 of the Revised Penal Code, to Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Republic Act No. 7610.
This Court agrees with the Court of Appeals. In an attempt to commit a felony, the offender commences the commission of such felony directly by
overt acts, but does not perform all the acts of execution, which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.46 In other words, a crime is in its attempted stage when the offender has already performed the acts preliminary to the
consummation of the crime. However, because of some reason besides his own spontaneous desistance, he is not able to perform all the acts
necessary to consummate the crime. The elements, therefore, of an attempted felony are as follows:
The offender commences the commission of the felony directly by overt acts;

He does not perform all the acts of execution which should produce the felony;

The offender’s act be not stopped by his own spontaneous desistance; and

The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.47 (Citation omitted.)
In the crime of rape, penetration, however slight, is an essential act of execution that produces such felony. Thus, for Banzuela to be convicted of
the crime of attempted rape, he must have already commenced the act of inserting his sexual organ in the vagina of BBB, but due to some cause or
accident, excluding his own spontaneous desistance, he wasn’t able to even slightly penetrate BBB.48

It has not escaped this Court that rape and acts of lasciviousness are crimes of the same nature. However, the intent to lie with the woman is the
fundamental difference between the two, as it is present in rape or attempt of it, and absent in acts of lasciviousness.49 “Attempted rape is
committed when the ‘touching’ of the vagina by the penis is coupled with the intent to penetrate; otherwise, there can only be acts of
lasciviousness.”50

In this case, Banzuela’s acts of laying BBB on the ground, undressing her, and kissing her, “do not constitute the crime of attempted rape, absent
any showing that [Banzuela] actually commenced to force his penis into [BBB’s] sexual organ.”51

The fact that Banzuela employed on BBB the exact same tactics he used on AAA – from the invitation to go to the cemetery to visit their dead
relatives, to the carrying of the child when she refused, to the laying down of the child, undressing her, and kissing her, cannot justify the
presumption that he intended to rape BBB, just like he did AAA. “Such a presumption hardly constitutes proof beyond reasonable doubt of the
crime of attempted rape. The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of
sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption.”52 Here, Banzuela was not even able to commence the
act of sexual intercourse as he still had his pants on. What the prosecution was able to establish in Criminal Case No. MC03-918-FC-H is that
Banzuela was able to lay down BBB, undress her, and kiss her, before the untimely arrival of a third party. Such acts, as the Court of Appeals
said,53 constitute lascivious conduct.

Article 336 of the Revised Penal Code provides for the crime of acts of lasciviousness as follows:
Art. 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by prision correccional.
Its elements are:
(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

By using force or intimidation; or

When the offended party is deprived of reason or otherwise unconscious; or

When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.54 (Citation omitted.)
The foregoing elements are clearly present in BBB’s case, and were sufficiently established during trial. Although the crime charged against
Banzuela was for attempted rape, convicting him for the crime of acts of lasciviousness does not violate any of his rights as such crime is included in
the crime of rape.55

Anent BBB’s actions or inaction, suffice it to say that BBB was direct and consistent in narrating her own experience with Banzuela. The argument
that she did not struggle, asked for help, or shout from when she was carried out of her house and brought to the cemetery is unavailing. “[F]ailure
of the offended party to make a struggle or outcry is immaterial in the rape of a child below twelve years of age because the law presumes that the
victim on account of her age does not and cannot have a will of her own.”56

Banzuela’s Defense

We agree with the lower courts that Banzuela’s defense of alibi hardly deserves credit. Such defense is one of the weakest not only because it is
inherently frail and unreliable, but also because it is easy to fabricate and difficult to check or rebut.57 Thus, for alibi to succeed as a defense, the
following must be established by clear and convincing evidence:
The accused’s presence at another place at the time of the perpetration of the offense; and

The physical impossibility of the accused’s presence at the scene of the crime.58
Banzuela himself admitted the proximity of his work place and his residence to the houses of AAA and BBB and the cemetery. As such, his alibi is
negated by the fact that it was not physically impossible for him to have been at the cemetery where the crimes occurred.59

The presentation of Banzuela’s DTRs is also unpersuasive for lack of corroboration. The DTRs were mere photocopies, Banzuela himself made the
entries therein, and they bore no signature from any of his employers. If in fact the owner of the refilling station was no longer in the country, his
former manager or the brother of the owner, from whom Banzuela’s mother was able to procure the photocopied DTRs could have testified to
confirm the veracity of the entries therein. Banzuela’s alibi therefore cannot prevail over the credible testimonies and positive identification that
he was the perpetrator of the crimes, by AAA and BBB, who have known him prior to the incidents, as their cousin.

Liability for Rape

Article 266-A, paragraph (1)d of the Revised Penal Code, as amended by Republic Act No. 8353,60 which is the basis of statutory rape, provides as
follows:
Article 266-A. Rape; When and How Committed. – Rape is committed -
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

xxx
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

Undoubtedly, AAA was below 12 years old at the time she was raped. However, the law qualifies the crime of statutory rape when it is committed
on a child below seven years old, to wit:
Article 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

xxx

5) When the victim is a child below seven (7) years old.

For having been found guilty of the crime of qualified rape, AAA being a child below seven years of age when the crime occurred, the death penalty
should have been imposed on Banzuela. However, Republic Act No. 9346,61 which took effect on June 24, 2006, prohibits the imposition of the
death penalty. Under this Act, the lower courts correctly imposed upon Banzuela the penalty of reclusion perpetua without eligibility for parole62
in lieu of the death penalty.63

Liability for Acts of Lasciviousness

The Court of Appeals convicted Banzuela of acts of lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5(b) of Republic
Act No. 7610. For Banzuela to be convicted as such, both the requisites of acts of lasciviousness under Article 336 of the Revised Penal Code as
earlier discussed, and sexual abuse under Section 5 of Republic Act No. 7610, must be met and established by the prosecution.64 The following are
the elements of sexual abuse under Section 5, Article III of Republic Act No. 7610:
(1) The accused commits the act of sexual intercourse or lascivious conduct;

(2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and

(3) The child, whether male or female, is below 18 years of age.65

A review of the Information filed against Banzuela reveals that there was no allegation of the second element of Section 5, Article III of Republic Act
No. 7610 – that the act is performed with a child exploited in prostitution or subjected to other sexual abuse. There was also no attempt to prove
that element, as it would have been a violation of Banzuela’s constitutional right to be informed of the nature and cause of the accusation against
him. Although the Information stated that the crime being charged was in relation to Republic Act No. 7610, it is a well-settled rule that “the
character of the crime is determined neither by the caption or preamble of the information[,] nor by the specification of the provision of law
alleged to have been violated, they being conclusions of law, but by the recital of the ultimate facts and circumstances in the information.”66
Therefore, Banzuela can only be punished under Article 336 of the Revised Penal Code.

The penalty for acts of lasciviousness under Article 336 of the Revised Penal Code is prision correccional in its full range. Applying the
Indeterminate Sentence Law,67 the minimum of the indeterminate penalty shall be taken from the full range of the penalty next lower in
degree,68i.e., arresto mayor, which ranges from 1 month and 1 day to 6 months.69 The maximum of the indeterminate penalty shall come from
the proper penalty70 that could be imposed under the Revised Penal Code for Acts of Lasciviousness.71 In this case, since there are neither
aggravating nor mitigating circumstances, the imposable penalty is the medium period of prision correccional, which ranges from 2 years, 4 months
and 1 day to 4 years and 2 months.72

Banzuela is hereby sentenced to suffer the penalty of 6 months of arresto mayor, as minimum, to 4 years and 2 months of prision correccional, as
maximum.73

In line with prevailing jurisprudence, the Court increases the award of exemplary damages from P25,000.00 to P30,000.00 to AAA (rape);74 and
awards P20,000.00 as civil indemnity, P30,000.00 as moral damages, and P10,000.00 as exemplary damages to BBB (acts of lasciviousness).75

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 03868 is hereby AFFIRMED with MODIFICATION.
In Criminal Case No. MC03-919-FC-H, we find accused-appellant Ferdinand Banzuela GUILTY of Rape defined and penalized under Articles 266-A
and 266-B of the Revised Penal Code, as amended. He is sentenced to reclusion perpetua without the possibility of parole; and is ORDERED to pay
the victim, AAA, P75,000.00 as civil indemnity; P75,000.00 as moral damages; and P30,000.00 as exemplary damages, all with interest at the rate of
6% per annum from the date of finality of this judgment; and

In Criminal Case No. MC03-918-FC-H, we find accused-appellant Ferdinand Banzuela GUILTY of Acts of Lasciviousness, defined and penalized under
Article 336 of the Revised Penal Code, as amended. He is sentenced to an indeterminate prison term of 6 months of arresto mayor, as minimum,
to 4 years and 2 months of prision correccional, as maximum; and is ORDERED to pay the victim, BBB, P20,000.00 as civil indemnity, P30,000.00 as
moral damages, and P10,000.00 as exemplary damages, all with interest at the rate of 6% per annum from the date of finality of this judgment.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus -
ELMER BARBEROS alias EMIE, Accused-Appellant.
G.R. No. 187494
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The Case

Before us is an appeal from the Decision[1] dated March 5, 2008 of the Court of Appeals (CA) in CA-G.R. CEB-CR-HC No. 00316 which affirmed with
modification the Judgment[2] of the Regional Trial Court (RTC), Branch 14 in Cebu City, convicting accused-appellant Elmer Barberos alias Emie of
the crime of rape.

The Facts

In an Information dated January 11, 1999 filed before the RTC of Cebu City and docketed thereat as Criminal Case No. CBU-49307, appellant Elmer
was indicted for the crime of rape, as defined under Article 266-A of the Revised Penal Code (RPC), as amended by Republic Act No. (RA) 8353,[3]
allegedly committed as follows:

That on or about the 22nd day of December 1998, at around 12:00 oclock past dawn, more or less, in Sitio Cambuntan, Barangay Bolinawan,
Municipality of Carcar, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, with lewd design and by means of force
and intimidation, the accused, did then and there willfully, unlawfully and feloniously choke her throat and threaten her SABA RON KAY PATYON TA
KA (GO AHEAD SHOUT AND I WILL KILL YOU), then forcibly open her short pants and panty, tearing her sando, place himself on top of her and
forcibly insert his penis into her vagina and succeed in having sexual intercourse with x x x [AAA], a 15 year-old girl against her will and consent.[4]

Upon arraignment, Elmer pleaded not guilty to the above charge.

Version of the Prosecution

The prosecution presented the following witnesses: AAA, the private complainant, and Dr. Daphnie Rana, the examining doctor, to establish the
following facts:

In the evening of December 21, 1998, AAA, then 15 years old, along with four friends, watched a variety show near the cemetery of Cambuntan,
Bolinawan, Carcar, Cebu. At around 10:00 or 11:00 p.m., a neighbor informed AAA that her father and uncle were quarreling at her grandmothers
place. AAA immediately proceeded to her grandmothers house and heard, as she was nearing the place, the raised voices of her father and uncle.
Alarmed, she cried for help but nobody heeded her call. It was at this instance that Elmer, a neighbor, drew near her and told her not to worry
because he would protect her. Upon the urging of Elmer, AAA went with him to his two-storey house some 50 meters away. He then led her to a
room at the second floor and, once inside, locked the door.
After a while, Elmer made his move and, despite AAAs loud protestation, succeeded in placing himself on top of AAA, who shouted for help but
only to be choked and told, Saba ron kay patyon ta ka. (Do not shout, otherwise I will kill you.) AAAs attempt to wrestle herself free from Elmers
hold did not prevent the latter from getting inside her, although she felt a less-than-total penetration. And at some point during the struggle, AAA
was able to cover her private part with her left hand while grabbing Elmers sex organ with her right hand.

Then, someone knocked at the door. When Elmer stood up to open it, AAA lost no time in picking up her short pants and panty and jumped out the
window. Upon reaching her grandmothers place at around 1:00 a.m., she told her grandmother the ordeal she just went through. She then washed
herself. Even at that late hour, she was raring to report the incident to the police until she noticed Elmer standing outside their house.

At about 10:00 a.m. of December 22, 1998, AAA, with her mother, reported the matter to the police. From Carcar, AAA and her mother,
accompanied by a policewoman, proceeded to the Don Vicente Sotto Medical Center, where Dr. Rana conducted an examination on AAA. Her
findings: an intact hymen and the absence of spermatozoa in the vaginal canal. As to the first phenomenon, the doctor ventured the opinion that a
woman raped could still have an intact hymen either because there was no full penile insertion, the penetration was limited only to the labia, or
the hymen was distensible. The absence of spermatozoa in the vagina could be due to the fact that there might have been no ejaculation, or the
sperm might have been washed out.

Version of the Defense

Elmer denied the crime imputed to him. To buttress his defense, Elmer presented his wife, Paterna, who testified being in the vicinity of AAAs
grandmothers house when AAAs father and uncle were having an argument. Apparently, the uncle fired at AAAs father, with the explosion and
noisy altercation attracting the neighbors.

Upon reaching home on the night in question, Paterna was surprised to find a crying AAA on the second floor, visibly afraid because of the firing
incident and crying her help. When Elmer arrived with one Elijorde Paniroso,[5] AAA rushed toward the window apparently to flee and, despite
Elmers admonition to be careful, eventually jumped out.

The defense proffered the theory that the fabricated rape charge was due to a standing feud between the Barberoses and AAAs family which
started when the Barberoses built their house on a piece of land formerly tilled by AAAs family.

The Ruling of the RTC

After trial, the RTC, on November 13, 2000, rendered judgment,[6] finding Elmer guilty of the crime charged and accordingly sentenced him, thus:
WHEREFORE, foregoing premises considered, JUDGMENT is hereby rendered finding the accused ELMER BARBEROS GUILTY beyond reasonable
doubt of RAPE falling under paragraph 1, subparagraph a, ART. 266-A of the Revised Penal Code as amended by R.A. No. 8351 [sic] and hereby
imposes upon him the penalty of RECLUSION PERPETUA as imposed under ART. 266-B of the same Code, as amended.

Accused is, likewise, ordered to pay private complainant the amount of P50,000.00 as his civil liability to her.

SO ORDERED.[7]

Therefrom, Elmer appealed directly to this Court, the appeal initially docketed as G.R. No. 147241. Following, however, the submission by the
parties of their respective briefs, People v. Mateo[8] was promulgated. And in line with Mateo, the Court, via its November 22, 2004 Resolution,[9]
referred the instant case to the CA for intermediate review.

The Ruling of the CA

On March 5, 2008, in CA-G.R. CEB-CR-HC No. 00316, the appellate court rendered the appealed decision, affirming that of the RTC, but with the
modification awarding AAA moral damages in the amount of PhP 50,000. The fallo of the CA decision reads:

All told, the assailed Decision dated 13 November 2000 by the Regional Trial Court, Branch 14, in Cebu City finding the accused guilty beyond
reasonable doubt of RAPE and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED. The Civil aspect of the case is
MODIFIED to read as follows: Appellant is ORDERED to pay private complainant the amount of P50,000.00 as moral damages and the amount of
P50,000.00 as civil indemnity.

SO ORDERED.[10]

On April 3, 2008, Elmer filed his notice of appeal, to which the CA, per its resolution of December 12, 2008, gave due course.

In response to the Courts Resolution for them to submit supplemental briefs if they so desired, the parties manifested their willingness to have the
case resolved on the basis of the Brief for the Accused-Appellant[11] and Brief for the Appellee,[12] respectively, filed in G.R. No. 147241.

The Issues

Consequently, from his Brief, appellant raises the same assignments of errors earlier passed over and resolved by the CA, to wit: first, that the
courts a quo erred in finding him guilty beyond reasonable doubt of the crime of rape; and second, that the courts a quo gravely erred in adjudging
him guilty of consummated rape instead of attempted rape.

The Courts Ruling

After a circumspect review of the records, the Court affirms appellants conviction.

Prefatorily, while it is not wont to go over and re-assess the evidence adduced during the trial, more so when the appellate court affirms the
findings and conclusions of the trial court, the Court, in criminal cases falling under its review jurisdiction under the Constitution,[13] is nonetheless
tasked to assiduously review such cases, as in the instant appeal. Besides, utmost care is required in the review of a decision involving conviction of
rape due to the pernicious consequences such conviction bear on both the accused and the offended party.[14]

By the distinctive nature of rape cases, conviction usually rests solely on the basis of the victims testimony, provided it is credible, natural,
convincing, and consistent with human nature and the normal course of things.[15] Accordingly, the Court has unfailingly adhered to the following
guiding principles in the review of similar cases, to wit: (1) an accusation for rape can be made with facility; while the accusation is difficult to
prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that, in the nature of things, only two persons are
usually involved in the crime of rape, 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. [16]

Complementing the foregoing principles is the rule that the credibility of the victim is always the single most important issue in prosecution for
rape;[17] that in passing upon the credibility of witnesses, the highest degree of respect must be afforded to the findings of the trial court.[18]

Rape is defined and penalized under Arts. 266-A and 266-B of the RPC, as amended, which provide:

ART. 266-A. Rape, When and How Committed. Rape is committed

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise unconscious;

x x x x (R.A. No. 8353, October 22, 1997.)

ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. (Emphasis supplied.)

Thus, in context, for the charge of rape to prosper, the prosecution must prove that (1) the offender had carnal knowledge of a woman, (2) through
force, threat, or intimidation.

In the instant case, the prosecution established the elements of carnal knowledge and the force, threat, or intimidation employed. AAA, with
firmness and certainty, pointed to appellant Elmer as the person who sexually molested her. She never wavered in her identification and was
straightforward in her narration of how the assault occurred. Both the RTC and CA found the eloquent testimony of AAA positive and candid, and
not at all rebutted during the cross-examination, thus deserving full weight and credit. To quote directly from the records:

Atty. Yongco: What is the full name of this Emie you are referring to?
AAA: Elmer Barberos my neighbor.
Q: You mean the accused in this case?
A: Yes.
xxxx
Q: After he put his arms around your shoulder, what did he say if any?
A: He told me that dont worry about that .
xxxx
Q: After then (sic) after that, what happened next?
A: He told me he will keep me in his residence.
Q: Did you not ask why he is going to keep you in his residence?
A: He told me that he will just keep me in his residence because if my uncle would see me he might kill me.
xxxx
Q: After you were told by Emie that he will keep you in his residence, what did you do?
A: I went with him.
xxxx
Q: Was there anybody in the house when you reached the house?
A: None.
xxxx
Q: After Elmer Barberos told you that you will go upstairs, what did he do if any?
A: He told me that we will put off the light because if the house is lighted my uncle might see me and he will kill me and I might be seen outside.
Q: And so did Elmer Barberos put off the light inside the house?
A: Yes, Maam.
xxxx
Q: After the accused and you entered the room, what did the accused do?
A: He closed the door.
Q: After Elmer Barberos closed the door, what did Elmer Barberos do after he closed the door?
A: Maybe he locked the door because I cannot really see it because it was dark.
Q: So when you were already inside the room and after the accused closed and locked the door, what happened next?
A: He conversed with me.
Q: What was the topic he conversed with you?
xxxx
Q: After you told him that you wanted to go home, what did Elmer Barberos answer?
A: He told me later only.
Q: So what did you do when Elmer Barberos told you to wait?
A: I told Elmer Barberos I will just go home because they might be looking for me and they might have finished their fight.
Q: So when you [said] that to Elmer Barberos, what did Elmer Barberos do?
A: Elmer Barberos told me you are a fool and he immediately put his body on top of me.
Q: So after Elmer Barberos told you you are a fool and put himself on top of you, what happened to you?
A: I shouted for help.
Q: How did you exactly shout for help at that time?
A: I shouted Ma, help me Ma because Elmer Barberos put himself on top of me.
Atty. Yongco: I would like to put on record, Your Honor, that the witness is crying when she uttered the statement.
Q: After you made a shout for help, what did Elmer Barberos do?
A: He choked my throat and told me if you will shout I will kill you.
Q: After Elmer Barberos told you that he will kill you, what did Elmer Barberos do after that?
A: His body was on top of me and he pushed and pull.
COURT: If the accused is inside the courtroom, can you identify him?
A: Yes.
Q: Can you point to the person?
A: That one.
COURT INTERPRETER: The witness pointed to the person who responded that his name is Elmer Barberos while the victim kept on crying.
Q: At that time what were you wearing?
A: I was wearing a white t-shirt and maong short pants.
xxxx
Q: You said that after Elmer Barberos choked you and told you not to make any noise because he will kill you, he made a push and pull motion. At
that time he was making the push and pull motion were you wearing your shorts?
A: I was wearing maong short pants and he immediately pulled out my short pants.
xxxx
A: He forcibly pull[ed] down my short pants because it was loose.
Q: When accused Elmer Barberos pull[ed] down your short pants, was there anything left in your underwear?
A: No more because when he pulled down my short pants my panty went with the short pants.
xxxx
Q: And so after Elmer Barberos pulled down your short pants together with your panty, what did Elmer Barberos do after that?
A: We wrestled because I resisted. There was a time that I was on top and the next time I was under him.
Q: So after you wrestled with Elmer Barberos, what happened?
A: His penis was inside my vagina but it did not penetrate. It just stayed on the lip of my vagina.
Q: And at that time what did you feel?
A: I felt pain but then again I resisted.
Q: You were telling that the penis of the accused has touched your vagina, what was your position at that time in relation to the position of the
accused Barberos?
A: At that time when his penis touched the lip of my vagina my position was lying. Afterwards I wrestled again so at that time I was on top of him
again.
xxxx
Q: So with that position that you were lying with your right hand at your back, what did the accused Elmer Barberos do?
A: When I was lying while my right hand was at my back he wanted again for the second time to insert his penis into my vagina but I used my left
hand in covering my vagina.
xxxx
Q: And so when you were in that position, what did you feel if any on your vagina because accused Barberos according to you was trying to push
his penis to your vagina?
A: Since I kept on moving at that time my right hand was able to release from my back and I took hold of his penis.
Q: After you took hold of the penis of the accused Elmer Barberos, what happened?
A: Somebody knocked at the door.
xxxx
Q: And so did Elmer Barberos open the door?
A: Yes, Maam.
Q: So when Elmer Barberos went to open the door, what did you do?
A: I took my short pants and panty. And since I was near the window I prayed for the help of God, I made a sign of the cross and immediately
jumped over the window.[19] (Emphasis supplied.)

The foregoing positive testimony of AAA, as well as the rage that went into it, are badges of truth and sincerity. When the offended party is of
tender age and immature, as here, courts are inclined to give credit to her account of what transpired, considering not only her relative
vulnerability but also the shame and embarrassment to which she would be exposed if the matter to which she testified is not true.[20] Judging
from her live birth certificate,[21] AAA was 15 years old at the time of the incident, barely 16 or 17 when she took the witness stand in 2000. It is
settled that when a girl, more so when she is in her early teens, says she has been raped, she says in effect all that is necessary to prove that rape
was committed, and if her testimony meets the test of credibility, that is sufficient to convict the accused.[22] As it were, AAAs testimony as to her
hideous experience in the hands of appellant deserves full faith and credit, given as it were in a straightforward and candid manner, unshaken by
rigid cross-examination and bereft of inconsistencies, or contradictions in material points.[23]

Auguring well for AAAs credibility was her eagerness to report right away to the proper authorities a crime committed against her person. When
her grandmother exhibited reluctance about immediately reporting the matter to the police, she took it upon herself to do so, but was prevented
only by the presence of appellant outside her grandmothers house. But the very next morning, she lost no time in going to the police station to
report the rape incident.

The physical examination Dr. Rana conducted on AAA several hours after the incident happened also amply explains and corroborates her
testimony on the fact of partial penile penetration. The medical findings of Dr. Rana embodied in her Medical Report[24] are consistent with the
partial penetration testified to.

Appellant has made much of Dr. Ranas report on the absence of medical traces of hymenal laceration on AAA. Given, however, the unwavering
sworn account of AAA as to what she went through in appellants hands, the Court cannot accord merit to the argument that the lack of physical
manifestation of rape weakens the case against the latter. The medical report on AAA is only corroborative of the finding of rape. The absence of
external signs or physical injuries on the complainants body does not necessarily negate the commission of rape.[25] This is because hymenal
laceration is not an element of the crime of rape,[26] albeit a healed or fresh laceration is a compelling proof of defloration.[27] What is more, the
foremost consideration in the prosecution of rape is the victims testimony and not the findings of the medico-legal officer. In fact, a medical
examination of the victim is not indispensable in a prosecution for rape; the victims testimony alone, if credible, is sufficient to convict.[28]

In a long line of cases, the Court has consistently held that full penile penetration of the penis into the vagina is not required for the commission of
rape, as mere penile entry into the labia of the pudendum of the vagina, even without rupture or laceration of the hymen, is enough to justify a
conviction for rape. In People v. Diunsay-Jalandoni,[29] citing People v. Iluis,[30] we ratiocinated, thus:

Further, the absence of external signs of violence does not negate the commission of rape. Nor is the absence of spermatozoa material in the
prosecution of a rape case. A freshly broken hymen is, likewise, not an essential element of rape, and healed lacerations do not negate rape
because full penetration is not necessary to consummate rape. Penetration of the penis by entry into the labia of the pudendum of the vagina,
even without rupture or laceration of the hymen, is enough to justify a conviction of rape.[31] (Emphasis supplied.)

In light of the foregoing disquisition, the Court need not belabor the issue as to whether appellants liability is only for attempted, not
consummated, rape. Suffice it to state that the trial court, joined by the CA, found appellants penis to have touched the labia and penetrated AAAs
vagina, albeit unsuccessful in completely entering it. Full penile penetration is not a consummating ingredient in the crime of rape. The mere
knocking at the door of the pudendum by the accuseds penis suffices to constitute the crime of rape.[32]

As to the means used in the sexual assault, the prosecution had likewise sufficiently showed the force, threat, and intimidation employed by
appellant to satisfy his lust. It must be borne in mind that in rape, the force and intimidation must be viewed in light of the victims perception and
judgment at the time of the commission of the crime. As a matter of settled jurisprudence, rape is subjective and not all victims react the same
way; there is in fine no stereotypical form of behavior of a woman when facing a traumatic experience, such as a sexual assault.[33]

In the instant case, however, AAA, true to human nature, resisted with all her might the beastly act perpetrated on her. When appellant grabbed
her and placed himself on top of her, AAA cried for help which prompted Elmer to choke her and threaten her with death. Yet, while deterred from
shouting, AAA still struggled resolutelyas her eloquent testimony above-quoted showssuch that Elmer was not able to achieve full penile
penetration. Her vigorous resistance resulted in her being able to cover her vagina with her left hand while eventually holding Elmers penis
forcefully with her right hand.

Not lost on the Court is the established fact of AAA jumping from the second floor of Barberoses dwelling. She said that she did it just to escape
from Elmers clutches, unmindful of the physical harm it might bring to her. This is similar to running away from danger out of uncontrollable fear,
heedless of any resultant injury that might occur, considering, in the instant case, that the leap entailed a fall from a considerable height.

The defense had offered a theory about the jumping incident. The arrival of appellant and his friend, Elijorde, allegedly so frightened the hiding
AAA that she was forced to jump from the second floor window. This is, of course, incredulous, for if AAA indeed sought shelter in the Barberoses
residence out of fear of her uncle, as Paterna asserted in the witness box, the Court cannot understand why the mere arrival and sight of the
appellant and Elijorde would give AAA a scare.

Paternas naturally biased testimony in support of her husbands denial of culpability deserves scant consideration in light of the positive
identification and categorical declaration made by AAA against the appellant. When the denial of the accused is tended to be established only by
himself, his relatives, or friends, such denial should be accorded the strictest scrutinyit is necessarily suspect and cannot prevail over the
testimonies of the more credible testimonies for the prosecution.[34] So it must be here.

The thesis the defense espoused that AAAs family fabricated the charge against Elmer owing to some misunderstanding over a piece of land taxes
credulity. For one, no credible evidence had been adduced to prove the supposed land dispute. For another, the lengthy narrative of AAA of how
appellant ravished her strikes the Court as a product of her thirst for justice, not as a jumping board to settle old slight. And for a third, the
presence of the elements of the crime of rape had been sufficiently established. In People v. Gagto, we held that not a few accused in rape cases
have attributed the charges brought against them to family feuds, resentment, or revenge. But such alleged motives have never swayed the court
from lending full credence to the testimony of the complainant who remained steadfast throughout her direct and cross examinations, especially a
minor in this case. [35]

The Court also affirms the penalty thus meted on the appellant, reclusion perpetua being the imposable penalty even for unqualified rape. Finally,
the award by the CA of moral damages in the amount of PhP 50,000, on top of the award of PhP 50,000 as civil indemnity ex delicto, is in order,
even without further proof of moral suffering or anguish, as People v. Jumawid[36] and other cases teach.[37]

WHEREFORE, premises considered, we AFFIRM IN TOTO the March 5, 2008 Decision of the Court of Appeals in CA-G.R. CEB-CR-HC No. 00316.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
EN BANC
[G.R. NOS. 140873-77. February 6, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v. LEVI SUMARAGO, Appellant.
DECISION
CALLEJO, SR., J.:
The Spouses Vivencio and Teodora Brigole had four children.Two of them were girls Norelyn, who was born on December 24, 1984,1 and her older
sister Doneza, who was born in 1983.However, Teodora left Vivencio and kept custody of their children.
In 1991, Teodora and the appellant, Levi Sumarago, an eighteen-year-old mestizo Subanen, started living together as husband and wife.They had
two children, Maricel and Levi Sumarago, Jr.Teodora and Levi often quarreled because of their myriad problems.In 1993, then thirteen-year-old
Doneza went to Malaysia for employment.
In the morning of March 5, 1995, Norelyn, who was then barely ten years old, was gathering firewood with the appellant in the latters
farmland.While they were nearing a guava tree, the appellant suddenly boxed her on the stomach.Norelyn lost consciousness.She had her clothes
when she woke up.It was about noon.She had a terrible headache and felt pain in her vagina.She also had a bruise in the middle portion of her
right leg.The appellant warned her not to tell her mother about it, otherwise he would kill her.
On March 13, 1995, Norelyn and the appellant were again gathering firewood.The appellant ordered her to follow him to the banana plantation
owned by Mejorcada in Barangay Manlin, Buug, Zamboanga del Sur.He walked ahead, while Norelyn followed.She then lost sight of the
appellant.As she passed by the banana plantation, the appellant suddenly appeared and grabbed her.He then forced her to lie down.He removed
her panties and when she tried to shout, he covered her mouth with his hand.He mounted her and inserted his penis into her vagina.Norelyn felt
excruciating pain.After he was satiated, the appellant stood up and ordered her to put on her panties.He warned her Dont you ever tell, I will surely
kill you.
On March 24, 1995, Norelyn and the appellant were scheduled to gather firewood in the farmland owned by Mejorcada.Norelyn did not want to
go, but she could not refuse as the appellant would get mad at her.She sat by a guava tree and waited for the appellant.When he arrived, he told
her to come near him.Norelyn refused.The appellant then held her hand and brought her to an area hidden by bushes.He took off Norelyns panties
and undressed himself.He went on top of her and inserted his penis into her vagina.Norelyn could not move as the appellant pinned her legs with
his own.She tried to shout but the appellants hand was on her mouth.After he was done with her, he ordered her to put on her clothes.He then
dressed himself and told her that they were going home.Norelyn did not tell her mother about the incident for fear that the appellant would kill
them both.
On April 2, 1995, Norelyn and the appellant gathered firewood anew in the same farmland.She waited for the appellant before leaving for
home.The appellant arrived.He undressed Norelyn and forced her to lie down and mounted her.She tried to shout but he covered her mouth with
his hand.He then inserted his penis into her vagina.After he was satiated, he ordered her to put her clothes on and to stand up.
On April 11, 1995, the appellant told Norelyn that they were going to Barangay Lantawan where Subanen tribes resided to gather firewood.She
told the appellant that she could not go with him because she had some chores to do in the house.The appellant insisted and told her to let her
mother do the chores.After gathering firewood, the appellant told her that they would get some abaca with which to tie the wood.However, when
they were near tall grasses, he pulled her down and took off all her clothes.After undressing himself, the appellant mounted her and inserted his
penis into her vagina.Norelyn tried in vain to shout, but she could not as the appellants hand covered her mouth.Afterwards, he ordered her to put
on her clothes.
Later, Norelyn told her sister Doneza that the appellant had raped her.
On August 24, 1996, Sopiana Maque, Teodoras mother and Norelyns grandmother, was in Zamboanga City visiting her other daughter.Norelyn and
Doneza stayed with their grandmother.Doneza asked Sopiana if she knew about what happened to Norelyn.When Sopiana replied in the negative,
Doneza told her that the appellant had raped Norelyn.When Sopiana confronted Norelyn, the latter confirmed what Doneza said.Sopiana was
shocked.She cried as she thought of her granddaughters terrible ordeal.
On August 30, 1996, Sopiana and her granddaughters returned to Barangay Manlin.Sopiana told Teodora what Doneza and Norelyn had related to
her.Teodora confronted Norelyn and the latter confirmed that the appellant had indeed raped her.She told her mother that she did not say
anything earlier because she was afraid the appellant might kill her and their family.
The appellant was then in jail on a rape charge.Teodora visited him there and confronted him about the matter.At first, the appellant denied that
he raped Norelyn.He later had a change of heart and admitted that he had indeed raped Norelyn.Teodora was infuriated.
On October 18, 1996, Teodora had Norelyn examined by Dr. Avenida Vista.The doctors findings were as follows:chanroblesvirtua1awlibrary
DIAGNOSIS/FINDINGS:chanroblesvirtua1awlibrary
(-) - MENARCHE
BREAST-SLIGHTLY DEVELOPED
VULVA:
LABIA MINORA NOT WELL DEVELOPED
LABIA MAJORA NOT WELL DEVELOPED
- LACERATION INCOMPLETE AT
HYMEN 3 OCLOCK AND 9 OCLOCK POSITION
- NO ABRASION NOR HEMATOMA NOTED
(-) ABSENCE OF SPERMATOZOA2
On October 29, 1996, Teodora and Norelyn filed a criminal complaint for rape against the appellant with the Municipal Trial Court of Buug,
Zamboanga del Sur.3
The appellant was charged with five counts of rape in five Informations filed with the Regional Trial Court of Zamboanga del Sur, Branch 20.The
docket numbers and the accusatory portion of each Information read as follows:chanroblesvirtua1awlibrary
CRIMINAL CASE NO. 2537
That on or about April 11, 1995 at 8:30 oclock on the morning more or less at Barangay Lantawan, Municipality of Buug, Province of Zamboanga del
Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and
there willfully, unlawfully and feloniously succeed, in having carnal knowledge with one Norilyn (sic) Brigole a minor of (10) ten years old, against
the latters will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2538
That on March 24, 1995 at noon more or less, at Barangay Manlin, Municipality of Buug, Province of Zamboanga del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and
feloniously succeed in having carnal knowledge with one Norilyn Brigole, a minor of 10 years old, against her will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2539
That on March 13, 1995 at 10:00 oclock more or less in the morning at Barangay Manlin, Municipality of Buug, Province of Zamboanga del Sur,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and there
willfully, unlawfully and feloniously succeed in having carnal knowledge with one Norilyn Brigole a minor of ten (10) years old against her will.
Act contrary to Article 335 of the Revised Penal Code.
CRIMINAL CASE NO. 2540
That on April 2, 1995 at Barangay Manlin, Municipality of Buug, Province of Zamboanga del Sur, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation did then and there willfully, unlawfully and
feloniously, have carnal knowledge with one Norilyn Brigole a minor of 10 years old, against her will.
Act contrary to Article 335 of the Revised Penal Code as amended by R.A. 7659.
CRIMINAL CASE NO. 2541
That on March 5, 1995 at Barangay Manlin, Municipality of Buug, Province of Zamboanga del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused by means of force and intimidation did then and there willfully, unlawfully and feloniously have carnal
knowledge with one Norilyn Brigole a minor of ten (10) years old, against her will.
Act contrary to Article 335 of the Revised Penal Code as amended by R.A 7659.
The Case for the Appellant
The appellant denied the charges.He testified that he was a fisherman, and on those dates when he allegedly raped Norelyn, he was out at sea
fishing.From his house, it would take hours for one to get to Pamintayan where he used to fish for Rudy Gamar.He was not aware of any reason
why Norelyn would charge him of rape.He had been very good to Norelyn.Teodora filed the complaints against him because according to her, the
Barangay Captain threatened to send her to jail if she would not charge the appellant with rape.
After due trial, the court rendered judgment, the decretal portion of which reads:chanroblesvirtua1awlibrary
Accordingly, judgment is hereby rendered finding the accused, LEVI SUMARAGO, GUILTY, as principal, of the crime of Rape in these Criminal Cases
Nos. 2537, 2538, 2539, 2540, and 2541, and sentences him to the capital punishment of DEATH.He is further ordered to indemnify the victim
Norelyn Brigole in the sum of Two Hundred Fifty Thousand Pesos.
Let the records of these cases, including the transcript of stenographic notes, and object evidence be forwarded to the Supreme Court within
twenty days after promulgation or notice of denial of any motion for new trial or reconsideration, for its automatic review and judgment en banc.
SO ORDERED.4
The appellant assails the decision of the trial court contending that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF CONSUMMATED RAPE
DESPITE THE UNCERTAINTY OF ITS COMMISSION.
II
THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE FAILURE OF THE PROSECUTION TO ALLEGE THE
RELATIONSHIP IN THE INFORMATION.5
On the first assignment of error, the appellant avers that the prosecution failed to prove that he had carnal knowledge of Norelyn on March 5,
1995 because of the following: (1) Norelyn merely testified that the appellant boxed her and when she regained consciousness, felt pains in her
vagina and saw that her right leg was bruised; (2) she was fully clothed when she awoke; and (3) she only believed that the appellant raped her
because her vagina was painful.
As for the four other counts of rape, the appellant insists, Norelyns account of the crimes charged are but mere general narrations, without specific
details of the events as they transpired.Her testimony that the appellant raped her on March 13, 1995 is incredible because she admitted that the
appellant had sex with her only for a short time.Considering that, at her tender age, her vagina had not yet developed, the appellant could not have
inserted his penis only for a short time.Moreover, the doctor testified that she was unsure as to what had caused the hymenal laceration in
Norelyns vagina, and that it could have been caused by a finger or a stick.
We agree with the appellant that the prosecution failed to prove beyond reasonable doubt that the appellant had carnal knowledge of Norelyn on
March 5, 1995.
For the accused to be held guilty of consummated rape, the prosecution must prove beyond reasonable doubt that: (1) there had been carnal
knowledge of the victim by the accused; (2) the accused achieves the act through force or intimidation upon the victim because the latter is
deprived of reason or otherwise unconscious.6 Carnal knowledge of the victim by the accused may be proved either by direct evidence or by
circumstantial evidence that rape had been committed and that the accused is the perpetrator thereof.A finding of guilt of the accused for rape
may be based solely on the victims testimony if such testimony meets the test of credibility.Corroborating testimony frequently unavailable in rape
cases is not indispensable to warrant a conviction of the accused for the crime.7 This Court has ruled that when a woman states that she has been
raped, she says in effect all that would be necessary to show that rape did take place.However, the testimony of the victim must be scrutinized
with extreme caution.The prosecutions evidence must stand or fall on its own merits.8
In People v. Campuhan ,9 we ruled that for the accused to be guilty of consummated rape, there must be sufficient and convincing proof that the
penis, indeed, touched at least the labia majora or slid into the female organ and not merely stroked the external surface thereof.The Court further
ruled that:chanroblesvirtua1awlibrary
Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape
of the penis on the external layer of the victims vagina, or the mons pubis.There must be sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ and not merely stroked the external surface thereof for an accused to be convicted of
consummated rape.As the labias are required to be touched by the penis, which are by their natural situs or location beneath the mons pubis or
the vaginal surface, to touch with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the
labia majora or minora of the pudendum constitutes consummated rape.10
The Court emphasized that absent any showing of the slightest penetration of the female organ, i.e., touching of the labia of the pudendum by the
penis, there can be no consummated rape.
In this case, Norelyn testified that in the morning of March 5, 1998, the appellant boxed her, rendering her unconscious.When she regained
consciousness before noon, she had a severe headache.However, she still had her clothes on.She suspected that the appellant had carnal
knowledge of her because her vagina was painful:chanroblesvirtua1awlibrary
Q: Now, where were you sometime in March 5, 1995?chanroblesvirtualawlibrary
A: I was at our house.
Q: Who were your companions?chanroblesvirtualawlibrary
A: My mother.
Q: Aside from your mother?chanroblesvirtualawlibrary
A: My stepfather, Levi Sumarago.
Q: This Levi Sumarago is your stepfather?chanroblesvirtualawlibrary
A: Yes, sir.
Q: What did he do in that noon of May 5?chanroblesvirtualawlibrary
A: We were gathering firewood.
Q: And who was your companion in gathering firewood?chanroblesvirtualawlibrary
A: My stepfather, sir.
Q: And where did you proceed?chanroblesvirtualawlibrary
A: In the land owned by Levi Sumarago.
Q: Now, while gathering firewood, do you remember if there was an unusual incident that took place at that time?chanroblesvirtualawlibrary
A: Yes, sir.
Q: What was that unusual incident?chanroblesvirtualawlibrary
A: We went to a certain guava tree and then the accused Levi Sumarago hit me by (sic) his fist and then I lost my consciousness.
Q: After you were being (sic) hit by (sic) the fist of Levi Sumarago and as you said you lost your consciousness after you regained your
consciousness, what have you observed?chanroblesvirtualawlibrary
A: I felt dizzy, my head was aching so much and I felt pain on my vagina.
Q: And after you regained your consciousness and after having felt pain from your head as well as from your vagina, what did Levi Sumarago
do?chanroblesvirtualawlibrary
A: He told me, dont tell your mother about this because I will kill you.
Q: Then after that, what happen[ed] next?chanroblesvirtualawlibrary
A: He ordered me to stand up because we will already go home.
Q: Your mother was not with you when you were gathering firewood?chanroblesvirtualawlibrary
A: None (sic), sir.11
On clarificatory questions propounded by the trial court judge, Norelyn testified as follows:chanroblesvirtua1awlibrary
Q: After your stepfather boxed you, you said you lost your consciousness and because you lost your consciousness, you dont know what
happen[ed] next, am I right?chanroblesvirtualawlibrary
A: I dont know.
Q: Is it not a fact that you were already wearing pants on March 5, 1995?chanroblesvirtualawlibrary
A: Yes, sir.
Q: And at the time you regained your consciousness, your panty and your pants, you were still wearing (sic) ?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Including your dress?chanroblesvirtualawlibrary
A: Yes, sir.
Q: In fact, you did not see any blood in your panty, is that correct?chanroblesvirtualawlibrary
A: I have not seen.
Q: Likewise, with your pants or clothes?chanroblesvirtualawlibrary
A: There was none.
Q: There was also no blood on the shirt of your stepfather?chanroblesvirtualawlibrary
A: There was no blood.
Q: So after regaining your consciousness, your stepfather went home directly?chanroblesvirtualawlibrary
A: Yes, sir.
Q: You said that you were threatened on March 5, 1995?Warned you not to tell anybody?chanroblesvirtualawlibrary
A: Yes, sir.
Q: In fact, you were aware what happen[ed] to you when you lost your consciousness, is that correct?chanroblesvirtualawlibrary
A: Yes, sir, but I had a doubt because my vagina was painful.
Q: And that was the only reason why you doubted?chanroblesvirtualawlibrary
A: Yes, sir.12
COURT:chanroblesvirtua1awlibrary
Was there a time in all these five incidents that you noticed in your body the presence of white substance in your
vagina?chanroblesvirtualawlibrary
A: I did not notice.
Q: Did you clean yours after the incident that you were abused?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Did you wash your private part after each incident?chanroblesvirtualawlibrary
A: I take (sic) a bath.
Q: And you did not notice any do you know the word sperm?chanroblesvirtualawlibrary
A: I dont know what is sperm.
Q: You did not notice any white substance or fluid when you were taking a bath after its (sic) incident.
A: I did not.
Q: How long did the pain last in your vagina?chanroblesvirtualawlibrary
A: For a long time.13
There is no proof beyond reasonable doubt that the appellants penis entered the labia of the pudendum of Norelyn.It is possible that while Norelyn
was unconscious, the appellant undressed her, removed her panties and inserted his private organ into her vagina; and after satisfying himself, put
her clothes back on before she regained consciousness.But such possibility is not synonymous with evidence.That the appellant had carnal
knowledge of Norelyn cannot be presumed simply because she felt pain in her vagina when she regained consciousness, and that for over a period
of time, the appellant warned her not to tell anybody.
The appellant may not even be convicted of attempted rape under Article 6 in relation to Article 335 of the Revised Penal Code because there is no
evidence that the appellant commenced by overt acts the commission of the offense which had direct connection with the crime intended to be
committed but did not perform all the acts of execution which should produce the felony.14 There is no evidence that the appellant boxed Norelyn
for the purpose of raping her.The testimony of Dr. Avenida Vista that she found an incomplete laceration on Norelyns hymen when she examined
the child on October 18, 1996 does not constitute proof that Norelyn sustained the laceration on March 5, 1998.It bears stressing that the
appellant raped Norelyn four times after March 5, 1995.She was examined by Dr. Vista only after the said rapes.It is entirely possible that Norelyn
sustained the laceration on the subsequent dates: on March 13, 1995, March 24, 1995, April 2, 1995 and on April 11, 1995.
However, as regards the four other counts of rape, the prosecution, through Norelyns testimony, mustered the requisite quantum of evidence to
prove consummated rape, thus:chanroblesvirtua1awlibrary
Q: Now, after that incident, when was the second time that Levi Sumarago rape you?
A: On March 13, 1995.
Q: And where did that happen?chanroblesvirtualawlibrary
A: In the banana plantation.
Q: And where was that banana plantation?chanroblesvirtualawlibrary
A: In the land of a certain Mejorcada.
Q: In what barangay is that land of Mejorcada located?chanroblesvirtualawlibrary
A: Barangay Manlin.
Q: What municipality?chanroblesvirtualawlibrary
A: Buug.
Q: Will you please narrate briefly what transpired on that date, March 13, 1995?chanroblesvirtualawlibrary
A: We were again gathering firewood together with my stepfather and he told me to follow him because he would get banana from the banana
plantation so I followed him but he was lost immediately from my sight and as I passed by the banana plantation, he immediately grabbed me.
Q: Who grabbed you?chanroblesvirtualawlibrary
A: My stepfather.
Q: After your stepfather grabbed you, what happen[ed] next?chanroblesvirtualawlibrary
A: He made me lie down, took off my panty and then that was the time I shouted but he covered by (sic) mouth with his hands.
Q: After that, what happen[ed]?chanroblesvirtualawlibrary
COURT:chanroblesvirtua1awlibrary
This time, you were not box[ed]?chanroblesvirtualawlibrary
A: Not (sic) sir.
Q: So, you were aware of what was happening to you?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Now after your stepfather made you lie down on the ground and after he removed your panty as well as your clothes, what did he do
next?chanroblesvirtualawlibrary
A: He had sexual intercourse with me.
Q: What do you mean by sexual intercourse?chanroblesvirtualawlibrary
A: He mounted (sic) me and inserted his penis to my vagina.
Q: After your stepfather inserted his penis to your vagina, what did you feel?chanroblesvirtualawlibrary
A: My vagina was very painful.
Q: Now, what did you do when you felt pain of what he has done with you (sic) ?chanroblesvirtualawlibrary
A: I was trying to shout but he was covering my mouth.
Q: In your own estimate, how long did Levi Sumarago [laid] himself on top of you and inserted his penis in your vagina?chanroblesvirtualawlibrary
A: It was just for a short time he immediately stood up and advised me to wear my panty.
Q: Now, after you were instructed to wear your panty, what happen[ed] next?chanroblesvirtualawlibrary
A: He told me to stand up because we will already go home.
Q: Were you able to reach home that day?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Did you see your mother in your house?chanroblesvirtualawlibrary
A: Yes, sir.
Q: And you mentioned that incident to your mother?chanroblesvirtualawlibrary
A: I did not.
Q: What is the reason again why you did not inform your mother about the incident?chanroblesvirtualawlibrary
A: Because of his words that if I will tell my mother, he will kill me.
COURT:chanroblesvirtua1awlibrary
Exactly what are the words he used?chanroblesvirtualawlibrary
A: Ayaw gyud ug sumbong kay kung mosumbong ka, patyong ta gyud ka.
Q: You were the one threatened by your stepfather?chanroblesvirtualawlibrary
A: I was the one.
Q: How about on March 15, 1995, what were the exact words of your stepfather when you woke up.
A: Ayaw ug sumbong kay kung mosumbong ka, patyon ta gyud ka.
:Meaning, dont you ever tell, I would surely kill you.
Q: Now, can you still remember the third time Levi Sumarago sexually abused you?
A: On March 24, 1995.
Q: And where did it take place?chanroblesvirtualawlibrary
A: At the guava tree.
Q: And where is that guava tree situated?chanroblesvirtualawlibrary
A: In the land owned by Moncada.
Q: And why were you there in that place?chanroblesvirtualawlibrary
A: We again gather[ed] firewood.
Q: Who were your companions?chanroblesvirtualawlibrary
A: Only my stepfather, sir, and myself.
Q: Other than you and your stepfather, was (sic) there other people in that place?chanroblesvirtualawlibrary
A: None, sir.
Q: Will you kindly narrate before this Court what actually transpired on that date on the said place?chanroblesvirtualawlibrary
A: Again, during that date, March 24, 1995, I went with my father to gather firewood.While he was gathering firewood, I was waiting at the guava
tree and near the guava tree, there were grasses, after he gathered firewood, he told me, please come near me but I did not because I already
knew his intention and because I did not go near him, he held my hand and brought me to the bushes.
Q: When your stepfather again brought you to the bushes, what happened next?chanroblesvirtualawlibrary
A: He again took off my panty and after that, he also took off his pants and his underwear.
Q: After he took off your panty and he also took off his pants and underwear, what happened next?chanroblesvirtualawlibrary
A: He attempted to have sexual intercourse with me and he mounted on top of me and covering (sic) my mouth the time I tried to shout.
Q: When your stepfather was lying on top of you, what else did he do?chanroblesvirtualawlibrary
A: He inserted again his penis to my vagina and because of the pain, I was trying to shout but I cannot because he was holding (sic) my mouth.
Q: How about your legs, did you not kick him?chanroblesvirtualawlibrary
A: No, I cannot because his legs were positioned on top of my legs.
Q: So his legs are (sic) pinning down your legs?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Why did you not refuse going with your stepfather to gather firewood this time?chanroblesvirtualawlibrary
A: Because according to him, there was no more firewood and if I will say no, he will surely get mad.
Q: And when he gets mad of (sic) you, what would he do to you?chanroblesvirtualawlibrary
A: He would kick me.
Q: Is it not more painful to be raped than to be kicked?chanroblesvirtualawlibrary
A: Being raped is more painful.
COURT:chanroblesvirtua1awlibrary
Proceed.
ATTY. LINGATING:chanroblesvirtua1awlibrary
Now, after your stepfather Levi Sumarago succeeded in having sexual intercourse against (sic) you, what happened
next?chanroblesvirtualawlibrary
A: He again told me to wear my panty and stood up and he also wore his own clothes and he advised me that we will already go home.
Q: Did you reach home that time?chanroblesvirtualawlibrary
A: Yes, sir.
Q: And you saw your mother inside your house?chanroblesvirtualawlibrary
A: Yes, sir.
Q: And what did you say to your mother about the incident?chanroblesvirtualawlibrary
A: I did not say anything.
Q: Why did you not say anything to your mother?chanroblesvirtualawlibrary
A: Because if I will tell my mother, he would kill me.
Q: Do you think that your stepfather would really kill you if ever you will reveal to your mother?chanroblesvirtualawlibrary
ATTY. BONGALOS:chanroblesvirtua1awlibrary
Objection.
COURT:chanroblesvirtua1awlibrary
Objection overruled.
A: Yes, sir.
Q: What made you think so?chanroblesvirtualawlibrary
A: Because he really told me, you try to tell your mother, I will surely kill you tonight.
Q: And you believe that?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Now, when for the fourth time did your stepfather rape you?
A: April 2, 1995.
Q: And where did that incident take place?chanroblesvirtualawlibrary
A: At the Katagbakan located at the land of a certain Moncada.
Q: What do you mean by katagbakan?chanroblesvirtualawlibrary
A: Im referring to a fruit named katagbak.
Q: And where is that katagbakan located?chanroblesvirtualawlibrary
A: In the land of Moncada.
Q: In what barangay?chanroblesvirtualawlibrary
A: Manlin.
Q: What municipality?chanroblesvirtualawlibrary
A: Buug, ZDS.
Q: And what actually happened in that place at katagbakan?chanroblesvirtualawlibrary
A: We again gathered firewood in the land of Moncada, this time, I was waiting for him at the katagbakan plantation and when he returned after
he gathered firewood, he went near me and he again abused me.
Q: Did you not suspect that he would do or abuse you again this time?chanroblesvirtualawlibrary
A: I thought about it.
Q: Why did you not run away?chanroblesvirtualawlibrary
A: Because of fear that if we will reach home, he would kill me.
Q: Now, how did he actually abuse you?chanroblesvirtualawlibrary
A: He again took off his clothes and mounted on [top of] me and I shouted but he held my mouth.
Q: When your stepfather was on top of you, what happen[ed] next?chanroblesvirtualawlibrary
A: He again inserted his penis to my vagina.
Q: After that, what happen[ed]?chanroblesvirtualawlibrary
A: My vagina was very painful.
Q: After you felt pain, what did you do?chanroblesvirtualawlibrary
A: I shouted.
Q: Were you able to shout?chanroblesvirtualawlibrary
A: No because he was covering my mouth.
Q: For how long did your stepfather had sexual intercourse with you in that place and date?chanroblesvirtualawlibrary
A: Just for a short time.
Q: And after your stepfather did that, what happen[ed] next?chanroblesvirtualawlibrary
A: Again, he advised me to stand up because we will already go home.
Q: When was the last time that your stepfather abused you?
A: April 11, 1995.
Q: And where did that incident take place?chanroblesvirtualawlibrary
A: At Barangay Lantawan.
Q: Is Brgy. Lantawan a barangay?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Part of what municipality?chanroblesvirtualawlibrary
A: The only thing I can remember, it is a barangay where the subanen reside, I do not know about the municipality.
Q: On April 11, 1995, he also asked you to accompany him to gather firewood?chanroblesvirtualawlibrary
A: Yes, sir.
Q: And, of course, you suspected that you will again be raped by your stepfather?chanroblesvirtualawlibrary
A: Yes, I believed I would again be abused.
Q: And you did not do anything to prevent your going with him?chanroblesvirtualawlibrary
A: This time when he told me to go with him, I did something at home in order to prevent myself to go with him and he told me, let your mother do
that.
ATTY. LINGATING:chanroblesvirtua1awlibrary
Why were you then in that place?chanroblesvirtualawlibrary
A: To gather firewood.
Q: And who are your companions?chanroblesvirtualawlibrary
A: Only the two of us.
Q: Were you able to gather firewood?chanroblesvirtualawlibrary
A: Yes, sir.
Q: Now, after you were able to gather firewood, what happen[ed] next?chanroblesvirtualawlibrary
A: After gathering firewood, my stepfather told me that we will get abaka to tie our firewood and when we reach[ed] a place where there were tall
grasses and he again ordered me to lie down and took off his clothes and mine and he mounted on top of me.
Q: After your stepfather mounted himself on top of you, what did he do next?chanroblesvirtualawlibrary
A: He inserted his penis to my vagina.
Q: After he inserted his penis to your vagina, what did you do?chanroblesvirtualawlibrary
A: I shouted.
Q: Were you able to shout?chanroblesvirtualawlibrary
A: No, because he covered my mouth with his hand.
Q: And when your father sexually abused you, what happened next?chanroblesvirtualawlibrary
A: After having sexually abused me, he told me to stand up because we were about to go home.15 (Emphases ours.)
The credibility of Norelyn and the probative weight of her testimony cannot be assailed simply because of her admission that it took the appellant
only a short time to insert his penis into her vagina and to satiate his lust.The mere entry of his penis into the labia of the pudendum, even if only
for a short while, is enough.Insofar as the consummation of the crime of rape is concerned, the brevity of time that the appellant inserted his penis
into the victims vagina is of no particular importance.As this Court held in People v. Nequia :16
[I]n rape cases, there are no half measures or even quarter measures, nor is their gravity graduated by the inches of entry.Partial penile
penetration is as serious as full penetration.In either case, rape is deemed consummated.We further said that in a manner of speaking,
bombardment of the drawbridge is invasion enough even if the troops do not succeed in entering the castle.17
The appellants assertion that the incomplete laceration in the hymen of Norelyn could have been caused by a stick or a finger is clutching at
straws.In light of Norelyns straightforward, positive, and spontaneous testimony that the appellant inserted his penis into her vagina on the four
occasions that she was raped, the appellants surmises cannot prevail.
Norelyn was less than eleven years old when the appellant raped her.In People v. Castillo ,18 we held that in rape cases where the offended parties
are young and immature girls, there is considerable receptivity on the part of this Court to lend credence to their testimonies, considering not only
their relative vulnerability but also the shame and embarrassment to which such a grueling experience as a court trial, where they are called upon
to lay bare what perhaps should be shrouded in secrecy, did expose them to.There is no showing that Norelyn was impelled by any ill-motive in
charging the appellant with a heinous crime.Hence, her testimony is entitled to full faith and credence.No woman, much less a child, would
willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an
earnest desire to put the culprit behind bars.The appellants bare denial of the crime charged cannot prevail over the positive testimony of Norelyn,
corroborated by no less than Dr. Vistas medical findings.The appellants claim that the charges against him were but the concoction of Norelyns
mother because of the latters fear of being sent to jail by the Barangay Captain is flimsy.The appellant failed to prove this assertion.The evidence
on record shows that when Norelyn told her mother she had been repeatedly raped by the appellant, Teodora forthwith had her daughter
examined by Dr. Vista and thereafter filed a complaint for multiple rape against her common-law husband.
On the second issue, the Office of the Solicitor General agrees with the contention of the appellant that the trial court erroneously sentenced him
to suffer the death penalty despite the absence of any allegation in the Informations that he was the victims stepfather.
We agree with the appellant and the Office of the Solicitor General that the trial court erred in convicting the appellant four counts of rape in its
qualified form.Under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, the accused may be sentenced to death if rape
is committed under any of the following attendant circumstances:chanroblesvirtua1awlibrary
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:chanroblesvirtua1awlibrary
1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of the parent of the victim.
The twin requisites of minority of the victim and her filiation with the appellant or the fact that the appellant was the common-law husband of
Teodora, Norelyns mother, must be alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure and
proved by the prosecution.19 Although the crimes were committed before the effectivity of the new Rule, it should be applied retroactively, as the
same is favorable to the appellant.20
The stepfather-stepdaughter relationship presupposes a legitimate relationship a valid marriage between the accused and the mother of the
private complainant.And the best evidence to prove the marriage between the accused and the mother of the private complainant is their
marriage contract.21 Norelyns bare testimony and that of her mother that the appellant is her stepfather is insufficient evidence to prove such
allegation.22 No less than the presiding judge of the trial court stated during the trial that the appellant was merely Teodoras common-law
husband.23 In these cases, the Informations failed to allege that the appellant is the legal or common-law husband of Teodora; or that he was
Norelyns stepfather.Hence, the appellant should be found guilty only of four counts of simple rape and not of rape in its qualified form.Accordingly,
the appellant should be sentenced to suffer the penalty of reclusion perpetua for each count of rape.
The appellant is liable to the victim Norelyn Brigole in the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of
simple rape, or in the total amount of P400,000.24 The appellant is also liable to Norelyn in the amount of P25,000 for each count of rape, as
exemplary damages.25
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Zamboanga del Sur, Branch 20, is AFFIRMED WITH MODIFICATION.The
appellant Levi Sumarago is acquitted in Criminal Case No. 2541 for failure of the prosecution to prove his guilt beyond reasonable doubt for the
said crime charged therein.In Criminal Cases Nos. 2537 to 2540, the appellant is found guilty beyond reasonable doubt of four (4) counts of simple
rape under Article 335 of the Revised Penal Code, as amended, by Republic Act No. 7659.He is sentenced to suffer the penalty of reclusion
perpetua for each count.He is ordered to pay the victim Norelyn Brigole the amount of P50,000 as civil indemnity; P50,000 as moral damages; and
P25,000 for each count of rape.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and
TINGA, JJ., concur.
Azcuna, J., on official leave.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 180425 July 31, 2008
FELIX RAIT, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of Appeals (CA)
Decision1 in CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution2 dated October 10, 2007. The Court of Appeals upheld the Decision3
of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 20, wherein petitioner Felix Rait was convicted of attempted rape.
On November 18, 2003, AAA4 asked permission from her parents to go to her brother’s house in Nazareth Street to get her athletic pants. When
she was there, her brother requested her to buy cigarettes from a nearby store. While in the store, petitioner Rait and one Janiter Pitago arrived.
The two ordered beer and invited AAA to join them. She initially refused. However, when Aurora Raez, another neighbor, joined them, AAA was
forced to drink beer. After drinking a glass of beer, she became drunk. When she was feeling weak, petitioner and his co-accused brought her out
to 20th and 21st Streets where the petitioner and his co-accused brought her to the side of the street and forcibly removed her pants and
underwear. Petitioner then forcibly inserted his finger into her vagina. AAA tried to shout for help but petitioner covered her mouth while Pitago
held her feet. Petitioner was on top of her and about to insert his penis into her vagina but she was able to kick both men and run away.5
AAA then went to her brother’s house and related the incident to him. Her brother went out to find petitioner. When AAA’s brother did find
petitioner, he tried to beat petitioner with a stick but the latter ran away. AAA and her brother then went home to their parents’ house in Tambo,
Macasandig, Cagayan de Oro City and told them what happened. At about 3:00 a.m. of November 19, AAA was accompanied by her brother and
stepmother to Operation Kahusay ug Kalinaw to report the incident. They also went to Bombo Radyo to appeal for help in apprehending petitioner.
From there, they went to the Provincial Hospital for AAA to undergo medical examination.6 They then proceeded to the police station where the
incident was recorded on the police blotter under Entry No. 8085.7
On May 26, 1994, Rait and Pitago were charged in an Information, which reads:
That on or about November 19, 1993, at 2:00 o’clock in the morning, more or less (sic) at Nazareth, Cagayan de Oro City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, did then and
there, wilfully (sic), unlawfully and feloniously commence the commission of the crime of Rape, directly by overt acts, on the person of a [17-year-
old] minor, [AAA], by then and there (sic), with force and against the latter’s will while she was in a state of intoxication, touching her breasts,
removing her panty, holding her feet (by Janiter Pitago) and lying on top of her (by Felix Rait), but did not perform all the acts of execution which
would produce the crime of Rape, by reason of some cause other than his own spontaneous desistance, that in when (sic) offended party was able
to kick them and the two ran away.
Contrary to and in violation of Article 335 in relation to Article 6, of the Revised Penal Code.
After trial, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, this court hereby finds the accused Felix Rait guilty beyond reasonable doubt of the crime of Attempted Rape.
The basic penalty for Attempted Rape under Article 335 is two degrees lower than Reclusion Perpetua or Prision Mayor in its full extent. Applying
the Indeterminate Sentence Law, the accused is entitled to a penalty lower to (sic) Prision Mayor or that of Prision Correccional in its full extent,
(sic) hence, accused FELIX RAIT is sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period as the minimum to
PRISION MAYOR in its medium period as the maximum under the same law.
The accused is entitled to his credit in full (sic) in his favor the period during which he was under preventive imprisonment pending litigation.
Accused herein is further ordered to pay the complainant the sum of ₱20,000.00 pesos (sic) as indemnity for Attempted rape to the complainant
(sic); ₱5,000.00 pesos (sic) for actual damages and expenses and to pay the costs.
SO ORDERED.8
Petitioner appealed the judgment to the CA-Cagayan de Oro. Petitioner alleged that the RTC erred in: (1) giving credence to the prosecution
witnesses despite their inconsistent, contradictory and incredible testimonies; (2) in not finding that petitioner was implicated in the case by reason
of spite and vengeance; and (3) in finding petitioner guilty beyond reasonable doubt of the crime of attempted rape despite the failure of the
prosecution to prove his guilt.9
The CA denied the appeal and affirmed the trial court’s ruling in all respects.10 Petitioner’s motion for reconsideration was likewise denied.
Petitioner now comes before this Court on the following grounds:
THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT CONVICTING THE PETITIONER FOR THE CRIME OF
ATTEMPTED RAPE, DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE AND JURISPRUDENCE ON THE MATTER.
THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT DOWNGRADING] THE CRIME OF ATTEMPTED RAPE TO ACTS OF
LASCIVIOUSNESS IF NOT THAT OF UNJUST VEXATION.11
Petitioner argues that he should be acquitted of the crime of attempted rape. If he is to be found guilty of any offense, he puts forward the theory
that based on this Court’s ruling in Baleros, Jr. v. People,12 he should be convicted only of unjust vexation.
The petition is bereft of merit. We deny the Petition for Review.
First, the findings of fact of the trial court, especially when affirmed by the CA, are conclusive upon this Court. In this case, the trial court found the
acts imputed to petitioner to have been duly proven by the evidence beyond reasonable doubt. We are bound by such finding.
On the strength of those proven facts, the next question is: what was the offense committed?
Petitioner argues that this Court’s ruling in Baleros is applicable to his case.
In Baleros, accused was convicted of attempted rape. The CA sustained the conviction. Upon review, this Court reversed the conviction and found
accused guilty of light coercion. The Court declared:
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang, stated that "the attempt
which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution
of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the
logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature
of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact
from the standpoint of the Penal Code.
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes
to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act
of rape.
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth
in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did
not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was
fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA maintained that if the petitioner had no intention
to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner
would have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended
victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his
naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.
xxxx
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information
filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the
trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and
pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the
constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation, it cannot be said that
petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint
or compulsion in information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the
reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would
unjustly annoy or irritate an innocent person. The paramount question is whether the offender’s act causes annoyance, irritation, torment, distress
or disturbance to the mind of the person to whom it is directed. That Malou, after the incident in question, cried while relating to her classmates
what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not
distressed by the acts of petitioner.13
We are not persuaded by petitioner’s argument. Several facts attendant to this case distinguish it from Baleros, enough to convince us to arrive at a
different conclusion.
Unlike in Baleros, the acts of petitioner clearly establish his intention to commence the act of rape. Petitioner had already successfully removed the
victim’s clothing and had inserted his finger into her vagina. It is not empty speculation to conclude that these acts were preparatory to the act of
raping her. Had it not been for the victim’s strong physical resistance, petitioner’s next step would, logically, be having carnal knowledge of the
victim. The acts are clearly "the first or some subsequent step in a direct movement towards the commission of the offense after the preparations
are made."14
Under Article 6, in relation to Article 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident
other than his own spontaneous desistance.15
This Court has held that an overt or external act -
is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which
if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d’etre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may
be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and
this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary
that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute
the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and necessary relation to the offense.16
Thus, we find that petitioner was correctly convicted of attempted rape.
A final observation. We note that the trial court’s Decision sentenced petitioner to a prison term without specifying the period this sentence
covers. We will rectify this error even as we affirm petitioner’s conviction.
The penalty for attempted rape is prision mayor, or two degrees lower than reclusion perpetua, the penalty for consummated rape. Petitioner
should be sentenced to an indeterminate sentence the minimum of which is in the range of prision correccional, or within six months and one day
to six years, and the maximum of which is prision mayor medium, or within eight years and one day to ten years. In this case, the trial court
sentenced petitioner to "an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period, as the minimum, to PRISION MAYOR in its
medium period, as the maximum."
WHEREFORE, the foregoing premises considered, the Court of Appeals Decision in CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution
dated October 10, 2007 affirming petitioner’s conviction for ATTEMPTED RAPE are AFFIRMED WITH MODIFICATION. The petitioner is sentenced to
an indeterminate sentence of two (2) years, four (4) months, and one (1) day of prision correccional medium, as minimum, to ten (10) years of
prision mayor medium, as its maximum. In all other respects, the trial court’s Decision is AFFIRMED.
SO ORDERED.
SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the
above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects,
did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal
knowledge with her but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and
her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying
Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou,
slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could
not move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her
right hand got free. With this …the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that:
"may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out during their
struggle was the feel of her attacker’s clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth
and satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU
then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window
with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building
(TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a week prior to the attack. CHITO confided his
feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991,
wearing a white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’
‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and
requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to
enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] …. S/G
Ferolin made the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him
inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s knocking on the door woke him up,
…. He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at around 3 o’clock in
the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO …. He mentioned to the latter that
something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and Joseph to go with them to Camp Crame where
the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and
his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of
his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it
belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a
Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s because
CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief he
saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadan’s testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato
saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at
past 9 o’clock in Camp Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written
request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or making at any
time amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the following, as culled from the
same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity …. MALOU, …, was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their
Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran,
at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4) presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, …, offered each … dry
clothes to change into and CHITO put on the white t-shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants with stripe, socks
and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked at his own
watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p.
25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to open the
door until Rommel Montes, … approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel
tried to open the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when, around 6:30 A.M, Joseph came to
the room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him that something had happened and
to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and Joseph, were
brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed
CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame
Hospital ….. At the hospital, … CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p.
345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items
thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening
of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he
returned to the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at
about 6 o’clock in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was
not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants
was alluded to be among the items inside his gray bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being
with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on the same car going to and coming from the party and
dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-
shirt inside, with short pants and leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the said
building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while
clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her father’s
house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty
beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an
imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision
Mayor as Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the
sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment in
case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in
toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the requisites
for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove the
same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he should be
acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioner’s
acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned
Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of
the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually
witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as
when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of circumstantial evidence.13 In the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition
where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed
heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision
reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other
pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in
question.
We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over
had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at
1:30 in the morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the
most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it
turned out, laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical while holding her body tightly
under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that
the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds
that if petitioner’s intention was otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the
following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce
the crime of rape by reason of some cause or accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated that "the
attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable
connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain,
meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which
is not a juridical fact from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes
to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act
of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth
in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did
not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was
fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA maintained that if the petitioner had no intention
to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner
would have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended
victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his
naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused
must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching
her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information
filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the
trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and
pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the
constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation,24 it cannot be said that
petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint
or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the
reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would
unjustly annoy or irritate an innocent person.25 The paramount question is whether the offender’s act causes annoyance, irritation, torment,
distress or disturbance to the mind of the person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from ₱5.00
to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE
and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of
light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to
pay the costs.
SO ORDERED.
EN BANC
[G. R. No. 149028-30. April 2, 2003]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and ROBITO
CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision[1] of the Regional Trial Court of San Carlos City, Negros Occidental, Branch 57, convicting
appellants Armando Caballero, Ricardo Caballero and Marciano Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting
on each of them the supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case No. RTC-1219 and
imposing on them the penalty of reclusion perpetua.
The Antecedents
Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San Carlos
City, Negros Occidental. Living in the same compound were Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and
her family. Beside the compound was the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in
the house of their brother Ricardo in the Mondragon Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in
the sari-sari store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to the
house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the store of Wilma. Momentarily, Armando
arrived in the store and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene replied: What is this all about? We dont
have any quarrel between us. Armando left the store but stood by the gate of the barbed-wired fence of the Mondragon Compound. His brothers
Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing the store
already, he stood up and left the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the window of their house
saw her brother Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him to go home. Myrna
then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the compound. Eugene resisted.
Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and assaulted Eugene. Armando took the wooden pole supporting the
clothesline and hit Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed
three times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero brothers assaulting Eugene. She
shouted for help for her hapless brother. Wilma, who witnessed the whole incident, was shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the protagonists. Arnold told the Caballero
brothers: Bay, what is the trouble between you and Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his body.
Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid
under the house of a neighbor.
For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who stabbed him on the chest.
Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help: Tio, help me because I am hit. The commotion stopped only upon the
arrival of Teresito Mondragon who was able to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment.
Eugene and Leonilo eventually died from the stab wounds they sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart, and the (L) pulmonary artery and
the left middle lobe of the lungs;
= Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;
= Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.
CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L) and Hemopneumothorax (R).[2]
He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-bladed instrument, or by three instruments.[3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
= Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.
CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]
Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate stating that Arnold sustained the
following injuries:
= Lacerated wound 2 cm. (R) forearm middle 3rd
= Incised wound 2 inches (L) forearm middle 3rd
= Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7th intercostal space, penetrating thoracic cavity and
abdominal cavity.
... [5]
On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by three different sharp-pointed
instruments.[6] He further testified that Arnold would have died because of the stab wound on his chest, were it not for the timely medical
intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo Broce. The Information,
docketed as Criminal Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and
with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons,
attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing
him, thereby inflicting upon said Leonilo Broce physical injury described as follows:
= Stabbed wound (R) chest penetrating thoracic cavity.
and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[7]
They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as Criminal Case No. RTC-1218, which
reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and
with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons,
attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing
him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to the death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal Case
No. RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives,
with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him, thereby inflicting
upon the latter physical injuries which would have resulted to the death of said Arnold Barcuma, thus performing all the acts of execution, which
would have produced the crime of Murder, as a consequence, but nevertheless did not produce it, by reason of causes independent of the will of
the accused that is, the timely medical assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not guilty to all the charges. Robito
Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo was employed as electrician in
the Office of the City Engineer of San Carlos City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while
Marciano, Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of his brother Ricardo to help in
the construction of the latters house and to take care of Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and
had dinner with his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of Ricardo.
Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo and
Armando brought their brother Marciano, Jr. to the hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for:
= Linear abrasion (L) scapula region;
= Contusion (R) lower lip lateral side;
= Swelling left face.
No. of days of healing: 5-7 days barring complication.[10]
Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any altercation with the victims. They also
denied stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the
injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now appellants guilty beyond reasonable
doubt as principals of the crimes charged, the decretal portion of which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr., alias Jun, having been found
GUILTY beyond reasonable doubt of the offenses charged them as principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with the attendant aggravating
circumstances of treachery and abuse of superior strength, the maximum penalty of death and to pay the heirs of Leonilo Broce the sum of
P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating circumstance present, with the
attendant aggravating circumstances of treachery and abuse of superior strength, the maximum penalty of death; and to pay the heirs of Eugene
Tayactac the sum of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of Arnold Barcuma which nearly
resulted to his death, there being no mitigating circumstance present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years,
four (4) months and one (1) day, with no award as to damages, no evidence having been introduced to establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]
In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the trial
court stated that it was only appellant Armando who stabbed Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded
that all of them were equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE FACT THAT THEIR GUILT
WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON
THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT INDEED THEY
KILLED THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the deaths of Eugene and Leonilo and
for the injuries sustained by Arnold. They assert that the trial court committed reversible error in rejecting their defenses of denial and alibi. They
claim that at the time of the incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are criminally liable for the death of
Eugene and for the injuries sustained by Arnold. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons
agree to commit a felony and decide to commit it. Conspiracy is always predominantly mental in composition because it consists primarily of a
meeting of minds and intent.[13] Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof beyond
reasonable doubt.[14] However, direct proof is not required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be proved
through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the same object, one
performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in
fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.[15] The overt act or
acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-
conspirators by moving them to execute or implement the criminal plan.[16] Direct proof of a person in agreement to commit a crime is not
necessary. It is enough that at the time of the commission of a crime, all the malefactors had the same purpose and were united in their
execution.[17] Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of them
for in contemplation of the law, the act of one is the act of all.[18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions.[19] Mere knowledge, acquiescence
to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy absent the
intentional participation in the act with a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally liable
for his act done outside the contemplation of the conspirators. Co-conspirators are criminally liable only for acts done pursuant to the conspiring
on how and what are the necessary and logic consequence of the intended crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy something from the store, Eugene
was peeved and remonstrated that he and Armando had no quarrel between them. Appellant Armando was likewise irked at the reaction of
Eugene because from the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of Wilma.
Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the gate. Appellant Ricardo and accused Robito were
armed with knives. When Eugene passed by the gate to the compound, appellant Armando pulled Eugene to the gate but when the latter resisted,
all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with it. Eugene was
stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and
accused Robito, appellant Ricardo stabbed him on the left side of his body. The other appellants and accused Robito joined appellant Ricardo and
ganged up on Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo intervened and
forthwith, all the appellants, including accused Robito returned to the Mondragon Compound. Patently, all the appellants by their simultaneous
collective acts before and after the commission of the crimes were united in one common objective, to kill Eugene, and cause injuries to Arnold for
trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries of Arnold. It
does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution failed to adduce evidence that
the appellants and the accused Robito conspired to kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs
criminis. They had no foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the prosecution to prove
that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw the
commotion, with the intention of aiding the victim or pacifying the protagonists. He was, however, stopped by accused Robito who suddenly
stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed Leonilo:
Q After that, what happened next?
A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the four?
A Yes.
Q What happened after that?
A When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to approach them but he was not able to approach them
because he was met by Robit Bebot Caballero and stabbed by Robito Caballero.
Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?
A Yes. He immediately ran back and said: Tio, help me because I am hit.
INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayaktak?
A He appeared very weak and he was staggering.
Q Do you know where Eugene Tayaktak now?
A Already dead.
Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.
Q What happened next?
A Nothing happened. Both of them were brought to the hospital.[22]
In sum, the trial court committed reversible error in convicting the appellants of murder for the death of Leonilo. As this Court held in People v.
Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are
liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the
contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators
are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when
shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of
Emerita Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes Flora.
Crimes Committed by Appellants
In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified by treachery. In order that
treachery may be considered as a qualifying circumstance, the prosecution is burdened to prove that:
.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of
execution was deliberately or consciously adopted.[24]
Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and unexpected attack on the
unarmed victim.[25]
In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his girlfriend Susanas house. On the
other hand, appellant Armando was armed with a wooden pole while appellant Ricardo and accused Robito were armed with knives. The attack on
the hapless Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the perpetrator.[26]
In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished an attempted from frustrated felony. He
said that to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him
to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his intention to
perform.
The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. Thereafter,
the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the
point of performing all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the
crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the
offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not
consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have
performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical
intervention or attendance.[28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had
no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the
nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time
the injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing, who attended
to and operated on Arnold, testified that the stab wound sustained by Arnold on the left side of his body was mortal and could have caused his
death were it not for the timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each wound and how deep.
A The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left, penetrating the chest near the thorax along the lateral
line.
Q So, aside from the 3rd wound there are wounds which are not really very serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the victim?
A Yes, Sir.[29]
It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the acts of execution but the crime was not
consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and sudden. He had no means and there was
no time for him to defend himself. In sum, the appellants are guilty of frustrated murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail over Wilmas and Arnolds positive and
straightforward testimonies that the appellants killed Eugene and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate
the appellants for the said crimes; hence, their testimony must be accorded full probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to fabricate and difficult to disprove. To
merit approbation, the appellants were burdened to prove with clear and convincing evidence that at the time the crimes were committed, they
were in a place other than the situs of the crimes such that it was physically impossible for them to have committed said crimes.[31] The appellants
dismally failed in this respect. They testified that they were at the house of appellant Ricardo, which was conveniently near the place where Eugene
was killed and Arnold was assaulted. Moreover, the records show that Marciano, Jr. was treated for his superficial injuries on August 4, 1996, a day
after the incident. This belies the claim of appellants Ricardo and Armando that they were allegedly in the hospital at the time of the incident.
Penalties Imposable on Appellants
The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that treachery and abuse of superior strength
were attendant in the killing of Eugene. The Solicitor General does not agree with the trial court and contends that abuse of superior strength was
absorbed by treachery; hence, should not be considered as a separate aggravating circumstance in the imposition of the penalty on the appellants.
The Court agrees with the Solicitor General. Abuse of superior strength, concurring with treachery is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, is reclusion perpetua to death. Since aside
from the qualified circumstance of treachery, no other modifying circumstance was attendant in the commission of the crime, the proper penalty
for the crime is reclusion perpetua conformably with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the indeterminate penalty of from 12 years of reclusion
temporal as minimum, to 17 years, 4 months and 1 day of reclusion temporal as maximum, imposed on the appellants is not correct. The Court
agrees with the Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion
temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The maximum of the indeterminate penalty should be taken from
reclusion temporal, the penalty for the crime taking into account any modifying circumstances in the commission of the crime. The minimum of the
indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no
modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years
and four (4) months of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its
medium period, as maximum.
Civil Liabilities of Appellants
The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the victim Eugene Tayactac, the amount of
P75,000 by way of indemnity. The trial court did not award moral damages to said heirs. This is erroneous. Since the penalty imposed on the
appellants is reclusion perpetua, the civil indemnity should be only P50,000. The heirs of the victim should also be awarded the amount of P50,000
as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma on its finding that the prosecution failed
to adduce any evidence to prove said damages. The Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his
injuries.[35] He is entitled to moral damages in the amount of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well
entitled to actual damages, which in the absence of evidence would, nevertheless, entitle him to an award of temperate or moderate damages,
herein fixed at P10,000.
The Verdict of the Court
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases Nos.
RTC-1217 up to RTC-1219 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the prosecution to prove their guilt
beyond reasonable doubt, REVERSES the judgment of the trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code,
qualified by treachery, and are sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene
Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder under Article 248 in relation to
Article 6, first paragraph of the Revised Penal Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four (4)
months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum. The appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages
and P10,000 as temperate or moderate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, and Azcuna, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13785 October 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
TOMAS ADIAO, defendant-appellant.
MALCOLM, J.:
The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the lesser crime of
frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found guilty of the crime of frustrated theft, and
was sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs.
The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft as dis closed by the
facts appearing of record. We have examined the evidence carefully and from our study are unable to say that the proof is contrary to the findings
of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at P0.80, from the
baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom House, where it was found by other customs
employees.
Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is defined in article 3 of the
Penal Code, but that since the offender performed all of the acts of execution necessary for the accomplishment crime of theft. The fact that the
defendant was under observation during the entire transaction and that he was unable to get the merchandise out of the Custom House, is not
decisive; all the elements of the completed crime of theft are present. The following decisions of the supreme court of Spain are in point:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit he was seen by a
policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: ". . . The trial court did
not err . . . in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing
that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time. (Decision of the supreme court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended
party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft
as consummated. (Decision of the supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was
also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then placed the money over the cover of
the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: " . . . The accused . . . having materially taken possession of the money from the moment he took it from the place
where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the
crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime. (Decision of the supreme court of Spain, June 13, 1882.)
There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in view of the provisions of
articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating circumstance compensated by no mitigating circumstances,
the penalty must be imposed in the maximum degree.1awph!l.net
Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto mayor, with the costs of all instances
against him. The merchandise in question, attached to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered.
Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23916 October 14, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
DOMINGO HERNANDEZ, defendant-appellant.

OSTRAND, J.:
The defendant is accused of the crime of rape, the information alleging "that on or about the 26th day of February, 1925, in the City of Manila,
Philippine Islands, the said accused wilfully, unlawfully, and feloniously, by means of force and by intimidating one Conrada Jocson with killing her
with a knife which said accused held in his hand should she not accede to his wish, did then and there lie with and have carnal knowledge of said
Conrada Jocson, a girl under 12 years of age. That in the commission of the crime the following aggravating circumstances existed to wit: (1) The
accused is the husband of the grandmother of said Conrada Jocson and (2) the crime was committed with grave abuse of confidence, inasmuch as
the offended and the accused living in the same house."
The defendant is a man 70 years of age and the offended party is a child of 9 years, the granddaughter of the defendant's wife. There can be no
question as to the defendant's guilt. The evidence shows that he and the offended party were living in the same house and that taking advantage
of the absence of the other inhabitants of the house, he had intercourse with the child by force and violence. He admits that he did so, but
maintains that he was intoxicated at the time and did not know what he was doing. The testimony of the witnesses for the prosecution is, however,
to the effect that he did not show any signs of intoxication at the time of the commission of the crime or immediately afterwards.
The court below found the defendant guilty of frustrated rape and sentenced him to suffer ten years and one day of prision mayor. In holding that
the crime was frustrated, the court seems to have been of the opinion that there can be no consummated rape without a complete penetration of
the hymen. This view is not accordance with the weight of authority; in fact, it is contrary to practically all modern authorities. In State vs. Johnson
(91 Mo., 439), the court held that "finding the hymen intact is not always proof that no rape has been committed, nor virginity; for the case are not
rare where the hymen had to be removed after impregnation and in order to permit delivery."
In the same case, the court further said:
Any penetration whether reaching to the hymen or not is sufficient to constitute the crime; for as Lord Meadowbank said in case in Scotland.
"Scientific and anatomical distinctions as to where the vagina commences are worthless in a case of rape; it is enough if the woman's body is
entered; and it is not necessary to show to what extent penetration of the parts has taken place; whether it has gone past the hymen, into what is
anatomically called the hymen, or even so far as to touch the hymen." (Stewart on Legal Medicine, p. 137.)1awph!l.net
In People vs. Rivers (147 Mich., 643), the court says:
The law may now indeed be considered as settled that while the rupturing of the hymen is not indispensable to a conviction, there must be proof
of some degree of entrance of the male organ "within the labia of Pudendum."
In the following cases it has been held that entry of the labia or lips of the female organ, merely, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction of the consummated crime of rape. (Kenny vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817
[1903]. See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890]; [Tex.] Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891];
[Wis.] Brauer vs. State, 25 Wis., 413 [1870].)
In the present case the physician who examined the offended party immediately after the commission of the crime found the labia and the opening
of the vagina inflamed together with an abundance of semen, though the hymen was intact. It also appears from the evidence that the defendant
lay on top of the child for over fifteen minutes and continued his efforts of penetration during that period; the child testifies that the defendant
succeeded in a partial penetration and that she felt intense pain. In these circumstances, the crime must be regarded as consummated.
The judgment appealed from is therefore modified by finding the defendant guilty of the consummated crime of rape and, in view of the
aggravating circumstances mentioned in the information, the penalty imposed upon the defendant is hereby increased to seventeen years, four
months and one day of reclusion temporal, with the accessory penalties prescribed by law. In all other respects the judgment is affirmed with the
costs against the appellant. So ordered.
Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.