41.) G.R. No.

205316 June 29, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROMEO DE CASTRO and RANDOLF1 PABANIL, Accused-Appellants.

DECISION

VILLARAMA, JR., J.:

On appeal is the May 23, 2012 Decision2 of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No.
04343 affirming appellants' conviction for the crime of murder.

The factual antecedents:

Eric De Castro (Eric), Roland Pabanil (Roland) and appellants Romeo De Castro (Romeo) and
Randolf Pabanil (Randolf) were charged with Murder under the following Information:

That on or about the 16th day of August, 2006, in the City of Makati, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with LPG tank,
conspiring and confederating together and all of them mutually helping and aiding one another,
with intent to kill, abuse of superior strength and insult or in disregard of the respect due the
offended party on account of his rank, did then and there willfully, unlawfully and feloniously
attack, assault and hit on the head with the said LPG Tank one Senior Police Officer II (SPOII)

Orlando De Leon, a police officer, while in the performance of his official duties, thereby
inflicting upon the latter traumatic and fatal injuries which caused his death.

CONTRARY TO LAW.3

When arraigned, the four accused pleaded not guilty. Trial on the merits ensued.

Evidence for the prosecution established that at around 3 :00 a.m. of August 16, 2006, Edwin
Lonzame (Lonzame ), who works as a baker at AMM Bakery at Apolinario Street, Bangkal,
Makati City, saw the victim SPOII Orlando De Leon (De Leon) at their bakery buying milk and
bread. A man later identified as Randolf also came to buy from the bakery. Shortly, another man
arrived and punched Randolf. De Leon pacified them until the man ran away but he continued
talking with Randolf and they had an altercation. At this point, another man, later identified as
Romeo, arrived and hit De Leon on the head. De Leon fell and was mauled by Randolf, Romeo,
Eric and Roland, the latter two are familiar with Lonzame as they used to stand-by at the bakery
almost everyday being car wash boys in the car wash area near the bakery.4

While pinned down, De Leon was hit on the face by Randolf with a stove and gas tank he took
from a nearby store. De Leon tried to stand up but Romeo prevented him from doing so and
they grappled for possession of De Leon's service firearm. The said gun went off, and shortly
Romeo again took it and pointed the gun at De Leon. When the gun did not fire, Romeo hit De
Leon's head with the gun, dragged him to the street and left. De Leon was again mauled by
Randolf, Eric and Roland who took turns in hitting him with a gas stove. When Romeo returned,
he picked up the gas tank and dropped it on De Leon's face.5
In the morning of the same day, all four accused were arrested and De Leon's service firearm
was surrendered to the arresting officer, Randy Laman Ozo.6

In the meantime, Eric died and the case against him was dismissed.7

Dr. Voltaire Nulud of the Philippine National Police Crime Laboratory testified that, based on his
autopsy and medico-legal report, De Leon died of intracranial hemorrhages and sustained
traumatic head injuries caused by a heavy, solid material.8

The defense gave a different version of the incident. Randolf testified that in the morning of
August 16, 2006, he was drinking with his brother, Roland and cousins Romeo and Eric, and
with another friend they call "Kabayo" in the interior of Apolinario Street. Around 2:30 a.m., he
went out to buy cigarettes at AMM Bakery and saw a man (De Leon) talking to Liezl, the
bakery's saleslady who is his (Randolfs) textmate. When Liezl finally attended to him, another
man in white sando approached and hit him at the back of his ear and ran away. He went after
said man but he met De Leon who told him "Siga ka ba rito?" De Leon then poked his gun at
him, kicked him and told him to go home. He went back to his drinking session and told Romeo
that he was punched at the bakery. Romeo went to the place of the punching incident and he
tried to stop Romeo, warning the latter that one of the men at the bakery had a gun. After five
minutes, he followed Romeo and saw him in front of the bakery having an altercation with De
Leon who was trying to draw his gun. He then approached De Leon slowly from the side so De
Leon would not see him, thinking that De Leon would shoot Romeo. De Leon fell after he hit
him. Romeo then held De Leon's hand and he punched the man three times. The gun fired and
he hit De Leon with a gas tank. When he was about to hit De Leon a third time, Roland arrived,
took the gas tank from him, and told him to go home.9 He then stood up and took the gun from
Eric. They left De Leon unconscious and bloodied.

Romeo gave similar statements as that of Randolf. He had a heated conversation with De Leon,
they were hurling invectives.1wphi1 He testified that Randolf approached De Leon as the latter
was trying to pull his gun.10

On the part of Roland, he testified that he had nothing to do with the killing but merely pacified
De Leon and his brother Randolf whom he saw trying to hit De Leon with a gas tank. However,
he failed to submit his counter-affidavit during the preliminary investigation.

In its Decision11 dated December 4, 2009 in Criminal Case No. 06-1675, the Regional Trial
Court (RTC) of Makati City, Branch 66, found appellants guilty of murder. They were sentenced
to suffer the penalty of reclusion perpetua and ordered to pay De Leon's heirs 12,000 as burial
expenses, 50,000 as life indemnity, 50,000 as moral and exemplary damages, and costs.
Roland Pabanil was acquitted.12

In their appeal before the CA, appellants argued that the R TC erred in considering the
qualifying circumstances of abuse of superior strength and disregard of the respect due on
account of De Leon's rank.13 They pointed out that the prosecution failed to prove the qualifying
circumstance of abuse of superior strength. They claimed that Randolf punched De Leon as he
thought the latter was about to shoot Romeo. When De Leon fell and drew his gun, Randolf was
forced to get the LPG tank and hit De Leon with it. Appellants also argue that at the time of the
incident, they did not know that De Leon is a police officer.14
The CA denied the appeal and affirmed with modification the RTC Decision. Thefallo of the
assailed CA Decision reads:

WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated December 4, 2009
of the Regional Trial Court of Makati City, Branch 66 in Crim. Case No. 06-1675, which found
ROMEO DE CASTRO alias "Omeng" and RANDOLF PABANIL alias "Oloy" GUILTY of
MURDER and sentenced to suffer the penalty of RECLUSION PERPETUA is hereby
AFFIRMED with the MODIFICATION in that the amount of 12,000.00 as interment and burial
expenses to be awarded [to] the heirs of Sr. Police Officer II Orlando De Leon shall be
DELETED. The amount of civil indemnity to be awarded [to] the heirs of SPO II De Leon shall
also be increased from 50,000.00 to 75,000.00. In addition, Appellants ROMEO DE
CASTRO and RANDOLF P ABANIL are ORDERED to pay the heirs of SPO II De Leon moral
damages in the amount of 50,000.00, exemplary damages in the amount of 30,000.00 and
temperate damages in the amount of 25,000.00. All awards shall further incur interest at the
legal rate of six percent (6%) per annum from the date of finality of this Decision until fully paid.

SO ORDERED.15

The CA agreed with the R TC that appellants failed to prove the elements of defense of a
relative. The CA noted that there was no unlawful aggression on the part of De Leon. In fact,
Randolf hit De Leon because he thought that De Leon was with the man who punched him and
not because he was threatened by De Leon's gun. And if it was indeed the threat of a gun which
prompted appellants to hit De Leon, there was no more unlawful aggression when Randolf
repeatedly attacked De Leon. The CA also said that Romeo admitted he already had
possession of the gun when appellant Randolf repeatedly hit De Leon with a gas tank. If De
Leon was the aggressor, De Leon's aggression ceased the moment he was disarmed. When
Randolf repeatedly hit De Leon who had no more weapon and had fallen, there is thus no more
self-defense or defense of a relative, said the CA. The CA further noted that De Leon's skull
was broken into small pieces and held that the severity of De Leon's injuries reveals that the
force used against him by appellants was not reasonable to disarm him or prevent him from
harming others.

But while the CA agreed with appellants that the prosecution failed to prove the circumstance of
disregard of the respect due on account of De Leon's rank, it nevertheless ruled that abuse of
superior strength is present in this case. The CA said that De Leon was already helpless when
he was repeatedly attacked with a gas tank.

Hence, this appeal. Appellants filed a manifestation in lieu of supplemental brief.16

Did the CA err in affirming appellants' conviction for the crime of murder?

We rule in the negative.

Article 248 of the Revised Penal Code, as amended, defines the crime of murder, to wit:

ART. 248. Murder. - Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if
committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense, or of means or persons to insure or afford impunity;

x x x x (Emphasis supplied)

To be convicted of murder, the following must be established: (1) a person was killed; (2) the
accused killed him; (3) the killing was with the attendance of any of the qualifying circumstances
under Article 248 of the Revised Penal Code, as amended; and ( 4) the killing neither
constitutes parricide nor infanticide.17

In this case, the foregoing elements of the crime of murder were duly established. De Leon was
killed. Appellants killed him. De Leon's killing was attended by abuse of superior strength, one
of the qualifying circumstances under Article 248 ( 1) of the Revised Penal Code, as amended.
De Leon's killing is not parricide or infanticide. In fact, appellants do not dispute the first, second
and fourth elements. They merely questioned the second element, the presence of the
qualifying circumstance of abuse of superior strength.

To take advantage of superior strength is to purposely use excessive force, out of proportion to
the means of defense available to the person attacked. Is We agree with the CA that the
qualifying circumstance of abuse of superior strength is present in this case. As aptly pointed
out by the CA, De Leon was already helpless when he was repeatedly attacked with a gas tank.
Appellants clearly used excessive force against the already unarmed and defenseless De Leon.
This is clear from Romeo's own testimony:

Q - You said that your cousin Randolf Pabanil came, where did he come from?

A - From behind, sir.

Q - From behind of whom?

A - Behind the man wearing leather jacket, sir.

xxxx

Q - x x x what did Randolf do to this man?

A - He suddenly punched the man behind his ear, sir.

Q - So what happened to the man wearing leather jacket?

A - He went off balance but he was able to draw his gun.

Q - Now, what did you do next, Mr. Witness?

A - I was able to grab the gun and then Randolf punched the man 3 times.

Q - You said you were able to get hold the gun and you also said that Randolf was able to
punch that man, how many times he punched that man?
A - Two or three times, sir.

Q - Now what happened after Mr. Randolf Pabanil punched him 2 to 3 times, what happened
next, Mr. Witness?

A - Nabitawan ko yong baril.

Q - Mr. Witness, you said that the man wearing leather jacket was able to draw the gun and you
said that you were able to get hold of this, you likewise stated that Mr. Randolf Pabanil punched
him while he was still holding the gun, now what happened after this?

A - The gun went-off sir.

Q - Now, was there anything that was hit by this gunshot?

A - None, sir.

Q - Now, after the gun went-off what happened next?

A - The man dropped his gun and then Randolf got the gas tank and hit him on his neck.

Q - After the gun was dropped what did you do next Mr. Witness?

A - I took the gun, sir.

Q- Now, while you are holding the gun what was Mr. Randolf Pabanil doing?

A - He hit the man another (sic) times, sir.

Q - What did he hit the man with?

A - LPG gas tank, sir.

Q - So all in all how many time[s] did Randolf Pabanil hit the man with the LPG gas tank?

A - Twice, sir.19 (Emphasis supplied)

And as testified to by Lonzame, after the accused left, appellant Romeo returned, picked up the
gas tank and dropped it to De Leon.20

Indeed, the justifying circumstances of self-defense or defense of a relative cannot be

appreciated in favor of appellants. Article 11 of the Revised Penal Code, as amended, reads:
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.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants,
or legitimate, natural, or adopted brothers or sisters or of his relatives by affinity in the same
degrees, and those by consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the one making
defense had no part therein.

xxxx

Unlawful aggression is the condition sine qua non for the justifying circumstances of self-
defense and defense of a relative.21 Here, we agree with the CA that there was no unlawful
aggression on the part of De Leon. Randolf himself testified that he hit De Leon because he
thought that De Leon was with the man who punched him and not because he was threatened
by De Leon's gun, to wit:

Atty. Villalon:

Why did you hit him, Mr. Witness?

Witness:

Because I thought he was with the guy who punched me, sir.

xxxx

Atty. Villalon:

So what did you think when you saw Mr. Orlando de Leon holding his gun and cursing your
cousin and telling him not to come near him, what did you think?

Witness:

Nothing, sir, I just thought of hitting him, sir.

Atty. Villalon:

Why?

Witness:

Because I thought that he was the one who ordered that I would be hit, sir.22

As to the award of damages, the CA correctly awarded 75,000 as civil indemnity, 50,000 as
moral damages, 30,000 as exemplary damages and 25,000 as temperate damages. The
award of 6% interest per annum on the monetary awards from the date of finality of this
Decision until fully paid is also correct.23

WHEREFORE, we DISMISS the appeal and AFFIRM the May 23, 2012 Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 04343.

With costs against the accused-appellants.

SO ORDERED.

42.) G.R. No. 208623 July 23, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
VIRGILIO ANTONIO y RIVERA, Accused-Appellant.

RESOLUTION

REYES, J.:

For review1 is the Decision2 rendered by the Court of Appeals (CA) on October 8, 2012 in CA-
G.R. CR-HC No. 04149 affirming, albeit with modification8 as to the damages imposed, the
Judgment3 dated September 4, 2009 of the Regional Trial Court (RTC) of Tuguegarao City,
Branch 4, in Criminal Case Nos. 10244-10245, convicting Virgilio Antonio y Rivera (accused-
appellant) of two counts of Rape committed against AAA,4 a minor.

Antecedents

Two separate informations for rape were filed against the accused-appellant before the RTC,
viz:

Criminal Case No. 10244

That on or about and sometime in the year 2001, in the Municipality of Alcala, Cagayan and
within the jurisdiction of this Honorable Court, the said accused, VI[R]GILIO ANTONIO, with
lewd design and by the use of force, threat, and intimidation, did [then] and there, willfully,
unlawfully and feloniously have sexual intercourse with the offended party, [AAA], a minor 14
years of age5 against her will.

That in the commission of the offense[,] the aggravating circumstance of uninh[a]bited place
was present.

Contrary [to law].6

Criminal Case No. 10245

That on or about August 26, 2003, in the Municipality of Alcala, Province of Cagayan[,] within
the jurisdiction of this Honorable Court, the said accused, VIRGILIO ANTONIO,being then the
guardian of the private complainant [AAA], a minor 14 years of age[,] who was then under his
care and custody[,] with lewddesign and by the use of force, threat and intimidation, did, then
and there willfully, unlawfully, and feloniously have sexual intercourse with the offended party,
[AAA], a minor 14 years of [age] against her will.

Contrary to law.7

The accused-appellant entered a not guilty plea during the arraignment.

On February 23, 2005, pre-trial was conducted. The prosecution proposed for the parties to
stipulate on the following, which the defense admitted: (a) the identity of the accused-appellant;
(b) his relationship as AAAs godfather; (c) the dates, times and places of the commission of
rape; and (d) AAAs minority at the time the crimes were allegedly perpetrated.8

The prosecution marked and offered: (a) AAAs birth certificate indicating that she was born on
May 28,1989; (b) the medicolegal certificate dated September 2,2003, which was preparedby
Dr. Rafael Sumabat (Dr. Sumabat); and (c) AAAs affidavit. The defense, on its part, offered no
documentary evidence.9

In the joint trial that ensued, the prosecution offered the testimonies of AAA and Dr. Sumabat.
On the other hand, the accused-appellant was the defenses lone witness.

Version of the Prosecution

The Office of the Solicitor General (OSG) aptly summed up the prosecutions version of the
events as follows:

In March of 2001, eleven[-]year old [AAA] began living with [accused-appellants] family in
Maraburab, Alcala, Cagayan Province after her parents had separated. [Accused-appellant] and
his wife, Rose, are [AAAs] godparents[,] who treated her as one of their own children x x x.
Sometime in April 2001, [accused-appellant], who maintains a farm in the highlands of
Cagayan, asked [AAA] to help him harvest palay there. Alone together, [accused-appellant] and
[AAA], started for the farm very early that April morning. After an hours walk, they reached the
place and immediately began to harvest palay x x x.

Just before lunch time, [accused-appellant] led [AAA] to a bamboo grove within the farm. Once
there, hethreatened to kill her if she told anyone regarding what he was about to do. [Accused-
appellant] lost no time in making [AAA] lie down. After which, he took off her shorts and
underwear. Although very much alarmed, he likewise removed his own shorts and underwear.
[AAA] could not do anything as she was afraid because they were alone x x x.

With both their private parts now uncovered, [accused-appellant] inserted his penis into [AAAs]
vagina. She felt pain course through her genitals. Helpless, [AAA] could only cry and mutter
"aray". After awhile, she felt liquid emitting from [accused-appellants] penis. Satiated, [accused-
appellant] threatened [AAA] with death once again if she reveals to anyone that he had abused
her. They went home later that afternoon. Fearful of [accused-appellants] threat, [AAA] did not
dare to reveal to anyone regarding her ordeal and went on to stay with [accused-appellant] and
his family x x x.
On the evening of August 26, 2003, Rose Antonio, together with her two children with [accused-
appellant], went to the town proper of Alcala to celebrate its fiesta. [AAA]and [accused-
appellant] were left alone in the house on that night. She went to bed around eight in the
evening. However, around 10PM, she was awakened by the weight of [accused-appellant]
bearing down on her body. [Accused-appellant] was wearing a shirt and nothing else. She
realized to her horror that her shorts and underwear had already been removed. [Accused-
appellant] soon began to insert his penis into her vagina. He made a push-pull movement for
awhile. [AAA] was not able to shout a single word inside the room which had no light on x x x.

[In] the morning of August 27, 2003, May Dumalay, [accused-appellants] niece,
confronted[AAA] regarding her suspicions that something happened between her and [accused-
appellant]. [AAA] finally admitted that [accused-appellant] had raped her. May Dumalay then
told [accused-appellants] wife, Rose Antonio what [AAA] related to her. In turn, Rose Antonio
told [AAAs] father regarding the unfortunate developments. When her father and the barangay
captain of Maraburab confronted [AAA], she told all the incidents of sexual abuse committed by
[accused-appellant] x x x.

On August 28, 2003, Barangay Captain Rey De Luna of Maraburab accompanied [AAA] to the
local office of the Department of Social Welfare and Development (DSWD). After being
interviewed, [AAA] was brought to the police station in Alcala[,] Cagayan x x x. Eventually, she
was examined by the Medico-legal Officer of Alcala, Dr. Rafael Sumabat x x x. His findings on
[AAA] were: 1) On examination[,] abdomen is soft, palpable mass noted. External genitalia and
thighs are normal. No evidence of trauma; 2) On examination of genitalia, there are old
lacerations of hymen at 3-6-9 oclock respectively; 3) Vagina admits one finger easily and
presence of whitish secretions inside vagina. Pregnancy test negative x x x.10

Version of the Defense

The accused-appellant was vehement in denying the charges against him. He insisted that AAA
only started living with them in May of 2002. Hence, he could not have perpetrated the rape
ascribed to him which allegedly occurred in April of 2001. As to what transpired in August of
2003, he narrated that Rose, his wife, and AAA left their house to attend a town fiesta on August
25, 2003. The two returned home drunk on August 28, 2003. Rose and the accused-appellant
then had a fight because the latter received an information that the former and AAA had a male
companion while attending the town festivities. Rose and AAA denied the accusation, which
irked the accused-appellant, who in turn ordered the two to leave their house.11

Ruling of the RTC

On September 4, 2009, the RTC rendered a Judgment12 convicting the accused-appellant of

two counts of rape. The trial court found that AAA had no ill motive to testify against the
accused-appellant, whom she had considered as her guardian or foster father. Further, AAAs
testimony as to the sordid acts committedby the accused-appellant was spontaneous and
categorical, and her statements were corroborated by Dr. Sumabats medical findings. On the
other hand, the accused-appellants defenses of denial and alibiwere weak and could not prevail
over AAAs positive testimony. The dispositive portion of the RTC decision thus reads:

ACCORDINGLY, accused VIRGILIO ANTONIOy Rivera is hereby found GUILTYbeyond

reasonable doubt for the crime of Rape for two (2) counts, in Criminal Case Nos. 10244 and
10245 defined and penalized under Article 335 of the Revised Penal Code, as amended by
Republic Act 7659 and further amended by Republic Act No. 8353; and Article 266 (A) No. 1 in
relation to Article 266 (B) No. 1 of the Revised Penal Code, as amended by Republic Act No.
8353 and hereby sentences him to suffer the penalty of reclusion perpetua in each case; to pay
[AAA] the amount of ONE HUNDRED FIFTY THOUSAND ([P]150,000[.00]) PESOS as civil
indemnity, ONEHUNDRED FIFTY THOUSAND ([P]150,000.00) PESOS as moral damages and
FIFTY THOUSAND ([P]50,000.00) PESOS as exemplary damages.

The preventive imprisonment of the accused shall be credited in full in his favor if he abided in
writing by the rules imposed upon convicted prisoners.

No pronouncement as to costs.

SO ORDERED.13

The Contending Parties Arguments Before the CA

The accused-appellant challenged the above disquisition before the CA. He pointed out that
according to AAA herself, Dr. Sumabat performed a physical examination on her on August 29,
2003, or three days after the alleged second rape incident occurred. However, this did not
complement Dr. Sumabats explanation that the healed lacerations at "3-6-9 oclock" positions
could have been inflicted at least seven days prior to the examination. The accused-appellant
further claimed that it was unusual for a rape victim, whose virtue was allegedly at stake, not to
have (a) shouted at all to repel the sexual advances, (b) tried to escape when she had the
chance to do so, and (c) prevented at all cost that she be left alone in the company of her
assailant.14

The OSG, on its part, argued that AAAs failure to shout during the rape incidents should not
affect the credibility of her claims. AAA was then a minor, and understandably, she must have
been overcome by feelings of helplessness especially since her assailant is her godfather and
de facto guardian. AAA likewise cried during the trial dispelling insinuations that her testimony
was rehearsed.15

Ruling of the CA

On October 8, 2012, the CA rendered a Decision16 affirming the accused-appellants conviction

and imposing upon him the penalty of reclusion perpetuafor each of the two counts ofrape.
However, for each count, the CA reduced the award of (a) civil indemnity to 50,000.00, (b)
moral damages to 50,000.00, and (c) exemplary damages to 30,000.00.

The CA declared that any inconsistency in AAAs testimony anent the date she was examined
by Dr. Sumabat was not enough to destroy her credibility. As a child witness, she cannot be
expected to perfectly remember all the details of her harrowing experience. Besides, Dr.
Sumabat merely made nothing more but a rough estimate that AAAs hymenal lacerations could
have been inflicted at least seven days prior to the examination. Citing People v. Corpuz, 17 the
CA emphasized that AAA was intimidated by the accused-appellant and her alleged lack of
resistance did not signify voluntariness or consent to the sexual advances.

Anent the appreciation of the aggravating circumstances alleged in the informations, the CA
slightly differed from the RTC in the following wise:
In Our review of the penalty imposed on [accused-appellant], We have noted that the trial court
considered the qualifying aggravating circumstance of relationship, since [accused-appellant] is
supposedly the guardian of [AAA].

In People v. Flores, the Supreme Court held that the guardian must be a person who has legal
relationship with his ward. The court adhered to the theory that a guardian must beone who has
been legally appointed.

In this case, however, We note withgreat significance that the fact of being a guardian was not
alleged inthe Informations as a qualifying aggravating circumstance. Instead, there was merely
a stipulation during the pre-trial hearing that accused-appellant was the "godfather" of [AAA],
without showing that accused-appellantwas legally constituted in law as the "guardian" of [AAA].
On the other hand, the factof minority of [AAA] has been proven by her birth certificate and
confirmed by her physical appearance.

Consequently, on the first count of rape, We find the existence of the aggravating circumstances
of minority of [AAA] and commission of the sexual abuse in an uninhabited place. On the
second count of rape, We find the fact of minority of [AAA] as the sole aggravating
circumstance. Both crimes are penalized by Reclusion Perpetua. However, We shall reduce the
award of civil indemnity from 75,000.00 to 50,000.00 and moral damages from 75,000.00 to
50,000.00, for each count of rape since accused-appellantis only guilty of simple rape. On the
other hand, the award of exemplary damages in the amount of 25,000.00 should be increased
to 30,000.00, for each count of rape in line with the recent jurisprudence, to set an example for
public good.18 (Citations omitted)

Issue

Aggrieved, the accused-appellant is now before this Court once again insisting on his innocence
and reiterating the issue of whether or not his guilt for allegedly having raped AAA on two
separateoccasions was proven beyond reasonable doubt.

The accused-appellant and the OSG both dispensed with the filing of supplemental briefs and
merely adoptedtheir respective arguments raised before the CA.

Ruling of the Court

The Court affirms the CAs verdict, but modifies the same by imposing interests upon the
damages awarded to AAA.

"It is a fundamental rule that the trial courts factual findings, especially its assessment of the
credibility of witnesses, are accorded great weight and respect and binding upon thisCourt,
particularly when affirmed by the [CA]. This Court has repeatedly recognized that the trial court
is in the best position to assess the credibilityof witnesses and their testimonies because of its
unique position of having observed that elusive and incommunicable evidence of the witnesses
deportment on the stand while testifying, which opportunity is denied tothe appellate courts.
Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation,
flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath. These are
significant factors in evaluating the sincerity of witnesses, in the process of unearthing the truth.
The appellate courts will generally not disturb such findings unless it plainly overlooked certain
facts of substance and value that, if considered, mightaffect the result of the case."19
"For conviction to be had in the crime of rape, the following elements must be proven beyond
reasonable doubt: (1) that the accused had carnal knowledge of the victim; and (2) that said act
was accomplished (a) through the use of force or intimidation; or (b) when the victim is deprived
of reason or otherwise unconscious; or (c) when the victim is twelve years of age, or is
demented."20

"[I]n rape through force or intimidation, the force employed by the guilty party need not be
irresistible. Itis only necessary that such force is sufficient to consummate the purpose for which
it was inflicted. Similarly, intimidation should be evaluated in light of the victims perception at
the time of the commission of the crime. Itis enough that it produced the fear in the mind of the
victim that if she did not yield to the bestial demands of her ravisher, some evil would happen to
her at that moment or even thereafter. Hence, what is important is that because of force and
intimidation, the victim was made to submit to the will of the appellant."21

In the case at bar, the Court findsthe RTC and CAs factual findings as sufficiently supported by
evidence and jurisprudence.

The following is AAAs account of the rape incident which happened in April of 2001:

Q: What was that incident thathappened while you and your ninong were in the mountain?

A: We went in the bamboo groves, sir.

Q: And when you reached the bamboo groves, what happened there[,] madam witness?

COURT: Make it of record that the witness started crying.

A: My ninong threatened me, sir.

Q: How did he threaten you?

A: He told me that he will kill me if I will report the matter to anybody, sir.

Q: After he uttered those threatening words to you, what happened next if there was any?

A: He laid me down, sir.

Q: After that[,] what happened next when he laid you down?

A: After he laid me down, he removed my short pants and my underwear and after that[,] he
removed his pants and brief, sir.

Q: When he was removing his pants and brief, why did you not ran (sic) away?

A: Because I was afraid because nobody was there[.] [W]e do (sic) not have any companion, sir.

Q: After removing his pants and brief, what happened next?

A: He inserted his private part into my vagina, sir.

Q: What was your position when he inserted his penis in your vagina[?]

A: I was lying down, sir.22

AAA likewise recounted the second rape incident, which occurred on August 26, 2003, viz:

Q: You said that you were left behind in the house of your uncle the night of August 26,
2003[.][W]hat time[,] if you can still recall[,] when you went to bed to sleep?

A: 8:00 oclock, sir.

Q: How about your ninong Virgilio Antonio[?] [W]here was he when you went to sleep[,] madam
witness?

A: He also went to sleep, sir.

Q: Do you recall if your sleep was interrupted?

A: Yes, sir.

Q: What time [was that] when you were awaken? (sic)

A: About 10:00 oclock in the evening, sir.

Q: Why, what happened during that night?

A: When I woke up, I noticed thatmy ninong was on top of me, sir.

Q: Can you describe his appearance when he was on top of you?

A: He moved in a push and pull position.

Q: Was he with his pants at that time?

A: He has (sic) his t-shirt but he was naked down.

Q: What were you wearing when you slept that night?

A: T-shirt and underwear, sir.

Q: What about your clothing[?] [W]hat happened with your clothing?

A: When I woke up[,] I [no longer had] my short[s] and panty.

Q: When you noticed that you werealready naked, did you not shout?

A: I shouted, sir.
Q: What did you utter when you shouted?

A: I did not shout, sir.

Q: Aside from noticing that you were naked down, what did you notice?

A: He inserted his penis in my vagina, sir.

Q: How long did he insert his penis in your vagina?

A: I cannot remember because I was sleeping at that time, sir.

Q: Can you describe his body movementwhen he inserted his penis in your vagina?

A: He was doing the push and pull movement[,] sir.23

"The eloquent testimony of the victim, coupled with the medical findings attesting to her non-
virgin state, should be enough to confirm the truth of her charges."24

AAAs testimonies on the two rape incidents were impressively straightforward and
categorical.1wphi1 In April of 2001, while in the farm up in the mountain, the accused-appellant
threatened her with death. Against her will, he succeeded in having carnal knowledge of her. In
her statements regarding the second rape incident on August 26, 2003, AAA did not mention
that the accused-appellant threatened to kill her. Nonetheless, the accused-appellants moral
ascendancy over AAA takes the place of the force and intimidation that is required in rape
cases.25 It is expected that for a minor like AAA, fear and memories from her previous harrowing
experience already loomed over her. They weremore than enough to cow her to submission at
the time of the second rapeincident. This is especially true here where the accused-appellant is
AAAs own godfather and de facto guardian.

In the physical examination performed after the second rape incident, Dr. Sumabat found
lacerations in AAAs hymen.1wphi1 The accused-appellant alleged that there were
inconsistencies in the dates of the commission of the crime, on one hand, and the conduct of
the physical examination, on the other. However, this stance, taken together with the accused-
appellants uncorroborated defenses of denial and alibi, pales vis--visAAAs positive testimony
and the medical evidence which prove that, indeed, AAAs hymen sustained lacerations, albeit
healed. As we held in People v. Laog,26

Discrepancies referring only to minordetails and collateral mattersnot to the central fact of the
crimedo not affect the veracity or detract from the essential credibility of witnesses
declarations, as long as these are coherent and intrinsically believable on the whole. For a
discrepancy or inconsistency in the testimony of a witness to serve as a basis for acquittal, it
must establish beyond doubt the innocence of the appellant for the crime charged. It cannot be
overemphasized that the credibility of a rape victim is not diminished, let alone impaired, by
minor inconsistencies in her testimony.27 (Citations omitted)

The Court agrees with the CAs findings that only the generic aggravating circumstances of
commission of the crime in an uninhabited place and minority can be appreciated relative to the
first rape incident. As regards the second rape incident, guardianship was alleged in the
information28 and was not assailed by the defense. The Court notes, too, that the parties
stipulated during the pre-trial that the accused-appellant was AAAs godfather.29Notwithstanding
the foregoing, jurisprudence strictly dictates that the guardian must be a person who has a legal
relationship with his ward,30 which does not obtain in the case before this Court. Ineluctably,
guardianship cannot be considered as a qualifying circumstance and the accused-appellant can
only be convicted of simple rape.

Nonetheless, this Court sustains the penalty of reclusion perpetua imposed by the RTC and CA
on the accused-appellant for each of the two counts of rape which he committed. The
aggravating circumstances of minority31 and commission of the crime in an uninhabited place
were present as regards the first rape incident. The second rape was,on the other hand,
aggravated by minority alone since legal guardianship was not proven. The aggravating
circumstances attendant in the instant case are all merely generic and not qualifying. Generic
aggravating circumstances increase the penalty for the crime to its maximum period, but it
cannot increase the same o the next higher degree.32 In the accused-appellant's case, the two
counts of rape were committed through the use of force and intimidation. The crime falls under
Article 266-A(l)(a) of the Revised Penal Code. Article 266-B of the same code provides that the
said crime is punishable by reclusion perpetua, which is an indivisible penalty. Therefore,
despite the attendance of generic aggravating circumstances, the penalty imposable upon the
accused-appellant for each count of rape remains the same.

In precis, the Court finds no compelling ground to reverse the accused-appellant's conviction for
two counts of simple rape by both the RTC and the CA. The Court likewise finds proper the CA's
modification of the amount of civil indemnity and damages imposed by the RTC. However, to
conform to prevailing jurisprudence, an interest of six percent (6%) per annum on all the
damages awarded shall be imposed, to be computed from the date of the finality of this
judgment until fully paid.33

IN VIEW OF THE FOREGOING, the Decision of the Court of Appeals dated October 8, 2012, in
CA-G.R. CR-HC No. 04149, is AFFIRMED with MODIFICATION that Virgilio Antonio y Rivera is
directed to pay interest at the rate of six percent ( 6%) per annum on all the damages awarded
to AAA, to be computed from the date of the finality of this judgment until fully paid.

SO ORDERED.

43.) G.R. No. 187495 April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDGAR JUMAWAN, Accused-Appellant.

DECISION

"Among the duties assumed by the husband are his duties to love, cherish and protect his wife,
to give her a home, to provide her with the comforts and the necessities of life within his means,
to treat her kindly and not cruelly or inhumanely. He is bound to honor her x x x; it is his duty not
only to maintain and support her, but also to protect her from oppression and wrong."1

REYES, J.:
Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within
the realm of marriage, if not consensual, is rape. This is the clear State policy expressly
legislated in Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act
(R.A.) No. 8353 or the Anti-Rape Law of 1997.

The Case

This is an automatic review2 of the Decision3 dated July 9, 2008 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 00353, which affirmed the Judgment4 dated April 1, 2002 of the Regional
Trial Court (RTC) of Cagayan de Oro City, Branch 19, in Criminal Case Nos. 99-668 and 99-669
convicting him to suffer the penalty of reclusion perpetua for each count.

The Facts

Accused-appellant and his wife, KKK,5 were married on October 18, 1975. They Ii ved together
since then and raised their four (4) children6 as they put up several businesses over the years.

On February 19, 1999, KKK executed a Complaint-Affidavit,7 alleging that her husband, the
accused-appellant, raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2,
Villa Ernesto, Gusa, Cagayan de Oro City, and that on December 12, 1998, the accused-
appellant boxed her shoulder for refusing to have sex with him.

On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint
Resolution,8 finding probable cause for grave threats, less serious physical injuries and rape
and recommending that the appropriate criminal information be filed against the accused-
appellant.

On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as
Criminal Case No. 99-6689 and Criminal Case No. 99-669.10 The Information in Criminal Case
No. 99-668 charged the accused-appellant as follows:

That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de
Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused by means of force upon person did then and there wilfully, unlawfully and feloniously
have carnal knowledge with the private complainant, her [sic] wife, against the latter[']s will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

Meanwhile the Information in Criminal Case No. 99-669 reads:

That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de
Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused by means of force upon person did then and there wilfully, unlawfully and feloniously
have carnal knowledge with the private complainant, her [sic] wife, against the latter's will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

The accused-appellant was arrested upon a warrant issued on July 21, 1999.11 On August 18,
1999, the accused-appellant filed a Motion for Reinvestigation,12 which was denied by the trial
court in an Order13 dated August 19, 1999. On even date, the accused-appellant was arraigned
and he entered a plea of not guilty to both charges.14

On January 10, 2000, the prosecution filed a Motion to Admit Amended Information15 averring
that the name of the private complainant was omitted in the original informations for rape. The
motion also stated that KKK, thru a Supplemental Affidavit dated November 15, 1999,16 attested
that the true dates of commission of the crime are October 16, 1998 and October 1 7, 1998
thereby modifying the dates stated in her previous complaint-affidavit. The motion was granted
on January 18, 2000.17 Accordingly, the criminal informations were amended as follows:

Criminal Case No. 99-668:

That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person
did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.18

Criminal Case No. 99-669:

That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person
did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.19

The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both
indictments and a joint trial of the two cases forthwith ensued.

Version of the prosecution

The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM
and 000, which, together with pertinent physical evidence, depicted the following events:

KKK met the accused-appellant at the farm of her parents where his father was one of the
laborers. They got married after a year of courtship.20 When their first child, MMM, was born,
KKK and the accused-appellant put up a sari-sari store.21 Later on, they engaged in several
other businesses -trucking, rice mill and hardware. KKK managed the businesses except for the
rice mill, which, ideally, was under the accused-appellant's supervision with the help of a trusted
employee. In reality, however, he merely assisted in the rice mill business by occasionally
driving one of the trucks to haul goods.22

Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's
dedication. Even the daughters observed the disproportionate labors of their parents.23 He
would drive the trucks sometimes but KKK was the one who actively managed the businesses.24
She wanted to provide a comfortable life for their children; he, on the other hand, did not
acquiesce with that objective.25

In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa,
Cagayan de Oro City.26 Three of the children transferred residence therein while KKK, the
accused-appellant and one of their sons stayed in Dangcagan, Bukidnon. She shuttled between
the two places regularly and sometimes he accompanied her.27 In 1998, KKK stayed in Gusa,
Cagayan De Oro City most of the days of the week.28 On Wednesdays, she went to Dangcagan,
Bukidnon to procure supplies for the family store and then returned to Cagayan de Oro City on
the same day.29

Conjugal intimacy did not really cause marital problems between KKK and the accused-
appellant. It was, in fact, both frequent and fulfilling. He treated her well and she, of course,
responded with equal degree of enthusiasm.30However, in 1997, he started to be brutal in bed.
He would immediately remove her panties and, sans any foreplay, insert her penis in her
vagina. His abridged method of lovemaking was physically painful for her so she would resist
his sexual ambush but he would threaten her into submission.31

In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she
failed to attend to him. She was preoccupied with financial problems in their businesses and a
bank loan. He wanted KKK to stay at home because "a woman must stay in the house and only
good in bed (sic) x x x." She disobeyed his wishes and focused on her goal of providing a good
future for the children.32

Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-
appellant slept together in Cebu City where the graduation rites of their eldest daughter were
held. By October 14, 1998, the three of them were already back in Cagayan de Oro City.33

On October 16, 1998, the accused-appellant, his wife KKK and their children went about their
nightly routine. The family store in their residence was closed at about 9:00 p.m. before supper
was taken. Afterwards, KKK and the children went to the girls' bedroom at the mezzanine of the
house to pray the rosary while the accused-appellant watched television in the living
room.34 OOO and MMM then prepared their beds. Soon after, the accused-appellant fetched
KKK and bid her to come with him to their conjugal bedroom in the third floor of the house. KKK
complied.35

Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not
lie thereon with the accused-appellant and instead, rested separately in a cot near the bed. Her
reclusive behavior prompted him to ask angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed."36

KKK insisted to stay on the cot and explained that she had headache and abdominal pain due
to her forthcoming menstruation. Her reasons did not appease him and he got angrier. He rose
from the bed, lifted the cot and threw it against the wall causing KKK to fall on the floor.
Terrified, KKK stood up from where she fell, took her pillow and transferred to the bed.37

The accused-appellant then lay beside KKK and not before long, expressed his desire to
copulate with her by tapping his fingers on her lap. She politely declined by warding off his hand
and reiterating that she was not feeling well.38
The accused-appellant again asserted his sexual yearning and when KKK tried to resist by
holding on to her panties, he pulled them down so forcefully they tore on the sides.39 KKK
stayed defiant by refusing to bend her legs.40

The accused-appellant then raised KKK's daster,41 stretched her legs apart and rested his own
legs on them. She tried to wrestle him away but he held her hands and succeeded in
penetrating her. As he was carrying out his carnal desires, KKK continued to protest by
desperately shouting: "[D]on 't do that to me because I'm not feeling well."42

With a concrete wall on one side and a mere wooden partition on the other enclosing the
spouses' bedroom,43KKK's pleas were audible in the children's bedroom where MMM lay
awake.

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity
on me,"44 MMM woke up 000 who prodded her to go to their parents' room.45 MMM hurriedly
climbed upstairs, vigorously knocked on the door of her parents' bedroom and inquired: "Pa,
why is it that Mama is crying?"46 The accused-appellant then quickly put on his briefs and shirt,
partly opened the door and said: "[D]on 't interfere because this is a family trouble," before
closing it again.47 Since she heard her mother continue to cry, MMM ignored his father's
admonition, knocked at the bedroom door again, and then kicked it.48 A furious accused-
appellant opened the door wider and rebuked MMM once more: "Don't interfere us. Go
downstairs because this is family trouble!" Upon seeing KKK crouching and crying on top of the
bed, MMM boldly entered the room, approached her mother and asked: "Ma, why are you
crying?" before asking her father: "Pa, what happened to Mama why is it that her underwear is
torn[?]"49

When MMM received no definite answers to her questions, she helped her mother get up in
order to bring her to the girls' bedroom. KKK then picked up her tom underwear and covered
herself with a blanket.50 However, their breakout from the room was not easy. To prevent KKK
from leaving, the accused-appellant blocked the doorway by extending his arm towards the
knob. He commanded KKK to "[S]tay here, you sleep in our room," when the trembling KKK
pleaded: "Eddie, allow me to go out." He then held KKK's hands but she pulled them back.
Determined to get away, MMM leaned against door and embraced her mother tightly as they
pushed their way out.51

In their bedroom, the girls gave their mother some water and queried her as to what
happened.52 KKK relayed: "[Y]our father is an animal, a beast; he forced me to have sex with
him when I'm not feeling well." The girls then locked the door and let her rest."53

The accused-appellant's aggression recurred the following night. After closing the family store
on October 17, 1998, KKK and the children took their supper. The accused-appellant did not
join them since, according to him, he already ate dinner elsewhere. After resting for a short
while, KKK and the children proceeded to the girls' bedroom and prayed the rosary. KKK
decided to spend the night in the room's small bed and the girls were already fixing the
beddings when the accused-appellant entered.

"Why are you sleeping in the room of our children", he asked KKK, who responded that she
preferred to sleep with the children.54 He then scoffed: "Its alright if you will not go with me,
anyway, there are women that could be paid [P] 1,000.00." She dismissed his comment by
turning her head away after retorting: "So be it." After that, he left the room.55
He returned 15 minutes later56 and when KKK still refused to go with him, he became infuriated.
He lifted her from the bed and attempted to carry her out of the room as he exclaimed: "Why will
you sleep here[?] Lets go to our bedroom." When she defied him, he grabbed her short pants
causing them to tear apart.57 At this point, MMM interfered, "Pa, don't do that to Mama because
we are in front of you."58

The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven
in front of you, I can have sex of your mother [sic J because I'm the head of the family." He then
ordered his daughters to leave the room. Frightened, the girls obliged and went to the staircase
where they subsequently heard the pleas of their helpless mother resonate with the creaking
bed.59

The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled
KKK's short pants and panties. He paid no heed as she begged, "[D]on 't do that to me, my
body is still aching and also my abdomen and I cannot do what you wanted me to do [sic]. I
cannot withstand sex."60

After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her
and forced himself inside her. Once gratified, the accused-appellant put on his short pants and
briefs, stood up, and went out of the room laughing as he conceitedly uttered: "[I]t s nice, that is
what you deserve because you are [a] flirt or fond of sex." He then retreated to the masters'
bedroom.61

Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but
found the door locked. MMM pulled out a jalousie window, inserted her arm, reached for the
doorknob inside and disengaged its lock. Upon entering the room, MMM and OOO found their
mother crouched on the bed with her hair disheveled. The girls asked: "Ma, what happened to
you, why are you crying?" KKK replied: "[Y}our father is a beast and animal, he again forced me
to have sex with him even if I don't feel well. "62

Version of the defense

The defense spun a different tale. The accused-appellant's father owned a land adjacent to that
of KKK's father. He came to know KKK because she brought food for her father's laborers.
When they got married on October 18, 1975, he was a high school graduate while she was an
elementary graduate.

Their humble educational background did not deter them from pursuing a comfortable life.
Through their joint hard work and efforts, the couple gradually acquired personal properties and
established their own businesses that included a rice mill managed by the accused-appellant.
He also drove their trucks that hauled coffee, copra, or com.63

The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on
those dates he was in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an
accident somewhere in Angeles Ranch, Maluko, Manolo Fortich, Bukidnon. He left the truck by
the roadside because he had to attend MMM's graduation in Cebu on October 12 with KKK.
When they returned to Bukidnon on October 14, he asked KKK and MMM to proceed to
Cagayan de Oro City and just leave him behind so he can take care of the truck and buy some
com.64
Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the
above claims. According to him, on October 16, 1998, the accused-appellant was within the
vicinity of the rice mill's loading area in Dangcagan, Bukidnon, cleaning a pick-up truck. On
October 17, 1998, he and the accused-appellant were in Dangcagan, Bukidnon, loading sacks
of com into the truck. They finished loading at 3 :00 p.m. The accused-appellant then instructed
Equia to proceed to Maluko, Manolo Fortich, Bukidnon while the former attended a fiesta in New
Cebu, Kianggat, Dangcagan, Bukidnon. At around 4:00 p.m., Equia, together with a helper and
a mechanic, left for Maluko in order to tow the stalled truck left there by the accused-appellant in
October 7 and thereafter, bring it to Cagayan de Oro City together with the separate truck
loaded with com.

They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and
hoist it to the towing bar of the other truck. At around 10:00 p.m., the accused-appellant arrived
in Maluko. The four of them then proceeded to Cagayan de Oro City where they arrived at 3 :00
a.m. of October 18, 1998. The accused-appellant went to Gusa while the other three men
brought the damaged truck to Cugman.65

The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge
because he took over the control and management of their businesses as well as the
possession of their pick-up truck in January 1999. The accused-appellant was provoked to do
so when she failed to account for their bank deposits and business earnings. The entries in their
bank account showed the balance of 3,190,539.83 on October 31, 1996 but after only a month
or on November 30, 1996, the amount dwindled to a measly 9,894.88.66 Her failure to
immediately report to the police also belies her rape allegations.67

KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually
detected from her odd behavior. While in Cebu on October 12, 1998 for MMM's graduation rites,
the accused-appellant and KKK had sexual intercourse. He was surprised when his wife asked
him to get a napkin to wipe her after having sex. He tagged her request as "high-tech," because
they did not do the same when they had sex in the past. KKK had also become increasingly
indifferent to him. When he arrives home, it was an employee, not her, who opened the door
and welcomed him. She prettied herself and would no longer ask for his permission whenever
she went out.68

Bebs,69 KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several
love letters purportedly addressed to Bebs but were actually intended for KKK.70

KKK had more than ten paramours some of whom the accused-appellant came to know as:
Arsenio, Jong-Jong, Joy or Joey, somebody from the military or the Philippine National Police,
another one is a government employee, a certain Fernandez and three other priests.71 Several
persons told him about the paramours of his wife but he never confronted her or them about it
because he trusted her.72

What further confirmed his suspicions was the statement made by OOO on November 2, 1998.
At that time, OOO was listening loudly to a cassette player. Since he wanted to watch a
television program, he asked OOO to tum down the volume of the cassette player. She got
annoyed, unplugged the player, spinned around and hit the accused-appellant's head with the
socket. His head bled. An altercation between the accused-appellant and KKK thereafter
followed because the latter took OOO's side. During the argument, OOO blurted out that KKK
was better off without the accused-appellant because she had somebody young, handsome,
and a businessman unlike the accused-appellant who smelled bad, and was old, and ugly.73

KKK also wanted their property divided between them with three-fourths thereof going to her
and one-fourth to the accused-appellant. However, the separation did not push through because
the accused-appellant's parents intervened.74 Thereafter, KKK pursued legal separation from
the accused-appellant by initiating Barangay Case No. 00588-99 before the Office of Lupong
Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a Certificate to File
Action dated February 18, 1999.75

Ruling of the RTC

In its Judgment76 dated April 1, 2002, the RTC sustained the version proffered by the
prosecution by giving greater weight and credence to the spontaneous and straightforward
testimonies of the prosecution's witnesses. The trial court also upheld as sincere and genuine
the two daughters' testimonies, as it is not natural in our culture for daughters to testify against
their own father for a crime such as rape if the same was not truly committed.

The trial court rejected the version of the defense and found unbelievable the accused-
appellant's accusations of extra-marital affairs and money squandering against KKK. The trial
court shelved the accused-appellant's alibi for being premised on inconsistent testimonies and
the contradicting declarations of the other defense witness, Equia, as to the accused-appellant's
actual whereabouts on October 16, 1998. Accordingly, the RTC ruling disposed as follows:

WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable
doubt of the two (2) separate charges of rape and hereby sentences him to suffer the penalty of
reclusion perpetua for each, to pay complainant [P]50,000.00 in each case as moral damages,
indemnify complainant the sum of (P]75,000.00 in each case, [P]50,000.00 as exemplary
damages and to pay the costs.

SO ORDERED.77

Ruling of the CA

In its Decision78 dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that
Section 14, Rule 110 of the Rules of Criminal Procedure, sanctioned the amendment of the
original informations. Further, the accused-appellant was not prejudiced by the amendment
because he was re-arraigned with respect to the amended informations.

The CA found that the prosecution, through the straightforward testimony of the victim herself
and the corroborative declarations of MMM and OOO, was able to establish, beyond reasonable
doubt, all the elements of rape under R.A. No. 8353. The accused-appellant had carnal
knowledge of KKK by using force and intimidation.

The CA also ruled that KKK's failure to submit herself to medical examination did not negate the
commission of the crime because a medical certificate is not necessary to prove rape.

The CA rejected the accused-appellant's argument that since he and KKK are husband and wife
with mutual obligations of and right to sexual intercourse, there must be convincing physical
evidence or manifestations of the alleged force and intimidation used upon KKK such as
bruises. The CA explained that physical showing of external injures is not indispensable to
prosecute and convict a person for rape; what is necessary is that the victim was forced to have
sexual intercourse with the accused.

In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only
reinforces the truthfulness of KKK's accusations because no wife in her right mind would accuse
her husband of having raped her if it were not true.

The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated
that she only found out that a wife may charge his husband with rape when the fiscal
investigating her separate complaint for grave threats and physical injuries told her about it.

Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it
was physically impossible for him to be at his residence in Cagayan de Oro City at the time of
the commission of the crimes, considering that Dangcagan, Bukidnon, the place where he
allegedly was, is only about four or five hours away. Accordingly, the decretal portion of the
decision read:

WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED.

SO ORDERED.79

Hence, the present review. In the Court Resolution80 dated July 6, 2009, the Court notified the
parties that, if they so desire, they may file their respective supplemental briefs. In a
Manifestation and Motion81 dated September 4, 2009, the appellee, through the Office of the
Solicitor General, expressed that it intends to adopt its Brief before the CA. On April 16, 2012,
the accused-appellant, through counsel, filed his Supplemental Brief, arguing that he was not in
Cagayan de Oro City when the alleged rape incidents took place, and the presence of force,
threat or intimidation is negated by: (a) KKK's voluntary act of going with him to the conjugal
bedroom on October 16, 1998; (b) KKK's failure to put up resistance or seek help from police
authorities; and ( c) the absence of a medical certificate and of blood traces in KKK's panties. 82

Our Ruling

I. Rape and marriage: the historical connection

The evolution of rape laws is actually traced to two ancient English practices of 'bride capture'
whereby a man conquered a woman through rape and 'stealing an heiress' whereby a man
abducted a woman and married her.83

The rape laws then were intended not to redress the violation of the woman's chastity but rather
to punish the act of obtaining the heiress' property by forcible marriage84 or to protect a man's
valuable interest in his wife's chastity or her daughter's virginity.85

If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man
raped his wife, he was merely using his property.86

Women were subjugated in laws and society as objects or goods and such treatment was
justified under three ideologies.
Under the chattel theory prevalent during the 6th century, a woman was the property of her
father until she marries to become the property of her husband.87 If a man abducted an
unmarried woman, he had to pay the owner, and later buy her from the owner; buying and
marrying a wife were synonymous.88

From the 11th century to the 16th century, a woman lost her identity upon marriage and the law
denied her political power and status under the feudal doctrine of coverture.89

A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to
bring order within the family.90

This was supplanted by the marital unity theory, which espoused a similar concept. Upon
marrying, the woman becomes one with her husband. She had no right to make a contract, sue
another, own personal property or write a will.91

II. The marital exemption rule

In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the
irrevocable implied consent theory that would later on emerge as the marital exemption rule in
rape. He stated that:

[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract.92

The rule was observed in common law countries such as the United States of America (USA)
and England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act
which would be rape if committed against a woman not his wife.93 In those jurisdictions, rape is
traditionally defined as "the forcible penetration of the body of a woman who is not the wife of
the perpetrator."94

The first case in the USA that applied the marital exemption rule was Commonwealth v.
Fogerty95 promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that
it would always be a defense in rape to show marriage to the victim. Several other courts
adhered to a similar rationale with all of them citing Hale's theory as basis.96

The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed
with absolute immunity from prosecution for the rape of his wife.97 The privilege was personal
and pertained to him alone. He had the marital right to rape his wife but he will be liable when
he aids or abets another person in raping her.98

In the 1970s, the rule was challenged by women's movements in the USA demanding for its
abolition for being violative of married women's right to be equally protected under rape laws. 99

In 1978, the rule was qualified by the Legislature in New York by proscribing the application of
the rule in cases where the husband and wife are living apart pursuant to a court order "which
by its terms or in its effects requires such living apart," or a decree, judgment or written
agreement of separation.100
In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of
New York declared the same unconstitutional in People v. Liberta101 for lack of rational basis in
distinguishing between marital rape and non-marital rape. The decision, which also renounced
Hale's irrevocable implied consent theory, ratiocinated as follows:

We find that there is no rational basis for distinguishing between marital rape and nonmarital
rape. The various rationales which have been asserted in defense of the exemption are either
based upon archaic notions about the consent and property rights incident to marriage or are
simply unable to withstand even the slightest scrutiny. We therefore declare the marital
exemption for rape in the New York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse
has been cited most frequently in support of the marital exemption. x x x Any argument based
on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one
party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of
the victim and frequently causes severe, long-lasting physical and psychic harm x x x. To ever
imply consent to such an act is irrational and absurd. Other than in the context of rape statutes,
marriage has never been viewed as giving a husband the right to coerced intercourse on
demand x x x. Certainly, then, a marriage license should not be viewed as a license for a
husband to forcibly rape his wife with impunity. A married woman has the same right to control
her own body as does an unmarried woman x x x. If a husband feels "aggrieved" by his wife's
refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic
relations, not in "violent or forceful self-help x x x."

The other traditional justifications for the marital exemption were the common-law doctrines that
a woman was the property of her husband and that the legal existence of the woman was
"incorporated and consolidated into that of the husband x x x." Both these doctrines, of course,
have long been rejected in this State. Indeed, "[nowhere] in the common-law world - [or] in any
modem society - is a woman regarded as chattel or demeaned by denial of a separate legal
identity and the dignity associated with recognition as a whole human being x x x."102 (Citations
omitted)

By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of
Columbia, outlawing the act without exemptions. Meanwhile, the 33 other states granted some
exemptions to a husband from prosecution such as when the wife is mentally or physically
impaired, unconscious, asleep, or legally unable to consent.103

III. Marital Rape in the Philippines

Interestingly, no documented case on marital rape has ever reached this Court until now. It
appears, however, that the old provisions of rape under Article 335 of the RPC adhered to
Hale's irrevocable implied consent theory, albeit in a limited form. According to Chief Justice
Ramon C. Aquino,104 a husband may not be guilty of rape under Article 335 of Act No. 3815 but,
in case there is legal separation, the husband should be held guilty of rape if he forces his wife
to submit to sexual intercourse.105

In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the
Elimination of all Forms of Discrimination Against Women (UN-CEDAW).106 Hailed as the first
international women's bill of rights, the CEDAW is the first major instrument that contains a ban
on all forms of discrimination against women. The Philippines assumed the role of promoting
gender equality and women's empowerment as a vital element in addressing global
concerns.107 The country also committed, among others, to condemn discrimination against
women in all its forms, and agreed to pursue, by all appropriate means and without delay, a
policy of eliminating discrimination against women and, to this end, undertook:

(a) To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein and to ensure,
through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;

xxxx

(f) To take all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against
women.108

In compliance with the foregoing international commitments, the Philippines enshrined the
principle of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article
II thereof, thus:

Sec. 11. The State values the dignity of every human person and guarantees full respect for
human rights.

xxxx

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men. The Philippines also acceded to adopt
and implement the generally accepted principles of international law such as the CEDA W and
its allied issuances, viz:

Article II, Section 2. The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations. (Emphasis ours)

The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A.
No. 8353 eradicated the stereotype concept of rape in Article 335 of the RPC.109 The law
reclassified rape as a crime against person and removed it from the ambit of crimes against
chastity. More particular to the present case, and perhaps the law's most progressive proviso is
the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing
its perpetration, viz:

Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party
shall extinguish the criminal action or the penalty imposed.
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as
the offended party shall extinguish the criminal action or the penalty: Provided, That the crime
shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.

Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining
rape, it is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist's
legal relationship with his victim, thus:

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:

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.

The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the
10th Congress on the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite
of qualms on tagging the crime as 'marital rape' due to conservative Filipino impressions on
marriage, the consensus of our lawmakers was clearly to include and penalize marital rape
under the general definition of 'rape,' viz:

MR. DAMASING: Madam Speaker, Your Honor, one more point

of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to
marital rape. But under Article 266-C, it says here: "In case it is the legal husband who is the
offender... " Does this presuppose that there is now marital rape? x x x.

MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private
practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license
as a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the
wife for rape. Even jurisprudence, we don't have any jurisprudence that prohibits a wife from
suing a husband. That is why even if we don't provide in this bill expanding the definition of
crime that is now being presented for approval, Madam Speaker, even if we don't provide here
for marital rape, even if we don't provide for sexual rape, there is the right of the wife to go
against the husband. The wife can sue the husband for marital rape and she cannot be
prevented from doing so because in this jurisdiction there is no law that prohibits her from doing
so. This is why we had to put second paragraph of 266-C because it is the belief of many of us.
x x x, that if it is true that in this jurisdiction there is marital rape even if we don't provide it here,
then we must provide for something that will unify and keep the cohesion of the family together
that is why we have the second paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill
No. 6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual
assault.

MR. LARA: That is correct, Madam Speaker.

MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So,
Your Honor, direct to the point, under Article 266-C, is it our understanding that in the second
paragraph, quote: "In case it is the legal husband who is the offender, this refers to marital rape
filed against the husband? Is that correct?

MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.

MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?

MR. LARA: Sexual assault, Madam Speaker.

MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that.
Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is
why I am sorry that our House version which provided for sexual assault was not carried by the
Senate version because all sexual crimes under this bicameral conference committee report are
all now denominated as rape whether the penalty is from reclusion perpetua to death or whether
the penalty is only prision mayor. So there is marital rape, Your Honor, is that correct?

xxxx

MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing
the husband who forces the wife even to 30 years imprisonment. But please do not call it marital
rape, call it marital sexual assault because of the sanctity of marriage. x x x.110 (Emphasis ours)

HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not
excluded.

HON. ROCO: Yeah. No. But I think there is also no specific mention.

HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.

xxxx

HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly
contained in the second paragraph. x x x So marital rape actually was in the House version x x
x. But it was not another definition of rape. You will notice, it only says, that because you are the
lawful husband does not mean that you cannot commit rape. Theoretically, I mean, you can
beat up your wife until she's blue. And if the wife complains she was raped, I guess that, I mean,
you just cannot raise the defense x x x[:] I am the husband. But where in the marriage contract
does it say that I can beat you up? That's all it means. That is why if we stop referring to it as
marital rape, acceptance is easy. Because parang ang marital rape, married na nga kami. I
cannot have sex. No, what it is saying is you're [the] husband but you cannot beat me up. x x x.
That's why to me it's not alarming. It was just a way of saying you're [the] husband, you cannot
say when I am charged with rape x x x.

PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]

HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you
can have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a
grave abuse of authority, I don't know how that cannot apply. Di ba yung, or putting an
instrument into the, yun ang sinasabi ko lang, it is not meant to have another classification of
rape. It is all the same definition x x x.

xxxx

HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is
implicit already in the first proviso. It implies na there is an instance when a husband can be
charged [with] rape x x x.

HON. ROXAS: Otherwise, silent na.

HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that
this rule of evidence is now transport[ed], put into 266-F, the effect of pardon.

PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital
rape.

HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on
page 8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule
of evidence. But I think we should understand that a husband cannot beat at his wife to have
sex. Di ha? I think that should be made clear. x x x.

xxxx

HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if
you're [the] legal husband, Jesus Christ, don't beat up to have sex. I almost want, you are my
wife, why do you have to beat me up.

So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can
face up, I hope, to the women and they would understand that it is half achieved.

HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a
new crime but instead, we are just defining a rule of evidence. x x x.

HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that
he is husband is not, does not negate.111

CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only
disagreement now is where to place it. Let us clear this matter. There are two suggestions now
on marital rape. One is that it is rape if it is done with force or intimidation or any of the
circumstances that would define rape x x x immaterial. The fact that the husband and wife are
separated does not come into the picture. So even if they are living under one roof x x x for as
long as the attendant circumstances of the traditional rape is present, then that is rape.112

PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital

rape, it does not actually change the meaning of rape. It merely erases the doubt in anybody's
mind, whether or not rape can indeed be committed by the husband against the wife. So the bill
really says, you having been married to one another is not a legal impediment. So I don't really
think there is any need to change the concept of rape as defined presently under the revised
penal code. This do[es] not actually add anything to the definition of rape. It merely says, it is
merely clarificatory. That if indeed the wife has evidence to show that she was really brow
beaten, or whatever or forced or intimidated into having sexual intercourse against her will, then
the crime of rape has been committed against her by the husband, notwithstanding the fact that
they have been legally married. It does not change anything at all, Mr. Chairman.

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x.113

The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No.
9262,114 which regards rape within marriage as a form of sexual violence that may be committed
by a man against his wife within or outside the family abode, viz:

Violence against women and their children refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or against a woman with whom the person
has or had a sexual or dating relationship, or with whom he has a common child, or against her
child whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in. physical, sexual, psychological harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It
includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a

woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child

as a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity
by force, threat of force, physical or other harm or threat of physical or other
harm or coercion;

c) Prostituting the woman or child.

Statistical figures confirm the above characterization. Emotional and other forms of non-
personal violence are the most common type of spousal violence accounting for 23% incidence
among ever-married women. One in seven ever-married women experienced physical violence
by their husbands while eight percent (8%) experienced sexual violence.115
IV. Refutation of the accused-appellant's arguments

The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent
theory. In his appeal brief before the CA, he posits that the two incidents of sexual intercourse,
which gave rise to the criminal charges for rape, were theoretically consensual, obligatory even,
because he and the victim, KKK, were a legally married and cohabiting couple. He argues that
consent to copulation is presumed between cohabiting husband and wife unless the contrary is
proved.

The accused-appellant further claims that this case should be viewed and treated differently
from ordinary rape cases and that the standards for determining the presence of consent or lack
thereof must be adjusted on the ground that sexual community is a mutual right and obligation
between husband and wife.116

The contentions failed to muster legal and rational merit.

The ancient customs and ideologies from which the irrevocable implied consent theory evolved
have already been superseded by modem global principles on the equality of rights between
men and women and respect for human dignity established in various international conventions,
such as the CEDAW. The Philippines, as State Party to the CEDAW, recognized that a change
in the traditional role of men as well as the role of women in society and in the family is needed
to achieve full equality between them. Accordingly, the country vowed to take all appropriate
measures to modify the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices, customs and all other practices which are based on
the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men
and women.117 One of such measures is R.A. No 8353 insofar as it eradicated the archaic
notion that marital rape cannot exist because a husband has absolute proprietary rights over his
wife's body and thus her consent to every act of sexual intimacy with him is always obligatory or
at least, presumed.

Another important international instrument on gender equality is the UN Declaration on the

Elimination of Violence Against Women, which was Promulgated118 by the UN General
Assembly subsequent to the CEDA W. The Declaration, in enumerating the forms of gender-
based violence that constitute acts of discrimination against women, identified 'marital rape' as a
species of sexual violence, viz:

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of
gender-based violence that results in, or is likely to result in, physical, sexual or psychological
harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering,
sexual abuse of female children in the household, dowry-related violence, marital rape, female
genital mutilation and other traditional practices harmful to women, non-spousal violence and
violence related to exploitation;119 (Emphasis ours)

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A
man who penetrates her wife without her consent or against her will commits sexual violence
upon her, and the Philippines, as a State Party to the CEDA W and its accompanying
Declaration, defines and penalizes the act as rape under R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has
sexual intercourse with his wife is not merely using a property, he is fulfilling a marital
consortium with a fellow human being with dignity equal120 to that he accords himself. He cannot
be permitted to violate this dignity by coercing her to engage in a sexual act without her full and
free consent. Surely, the Philippines cannot renege on its international commitments and
accommodate conservative yet irrational notions on marital activities121 that have lost their
relevance in a progressive society.

It is true that the Family Code,122 obligates the spouses to love one another but this rule
sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous and
mutual123 and not the kind which is unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife
excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a
gift and a participation in the mystery of creation. It is a deep sense of spiritual communion. It is
a function which enlivens the hope of procreation and ensures the continuation of family
relations. It is an expressive interest in each other's feelings at a time it is needed by the other
and it can go a long way in deepening marital relationship.124 When it is egoistically utilized to
despoil marital union in order to advance a felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty purpose, vindicate justice and protect our
laws and State policies. Besides, a husband who feels aggrieved by his indifferent or
uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the court's
intervention to declare her psychologically incapacitated to fulfill an essential marital
obligation.125 But he cannot and should not demand sexual intimacy from her coercively or
violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the
elements that constitute the crime and in the rules for their proof, infringes on the equal
protection clause. The Constitutional right to equal protection of the laws126 ordains that similar
subjects should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others; no person or class of persons shall be denied the same protection
of laws, which is enjoyed, by other persons or other classes in like circumstances.127

As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the
perpetrator's own spouse. The single definition for all three forms of the crime shows that the
law does not distinguish between rape committed in wedlock and those committed without a
marriage. Hence, the law affords protection to women raped by their husband and those raped
by any other man alike.
The posture advanced by the accused-appellant arbitrarily discriminates against married rape
victims over unmarried rape victims because it withholds from married women raped by their
husbands the penal redress equally granted by law to all rape victims.

Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the
argument akin to those raised by herein accused-appellant. A marriage license should not be
viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has
the same right to control her own body, as does an unmarried woman.128 She can give or
withhold her consent to a sexual intercourse with her husband and he cannot unlawfully wrestle
such consent from her in case she refuses.

Lastly, the human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive health, free
of coercion, discrimination and violence.129 Women do not divest themselves of such right by
contracting marriage for the simple reason that human rights are inalienable.130

In fine, since the law does not separately categorize marital rape and non-marital rape nor
provide for different definition or elements for either, the Court, tasked to interpret and apply
what the law dictates, cannot trudge the forbidden sphere of judicial legislation and unlawfully
divert from what the law sets forth. Neither can the Court frame distinct or stricter evidentiary
rules for marital rape cases as it would inequitably burden its victims and unreasonably and
irrationally classify them differently from the victims of non-marital rape.

Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary
rules on rape any differently if the aggressor is the woman's own legal husband. The elements
and quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly
regardless of the legal relationship between the accused and his accuser.

Thus, the Court meticulously reviewed the present case in accordance with the established
legal principles and evidentiary policies in the prosecution and resolution of rape cases and
found that no reversible error can be imputed to the conviction meted the accused-appellant.

The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies

In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence,
the strict mandate that all courts must examine thoroughly the testimony of the offended party.
While the accused in a rape case may be convicted solely on the testimony of the complaining
witness, courts are, nonetheless, duty-bound to establish that their reliance on the victim's
testimony is justified. Courts must ensure that the testimony is credible, convincing, and
otherwise consistent with human nature. If the testimony of the complainant meets the test of
credibility, the accused may be convicted on the basis thereof.131

It is settled that the evaluation by the trial court of the credibility of witnesses and their
testimonies are entitled to the highest respect. This is in view of its inimitable opportunity to
directly observe the witnesses and their deportment, conduct and attitude, especially during
cross-examination. Thus, unless it is shown that its evaluation was tainted with arbitrariness or
certain facts of substance and value have been plainly overlooked, misunderstood, or
misapplied, the same will not be disturbed on appeal.132
After approximating the perspective of the trial court thru a meticulous scrutiny of the entire
records of the trial proceedings and the transcript of each witnesses' testimony, the Court found
no justification to disturb its findings.

Rather, the Court observed that KKK and her testimony were both credible and spontaneous.
Hailed to the witness stand on six separate occasions, KKK never wavered neither did her
statements vacillate between uncertainty and certitude. She remained consistent, categorical,
straightforward, and candid during the rigorous cross-examination and on rebuttal examination,
she was able to convincingly explain and debunk the allegations of the defense.

She vividly recounted how the accused-appellant forced her to have sex with him despite her
refusal on October 16, 1998. He initially ordered her to sleep beside him in their conjugal bed by
violently throwing the cot where she was resting. In order not to aggravate his temper, KKK
obeyed. On the bed, he insinuated for them to have sex. When she rejected his advances due
to abdominal pain and headache, his request for intimacy transformed into a stubborn demand.
Unyielding, KKK held her panties but the accused-appellant forcibly pulled them down. The tug
caused the small clothing to tear apart. She reiterated that she was not feeling well and begged
him to stop. But no amount of resistance or begging subdued him. He flexed her two legs apart,
gripped her hands, mounted her, rested his own legs on hers and inserted his penis into her
vagina. She continued pleading but he never desisted.133

Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise
unmistakable. After the appalling episode in the conjugal bedroom the previous night, KKK
decided to sleep in the children's bedroom. While her daughters were fixing the beddings, the
accused-appellant barged into the room and berated her for refusing to go with him to their
conjugal bedroom. When KKK insisted to stay in the children's bedroom, the accused-appellant
got angry and pulled her up. MMM's attempt to pacify the accused-appellant further enraged
him. He reminded them that as the head of the family he could do whatever he wants with his
wife. To demonstrate his role as patriarch, he ordered the children to go out of the room and
thereafter proceeded to force KKK into sexual intercourse. He forcibly pulled down her short
pants and panties as KKK begged "Dont do that to me, my body is still aching and also my
abdomen and I cannot do what you wanted me to do. I cannot withstand sex."134But her pleas
fell on deaf ears. The accused-appellant removed his shorts and briefs, spread KKK's legs
apart, held her hands, mounted her and inserted his penis into her vagina. After gratifying
himself, he got dressed, left the room as he chuckled: "Its nice, that is what you deserve
because you are [a] flirt or fond of sex."135

Entrenched is the rule that in the prosecution of rape cases, the essential element that must be
proved is the absence of the victim's consent to the sexual congress.136

Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or
intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable of
giving free and voluntary consent because he/she is deprived of reason or otherwise
unconscious or that the offended party is under 12 years of age or is demented.

Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her
through force and intimidation both of which were established beyond moral certainty by the
prosecution through the pertinent testimony of KKK, viz:

On the October 16, 1998 rape incident:

(Direct Examination)

ATTY. LARGO:

Q So, while you were already lying on the bed together with your husband, do you remember
what happened?

A He lie down beside me and asked me to have sex with him.

Q How did he manifest that he wanted to have sex with you?

A He put his hand on my lap and asked me to have sex with him but I warded off his hand.

Q Can you demonstrate to this Court how did he use his hand?

A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her
lap which means that he wanted to have sex."

Q So, what did you do after that?

A I warded off his hand and refused because I was not feeling well. (at this juncture the witness
is sobbing)

Q So, what did your husband do when you refused him to have sex with you?

A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.

Q Why, what did you do when he started to pull your pantie [sic]?

A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.

xx xx

Q So, when your pantie [sic] was tom by your husband, what else did he do?

A He flexed my two legs and rested his two legs on my legs.

Q So after that what else did he do?

A He succeeded in having sex with me because he held my two hands no matter how I wrestled
but I failed because he is stronger than me.

COURT: Make it of record that the witness is sobbing while she is giving her testimony.

ATTY. LARGO: (To the witness cont'ng.)

Q So, what did you do when your husband already stretched your two legs and rode on you and
held your two hands?
A I told him, "don't do that because I'm not feeling well and my whole body is aching."

Q How did you say that to your husband?

A I told him, "don't do that to me because I'm not feeling well."

Q Did you say that in the manner you are saying now?

xxxx

A I shouted when I uttered that words.

xxxx

Q Was your husband able to consummate his desire?

xxxx

A Yes, sir, because I cannot do anything.137

(Cross-Examination)

ATTY. AMARGA;

Q Every time you have sex with your husband it was your husband normally remove your
panty?

A Yes, Sir.

Q It was not unusual for your husband then to remove your panty because according to you he
normally do that if he have sex with you?

A Yes, Sir.

Q And finally according to you your husband have sex with you?

A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to
have sex with him at that time.

Q You did not spread your legs at that time when he removed your panty?

A Yes, Sir.

Q Meaning, your position of your legs was normal during that time?

A I tried to resist by not flexing my legs.

xxxx
Q At that time when your husband allegedly removed your panty he also remove your
nightgown?

A No, Sir.

Q And he did pull out your duster [sic] towards your face?

A He raised my duster [sic] up.

Q In other words your face was covered when he raised your duster [sic]?

A No, only on the breast level.138

On the October 17, 1998 rape incident:

(Direct Examination)

ATTY. LARGO

Q So, after your children went out of the room, what transpired?

A He successfully having sex with me because he pulled my short pant and pantie forcible.

Q So, what did you say when he forcibly pulled your short and pantie?

A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do
what you wanted me to do. I cannot withstand sex."

Q So, what happened to your short when he forcibly pulled it down?

A It was tom.

Q And after your short and pantie was pulled down by your husband, what did he do?

A He also removed his short and brief and flexed my two legs and mounted on me and
succeeded in having sex with me.139

The accused-appellant forced his wife when he knowingly overpowered her by gripping her
hands, flexing her legs and then resting his own legs thereon in order to facilitate the
consummation of his much-desired non-consensual sexual intercourse.

Records also show that the accused-appellant employed sufficient intimidation upon KKK. His
actuations prior to the actual moment of the felonious coitus revealed that he imposed his
distorted sense of moral authority on his wife. He furiously demanded for her to lay with him on
the bed and thereafter coerced her to indulge his sexual craving.

The fury the accused-appellant exhibited when KKK refused to sleep with him on their bed,
when she insisted to sleep in the children's bedroom and the fact that he exercises dominance
over her as husband all cowed KKK into submission.
The fact that KKK voluntarily went with the accused-appellant to their conjugal bedroom on
October 16, 1998 cannot be stretched to mean that she consented to the forced sexual
intercourse that ensued. The accused-appellant was KKK's husband and hence it was
customary for her to sleep in the conjugal bedroom. No consent can be deduced from such act
of KKK because at that juncture there were no indications that sexual intercourse was about to
take place. The issue of consent was still irrelevant since the act for which the same is legally
required did not exist yet or at least unclear to the person from whom the consent was desired.
The significant point when consent must be given is at that time when it is clear to the victim that
her aggressor is soliciting sexual congress. In this case, that point is when the accused-
appellant tapped his fingers on her lap, a gesture KKK comprehended to be an invitation for a
sexual intercourse, which she refused.

Resistance, medical certificate and blood traces.

We cannot give credence to the accused-appellant's argument that KKK should have hit him to
convey that she was resisting his sexual onslaught. Resistance is not an element of rape and
the law does not impose upon the victim the burden to prove resistance140 much more requires
her to raise a specific kind thereof.

At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant
to recognize that she seriously did not assent to a sexual congress. She held on to her panties
to prevent him from undressing her, she refused to bend her legs and she repeatedly shouted
and begged for him to stop.

Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just
enough to bring about the desired result. What is necessary is that the force or intimidation be
sufficient to consummate the purpose that the accused had in mind141 or is of such a degree as
to impel the defenseless and hapless victim to bow into submission.142

Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or
the lack of a medical certificate do not negate rape. It is not the presence or absence of blood
on the victim's underwear that determines the fact of rape143 inasmuch as a medical certificate is
dispensable evidence that is not necessary to prove rape.144 These details do not pertain to the
elements that produce the gravamen of the offense that is -sexual intercourse with a woman
against her will or without her consent.145

The accused-appellant harps on the acquittal ruling in People v. Godoy,146 the evidentiary
circumstances of which are, however, disparate from those in the present case. In Godoy, the
testimony of the complainant was inherently weak, inconsistent, and was controverted by the
prosecution's medico-legal expert witness who stated that force was not applied based on the
position of her hymenal laceration. This led the Court to conclude that the absence of any sign
of physical violence on the victim's body is an indication of consent.147 Here, however, KKK's
testimony is, as discussed earlier, credible, spontaneous and forthright.

The corroborative testimonies of

MMM and OOO are worthy of credence.

The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as
they did not witness the actual rape is bereft of merit. It must be stressed that rape is essentially
committed in relative isolation, thus, it is usually only the victim who can testify with regard to the
fact of the forced sexual intercourse.148 Hence, the probative value of MMM and OOO's
testimonies rest not on whether they actually witnessed the rape but on whether their
declarations were in harmony with KKK's narration of the circumstances, preceding, subsequent
to and concurrent with, the rape incidents.

MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard
KKK shouting and crying: "Eddie, dont do that to me, have pity on me"149 on the night of
October 16, 1998 shortly after KKK and the accused-appellant went to their conjugal bedroom.
When MMM went upstairs to check on her mother, the accused-appellant admonished her for
meddling. Frustrated to aid her mother who persistently cried, MMM kicked the door so hard the
accused-appellant was prompted to open it and rebuke MMM once more. OOO heard all these
commotion from the room downstairs.

MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom
panty lay on the floor. After a brief struggle with the accused-appellant, MMM and KKK were
finally able to escape and retreat to the children's bedroom where KKK narrated to her
daughters: "[Y]our father is an animal, a beast; he forced me to have sex with him when I'm not
feeling well. "

KKK gave a similar narration to MMM and OOO the following night after the accused-appellant
barged inside the children's bedroom. The couple had an argument and when MMM tried to
interfere, the accused-appellant ordered her and OOO to get out after bragging that he can
have sex with his wife even in front of the children because he is the head of the family. The
girls then stayed by the staircase where they afterwards heard their mother helplessly crying
and shouting for the accused-appellant to stop.

Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-
appellant, through the use of force and intimidation, had non-consensual and forced carnal
knowledge of his wife, KKK on the nights of October 16 and 17, 1998.

KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and
physical resistance were clear manifestations of coercion. Her appearance when MMM saw her
on the bed after the accused appellant opened the door on October 16, 1998, her conduct
towards the accused-appellant on her way out of the room, and her categorical outcry to her
children after the two bedroom episodes - all generate the conclusion that the sexual acts that
occurred were against her will.

Failure to immediately report to the

police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.

The testimonies of KKK and her daughters cannot be discredited merely because they failed to
report the rape incidents to the police authorities or that KKK belatedly filed the rape charges.
Delay or vacillation by the victims in reporting sexual assaults does not necessarily impair their
credibility if such delay is satisfactorily explained.150

At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to
sexual intercourse is considered rape. In fact, KKK only found out that she could sue his
husband for rape when Prosecutor Benjamin Tabique, Jr. (Prosecutor Tabique) told her about it
when she filed the separate charges for grave threats and physical injuries against the accused-
appellant.151

It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353
abolishing marital exemption in rape cases hence it is understandable that it was not yet known
to a layman as opposed to legal professionals like Prosecutor Tabique. In addition, fear of
reprisal thru social humiliation which is the common factor that deter rape victims from reporting
the crime to the authorities is more cumbersome in marital rape cases. This is in view of the
popular yet outdated belief that it is the wife's absolute obligation to submit to her husband's
carnal desires. A husband raping his own wife is often dismissed as a peculiar occurrence or
trivialized as simple domestic trouble.

Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and
public scrutiny that could have befallen KKK and her family had the intervention of police
authorities or even the neighbors been sought, are acceptable explanations for the failure or
delay in reporting the subject rape incidents.

The victim -S testimony on the

witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.

The failure of the prosecution to present KKK's complaint-affidavit for rape is not fatal in view of
the credible, candid and positive testimony of KKK on the witness stand. Testimonial evidence
carries more weight than the affidavit since it underwent the rudiments of a direct, cross, re-
direct and re-cross examinations. Affidavits or statements taken ex parte are generally
considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony given in
court.152

Ill motive imputed to the victim

The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is
riddled with loopholes generated by incongruent and flimsy evidence. The prosecution was able
to establish that the 3 Million deposit in the spouses' bank account was the proceeds of their
loan from the Bank of Philippine Islands (BPI). Exhibit J, which is a BPI ML instruction sheet
dated October 31, 1996 in the amount of 3,149,840.63 is the same amount the accused-
appellant claimed to have entrusted to her wife. Although the accused-appellant denied being
aware of such loan, he admitted that approximately 3 Million was spent for the construction of
their house. These pieces of evidence effectively belie the accused appellant's allegation that
KKK could not account for the money deposited in the bank.153

Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain how Bebs
could be his wife KKK when the letter-sender greeted Bebs a "happy birthday" on October 28
while KKK's birthday is June 23. The accused-appellant also did not present Bebs herself, being
a more competent witness to the existence of the alleged love letters for KKK. He likewise
failed, despite promise to do so, to present the original copies of such love letters neither did he
substantiate KKK's supposed extra-marital affairs by presenting witnesses who could
corroborate his claims. Further, the Court finds it unbelievable that an able man would not have
the temerity to confront his wife who has fooled around with 10 men - some of whom he has
even met. The accused-appellant's erratic statements on the witness stand are inconsistent with
the theory of extra-marital romance making it reasonable to infer that he merely made up those
malicious stories as a desperate ploy to extricate himself out of this legal quandary.

At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded
suspicions that hold no evidentiary weight in law and thus incompetent to destroy KKK's
credibility and that of her testimony. In sum, the defense failed to present sufficiently convincing
evidence that KKK is a mere vindictive wife who is harassing the accused-appellant with
fabricated rape charges.

Alibi

It must be stressed that in raising the irrevocable implied consent theory as defense, the
accused-appellant has essentially admitted the facts of sexual intercourse embodied in the two
criminal informations for rape. This admission is inconsistent with the defense of alibi and any
discussion thereon will thus be irrelevant.

At any rate, the courts a quo correctly rejected his alibi.

Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but
also because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the
positive identification of the accused by eyewitnesses who had no improper motive to testify
falsely.154

For the defense of alibi to prosper, the accused must prove not only that he was at some other
place at the time of the commission of the crime, but also that it was physically impossible for
him to be at the locus delicti or within its immediate vicinity. Physical impossibility refers not only
to the geographical distance between the place where the accused was and the place where
the crime was committed when the crime transpired, but more importantly, the facility of access
between the two places.155

Even granting in arguendo that the accused-appellant had indeed attended a fiesta in
Dangcagan, Bukidnon or was hauling com with Equia on the dates of commission of the crime,
the same will not easily exonerate him. The accused-appellant failed to adduce clear and
convincing evidence that it was physically impossible for him to be at his residence in Cagayan
de Oro City at the time of the commission of the crime. Dangcagan, Bukidnon can be traversed
by about four or five hours from Cagayan de Oro City, and even less by private vehicle which
was available to the accused appellant at any time.156 Thus, it was not physically impossible for
him to be at the situs criminis at the dates and times when the two rape incidents were
committed.

Between the accused-appellant's alibi and denial, and the positive identification and credible
testimony of the victim, and her two daughters, the Court must give weight to the latter,
especially in the absence of ill motive on their part to falsely testify against the accused-
appellant.

Conclusion

All told, the presumption of innocence endowed an accused-appellant was sufficiently overcome
by KKK's clear, straightforward, credible, and truthful declaration that on two separate
occasions, he succeeded in having sexual intercourse with her, without her consent and against
her will. Evidence of overwhelming force and intimidation to consummate rape is extant from
KKK's narration as believably corroborated by the testimonies of MMM and OOO and the
physical evidence of KKK's tom panties and short pants. Based thereon, the reason and
conscience of the Court is morally certain that the accused-appellant is guilty of raping his wife
on the nights of October 16 and 17, 1998.

Penalties

The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the
accused-appellant for being in accord with Article 266-A in relation to 266-B of the RPC.
Further, he shall not be eligible for parole pursuant to Section 3 of R.A. No. 9346, which states
that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will
be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act
No. 4180, otherwise known as the Indeterminate Sentence Law, as amended."157

The Court sustains the moral damages awarded in the amount of 50,000.00. Moral damages
are granted to rape victims without need of proof other than the fact of rape under the
assumption that the victim suffered moral injuries from the experience she underwent.158

The award of civil indemnity is proper; it is mandatory upon the finding that rape took
place.1wphi1 Considering that the crime committed is simple rape, there being no qualifying
circumstances attendant in its commission, the appropriate amount is 50,000.00159 and not
75,000.00 as awarded by the RTC.

To serve as an example for public good and in order to deter a similar form of domestic
violence, an award of 30,000.00 as exemplary damages is imperative.160

The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be
reckoned from the date of finality of this judgment until fully paid.161

A Final Note

Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's

value and dignity as a human being. It respects no time, place, age, physical condition or social
status. It can happen anywhere and it can happen to anyone. Even, as shown in the present
case, to a wife, inside her time-honored fortress, the family home, committed against her by her
husband who vowed to be her refuge from cruelty. The herein pronouncement is an affirmation
to wives that our rape laws provide the atonement they seek from their sexually coercive
husbands.

Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A
husband does not own his wife's body by reason of marriage. By marrying, she does not divest
herself of the human right to an exclusive autonomy over her own body and thus, she can
lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's
unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion
to make her yield. He can seek succor before the Family Courts that can determine whether her
refusal constitutes psychological incapacity justifying an annulment of the marriage.

Sexual intimacy is an integral part of marriage because it is the spiritual and biological
communion that achieves the marital purpose of procreation. It entails mutual love and self-
giving and as such it contemplates only mutual sexual cooperation and never sexual coercion or
imposition.

The Court is aware that despite the noble intentions of the herein pronouncement, menacing
personalities may use this as a tool to harass innocent husbands. In this regard, let it be
stressed that safeguards in the criminal justice system are in place to spot and scrutinize
fabricated or false marital rape complaints and any person who institutes untrue and malicious
charges will be made answerable under the pertinent provisions of the RPC and/or other laws.

WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of
Appeals in CA-G.R. CR-HC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-
appellant Edgar Jumawan is found GUILTY beyond reasonable doubt of two (2) counts of
RAPE and is sentenced to suffer the penalty of reclusion perpetua for each count, without
eligibility for parole. He is further ordered to pay the victim, KKK, the amounts of PS0,000.00 as
civil indemnity, 50,000.00 as moral damages, and 30,000.00 as exemplary damages, for
each count of rape. The award of damages shall earn legal interest at the rate of six percent
(6%) per annum from the finality of this judgment until fully paid.

SO ORDERED.

44.)

PEOPLE OF THE PHILIPPINES, G.R. No. 183094

Plaintiff-Appellee, Present:

CORONA, C.J.,
Chairperson,
CARPIO MORALES,*
VELASCO, JR.,
- versus - DEL CASTILLO, and
PEREZ, JJ.

Promulgated:

REYNALDO BARDE, September 22, 2010

Accused-Appellant.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PEREZ, J.:
On appeal is the Decision[1] dated 24 September 2007 of the Court of Appeals in CA-G.R. CR-
H.C. No. 01245, which affirmed with modifications, the Decision[2] dated 29 January 2005 of the
Regional Trial Court (RTC) of Legazpi City, 5th Judicial Region, Branch 1, in Criminal Case No.
8661, finding herein appellant Reynaldo Barde (appellant) guilty beyond reasonable doubt of the
complex crime of multiple murder with multiple frustrated murder. The appellate court, however,
increased the penalty imposed upon the appellant by the court a quo from reclusion perpetua to
the ultimate penalty of death, being the maximum penalty prescribed by law, for the crime of
murder. In view, however, of the subsequent passage of Republic Act No. 9346[3] prohibiting the
imposition of the death penalty, the appellate court reduced the penalty to reclusion
perpetua. The appellate court further increased the amount of moral and temperate damages
awarded by the court a quo to the heirs of each of the deceased victims from P30,000.00
to P50,000.00 and from P5,000.00 to P25,000.00, respectively. The heirs of each of the
deceased victims were also awarded exemplary damages of P25,000.00. With respect to the
surviving victims, Purisima Dado (Purisima) and Ligaya Dado (Ligaya), the appellate court
similarly increased the temperate damages awarded to them by the court a quo from P5,000.00
to P25,000.00 each. They were also awarded exemplary damages of P25,000.00 each.
On the other hand, appellants co-accused and brother, Jimmy Barde (Jimmy), was
acquitted for failure of the prosecution to prove conspiracy and for insufficiency of evidence to
prove his guilt for the crime charged. No civil liability has been adjudged against him as there
was no preponderance of evidence to prove the same.

Appellant and Jimmy were charged in an Information[4] dated 13 August 1999 with the complex
crime of multiple murder and multiple frustrated murder, the accusatory portion of which reads:

That on or about the 15th day of April, 1999 at more or less 12:30 oclock in the
morning, at Sitio Santo Nio, Barangay Liguan, Municipality of Rapu-Rapu,
Province of Albay, Philippines and within the jurisdiction of this Honorable Court,
the above-named [appellant and Jimmy], conspiring and confederating and
acting in concert to achieve a common purpose, willfully, unlawfully and
feloniously, with intent to kill and committed with the qualifying
circumstances of treachery (alevosia), evident premeditation, and by
means of explosion, did then and there roll and explode a hand grenade (M26-
A1 Fragmentation grenade) inside the dance area which exploded and resulted
to the instantaneous deaths of the following persons, to wit:

1. FRANCISCO BIAGO, JR. alias Tikboy[5]

2. ROGER SISO[6]
3. NICANOR OLOROSO
4. MARGIE BAADERA
5. VICTOR BAADERA
6. BIENVENIDO BAADERA
 7. DIOSDADO BAADERA[7]
8. WILLIAM BUTIAL
9. MARYJANE BECHAYDA
10. RICHARD BLANSA[8]
11. EFREN YASUL[9]
12. JOSE BOMBALES[10]
13. DEONY BALIDOY[11]
14. DAISY OLOROZO[12]
15. ROLLY BELGA[13]

This single act of exploding the hand grenade (M26-A1 Fragmentation

grenade) by the above-named [appellant and Jimmy] also caused and resulted in
the injuries and wounding on the different and various parts of the bodies of at
least seventy six (76) persons, namely, to wit:
1. JOEL MORALES 39. WILLIAM BALUTE, JR.
2. MARGARITA YASOL 40. JESUS CAO
3. SANTOS BAADERA, JR. 41. BIENVENIDO CAO
4. LEA BAADERA 42. VICTOR BORJAL
5. LIGAYA DADO[14] 43. VIRGILIO BALINGBING
6. VIRGILIO BAADERA 44. ALEJANDRO BALUTE
7. MANUEL BAADERA 45. GIL BINAMIRA, JR.
8. RODOLFO GALANG, JR. 46. RODELITA BARNEDO
9. PURISIMA DAO[15] 47. SANTIAGO BARNIDO
10. MELCHOR BALIDOY 48. LEVI MAGALONA
11. ABUNDIO BARCENILLA 49. JUANITO CAO
12. LOURDES BALIDOY 50. ARELFA BETCHAYDA
13. JULIO ROMANGAYA 51. EDITHA BELCHES
14. FRANDY SANGCAP 52. JANET BOMBALES
15. LOLIT BERSABE 53. MARILOU BETCHAYDA
16. DONDON BERSABE 54. MARIFE BETCHAYDA
17. FERMIN BARNEDO, JR. 55. ROSEMARIE BEQUIO
18. THERESA BAJARO 56. ALEXANDER BASALLOTE
19. ANTONIO ECAL 57. VICTOR BALLARES
20. FLORENCIA ECAL 58. LUIS OLOROSO, JR.
21. MA. NETOS ECAL 59. DOMINGO SISO
22. VENUS ECAL 60. DOMINGO MICALLER
23. NELIZ MORALINA 61. JENIFER OLOROSO
24. NORMA BAJARO 62. CATALINO ARCINUE
25. ALEX BAADERA 63. VIOLETA BUEMIA
26. ALADIN MORALINA 64. TIRSO BARBERAN
27. PEDRO BIAS, JR. 65. NELLY BUEMIA
28. ROMEO MORALINA 66. RODOLFO BOMBITA
29. PABLITO FORMENTO 67. BIENVENIDO BAADERA
30. ANGELES BOMBALES 68. BERNARDINO BARBERAN, JR.
31. SARDONINA BERSABE 69. MYLEN CERILLO
32. DOLORES BAADERA 70. DIONY BALIDOY
33. CATALINO BARRAMEDA 71. PO3 SAMUEL BATAS
34. ABIGAEL BROSO 72. LITO BERMAS
35. NILDA YASOL 73. JOSEPHINE BEJORO
36. ESPERANZA BARDE 74. ROGER BELARO
37. RYAN BALUTE 75. ADELA VERGARA
 38. ROBERTO BETITO 76. VINCENT BERMEJO

these wounds and injuries caused being fatal and mortal; and thus the above-
named [appellant and Jimmy] have already performed all the acts of execution
which would have produced the crime of Multiple Murder but which nevertheless
did not produce it by reason of causes independent of the will of the [appellant
and Jimmy], that is, the able and timely medical assistance given to these victims
which prevented their deaths, to the damage and prejudice of the legal heirs of
those who died herein and also those who suffered injuries on the various parts
of their bodies.[16] [Emphasis supplied].
Upon arraignment,[17] appellant and Jimmy, assisted by counsels de oficio, pleaded NOT
GUILTY to the crime charged. Thereafter, trial on the merits ensued.

As culled from the records and testimonies of prosecution witnesses, the facts of this
case are as follows:

On 14 April 1999, at around 9:00 p.m., Elmer Oloroso (Elmer), one of the prosecution
witnesses and first cousin of appellant and Jimmy, was at a dancing place[18] at SitioSto. Nio,
Liguan, Rapu-Rapu, Albay, to attend a dance held in connection with the feast day celebration
thereat. The dancing place, which was more or less ten (10) meters long and eight (8) meters
wide, was enclosed by bamboo fence and properly equipped with long benches. It was well-
lighted by the fluorescent lights surrounding it and an oscillating light located at the center
thereof. While sitting on the bench inside the dancing place, near the front gate thereof, Elmer
saw appellant and Jimmy outside holding flashlights and focusing the same toward the people
inside.[19]

At around 11:00 p.m., Jimmy entered the dancing place and approached the person
sitting beside Elmer. The latter overheard Jimmy telling the person beside him to go out and
look for their companions. Not long after, Jimmy went out of the dancing place and it was the
last time Elmer saw him on that particular day.[20]

Then, at around 12:00 midnight, which was already 15 April 1999, Elmer spotted
appellant, who was wearing maong pants and maong jacket with a belt bag tied around his
waist, entered the dancing place and walked towards the people who were dancing. At that
time, Jimmy was no longer there. Elmer, who was only more or less three (3) meters away from
the appellant, saw the latter get a rounded object from his belt bag, which he believed to be a
hand grenade as he has previously seen one from military men when he was in Manila. Later,
appellant pulled something from that rounded object, rolled it to the ground towards the center
of the dancing place where the people were dancing, and left immediately. Five seconds
thereafter, the rounded object exploded. At that moment, appellant was already one-half meter
away from the gate of the dancing place.[21]

The lights went off, people scampered away, and many died and were seriously injured
as a result of the said explosion. Elmer went out of the dancing place, together with the crowd,
through the destroyed bamboo fence. Realizing his brothers and sisters might still be inside the
dancing place, Elmer went back, together with the people carrying flashlights and torches, to
look for his siblings. There he saw the lifeless body of his brother, Nicanor Oloroso
(Nicanor). His other brother, Luis Oloroso (Luis), on the other hand, was seriously
injured. Elmers two other siblings, Jenny and Edwin, both surnamed Oloroso, was slightly
injured. Elmer immediately brought Luis at Bicol Regional Training and Teaching Hospital
(BRTTH), Albay Provincial Hospital, where the latter was confined for almost three months.[22]

The second prosecution witness, Antonio Barcelona (Antonio), corroborated Elmers

testimony on material points. Antonio first met appellant on 20 March 1999 as the latters
brother, Rafael Barde (Rafael), invited him to their house to attend a dance in Mancao, Rapu-
Rapu, Albay. There they had a little conversation and appellant told Antonio that he would not
enter any dancing place without creating any trouble. On 14 April 1999 at around 9:30 p.m.,
Antonio again met appellant at the dancing place at Sitio Sto. Nio, Liguan, Rapu-Rapu,
Albay. While Antonio was inside the dancing place, appellant saw him and summoned him to go
out. Then, Antonio and appellant, who was then with his brothers, Jimmy and Joel, both
surnamed Barde, conversed about their work.[23] Suddenly, appellant uttered, Diyan lang kamo,
dai kamo maghale sa Tokawan na iyan, to kong may ribok man, yaon kami sa likod
lang.[24] Appellant told Antonio that he would just be behind him and his companions because
there might be a trouble. Thereafter, Antonio went inside the dancing place. [25]

At about 11:30 p.m., the dance was declared open to all. At this juncture, appellant and
his two brothers went inside the dancing place. Jimmy then approached Antonio.Then, at
around 12:30 a.m. of 15 April 1999, Antonio noticed appellant walking slowly towards the crowd
inside the dancing place with his hands partly hidden inside his maongjacket with an eagle
figure at the back thereof. Suddenly, appellant stopped, looked around, got something from his
waist line, rolled it to the ground towards the crowd and hastily left. Antonio confirmed that what
was rolled to the ground by appellant was a grenade because after more or less four seconds
that thing exploded. Appellant was already in front of the gate of the dancing place when the
explosion occurred. Antonio was not injured as he was more or less four (4) meters away from
the place where the explosion occurred.Darkness followed after the explosion as the lights went
off. People bustled. Many died and were injured.[26]

Other prosecution witnesses, Alexander Basallote (Alexander) and Nilda Yasol (Nilda) -
the Barangay Captain of Liguan, Rapu-Rapu, Albay, also corroborated the testimonies of Elmer
and Antonio.

The prosecution likewise presented Senior Police Officer 2 Hipolito Talagtag (SPO2
Talagtag),[27] who was assigned at R-4 Division, Explosive and Ordinance Disposal, Police
Regional Office 5 at Camp Simeon Ola, Legazpi City. On 15 April 1999, SPO2 Talagtag
received a call from Colonel Delos Santos (Col. Delos Santos), Chief of R-4 Division, Supply of
RECOM 5, informing him about the explosion incident happened in a dancing place at Sitio Sto.
Nio, Liguan, Rapu-Rapu, Albay, and asking assistance from them. In response thereto, a team
was organized composed of members from the Crime Laboratory, IID Investigators, CIS
Investigating Agents and the Explosive Ordinance Team. Thereafter, the team proceeded to the
scene of the crime. They reached the place at more or less 11:00 a.m. of 16 April 1999. The
team found a crater inside the dancing place that served as their lead in determining the kind of
explosive used. In the course of their investigation, they interviewed people living nearby who
told them that the explosion was loud. Later, SPO2 Talagtag placed a magnet in the crater
inside the dancing place and recovered several shrapnels similar to those that can be found in
an M26-A1 fragmentation grenade. By reason thereof, SPO2 Talagtag concluded that the
explosion was caused by an M26-A1 fragmentation grenade. Thereafter, the recovered
shrapnels were turned over to the crime laboratory at Camp Simeon Ola, Legazpi City, for
examination.[28]

Engineer Ma. Julieta Razonable (Engr. Razonable), Police Senior Inspector and
Forensic Chemical Officer assigned at Camp Simeon Ola, Legazpi City, received the
specimen, i.e., the shrapnels recovered at the scene of the crime, for physical examination. Her
examination yielded positive result, meaning, the specimen submitted to her were part of a hand
grenade fragmentation, M26-A1.[29] This result was subsequently reduced into writing as
evidenced by Physical Identification Report No. PI-601-A-99 dated 16 April 1999.[30]

In his defense, appellant vehemently denied the charge against him and offered a
different version of the incident.
 Appellant asseverated that at around 7:00 p.m. on 14 April 1999 he was at home in
Mancao, Rapu-Rapu, Albay, organizing the plates, spoons, forks and other kitchen utensils that
they were about to bring to the house of Teodora Arsenue (Teodora) at Sitio Sto. Nio, Liguan,
Rapu-Rapu, Albay, in connection with the feast day celebration in the said place. Then, at
around 7:30 p.m., the appellant, together with his mother Gloria Barde (Gloria) and brothers
Jimmy, Joel, Rafael, Jovito, Jr., all surnamed Barde, proceeded to the house of Teodora and
reached the same before 9:00 p.m. Teodora offered them food. After eating, they acceded to
the suggestion of Jovito, Jr., to go to the dancing place also located at Sitio Sto. Nio, Liguan,
Rapu-Rapu, Albay, only a ten minute-walk away from the house of Teodora.[31]
Upon reaching the dancing place, they stayed outside as they had no tickets. At
around 11:30 p.m., through the help of William Gutchal (William),[32] appellant and his brothers
Joel and Jimmy, both surnamed Barde, were able to enter the dancing place while his mother
and other brothers remained outside. They immediately proceeded to the left side of the
dancing place near the baffles of the sound system and stood behind the benches as the same
were already occupied. The three of them remained in that place until the explosion occurred
inside the dancing place, which was more or less twenty-five (25) meters away from them. The
people dancing in the area of the explosion died and some were injured.[33]

Appellant claimed that he had no idea how the explosion started because at that time he
and his brother Jimmy were talking to Roger Springael (Roger), who was standing outside the
bamboo fence surrounding the dancing place, as the latter was interested in buying a fighting
cock from him. His other brother, Joel, was also with them, but he was sleeping. In the course of
their conversation, he suddenly heard an explosion. All lights went off and there was a total
blackout inside the dancing place. People were then pushing each other in order to get
out. Appellant was able to go out and run towards a lighted place nearby. When the people
carrying torches came, appellant went back to the dancing place to look for his mother and
brothers. It was already 2:00 a.m. of 15 April 1999, when he saw his mother and brothers. They
went home afterwards. When they reached their house, appellant and his father went to the
house of his injured cousin to inform the latters family of what happened.[34]

The following day, or on 16 April 1999, appellant and Jimmy were invited by Police
Officer, Efren Cardeo (Cardeo), at Camp Simeon Ola, Legazpi City, to be utilized as witnesses
to the explosion incident happened on 15 April 1999. They refused the invitation as they did not
actually witness the explosion. But, Cardeo insisted. On 17 April 1999, appellant and Jimmy
went with Cardeo at Camp Simeon Ola, Legazpi City. Thereafter, they did not see Cardeo
anymore.[35]
 While appellant was at Camp Simeon Ola, Legazpi City, he was brought in one of the
offices there and was told to be a witness to the explosion incident happened at SitioSto. Nio,
Liguan, Rapu-Rapu, Albay. Shortly thereafter, the investigator showed him a typewritten
document and was ordered to sign the same but, he refused because he did not understand its
contents. Appellant maintained that he was even promised money and work should he sign it
and testify but, once again, he refused. Due to his incessant refusal, he was ordered to go
out. There he saw Jimmy who told him that he was also made to sign a certain document but,
he also refused.[36]

Between 10:00 p.m. to 11:00 p.m. of 17 April 1999, appellant and Jimmy were
awakened but the latter continued sleeping. As such, it was only appellant who was brought in
another room and was made to drink wine by persons in civilian clothes. When appellant
declined, he was then accused as the person responsible for the explosion incident.Appellant,
however, strongly denied the accusation. At this instance, appellant was kicked and boxed and
was ordered to admit the accusation but he refused to admit it. Appellant was subsequently
brought inside a detention cell. When he met Jimmy, the latter told him that he was also
tortured.[37]

The next day, or on 18 April 1999, appellant and Jimmy were brought at the office of a
certain General Navarro and they were ordered to stand up with more than 30 people.Later,
Antonio arrived. Appellant avowed that a certain person in civilian clothes instructed Antonio to
point at them as the perpetrators of the explosion incident, which Antonio did. When they were
pinpointed as the authors of the crime, they neither reacted nor denied the
[38]
accusations. Afterwards, appellant and Jimmy were brought back inside their detention cell.

Appellant similarly denied having met Antonio on 20 March 1999 at a dance in Mancao,
Rapu-Rapu, Albay. Appellant likewise denied having told Antonio that whenever he enters a
dance hall he would always create trouble. Appellant maintained that he saw Antonio for the first
time when the latter pinpointed him and Jimmy at the office of a certain General Navarro. The
second time was when Antonio testified in court. Appellant, however, confirmed that Elmer is his
first cousin and he did not know any reason why he would accuse him with such a grave
offense. [39]

Other defense witnesses, Roger, Jimmy and Gloria corroborated appellants testimony.
 Wilfredo Echague (Wilfredo), a radio broadcaster at Radio Filipino, DWRL, since 19
February 1991, testified that on 11 August 2001 while conducting series of interviews in relation
to the explosion incident that happened on 15 April 1999 at Sitio Sto. Nio, Liguan, Rapu-Rapu,
Albay, he met Violeta Buemia (Violeta) at the latters residence in Cabangan, Villa Hermosa,
Rapu-Rapu, Albay, who claimed personal knowledge about the explosion incident. Wilfredos
interview on Violeta was recorded by the former. On 17 August 2001, he accompanied Violeta
to the National Bureau of Investigation (NBI), Legazpi City, where she executed her sworn
statement before Atty. Raymundo D. Sarga, Jr. (Atty. Sarga), Head Agent of
[40]
NBI, Legazpi City.

Violeta affirmed that Wilfredo had interviewed her regarding the explosion incident and
he had also accompanied her in executing her sworn statement before the
[41]
NBI, Legazpi City. During her testimony, she disclosed that at around 10:00 p.m. of 14 April
1999, she and her daughter entered the dancing place at Sto. Nio, Liguan, Rapu-Rapu,
Albay. Her daughter sat down while she stood near the gate. At round 12:00 a.m., which was
already 15 April 1999, she went out to urinate. In a distance of more or less two (2) meters, she
saw Eddie Oloroso (Eddie) standing outside the dancing place and then throw something inside
that hit the wire beside a fluorescent bulb causing some sparks. The place became very bright
and she confirmed that it was really Eddie who threw that something. Eddie then ran away. The
thing exploded when it fell on the ground. The place became dark thereafter. She was hit by the
flying pebbles coming from the explosion. She then looked for her daughter and was able to find
her. Many died and seriously injured in the said explosion incident.[42]

Violeta also explained that it took her more than two years after the incident happened to
come out and testify because she was afraid. Her conscience, however, kept bothering her so
she decided to divulge what she knew about the incident.[43] Later in her testimony, Violeta
admitted that she saw Eddie outside the dancing place and it was appellant and Jimmy, whom
she saw sitting inside the dancing place at the far end of the fence.[44]

Finding the defense of appellant and Jimmy unmeritorious vis-a-vis the evidence
proffered by the prosecution, the trial court rendered its Decision on 29 January 2005finding
appellant guilty of the complex crime of multiple murder with multiple frustrated murder and
imposing upon him the penalty of reclusion perpetua. He was also ordered to pay the legal heirs
of each of the deceased victims the amount of P50,000.00 as civil indemnity, P30,000.00 as
moral damages, and P5,000.00 as temperate damages, as well as each of the surviving victims,
Purisima and Ligaya, the amount of P20,000.00 as moral damages and P5,000.00 as
temperate/actual damages. Jimmy, on the other hand, was acquitted of the crime charged for
the prosecutions failure to prove conspiracy and for insufficiency of evidence. No civil liability
was adjudged against him there being no preponderance of evidence to prove the same.[45]

Aggrieved, appellant moved for the reconsideration of the aforesaid RTC Decision but it
was denied in an Order[46] dated 15 June 2005 for lack of merit.

Accordingly, appellant elevated the 29 January 2005 RTC Decision to the Court of
Appeals with the lone assignment of error, thus:

THE TRIAL COURT GRAVELY ERRED IN FINDING [APPELLANT] GUILTY OF

THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO
ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[47]

On 24 September 2007, the Court of Appeals rendered its Decision, disposing:

WHEREFORE, the Appeal is Denied. The Decision dated [29 January

2005] of the [RTC] of Lega[z]pi City, Branch 1, in Criminal Case No. 8661,
is AFFIRMED with MODIFICATION in that:

1. The [appellant] shall suffer the penalty of Death. However, in view

of the subsequent passage of R.A. No. 9346, which was approved on
[24 June 2006], which repealed R.A. No. 8177[48]and R.A. No.
7659,[49] the penalty of Death is REDUCED to RECLUSION
PERPETUA.
2. The [appellant] is hereby ordered to indemnify the heirs of the
deceased the amount of P50,000.00, as moral damages, P25,000.00,
as temperate damages and P25,000.00 as exemplary
damages. [Appellant] is also ordered to pay each Purisima Dado and
Ligaya Dado temperate damages in the amount of P25,000.00 and
exemplary damages in the amount of P25,000.00.[50][Emphasis
supplied].

Appellant moved for the reconsideration of the aforesaid Court of Appeals Decision, but
to no avail.[51]

Unable to accept his conviction, appellant appeals to this Court reiterating the same
assignment of error he raised before the Court of Appeals, to wit: the trial court gravely erred in
finding appellant guilty of the crime charged despite failure of the prosecution to establish his
guilt beyond reasonable doubt.
 Appellant asserts that his guilt was not proven beyond reasonable doubt because the
evidence presented by the prosecution was not sufficient to overcome his constitutionally
enshrined right to be presumed innocent. He casts doubts on the credibility of prosecution
witness Elmer because his statements were replete with inconsistencies.According to appellant,
Elmer, at first, declared that after the explosion, lights went off and he saw appellant leave the
dancing place but Elmer later stated that immediately after appellant threw the grenade, the
latter went out and upon reaching the gate, the explosion occurred. These inconsistent
statements of Elmer allegedly created doubts as to what actually transpired and who the real
culprit was. Appellant then claims that there is a possibility that Elmer is a rehearsed witness as
such inconsistencies relate to material points.

Appellants contentions are not well-founded, thus, his conviction must stand.

Primarily, it has been jurisprudentially acknowledged that when the issues revolve on
matters of credibility of witnesses, the findings of fact of the trial court, its calibration of the
testimonies of the witnesses, and its assessment of the probative weight thereof, as well as its
conclusions anchored on said findings, are accorded high respect, if not conclusive effect. This
is because the trial court has the unique opportunity to observe the demeanor of witnesses and
is in the best position to discern whether they are telling the truth. [52] In this case, it is notable
that the Court of Appeals affirmed the factual findings of the trial court, according credence and
great weight to the testimonies of the prosecution witnesses. Settled is the rule that when the
trial court's findings have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court,[53] unless the trial court had overlooked, disregarded,
misunderstood, or misapplied some fact or circumstance of weight and significance which if
considered would have altered the result of the case.[54] None of these circumstances is
attendant in this case. This Court, thus, finds no cogent reason to deviate from the factual
findings arrived at by the trial court as affirmed by the Court of Appeals.
Prosecution witnesses, Elmer and Antonio, actually witnessed the explosion
incident. Both of them narrated in detail the events that transpired prior, during and after the
explosion. They had a vivid recollection of how appellant entered the dancing place, walked
towards the people who were dancing, got a rounded object from the belt bag tied on his waist,
pulled something from it, rolled it to the ground towards the people who were dancing and left
the place rapidly. Immediately thereafter, the explosion occurred. The trial court characterized
their testimonies as candid, spontaneous and straightforward that despite rigid cross-
examination their testimonies on who and how the crime was committed remained unshaken
and undisturbed.[55]

With certainty, these prosecution witnesses positively identified appellant as the person
who rolled a rounded object, which was later confirmed as an M26-A1 fragmentation grenade,
towards the people who were dancing, the explosion killing and causing injuries to many. The
identity of appellant was clear to the prosecution witnesses because the dancing place where
the explosion occurred was well lighted. Besides, Elmer and Antonio knew the appellant
well. Elmer is appellants first cousin. Antonio met appellant prior to the explosion incident at a
dance in Mancao, Rapu-Rapu, Albay, where they engaged in some conversations. Given these
circumstances, the prosecution witnesses could not have been mistaken as to appellants
identity.

The records were also wanting in evidence that would show that these witnesses were
impelled by improper motive to impute such a grave offense against the appellant.Even
appellant himself admitted that he did not know any reason why Elmer would accuse him with
such an offense with pernicious consequences on his life and liberty, considering the fact that
they are relatives.

It bears stressing that Elmers brother, Nicanor, died, his other brother, Luis, was
seriously injured and almost died and his two other siblings were also injured because of the
explosion. Elmer had more than enough reason to identify the appellant.[56] Indeed, his
relationship to the victims cannot be taken against him and it does not automatically impair his
credibility and render his testimony less worthy of credence since that no improper motive can
be ascribed to him for testifying.[57] It would be unnatural for a relative who is interested in
seeking justice for the victims to testify against an innocent person and allow the guilty one to go
unpunished.[58] Rather, his inherent desire to bring to justice those whom he personally knew
committed a crime against his close relative makes his identification of the appellant all the
more credible.[59]

In comparison with the clear and straightforward testimony of prosecution witnesses, all
that appellant could muster is the defense of denial and alibi. It is well-entrenched that alibi and
denial are inherently weak and have always been viewed with disfavor by the courts due to the
facility with which they can be concocted. They warrant the least credibility or none at all and
cannot prevail over the positive identification of the appellant by the prosecution
witnesses.[60] For alibi to prosper, it is not enough to prove that appellant was somewhere else
when the crime was committed; he must also demonstrate that it was physically impossible for
him to have been at the scene of the crime at the time of its commission. Unless substantiated
by clear and convincing proof, such defense is negative, self-serving, and undeserving of any
weight in law.[61] Denial, like alibi, as an exonerating justification is inherently weak and if
uncorroborated regresses to blatant impotence. Like alibi, it also constitutes self-serving
negative evidence which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.[62]

In this case, appellant himself and all his witnesses admitted that appellant was at the
scene of the crime until the explosion occurred. With that, the defense ultimately failed to meet
the necessary requisites for the proper invocation of alibi as a defense.

Appellants defense of denial cannot also be given any considerable weight as it was
unsubstantiated. The testimony of Violeta pointing at Eddie as the real culprit is intended to
bolster appellants defense of denial. However, it cannot be given credence. Her testimony was
given only after more than two years from the time the incident happened, and she failed to offer
any convincing evidence to justify such delay. Records do not show that there was any threat on
Violetas life that might have prevented from coming out to testify.She herself admitted that after
the explosion incident she did not see Eddie anymore. Eddie then could not have possibly
threatened her. She could freely testify on what she knew about the explosion incident had she
wanted to. Her alleged fear is unfounded. It cannot justify her long delay in disclosing it before
the court a quo. Moreover, if she was, indeed, afraid, she would not have allowed herself to be
interviewed by a radio broadcaster and would not have divulged to him all that she knew about
the incident. Instead of directly disclosing it to the proper authorities, she had chosen to tell it
first to a radio broadcaster. Further, the only reason she gave the court for her silence of more
than two years was that she began to be bothered by her conscience as she recently kept on
dreaming of those who died in the explosion incident especially during All Souls Day. Violeta, in
other words, cannot rely on the doctrine that delay of witnesses in revealing what they know
about a crime is attributable to their natural reticence against involvement therein.[63]

More telling is Violetas categorical admission that Eddie was outside the dancing place
and it was appellant whom she saw inside the dancing place prior to the explosion
incident. With this testimony, Violeta made appellants defense of denial even weaker.
 In light of the categorical and positive identification of the appellant by prosecution
witnesses, without any showing of ill-motive on the part of the latter testifying on the matter,
appellant's defense of bare denial and alibi cannot prosper.[64]

As regards the alleged inconsistencies on Elmers narration of events, this Court

considers the same trivial, inconsequential and do not affect the credibility of the statement that
it was appellant who rolled the hand grenade towards the people dancing inside the dancing
place, the explosion killing and injuring scores of victims. Furthermore, the alleged
inconsistencies pointed to by appellant have been properly clarified in the course of Elmers
testimony. As the Court of Appeals stated in its Decision, thus:

Records reveal that during the direct examination, Elmer testified that
immediately after the [appellant] rolled the grenade, he went out and when he
was about to reach the gate the grenade exploded, while on cross-examination,
Elmer testified that he saw [appellant] leave the [dancing place] after the
explosion. However, when the trial court and [appellants counsel] asked him
about the inconsistency, Elmer clarified and confirmed that [appellant] left the
dance place before the explosion.[65]

Inconsistencies in the testimonies of witnesses which refer to minor and insignificant

details do not destroy their credibility. They, instead, manifest truthfulness and candor and erase
any suspicion of rehearsed testimony.[66]

All told, this Court affirms the findings of the trial court and the appellate court that,
indeed, appellant was the author of the explosion incident that happened on 15 April 1999
inside the dancing place at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, which took away the lives
and caused injuries to the people thereat.
As to the crime committed. The trial court and the appellate court convicted appellant of
the complex crime of multiple murder with multiple frustrated murder. This Court believes,
however, that appellant should only be convicted of the complex crime of multiple
murder with double attempted murder.

Appellants act of detonating a hand grenade, particularly an M26-A1 fragmentation

grenade, inside the dancing place at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, resulted in the
death of 15 people, namely: Francisco Biago, Jr., Roger Siso, Nicanor Oloroso, Margie
Baadera, Victor Baadera, Bienvenido Baadera, Diosdado Baadera, William Butial, Maryjane
Bechayda, Richard Blansa, Efren Yasul, Jose Bombales, Deony Balidoy, Daisy Olorozo and
Rolly Belga. The fact of death of these deceased victims was evidenced by their respective
certificates of death and testimonies of their respective relatives. The defense similarly admitted
that these victims died as a result of the explosion incident.

Article 248 of the Revised Penal Code provides:

ART. 248. Murder. Any person who, not falling within the provisions of
article 246 shall kill another, shall be guilty of murder and shall be punished
by reclusion perpetua to death if committed with any of the following
attendant circumstances:

1. With treachery, taking advantage of superior strength, with

the aid of armed men, or employing means to weaken the defense or of means
or persons to insure or afford impunity.

xxxx

3. By means of inundation, fire, poison, explosion, shipwreck, stranding

of a vessel, derailment or assault upon a railroad, fall of an airship, or by means
of motor vehicles, or with the use of any other means involving great waste and
ruin. [Emphasis supplied].

From the afore-quoted provision of law, the killing of the aforesaid deceased victims with
the use of explosive, i.e., hand grenade particularly M26-A1 fragmentation grenade, certainly
qualifies the crime to murder.

Treachery, which was alleged in the Information, also attended the commission of the
crime. Time and again, this Court, in a plethora of cases, has consistently held that there is
treachery 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 ensure its
execution without risk to himself arising from the defense that the offended party might
make. There are two (2) conditions that must concur for treachery to exist, to wit: (a) the
employment of means of execution gave the person attacked no opportunity to defend himself
or to retaliate; and (b) the means or method of execution was deliberately and consciously
adopted.[67] The essence of treachery is that the attack is deliberate and without warning, done
in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no
chance to resist or escape.[68]

As elucidated by the trial court in its Decision:

 The victims were completely unaware of the danger forthcoming to them
as they were in the midst of enjoying a dance. The [appellant] who caused the
rolling of the hand grenade was at a complete advantage knowing that no risk to
his life was involved as he can immediately fled [and] run away from the scene of
the crime before any explosion could occur. There was no defense so to speak of
that may came from the victims because they were completely unaware of the
danger about to happen in their midst resulting as it did to deaths and injuries to
many people among the crowd dancing. The act of rolling the hand grenade is
unpardonable. It is a treacherous heinous act of the highest order. The victims
can do nothing but to cry to high heavens for vengeance.

xxxx

As supported by the evidence adduced at the trial, [it] is fully convinced

that the crime charge was committed under a cloak of treachery, and there is no
doubt about it. The attacker suddenly came armed with a live fragmentation
grenade, removed its pin and threw it towards the crowd who were enjoying a
dance, unsuspecting of any danger that larks in their midst, thereby depriving
them of any real opportunity to defend themselves. The attacker has employed a
swift and unexpected attack to insure its execution without risk to himself x x x. [69]

As the killing, in this case, is perpetrated with both treachery and by means of
explosives, the latter shall be considered as a qualifying circumstance since it is the principal
mode of attack. Reason dictates that this attendant circumstance should qualify the offense
while treachery will be considered merely as a generic aggravating circumstance.[70]

The Information also alleged that evident premeditation attended the commission of the
crime. For evident premeditation to be appreciated, the prosecution must prove the following
elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing
that the accused clung to their determination to commit the crime; and (3) the lapse of a period
of time between the decision and the execution of the crime sufficient to allow the accused to
reflect upon the consequences of the act.[71] However, none of these elements could be
gathered from the evidence on record.

Appellants act of detonating a hand grenade, particularly M26-A1 fragmentation

grenade, inside the dancing place at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, likewise resulted
in the wounding of several persons. But, out of the 76 injured victims named in the Information,
only Purisima and Ligaya, both surnamed Dado, appeared personally in court to testify on the
injuries and damages sustained by them by reason thereof.
Purisima affirmed that after the explosion she was brought to the hospital because she
suffered punctured wounds on her legs and forehead by reason thereof. Also, she was not able
to walk for two (2) weeks. She was not confined though.[72] She was issued medical
certificate[73] dated 23 April 1999 in relation thereto stating that her injuries will incapacitate her
or will require medical assistance for one to two weeks. Her testimony, as well as her medical
certificate, however, never mentioned that the wounds or injuries sustained by her were fatal or
mortal and had it not for the timely medical assistance accorded to her she would have died. In
the same way, Ligaya stated that because of the explosion she suffered blasting injuries on her
chest and right forearm. She was confined and treated for five days at BRTTH, Legazpi
City,[74] as evidenced by her medical certificate[75] dated 26 April 1999. There was also no
mention that her injuries and wounds were mortal or fatal.

Despite the fact that the injuries sustained by Purisima and Ligaya were not mortal or
fatal, it does not necessarily follow that the crimes committed against them were simply less
serious physical injuries,[76] because appellant was motivated by the same intent to kill when he
detonated the explosive device inside the dancing place.[77] Since the injuries inflicted upon
them were not fatal and there was no showing that they would have died if not for the
timely medical assistance accorded to them, the crime committed against them is merely
attempted murder.

As this Court has previously stated, the rest of the injured victims named in the
Information failed to testify. Though their medical certificates were attached in the records, they
were not marked as exhibits and were not formally offered as evidence by the
prosecution. Consequently, this Court cannot consider the same to hold that the crime
committed as to them is frustrated murder and to grant damages in their favor. This Court has
held in People v. Franco,[78] thus:

We thus reiterate the rule that the court shall consider no evidence
which has not been formally offered. So fundamental is this injunction that
litigants alike are corollarily enjoined to formally offer any evidence which they
desire the court to consider. Mr. Chief Justice Moran explained the rationale
behind the rule in this wise:
The offer is necessary because it is the duty of a judge to rest his
findings of facts and his judgment only and strictly upon the evidence
offered by the parties to the suit.[79] [Emphasis supplied].

Without the testimonies of the other injured victims or their medical certificates, the court
will have no basis to hold that appellant committed the crime of frustrated murder as to them.

Given the foregoing, it is clear that this case falls under the first clause of Article 48 [80] of
the Revised Penal Code because by a single act, that of detonating an explosive device inside
the dancing place, appellant committed two grave felonies, namely, (1) murder as to the 15
persons named in the Information; and (2) attempted murder as to Purisima and Ligaya.

Therefore, this Court holds appellant guilty beyond reasonable doubt of the complex
crime of multiple murder with double attempted murder.

As to penalty. Article 48 of the Revised Penal Code explicitly states:

ART. 48. Penalty for complex crimes. When a single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. [Emphasis
supplied].

A complex crime is committed when a single act constitutes two or more grave or less
grave felonies. Appellants single act of detonating an explosive device may quantitatively
constitute a cluster of several separate and distinct offenses, yet these component criminal
offenses should be considered only as a single crime in law on which a single penalty is
imposed because the offender was impelled by a single criminal impulse which shows his lesser
degree of perversity.[81] Thus, applying the aforesaid provision of law, the maximum penalty for
the most serious crime, which is murder, is death. Pursuant, however, to Republic Act No. 9346
which prohibits the imposition of the death penalty, the appellate court properly reduced the
penalty of death, which it previously imposed upon the appellant, to reclusion perpetua.

As to damages. Article 2206 of the Civil Code provides that when death occurs as a
result of a crime, the heirs of the deceased are entitled to be indemnified for the death of the
victim without need of any evidence or proof thereof.[82] Moral damages like civil indemnity, is
also mandatory upon the finding of the fact of murder.[83] To conform with recent jurisprudence
on heinous crimes where the proper imposable penalty is death, if not for Republic Act No.
9346, the award of civil indemnity and moral damages to the heirs of each of the deceased
victims are both increased to P75,000.00 each.[84]

It is settled that exemplary damages may be awarded in criminal cases as part of civil
liability if the crime was committed with one or more aggravating circumstances. [85] In this case,
the generic aggravating circumstance of treachery attended the commission of the crime. The
award of exemplary damages, therefore, is in order. To conform to current jurisprudence, this
Court likewise increased the award of exemplary damages given by the appellate court to the
heirs of each of the deceased victims to P30,000.00 each.[86]

Actual damages cannot be awarded for failure to present the receipts covering the
expenditures for the wake, coffin, burial and other expenses for the death of the victims. In lieu
thereof, temperate damages may be recovered where it has been shown that the victims family
suffered some pecuniary loss but the amount thereof cannot be proved with certainty as
provided for under Article 2224 of the Civil Code.[87] This Court finds the award of P25,000.00
each to the heirs of each of the deceased victims proper.

The surviving victims, Purisima and Ligaya, are also entitled to moral, temperate and
exemplary damages.

Ordinary human experience and common sense dictate that the wounds inflicted upon
the surviving victims, Purisima and Ligaya would naturally cause physical suffering, fright,
serious anxiety, moral shock, and similar injuries. It is only justifiable to grant them moral
damages in the amount of P40,000.00 each in conformity with this Courts ruling in People v.
Mokammad.[88]

This Court affirms the appellate courts award of P25,000.00 as temperate damages to
each of the surviving victims, Purisima and Ligaya. It is beyond doubt that these two surviving
victims were hospitalized and spent money for their medication. However, Purisima failed to
present any receipt for her hospitalization and medication. Nevertheless, it could not be denied
that she suffered pecuniary loss; thus, it is only prudent to award P25,000.00 to her as
temperate damages.[89] Ligaya, on the other hand, presented receipts for her hospitalization and
medication but the receipts were less than P25,000.00. In People v. Magdaraog[90] citing People
v. Andres, Jr.,[91] when actual damages proven by receipts during the trial amount to less
than P25,000.00 as in this case, the award of temperate damages for P25,000.00 is justified in
lieu of actual damages of a lesser amount.

Finally, the award of exemplary damages is also in order considering that the crime was
attended by the qualifying circumstance of treachery.[92] The award of exemplary damages to
Purisima and Ligaya is increased to P30,000.00 to conform to current jurisprudence.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R.

CR-H.C. No. 01245 dated 24 September 2007 is
hereby AFFIRMED with MODIFICATIONS. Appellant is found guilty of the complex crime of
multiple murder with double attempted murder. In view, however, of Republic Act No. 9346
prohibiting the imposition of the death penalty, appellant is hereby sentenced to suffer the
penalty of reclusion perpetua without the benefit of parole. The award of civil indemnity, moral
and exemplary damages to the heirs of each of the deceased victims are hereby increased
to P75,000.00, P75,000.00, and P30,000.00, respectively. The surviving victims, Purisima and
Ligaya, are also awarded moral damages of P40,000.00 each. The award of exemplary
damages to these surviving victims is likewise increased to P30,000.00 each.
SO ORDERED.

45.) G.R. No. 137347 March 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.:

For automatic review is the Decision1 of the Regional Trial Court of Quezon City, Branch 95,
convicting appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-
year-old Vincent Jorojoro, Jr. while the latter was flying his kite on top of a roof. The court a quo
sentenced the appellant to suffer the death penalty.

The accusatory portion of the Information charging the appellant with murder reads:

That on or about the 26th day of September 1998, in Quezon City, Philippines, the said
accused, with intent to kill, by means of treachery and taking advantage of superior
strength, did then and there, wilfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of VINCENT JOROJORO, JR. y MORADAS,
a minor, eleven (11) years of age, by then and there, shooting him with a gun, hitting him
on the head, thereby inflicting upon him serious and mortal wound which was the direct
and immediate cause of his death, to the damage and prejudice of the heirs of the said
offended party.

CONTRARY TO LAW.2

Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel, pleaded
not guilty. Thereafter, trial ensued.
 Case for the Prosecution3

Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro. The
family lived at Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent, nicknamed
"Hataw," was a grade three pupil whose education was sponsored by the Spouses Petinato, an
American couple, through an educational foundation.4

The appellant was an officer of the Philippine National Police detailed in the Traffic Management
Group (TMG) based in Camp Crame, Quezon City, but was on detached service with the
Motorcycle Unit of the Metropolitan Manila Development Authority (MMDA).

At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother Felicisima
if he could play outside. She agreed.5 Together with his playmate Whilcon "Buddha" Rodriguez,
Vincent played with his kite on top of the roof of an abandoned carinderia beside the road in
Sitio Militar, Barangay Bahay Toro. Beside this carinderia was a basketball court, where
fourteen-year-old Ricardo Salvo and his three friends, nicknamed L.A., Nono and Puti, were
playing backan, a game of basketball.

Ricardo heard the familiar sound of a motorcycle coming from the main road across the
basketball court. He was nonplussed when he looked at the person driving the motorcycle and
recognized the appellant. Ricardo knew that the appellant abhorred children playing on the roof
of the carinderia and berated them for it. His friend Ong-ong had previously been scolded by the
appellant for playing on the roof.

Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw
Vincent and Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang
mga batang ito, hindi kayo magsibaba d'yan!" After hearing the shouts of the appellant, Whilcon
immediately jumped down from the roof.6 Vincent, meanwhile, was lying on his stomach on the
roof flying his kite. When he heard the appellant's shouts, Vincent stood up and looked at the
latter. Vincent turned his back, ready to get down from the roof. Suddenly, the appellant pointed
his .45 caliber pistol7 towards the direction of Vincent and fired a shot. Vincent was hit on the left
parietal area. He fell from the roof, lying prostrate near the canal beside the
abandoned carinderia and the basketball court.8

Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head.
Whilcon retreated and left his friend.9 The appellant approached Vincent and carried the latter's
hapless body in a waiting tricycle and brought him to the Quezon City General Hospital. Vincent
was pronounced dead on arrival.

Meantime, word reached Vincent's parents that their son was shot and brought to the hospital.
They rushed to the hospital, only to see their son's already lifeless body. The appellant was
nowhere to be found.

Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of
Investigation (NBI) conducted an autopsy where he made the following findings:

Cyanosis, lips and nailbeds.

Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.
 Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.

Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges,
abrasion collar widest postero-inferiorly, located at the head, left parietal area, 9.0 cms.
above and 8.0 cms. behind the left external auditory meatus, directed forward upward
and from left to right, involving the scalp, fracturing the left parietal bone (punched-in),
lacerating the left and right cerebral hemispheres of the brain, fracturing the right parietal
bone (punched-out), lacerating the scalp, making an Exit wound, 3.3 x 1.0 cms., stellate
with everted and irregular edges, 12.0 cms. above and 2.0 cms. in front of the right
external auditory meatus.

Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.

Scalp hematoma, fronto-parietal areas, bilateral.

Visceral organs, congested.

Stomach, one-fourth (1/4) filled with partially digested food particles.

CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet
entered the left upper back portion of the head (above the level of the left ear)11 and exited to
the right side.12 Dr. Baluyot signed Vincent's certificate of death.13

At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded to
the scene of the shooting but failed to find the victim and the appellant. They proceeded to the
Quezon City General Hospital where they heard that the victim had died. They returned to the
crime scene and recovered an empty shell from a .45 caliber gun.14

On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which the
appellant was assigned on detached service, reported to the Sangandaan Police Station that
the appellant had not reported for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior
Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered
the appellant to the Sangandaan Police Station together with his .45 caliber pistol bearing Serial
No. AOC-38701.16

Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of
Justice where he was enrolled under its Witness Protection Program. He gave his sworn
statement to NBI Special Agent Roberto Divinagracia on September 29, 1998.17 On the same
date, P/Insp. Abelardo Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit
requesting for the ballistic examination of the .45 caliber pistol with Serial No. AOC-38701 and
the empty shell of a .45 caliber gun found at the scene of the shooting.18 Before noon on
September 30, 1998, Divinagracia arrived at the station and turned over two witnesses,
Raymond Castro and Ricardo Salvo. He also turned over the witnesses' sworn statements.19 On
October 2, 1998, on orders of the police station commander,20 Pajarillo took pictures of the
crime scene, including the carinderia and the roof with a bullet hole as part of the office
filing.21 He did not inform the prosecution that he took such pictures, nor did he furnish it with
copies thereof. However, the appellant's counsel learned of the existence of the said pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-124-
98 stating that:

FINDINGS:

Microscopic examination and comparison of the specimen marked "FAP"

revealed the same individual characteristics with cartridge cases fired from the
above-mentioned firearm.

CONCLUSION:

The specimen marked "FAP" was fired from the above-mentioned caliber .45
Thompson Auto Ordnance pistol with serial number AOC-38701.22

Vincent's family suffered mental anguish as a result of his death. As evidenced by receipts, they
spent P49,174 for the funeral.23

Case for the Appellant

The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26,
1998, Macario Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance;
Macario's brother-in-law was drunk and armed with a knife, and was creating trouble in their
house. The appellant's house was located along a narrow alley (eskinita) perpendicular to the
main road. It was 200 meters away from Macario's house.24 Responding to the call, the
appellant took his .45 service revolver, cocked it, put the safety lock in place and tucked the gun
at his right waistline. He brought out his motorcycle from the garage and slowly negotiated the
bumpy alley leading to the main road. Macario, who was waiting for him at the main road, called
his attention to his revolver which was about to fall off from his waist. The appellant got
distracted and brought his motorcycle to the right side of the road, near the abandoned
carinderia where he stopped. As he stepped his right foot on the ground to keep himself from
falling, the appellant lost his balance and slipped to the right. At this point, the revolver fell to the
ground near his foot and suddenly went off. Bystanders shouted, "Ano yon, ano yon, mukhang
may tinamaan." He picked up his gun and examined it. He put the safety latch back on and
tucked it at his right waistline. He then told Macario to wait for a while to check if somebody was
really hit. He went near the abandoned carinderia and saw Vincent sprawled to the ground. He
picked up the bloodied child, boarded him on a tricycle on queue and instructed its driver, Boy
Candaje, to bring the boy to the hospital.25 On board the tricycle were Jeffrey Dalansay and
Milbert Doring.

The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but
did not inform her of the incident. He then called his superior officer, Major Isidro Suyo, at the
Base 103, located at Roces Avenue, Quezon City. The appellant informed Major Suyo that he
met an accident; that his gun fell and fired; and, that the bullet accidentally hit a child. He also
told his superior that he might not be able to report for work that day and the following day. He
assured his superior that he would surrender later. He then went to Valenzuela City to the
house of his friend PO3 Angelito Lam, who was a motorcycle unit cop. The appellant stayed
there for three days. He also visited friends during that time.

On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber
pistol. Major Suyo accompanied and turned over the appellant to the commanding officer at
Camp Crame, Quezon City. The appellant was subjected to a neuro and drug test. He stated
that the results of the drug test were negative. The appellant was then referred to the
Sangandaan Police Station for investigation.26 The pictures27 of the crime scene were given to
him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing to a bullet hole.
The appellant's testimony was corroborated in pari materia by Macario Ortiz.

Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of
September 26, 1998, he was playing basketball at Barangay Bahay Toro, at the basketball court
along the road beside the chapel. With him were Ricardo, Puti and Nono. Vincent was on the
rooftop of the carinderia with Whilcon. While Puti was shooting the ball, an explosion ensued.
He and Ricardo ran beside the chapel near the basketball court. He looked back towards the
basketball court and saw the appellant, about 15 meters away from the canal, holding the
prostrate and bloodied Vincent. He did not see the appellant shoot Vincent. He did not report
what he saw to the police authorities. He was ordered by his father to testify for the appellant.
He also testified that his mother was related to Daniel, the appellant's brother.

On January 19, 1999, the trial court rendered judgment convicting the appellant of murder,
qualified by treachery and aggravated by abuse of public position. The trial court did not
appreciate in favor of the appellant the mitigating circumstance of voluntary surrender. The
decretal portion of the decision reads:

WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand

Fallorina y Fernando GUILTY beyond reasonable doubt of the crime of Murder defined
in and penalized by Article 248 of the Revised Penal Code, as amended by Republic Act
No. 7659, and in view of the presence of the aggravating circumstance of taking
advantage by the accused of his public position (par. 1, Art. 14, Revised Penal Code), is
hereby sentenced to suffer the penalty of DEATH.

The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr. the
amounts of P49,174.00, as actual damages; P50,000.00, as moral damages;
P25,000.00, as exemplary damages; and, P50,000.00, as death indemnity.

The accused is to pay the costs.

The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain under the
custody of the Court and shall be disposed of in accordance with the existing rules and
regulations upon the finality of this decision.28

The appellant assigned the following errors for resolution:

1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO

RELEVANT PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE
ALTERED THE CONCLUSIONS ARRIVED AT BY THE COURT AND THE OUTCOME
OF THE CASE.

2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF

JUDGING AND ADVOCACY, AND GOING INTO THE REALM OF SPECULATION,
PATENTLY DEMONSTRATING BIAS AND PARTIALITY.
 3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE TESTIMONY
OF RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS, WHOSE
TESTIMONY IS WANTING IN PROBABILITY, AS IT IS CONTRARY TO THE COMMON
EXPERIENCE OF MANKIND.

4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING

EXCULPATORY AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH
SHOULD HAVE BEEN CONSIDERED IN FAVOR OF THE ACCUSED.

5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED.

6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING

CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS POSITION BY ACCUSED.29

The appellant asserts that the trial court failed to appreciate in his favor the physical evidence,
viz., the hole found on the rooftop of the carinderia where Vincent was when he was shot. The
appellant contends that the picture30taken on October 2, 1998 by no less than SPO2 Felix
Pajarillo, one of the principal witnesses of the prosecution, and the pictures31 showing Barangay
Tanod Yaket pointing to a hole on the roof buttress the defense of the appellant that the
shooting was accidental. The appellant maintains that his service revolver fell to the ground, hit
a hard object, and as the barrel of the gun was pointed to an oblique direction, it fired, hitting the
victim who was on the rooftop. The bullet hit the back portion of the victim's head, before exiting
and hitting the rooftop. The appellant posits that the pictures belie Ricardo's testimony that he
deliberately shot the victim, and, instead, complements Dr. Baluyot's testimony that the gunshot
wound came from somewhere behind the victim, somewhere lower than the point of entrance.
The appellant invokes P/Insp. Mario Prado's testimony that if a gun hits the ground in an oblique
position, the gun will fire and the bullet will exit in the same position as the gun, that is, also in
an oblique position.

The Office of the Solicitor General, for its part, asserts that the contention of the appellant is
based on speculations and surmises, the factual basis for his conclusion not having been
proven by competent and credible evidence. There is no evidence on record that the hole
shown in the pictures32 was caused by a bullet from a .45 caliber pistol. The appellant did not
present Barangay Tanod Johnny Yaket, who was shown in the pictures, to testify on the matter.
The appellant failed to prove that any slug was found on the rooftop or under the roof which
came from the appellant's .45 caliber pistol. According to the Solicitor General, the pictures
relied upon by the appellant cannot overcome the positive and straightforward testimony of the
young eyewitness Ricardo Salvo.

We agree with the Office of the Solicitor General. Whether or not the appellant is exempt from
criminal liability is a factual issue. The appellant was burdened to prove, with clear and
convincing evidence, his affirmative defense that the victim's death was caused by his gun
accidentally going off, the bullet hitting the victim without his fault or intention of causing it;
hence, is exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal Code
which reads

The following are exempt from criminal liability:

 4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.

The basis for the exemption is the complete absence of intent and negligence on the part of the
accused. For the accused to be guilty of a felony, it must be committed either with criminal intent
or with fault or negligence.33

The elements of this exempting circumstance are (1) a person is performing a lawful act; (2)
with due care; (3) he causes an injury to another by mere accident; and (4) without any fault or
intention of causing it.34 An accident is an occurrence that "happens outside the sway of our will,
and although it comes about through some act of our will, lies beyond the bounds of humanly
foreseeable consequences." If the consequences are plainly foreseeable, it will be a case of
negligence.

In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an accident is a
fortuitive circumstance, event or happening; an event happening without any human agency, or
if happening wholly or partly through human agency, an event which under the circumstance is
unusual or unexpected by the person to whom it happens. Negligence, on the other hand, is the
failure to observe, for the protection of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly demand without which such other
person suffers injury. Accident and negligence are intrinsically contradictory; one cannot exist
with the other.36 In criminal negligence, the injury caused to another should be unintentional, it
being simply the incident of another act performed without malice.37 The appellant must rely on
the strength of his evidence and not on the weakness of that of the prosecution because by
admitting having caused the death of the victim, he can no longer be acquitted.

In this case, the appellant failed to prove, with clear and convincing evidence, his defense.

First. The appellant appended to his counter-affidavit in the Office of the Quezon City
Prosecutor the pictures showing the hole on the roof of the carinderia38 to prove that he shot the
victim accidentally. However, when the investigating prosecutor propounded clarificatory
questions on the appellant relating to the pictures, the latter refused to answer. This can be
gleaned from the resolution of the investigating prosecutor, thus:

Classificatory questions were propounded on the respondent but were refused to be

answered. This certainly led the undersigned to cast doubt on respondent's allegations.
The defenses set forth by the respondent are evidentiary in character and best
appreciated in a full-blown trial; and that the same is not sufficient to overcome probable
cause.39

Second. The appellant did not see what part of the gun hit the victim.40 There is no evidence
showing that the gun hit a hard object when it fell to the ground, what part of the gun hit the
ground and the position of the gun when it fell from the appellant's waist.

Third. In answer to the clarificatory questions of the court, the appellant testified that the
chamber of his pistol was loaded with bullets and was cocked when he placed it on his right
waistline.41 He also testified that the gun's safety lock was on. He was asked if the gun would
fire if the hammer is moved backward with the safety lock in place, and the appellant admitted
that even if he pulled hard on the trigger, the gun would not fire:
Q Is this your service firearm?

A Yes, Your Honor.

Q So the chamber might have been loaded when you went out of the house?

A Yes, Your Honor.

Q What about the hammer, how was the hammer at that time when you tucked the
gun in your waistline?

A The hammer was cocked like this.

COURT:

Can you not stipulate that the hammer is moved backwards near the safety grip.

ATTY. AND PROS. SINTAY:

Admitted, Your Honor.

ATTY. PEREZ:

Yes, Your Honor.

COURT: (to the witness)

Q You are a policeman, if there is a bullet inside the barrel of the gun and then the
hammer is moved backwards and therefore it is open, that means that if you pull the
trigger, the bullet will fire because the hammer will move forward and then hit the base of
the bullet?

A Yes, Your Honor.

Q Therefore, the gun was cocked when you came out?

A Yes, Your Honor.

Q You did not place the safety lock before you went out of your house?

A I safety (sic) it, sir.

Q So when you boarded the motorcycle, the gun was on a safety lock?

A Yes, Your Honor.

Q Will you please place the safety lock of that gun, point it upwards.
(witness did as instructed)

It is now on a safety locked (sic)?

A Yes, Your Honor.

Q Pull the trigger if the hammer will move forward?

(witness did as instructed)

A It will not, Your Honor.

COURT: (to the parties)

Q Can you not admit that at this position, the accused pulled the trigger, the hammer
did not move forward?

PROS. SINTAY AND ATTY. PRINCIPE:

Admitted, Your Honor.

COURT: (to the witness)

Q And therefore at this position, even if I pull the trigger many times, a bullet will not
come out from the muzzle of the gun because the hammer is on a safety locked (sic)?

A Yes, Your Honor.

Q Even if I pushed it very hard, it will not fire the gun?

A Yes, Your Honor.

Q Alright, I will ask you again a question. If the hammer of the gun is like this and
therefore it is open but it is on a safety lock, there is space between the safety grip which
is found below the hammer, there is a space, is it not?

A Yes, Your Honor.

Q That even if I pushed the safety grip forward, like this.

The Court gave the gun to the accused for him to demonstrate.

(to the witness)

You push it forward in order to push the hammer. Hard if you want but do not remove the
safety lock.

(witness did as instructed)

 The witness tried to push the safety grip and it does not touch the hammer even if the
hammer is cocked.42

Fourth. The trial court was witness as the appellant's counsel himself proved that the defense
proffered by the appellant was incredible. This can be gleaned from the decision of the trial
court:

3. More importantly, and which the Court considers it as providential, when the counsel
of the accused was holding the gun in a cocked position and the safety lock put in place,
the gun accidentally dropped on the cemented floor of the courtroom and the gun did not
fire and neither was the safety lock moved to its unlock position to cause the hammer of
the gun to move forward. The safety lock of the gun remained in the same position as it
was when it dropped on the floor.43

Fifth. After the shooting, the appellant refused to surrender himself and his service firearm. He
hid from the investigating police officers and concealed himself in the house of his friend SPO3
Angelito Lam in Valenzuela City, and transferred from one house to another for three days to
prevent his arrest:

Q So did you surrender that afternoon of September 26, 1998?

A No, Your Honor.

Q I thought you were surrendering to Major Suyo?

A I was but I was not able to surrender to Major Suyo, Your Honor.

Q Why, you were already able to talk to Major Suyo?

A Because at that time I was already confused and did not know what to do, Your
Honor.

ATTY. PRINCIPE: (to the witness)

Q What is your relation with PO3 Angelito Lam of Valenzuela?

A Just my co-motorcycle unit cop in the TMG, sir.

Q Did I hear you right that you slept at the residence of PO3 Lam for three days?

A Yes, sir.

Q Why instead of going home to your residence at Bahay Toro?

A Because I am worried, sir.

COURT: (to the witness)

Q So what did you do for three days in the house of PO3 Lam?
 A During daytime, I go to my friends, other friends and in the evening, I go back to
the house of PO3 Lam, Your Honor.

Q So if you were able to visit your friends on September 27 or 28, 1998 and then
returned to the house of PO3 Lam in the evening, why did you not go to Major Suyo or to
your 103 Base?

A Your Honor, during those days I am really calling Major Suyo.

Q Why did you not go to your office at Camp Crame, Quezon City?

A At that time, I did not have money, Your Honor.

Q What is the connection of you having money to that of informing your officer that
you will surrender?

A What I know, Your Honor, is that if I do that I will already be detained and that I will
have no money to spend.

ATTY. PRINCIPE: (to the witness)

Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not even
visit your family in Barangay Bahay Toro?

A No, sir.

COURT: (to the witness)

Q Did you send somebody to visit your family?

A No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q Did you cause to blotter the shooting incident of Vincent?

A I was not able to do that, sir.

Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?

A No sir, because I already brought the child to the hospital.44

The conduct of the appellant after the shooting belies his claim that the death of the victim was
accidental and that he was not negligent.

We agree with the encompassing disquisitions of the trial court in its decision on this matter:

The coup de grace against the claim of the accused, a policeman, that the victim was
accidentally shot was his failure to surrender himself and his gun immediately after the
 incident. As a police officer, it is hard to believe that he would choose to flee and keep
himself out of sight for about three (3) days if he indeed was not at fault. It is beyond
human comprehension that a policeman, who professes innocence would come out into
the open only three (3) days from the incident and claim that the victim was accidentally
shot. Human behavior dictates, especially when the accused is a policeman, that when
one is innocent of some acts or when one is in the performance of a lawful act but
causes injury to another without fault or negligence, he would, at the first moment,
surrender to the authorities and give an account of the accident. His failure to do so
would invite suspicion and whatever account or statement he would give later on
becomes doubtful.

For the accused, therefore, to claim that Vincent was accidentally shot is odious, if not,
an insult to human intelligence; it is incredible and unbelievable, and more of a fantasy
than a reality. It was a deliberate and intentional act, contrary to accused's claim, that it
happened outside the sway of his will.45

It is a well-entrenched rule that findings of facts of the trial court, its calibration of the testimonies
of the witnesses, its assessment of the credibility of the said witnesses and the probative weight
of their testimonies are accorded high respect, if not conclusive effect by the appellate court, as
the trial judge was in a better position to observe the demeanor and conduct of the witnesses as
they testified.46 We have carefully reviewed the records of the case and found no reason to
deviate from the findings of the trial court.

The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a

positive and straightforward manner, which testimony had the earmarks of truth and sincerity.
Even as he was subjected to a grueling cross-examination by the appellant's counsel, he never
wavered in his testimony. He positively identified the appellant as the assailant and narrated in
detail how the latter deliberately aimed his gun and shot the victim. The relevant portions of his
testimony are quoted:

Q: While playing basketball with Nono, LA and Puti, do you remember of any
unusual incident which took place?

A: Yes, sir.

Q: What was that unusual incident?

A: When Vincent was shot, sir.

Q: Who shot Vincent?

A: Ferdinand Fallorina, sir.

Q: And in what place that Vincent was shot by Fallorina?

A: He was at the roof of the karinderia, sir.

Q: Was there any companion of Vincent?

A: Yes, sir.

Q: What was the position of Vincent at that time that you saw him and Fallorina shot
him?

A: "Nakatalikod po siya."

Q: You included in this Exhibit O your drawing the figure of a certain Jeffrey and you
and his tricycle? Why did you include this drawing?

A: Because it was in the tricycle where Vincent was boarded to and brought to the
hospital.

(Witness referring to Exhibit O-11)

Q: And who was the driver of that tricycle?

A: It was Jeffrey who drove the tricycle, sir.

Q: You also drew here a motorcycle already marked as Exhibit O-7. Why did you
include the motorcycle?

A: Because Fallorina was riding on that motorcycle at that time.

COURT: (to the witness)

Q: So when Ferdinand Fallorina shot the boy, the motorcycle was moving?

A: It was stationary, your Honor.

Q: Did you see where he came from, I am referring to Fallorina before you saw him
shot the boy?

A: He came from their house, Your Honor.

Q: What was his attire, I am referring to Ferdinand Fallorina?

A: He was wearing white shirt and blue pants, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q: At that time that Fallorina shot the victim, was Buddha still there?

A: He ran, sir. He jumped in this place, sir.

(Witness is pointing to a place near the canal already marked as Exhibit O-14).

Q: Now from the witness stand that you are now seated. Can you tell the Court how
far where (sic) you from Fallorina at that time of the shooting?

COURT:

Can the prosecution and the accused stipulate that the distance pointed to by the
witness is more or less 7 meters.

ATTY. PRINCIPE: (to the witness)

Q: How about the distance of Fallorina from Vincent, can you tell that?

COURT: (to the witness)

Can you point a distance between Fallorina and the boy at that time the body (sic) was
shot?

COURT:

10 meters more or less?

Q: How long have you known Ferdinand Fallorina before the incident?

A: More or less two years, sir.

Q: Why do you know him?

A: I usually see him in that place at Sitio Militar, especially on Sundays, sir.

Q: How many shots did you hear?

A: Only one, sir.

Q: Do you recognize the gun used by Fallorina?

A: Yes, sir.
Q: What was that gun?

A: .45 cal., sir.

Q: Are you familiar with .45 cal.?

A: No, sir.

Q: Why do you know that it was .45 cal.?

A: Because that kind of gun, I usually see that in the movies, sir.

Q: Ricardo, you said that you have known Fallorina for two (2) years and you saw
him shot Vincent on September 26, 1998 at around 2:30 in the afternoon. Please look
around the courtroom now and point at the person of PO3 Ferdinand Fallorina?

CT. INTERPRETER:

Witness is pointing to a male person the one seated at the back of the lady and wearing
a yellow shirt and maong pants and when asked of his name, he stated his name as
Ferdinand Fallorina.

ATTY. PRINCIPE: (to the witness)

Q: Can you tell to the Court whether you heard utterances at that time that he shot
the victim?

A: Yes, sir.

Q: What was that?

A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"

Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from the
roof, what about Fallorina, what did he do?

A: He was still on board his motorcycle and then he went at the back of the
karinderia where Vincent fell, Your Honor.

Q: And after he went at the back of the karinderia and looked at Vincent Jorojoro,
what did he do?

A: He carried Vincent, Your Honor.

Q: And after carrying Vincent, what did he do?

 A: He boarded Vincent in the tricycle.

Q: What about the gun, what did he do with the gun?

A: I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In
fine, his act was deliberate and intentional.

It bears stressing that of the eyewitnesses listed in the Information as witnesses for the
prosecution, only Ricardo Salvo remained steadfast after he was brought under the Witness
Protection Program of the Department of Justice. He explained that the reason why he testified
for the prosecution, despite the fact that the appellant was a policeman, was because he pitied
the victim's mother who was always crying,48 unable to obtain justice for her son. We find no ill
motive why Ricardo would falsely testify against the appellant. It was only his purest intention of
ferreting out the truth in this incident and that justice be done to the victim.49 Hence, the
testimony of Ricardo is entitled to full faith and credence.

The Crime Committed by the Appellant

We agree with the trial court that the appellant committed murder under Article 248 of the
Revised Penal Code qualified by treachery. As the trial court correctly pointed out, Vincent was
shot intentionally while his back was turned against the appellant. The little boy was merely
flying his kite and was ready to get down from the roof when the appellant fired a shot directed
at him. The essence of treachery is the sudden and unexpected attack on an unsuspecting
victim without the slightest provocation on his part.50 Nonetheless, Vincent was an eleven-year-
old boy. He could not possibly put up a defense against the appellant, a police officer who was
armed with a gun. It is not so much as to put emphasis on the age of the victim, rather it is more
of a description of the young victim's state of helplessness.51 Minor children, who by reason of
their tender years, cannot be expected to put up a defense. When an adult person illegally
attacks a child, treachery exists.52 The abuse of superior strength as alleged in the Information is
already absorbed by treachery and need not be considered as a separate aggravating
circumstance.53

We, however, note that the trial court appreciated the aggravating circumstance of abuse of
public position in this case. We reverse the trial court on this score.

There is no dispute that the appellant is a policeman and that he used his service firearm, the
.45 caliber pistol, in shooting the victim. However, there is no evidence on record that the
appellant took advantage of his position as a policeman when he shot the victim.54 The shooting
occurred only when the appellant saw the victim on the rooftop playing with his kite. The trial
court erred in appreciating abuse of public position against the appellant.

The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating
circumstance of voluntary surrender. Surrender is said to be voluntary when it is done by the
accused spontaneously and made in such a manner that it shows the intent of the accused to
surrender unconditionally to the authorities, either because he acknowledges his guilt or he
wishes to save them the trouble and expense necessarily incurred in his search and capture.55
In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in
Valenzuela City, and even moved from one house to another for three days. The appellant was
a policeman who swore to obey the law. He made it difficult for his brother-officers to arrest him
and terminate their investigation. It was only after the lapse of three days that the appellant gave
himself up and surrendered his service firearm.

Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to
death. Since there is no modifying circumstance in the commission of the crime, the appellant
should be sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the
Revised Penal Code.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City,
Branch 95, is AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand Fallorina y
Fernando is found guilty beyond reasonable doubt of the crime of murder under Article 248 of
the Revised Penal Code and, there being no modifying circumstances in the commission of the
crime, is hereby sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay
the heirs of the victim Vincent Jorojoro, Jr. the amount of P49,174 as actual damages; P50,000
as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages.

SO ORDERED.

46.)

LAILA G. DE OCAMPO, G.R. No. 147932

Petitioner,

Present:

QUISUMBING, J., Chairperson,

CARPIO,

-versus- CARPIO MORALES, and

TINGA, JJ.

THE HONORABLE

SECRETARY OF JUSTICE,

MAGDALENA B. DACARRA, Promulgated:

and ERLINDA P. ORAYAN,

Respondents. January 25, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

This petition for certiorari[1] assails the Resolutions dated 15 September 2000 and 19 April 2001
of the Secretary of the Department of Justice (DOJ Secretary) in I.C. No. 99-6254.[2] The DOJ
Secretary[3] denied Laila G. De Ocampos (petitioner) petition for review of the investigating
prosecutors finding of probable cause against her for homicide[4] in relation to Section 10(a),
Article VI of Republic Act No. 7610 (RA 7610)[5] and for violation of the same provision of RA
7610. The DOJ Secretary[6] also denied petitioners motion for reconsideration.

The Facts

The present case arose from a sworn statement of respondent Magdalena B. Dacarra
(Magdalena) executed before the Womens Desk of the CPD Police Station in Batasan Hills,
Quezon City on 10 December 1999. Magdalena stated that on 4 December 1999, her nine-year-
old son Ronald complained of dizziness upon arriving home at about six in the evening. Ronald
then vomited, prompting Magdalena to ask what happened. Ronald replied that petitioner, who
was Ronalds teacher, banged his head against that of his classmate Lorendo Orayan
(Lorendo). Magdalena inspected Ronalds head and saw a woundless contusion. Due to
Ronalds continued vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5
December 1999. The following morning, Magdalena brought Ronald to the East Avenue Medical
Center where he underwent an x-ray. The attending physician informed Magdalena that
Ronalds head had a fracture. Blood oozed out of Ronalds nose before he died on 9 December
1999.

Lorendo also executed a sworn statement narrating how petitioner banged his head against
Ronalds.

During the inquest proceedings on 14 December 1999, Assistant Quezon City

Prosecutor Maria Lelibet Sampaga (inquest prosecutor) ruled as follows:

Evidence warrants the release of the respondent for further investigation

of the charges against her. The case is not proper for inquest as the incident
complained of happened on December 4, 1999. Further, we find the evidence
insufficient to support the charge for homicide against the respondent. There is
no concrete evidence to show proof that the alleged banging of the heads of the
two minor victims could be the actual and proximate cause of the death of minor
Ronald Dacarra y Baluton. Besides, the police report submitted by the
respondent in this case states that said victim bears stitches or sutures on the
head due to a vehicular accident. There is no certainty, therefore, that
respondents alleged wrongdoing contributed or caused the death of said victim.[7]

Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna F.
Catris-Chua Cheng (investigating prosecutor) for preliminary investigation. She scheduled
the first hearing on 6 January 2000.

Respondent Erlinda P. Orayan (Erlinda), Lorendos mother, attended the hearing of 6

January 2000 and alleged that petitioner offered her P100,000, which she initially accepted, for
her and her sons non-appearance at the preliminary investigation. Erlinda presented the money
to the investigating prosecutor.
 On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident,
and Melanie Lugales, who claimed to be another victim of petitioners alleged cruel deeds,
filed their sworn statements with the Office of the Quezon City Prosecutor.

On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked the

disposition of the inquest prosecutor finding insufficient evidence to support the charges against
her. Petitioner assailed the omission in Magdalenas sworn statement about Ronalds head injury
due to a vehicular accident in November 1997. Petitioner pointed out the absence of damage or
injury on Lorendo as borne out by his medical certificate. Petitioner contended that the head-
banging incident was not the proximate cause of Ronalds death, but the failed medical attention
or medical negligence. Petitioner also alleged that Jennilyn Quirong and Melanie Lugales have
immature perception. Petitioner further asserted that the causes of death stated in Ronalds
Death Certificate are hearsay and inadmissible in the preliminary investigation.

Ronalds Death Certificate shows the immediate cause of his death as Cardio
Pulmonary Arrest, the underlying cause as Cerebral Edema, and other significant conditions
contributing to death as Electrolyte imbalance and vomiting. The Autopsy Report, obtained
by the investigating prosecutor from the PNP Crime Laboratory in Camp Crame, states the
cause of death as Intracranial hemorrhage secondary to traumatic injury of the head.

The investigating prosecutor issued a Resolution finding probable cause against petitioner for
the offenses charged. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, it is respectfully recommended that

[petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610
and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended for
the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610 provides that:
 For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, par. 2 and 263, par. 1
Act No. 3815, as amended, the Revised Penal Code, for the
crimes of murder, homicide, other intentional mutilation
and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age.

Bail recommended: No bail recommended Homicide, in relation to Art. VI, Sec.

10, R.A. 7610; and Twenty Thousand pesos (P20,000.00)
Viol. of Sec. 10(a) of R.A. 7610[8]

Consequently, petitioner filed a petition for review with the DOJ.

In her appeal to the DOJ, petitioner contended that the investigating prosecutor
showed bias in favor of complainants Magdalena and Erlinda (complainants) for not
conducting a clarificatory hearing and unilaterally procuring the autopsy report. Petitioner
argued that the investigating prosecutor erred in concluding that her alleged act of banging
Ronald and Lorendos heads was the cause of Ronalds injury and that such was an act of
child abuse. Petitioner also alleged that it is the Office of the Ombudsman which has
jurisdiction over the case, and not the Quezon City Prosecutors Office.

The Resolution of the DOJ Secretary

The DOJ Secretary denied the petition for review. The DOJ Secretary held that there was no
bias in complainants favor when the investigating prosecutor did not conduct a clarificatory
hearing and unilaterally procured the autopsy report as nothing precluded her from doing so.

The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury was the
direct and natural result of petitioners act of banging Ronald and Lorendos heads. The DOJ
Secretary stated that petitioner never denied such act, making her responsible for all its
consequences even if the immediate cause of Ronalds death was allegedly the failed medical
attention or medical negligence. The DOJ Secretary held that assuming there was failure of
medical attention or medical negligence, these inefficient intervening causes did not break the
relation of the felony committed and the resulting injury.

The DOJ Secretary rejected petitioners claim that she is innocent as held by the inquest
prosecutor. The inquest prosecutor did not dismiss the case. She merely recommended
petitioners release for further investigation since the case was not proper for inquest and the
evidence was then insufficient.

The DOJ Secretary further stated that the omission in Magdalenas sworn statement about
Ronalds head injury due to a vehicular accident in November 1997 and the absence of any
injury on Lorendo are inconsequential.

Moreover, the DOJ Secretary ruled that whether the statements of the causes of death in the
death certificate and autopsy report are hearsay, and whether Jennilyn Quirong and Melanie
Lugales have immature perception, are evidentiary matters which should be determined during
trial. The DOJ Secretary also sustained the investigating prosecutors conclusion that the
banging of Ronald and Lorendos heads is an act of child abuse.

Petitioner filed a motion for reconsideration[9] which the DOJ Secretary denied in his Resolution
dated 19 April 2001.[10]

Hence, this petition.

 The Issues

Petitioner raises the following issues:

1. Whether petitioner was denied due process during the preliminary investigation;
and

2. Whether there is probable cause against petitioner for homicide under Article 249 of the
Revised Penal Code in relation to Section 10(a), Article VI of RA 7610 and for
violation of Section 10(a), Article VI of RA 7610.

The Ruling of the Court

The petition lacks merit.

Before resolving the substantive issues in this case, the Court will address the procedural issue
raised by the Office of the Solicitor General (OSG).[11] The OSG contends that instead of Rule
65, Rule 43 is applicable to the present case. Thus, the OSG argues that the petition should be
dismissed outright for being filed with this Court, instead of with the Court of Appeals, under a
wrong mode of appeal. On the other hand, assuming Rule 65 applies, the OSG points out that
the petition for certiorari should be filed with the Court of Appeals.

Based on Memorandum Circular No. 58,[12] the resolution of the DOJ Secretary is appealable
administratively to the Office of the President since the offenses charged in this case are
punishable by reclusion perpetua.[13] From the Office of the President, the aggrieved party may
file an appeal with the Court of Appeals pursuant to Rule 43.[14]

Even assuming that the DOJ Secretary committed grave abuse of discretion in rendering
the assailed Resolutions amounting to lack or excess of jurisdiction, petitioner should have filed
the instant petition for certiorari with the Court of Appeals. Hence, on the issue alone of the
propriety of the remedy sought by petitioner, this petition for certiorari must fail. However,
considering the gravity of the offenses charged and the need to expedite the disposition of this
case, the Court will relax the rules and finally resolve this case in the interest of substantial
justice.

Whether petitioner was denied

due process during the preliminary investigation

Absence of a clarificatory hearing

The Court rejects petitioners contention that she was denied due process when the investigating
prosecutor did not conduct a clarificatory hearing. A clarificatory hearing is not indispensable
during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional
on the part of the investigating officer as evidenced by the use of the term may in Section 3(e) of
Rule 112. This provision states:

(e) If the investigating officer believes that there are matters to be

clarified, he may set a hearing to propound clarificatory questions to the
parties or their witnesses, during which the parties shall be afforded an
opportunity to be present but without the right to examine or cross-examine.
xxx[15] (emphasis supplied)
The use of the word may in a statute commonly denotes that it is directory in nature. The term
may is generally permissive only and operates to confer discretion. [16] Under Section 3(e) of
Rule 112, it is within the discretion of the investigation officer whether to set the case for further
hearings to clarify some matters.

In this case, the investigating prosecutor no longer conducted hearings after

petitioner submitted her counter-affidavit. This simply means that at that point the
investigating prosecutor believed that there were no more matters for clarification. It is only
in petitioners mind that some crucial points still exist and need clarification. In any event,
petitioner can raise these important matters during the trial proper.

Petitioner was not deprived of due process since both parties were accorded equal
rights in arguing their case and presenting their respective evidence during the preliminary
investigation. Due process is merely an opportunity to be heard.[17] Petitioner cannot
successfully invoke denial of due process since she was given the opportunity of a
hearing.[18]She even submitted her counter-affidavit to the investigating prosecutor on 18
January 2000.

Preliminary investigation is merely inquisitorial. It is not a trial of the case on the

merits.[19] Its sole purpose is to determine whether a crime has been committed and whether the
respondent is probably guilty of the crime.[20] It is not the occasion for the full and exhaustive
display of the parties evidence.[21] Hence, if the investigating prosecutor is already satisfied that
he can reasonably determine the existence of probable cause based on the parties evidence
thus presented, he may terminate the proceedings and resolve the case.

Obtaining a copy of the autopsy report

Petitioner argues that she was denied the right to examine evidence submitted by complainants
when the investigating prosecutor unilaterally obtained a copy of the autopsy report from
the PNP Crime Laboratory.

Petitioner fails to persuade us. Though the autopsy report is not part of the parties
evidence, the Rules on preliminary investigation do not forbid the investigating prosecutor
from obtaining it. Neither is there a law requiring the investigating prosecutor to notify the
parties before securing a copy of the autopsy report. The autopsy report, which states the
causes of Ronalds death, can either absolve or condemn the petitioner. Unfortunately for
petitioner, the investigating prosecutor found that the autopsy report bolstered complainants
allegations.

Moreover, there is nothing to support petitioners claim that the investigating prosecutor was
biased in favor of complainants. There are other pieces of evidence aside from the autopsy
report upon which the investigating prosecutor based her finding of probable cause. The
autopsy report is not the sole piece of evidence against petitioner. The sworn statement of the
other victim, Lorendo, and the eyewitness account of Jennilyn Quirong, substantiate the
charges against petitioner. Petitioners failure to deny the occurrence of the head-banging
incident also strengthened complainants allegations.

Petitioner mistakenly cites Section 3(d) of Rule 112[22] in arguing that the investigating
prosecutor should not go beyond the evidence presented by complainants in resolving the case.
This provision applies if the respondent cannot be subpoenaed or if subpoenaed fails to submit
her counter-affidavit within the prescribed period. Such is not the case here where petitioner
filed her counter-affidavit and both parties presented their respective evidence.

Whether there is probable cause

for the offenses charged against petitioner

Existence of probable cause

Petitioner challenges the finding of probable cause against her for the offenses charged arguing
that the head-banging incident was not the proximate cause of Ronalds death. Petitioner insists
that efficient intervening events caused Ronalds death.
We do not agree. There is probable cause for the offenses charged against petitioner. Probable
cause is the existence of such facts and circumstances as would excite the belief in a
reasonable mind that a crime has been committed and the respondent is probably guilty of the
crime.[23]

In the present case, Ronald, a nine-year-old student, died five days after his teacher,
petitioner in this case, allegedly banged his head against that of his classmate Lorendo. There
is nothing in the records showing petitioners specific denial of the occurrence of such act.
Petitioner simply stated that the head-banging incident happened but [she] did not perpetrate
it.[24] In effect, petitioner admits the occurrence of the head-banging incident but denies
committing it.

The alleged intervening events before Ronald died, namely: (a) the consultation with a
quack doctor, and (b) the three-day confinement in the East Avenue Medical Center, are not
sufficient to break the relation of the felony committed and the resulting injury. Were it not for the
head-banging incident, Ronald might not have needed medical assistance in the first place.

These circumstances which allegedly intervened causing Ronalds death are evidentiary matters
which should be threshed out during the trial. The following are also matters better left for the
trial court to appreciate: (a) the contents of the death certificate and autopsy report, (b) the
medical records of Ronalds accident in November 1997, (c) the perception of witnesses
Jennilyn Quirong and Melanie Lugales, and (d) the alleged lack of medical assistance or
medical negligence which caused Ronalds death.
 To repeat, what is determined during preliminary investigation is only probable cause,
not proof beyond reasonable doubt.[25] As implied by the words themselves, probable cause is
concerned with probability, not absolute or moral certainty.[26]

Asserting her innocence, petitioner continues to invoke the disposition of the inquest prosecutor
finding insufficient evidence for the charges against her. As correctly ruled by the DOJ
Secretary, the inquest prosecutor did not dismiss the case but merely recommended it for
further investigation since it was not proper for inquest and the evidence was then insufficient.
Moreover, petitioners active participation in the preliminary investigation without questioning the
propriety of such proceedings indicates petitioners agreement with the recommendation of the
inquest prosecutor for the further investigation of the case.

Charges of Homicide and Child Abuse

Petitioners single act of allegedly banging the heads of her students had two distinct victims,
namely Ronald and Lorendo. Therefore, petitioner has to face prosecution for cruelty to each
victim. For Ronalds death, petitioner is being charged with homicide under Article 249 of the
Revised Penal Code[27] in relation to Section 10(a), Article VI of RA 7610 punishable
by reclusion perpetua.[28] However, this does not mean that petitioner is being charged with the
distinct offenses of homicide and child abuse for Ronalds death. On the other hand, for her
cruelty to Lorendo, petitioner is being charged with violation of Section 10(a), Article VI of RA
7610 punishable by prision mayor in its minimum period.

Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is clear. This

provision reads:

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the childs
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than
one way, or of referring to two or more things at the same time. A statute is ambiguous if it is
susceptible to more than one interpretation.[29] In the present case, petitioner fails to show
convincingly the ambiguity in Section 10(a), Article VI of RA 7610.

Section 3(b), Article VI of RA 7610 defines child abuse as the maltreatment, whether habitual or
not, of the child which includes physical abuse and cruelty. Petitioners alleged banging of the
heads of Ronald and Lorendo is clearly an act of cruelty.

In a petition for certiorari like this case, the primordial issue is whether the DOJ Secretary acted
with grave abuse of discretion amounting to lack or excess of jurisdiction. The Court rules that
the DOJ Secretary did not commit grave abuse of discretion in finding that there is probable
cause to charge petitioner of the crimes of homicide and child abuse. The Court further rules
that the investigating prosecutor did not act with grave abuse of discretion in securing motu
proprio the autopsy report and in not calling for a clarificatory hearing. This ruling does not
diminish in any way the constitutional right of petitioner to be presumed innocent until the
contrary is proven.

WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the

Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-6254. No
pronouncement as to costs.

SO ORDERED.

47.) [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.

48.) G.R. No. L-28232 February 6, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA,
JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y
SEVILLA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for plaintiff-
appellee.

Baizas, Alberto and Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia and Dueas
for defendant-appellant Jaime G. Jose.

Mabanag, Eliger and Associates for defendant-appellant Basilio Pineda, Jr.

Sycip, Salazar, Luna, Manalo and Feliciano for defendant-appellant Edgardo P. Aquino.

Antonio Coronel Law Office and Roberto J. Ignacio for defendant-appellant Rogelio S. Canial.

PER CURIAM:

The amended complaint filed in this case in the court below, reads as follows:

The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO

PINEDA, JR. Alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and
ROGELIO CAAL Y SEVILLA alias "ROGER," as principals, WONG LAY
PUENG, SILVERIO GUANZON Y ROMERO and JESSIE GUION Y
ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape,
committed as follows:

That on or about the 26th day of June, 1967, in Quezon City, and within the
jurisdiction of this Honorable Court, the above-named principal accused,
conspiring together, confederating with and mutually helping one another, did,
then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly
abduct the undersigned complainant against her will, and did, then and there
take her, pursuant to their common criminal design, to the Swanky Hotel in
Pasay City, where each of the four (4) accused, by means of force and
 intimidation, and with the use of a deadly weapon, have carnal knowledge of the
undersigned complainant against her will, to her damage and prejudice in such
amount as may be awarded to her under the provisions of the civil code.

That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE

GUION y ENVOLTARIO without taking a direct part in the execution of the
offense either by forcing, inducing the principal accused to execute, or
cooperating in its execution by an indispensable act, did, then and there
cooperate in the execution of the offense by previous or simultaneous acts, that
is, by cooperating, aiding, abetting and permitting the principal accused in
sequestering the undersigned complainant in one of the rooms of the Swanky
Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon
y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid
in the consummation of the offense.

That the aforestated offense has been attended by the following aggravating
circumstances:

1. Use of a motor vehicle.

2. Night time sought purposely to facilitate the commission of the crime and to
make its discovery difficult;

3. Abuse of superior strength;

4. That means were employed or circumstances brought about which added

ignominy to the natural effects of the act; and

5. That the wrong done in the commission of the crime be deliberately

augmented by causing other wrong not necessary for the commission.

CONTRARY TO LAW.

Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted
amended complaint; however, in an order dated July 11, 1967, the court reserved judgment
"until such time as the prosecution shall have concluded presenting all of its evidence to prove
the aggravating circumstances listed in the complaint." Upon the other hand, the rest of the
defendants went to trial on their respective pleas of not guilty. After the merits, the court below
rendered its decision on October 2, 1967, the dispositive portion of which reads as follows:

WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Caal, Eduardo
Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of
forcible abduction with rape as described under Art. 335 of the Revised Penal
Code, as amended, and hereby sentences each of them to the death penalty to
be executed at a date to be set and in the manner provided for by law; and each
to indemnify the complainant in the amount of ten thousand pesos. On the
ground that the prosecution has failed to establish a prima facie case against the
accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y
Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted,
and the case dismissed against the aforementioned accused.
 Insofar as the car used in the abduction of the victim which Jaime Jose identified
by pointing to it from the window of the courtroom and pictures of which were
submitted and marked as Exhibits "M" and "M-1," and which Jaime Jose in his
testimony admitted belonged to him, pursuant to Art. 45 of the Revised Penal
Code, which requires the confiscation and forfeiture of the proceeds or
instruments of the crime, the Court hereby orders its confiscation.

This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo
Aquino, and Jaime Jose, and for automatic review as regards Rogelio Caal. However, for
practical purposes all of them shall hereafter be referred to as appellants.

The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old
and single; she graduated from high school in 1958 at Maryknoll College and finished the
secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was
receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and
television shows, where she was paid P800.00 per month in permanent shows, P300.00 per
month in live promotional shows, and from P100.00 to P200.00 per appearance as guest in
other shows.

So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward
bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car
accompanied by her maid Helen Calderon, who was also at the front seat. Her house was at
No. 48, 12th Street, New Manila, Quezon City. She was already near her destination when a
Pontiac two-door convertible car with four men aboard (later identified as the four appellants)
came abreast of her car and tried to bump it. She stepped on her brakes to avoid a collision,
and then pressed on the gas and swerved her car to the left, at which moment she was already
in front of her house gate; but because the driver of the other car (Basilio Pineda, Jr.) also
accelerated his speed, the two cars almost collided for the second time. This prompted Miss De
la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which
he was driving, jumped out of it and rushed towards her.

The girl became so frightened at this turn of events that she tooted the horn of her car
continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the
lady's left arm. The girl held on tenaciously to her car's steering wheel and, together with her
maid, started to scream. Her strength, however, proved no match to that of Pineda, who
succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid jumped out
of the car and took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip.
The latter, however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose
motor was all the while running.

When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the
three men inside started to assist their friend: one of them held her by the neck, while the two
others held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before
she was completely in, appellant Pineda jumped unto the driver's seat and sped away in the
direction of Broadway Street. The maid was left behind.

The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat;
Basilio Pineda, Jr. was at the wheel, while Rogelio Caal was seated beside him. Miss De la
Riva entreated the appellants to release her; but all she got in response were jeers, abusive and
impolite language that the appellants and threats that the appellants would finish her with their
Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men
seated on each side of Miss De la Riva started to get busy with her body: Jose put one arm
around the complainant and forced his lips upon hers, while Aquino placed his arms on her
thighs and lifted her skirt. The girl tried to resist them. She continuously implored her captors to
release her, telling them that she was the only breadwinner in the family and that her mother
was alone at home and needed her company because her father was already dead. Upon
learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was much
better than he thought since no one could take revenge against them. By now Miss De la Riva
was beginning to realize the futility of her pleas. She made the sign of the cross and started to
pray. The appellants became angry and cursed her. Every now and then Aquino would stand up
and talk in whispers with Pineda, after which the two would exchange knowing glances with
Caal and Jose.

The car reached a dead-end street. Pineda turned the car around and headed towards Victoria
Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence
to Epifanio de los Santos Avenue. When the car reached Makati, Aquino took a handkerchief
from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to
shout or else she would be stabbed or shot with a Thompson. Not long after, the car came to a
stop at the Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the
rooms on the second floor of the hotel.

Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw
Pineda and Aquino standing in front of her, and Jose and Caal sitting beside her, all of them
smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other
three expressed their approval and ordered Miss De la Riva to disrobe. The complainant
ignored the command. One of the appellants suggested putting off the light so that the
complainant would not be ashamed. The idea, however, was rejected by the others, who said
that it would be more pleasurable for them if the light was on. Miss De la Riva was told to
remove her stocking in order, according to them, to make the proceedings more exciting.
Reluctantly, she did as directed, but so slowly did she proceed with the assigned task that the
appellants cursed her and threatened her again with the Thompson and the acid. They started
pushing Miss De la Riva around. One of them pulled down the zipper of her dress; another
unhooked her brassiere. She held on tightly to her dress to prevent it from being pulled down,
but her efforts were in vain: her dress, together with her brassiere, fell on the floor.

The complainant was now completely naked before the four men, who were kneeling in front of
her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during
which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then
Pineda picked up her clothes and left the room with his other companions. The complainant
tried to look for a blanket with which to cover herself, but she could not find one.

Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was
sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to
release her. Instead of answering her, he pushed her backward and pinned her down on the
bed. Miss De la Riva and Jose struggled against each other; and because the complainant was
putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other
parts of the body. The complainant crossed her legs tightly, but her attacker was able to force
them open. Jose succeeded in having carnal knowledge of the complainant. He then left the
room.
The other three took their turns. Aquino entered the room next. A struggle ensued between him
and Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino
succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the
others into the room. They poured water on her face and slapped her to revive her. Afterwards,
three of the accused left the room, leaving Pineda and the complainant After some struggle
during which Pineda hit her, the former succeeded in forcing his carnal desire on the latter.
When the complainant went into a state of shock for the second time, the three other men went
into the room again poured water on the complainant's face and slapped her several times. The
complainant heard them say that they had to revive her so she would know what was
happening. Jose, Aquino and Pineda then left the room. It was now appellant Canal's turn.
There was a struggle between him and Miss De la Riva. Like the other three appellants before
him, he hit the complainant on different parts of the body and succeeded in forcing his carnal
lust on her.

Mention must be made of the fact that while each of mention must be made the four appellants
was struggling with the complainant, the other three were outside the room, just behind the
door, threatening the complainant with acid and telling her to give in because she could not,
after all, escape what with their presence.

After the appellants had been through with the sexual carnage, they gave Miss De la Riva her
clothes, told her to get dressed and put on her stockings, and to wash her face and comb her
hair, to give the impression that nothing had happened to her. They told her to tell her mother
that she was mistaken by a group of men for a hostess, and that when the group found out that
she was a movie actress, she was released without being harmed. She was warned not to
inform the police; for if she did and they were apprehended, they would simply post bail and
later hunt her up and disfigure her face with acid. The appellants then blindfolded Miss De la
Riva again and led her down from the hotel room. Because she was stumbling, she had to be
carried into the car. Inside the car, a appellant Jose held her head down on his lap, and kept it in
that position during the trip, to prevent her from being seen by others.

Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva.
They finally decided on a spot in front of the Free Press Building not far from Epifanio de los
Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had
just come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one
which did not come from a well-known company. Jose did as requested, letting several taxicabs
pass by before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform
anyone of what had happened to her, appellant Canal accompanied her to the taxicab. The time
was a little past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with
the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was
following them; and each time the driver answered her in the negative.

It was 6:30 o'clock or some two hours after the abduction when Miss De la Riva reached
home. Her mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and
reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said,
"Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her
daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and
a douche. The older woman also instructed her daughter to douche himself two or three times
daily with a strong solution to prevent infection and pregnancy. The family doctor, who was
afterwards summoned, treated the complainant for external physical injuries. The doctor was
not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer
who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter
received from a mobile patrol a report of the snatching. When Miss De la Riva arrived home
from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba
requested him to postpone the interrogation until she could be ready for it. At that time, mother
and daughter were still undecided on what to do.

On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if
any, should be taken. After some agonizing moments, a decision was reached: the authorities
had to be informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the
incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some
members of the family, went to the Quezon City Police Department Headquarters, filed a
complaint and executed a statement (Exh. "B") wherein she narrated the incident and gave
descriptions of the four men who abused her. In the afternoon of the same day, the complainant
submitted herself ito a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-
Legal Officer.

During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual
was also at the NBI office. There he received a telephone call from the police headquarters to
the effect that one of the suspects had been apprehended. That evening, the complainant and
Pat. Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime
Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as
one of the four men he abducted and raped her. She executed another statement (Exh. "B-1")
wherein she made a formal identification of Jose and related the role played by him.

At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I")
before Pat. Marcos G. Vias. In his statement, which was duly sworn. Jose admitted that he
knew about, and was involved in, the June 26 incident. He named the other line appellants as
his companions. Jose stated, among other things, that upon the initiative of Pineda, he and the
other three waited for Miss De la Riva to come out of the ABS Studio; that his group gave chase
to the complainant's car; that it was Pineda who blindfolded her and that only Pineda and
Aquino criminally assaulted the complainant.

After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of
appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her
sworn statement (Exh. "B-3") that the man in the picture was one of her abductors and rapists.
The same picture was shown to Jose, who, in another sworn statement (Exh. "I-l"), identified the
man in the picture as appellant Aquino.

After the apprehension of Jose, the other three soon fell into the hands of the authorities:
Pineda and Caal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of
Batangas. On the evening of July 1, 1967. Miss De la Riva pointed to Pineda and Caal as
among the four persons who abducted and raped her. She picked them out from among several
person in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la
Riva executed a sworn statement (Exh. B-2)wherein she made the same identification of the
two appellants from among a group of persons in the Office of the Chief of the Detective
Bureau, adding that appellant Caal had tattoo marks on his right hip. After the identification,
one of the policemen took appellant Caal downstairs and undressed him, and he saw,
imprinted on the said appellant's right hip, the words "Bahala na Gang."
Appellant Caal and Pineda executed and swore to separate statements on the day of their
arrest. In his statement (Exh. "G"), appellant Caal confirmed the information previously given
by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio,
and that they had planned to abduct and rape her. Appellant Caal admitted that all four of them
participated in the commission of the crime, but he would make it appear that insofar as he was
concerned the complainant yielded her body to him on condition that he would release her.
Pineda executed a statement (Exh. "J") stating that he and his other three companions wept to
the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait
for her and to follow her. He admitted that his group followed her car and snatched her and took
her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily
acceded to having sexual intercourse with him.

In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises
on different parts of the complainant's body, as well as of genital injuries. On the witness stand
the doctor was shown several photographs of the complainant taken in his presence and under
his supervision. With the aid of the photographs and the medical reports, the doctor explained to
the court that he found contusions or bruises on the complainant's chest, shoulders, arms and
fore-arms, right arm index finger, thighs, right knee and legs. He also declared that when he
was examining her, Miss De la Riva complained of slight tenderness around the neck, on the
abdominal wall and at the sites of the extragenital physical injuries, and that on pressing the
said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries,
according to Dr. Brion, could have been caused blows administered by a closed fist or by the
palm of the hand, and could have been inflicted on the subject while she was being raped. It
was the doctor's opinion that they could have been sustained on or about June 26, 1967. In
connection with the genital examination, the doctor declared that he found injuries on the
subject's genitalia which could have been produced by sexual intercourse committed on June
26, 1967. He said that he failed to find spermatozoa. He explained, however, that spermatozoa
are not usually found in the vagina after the lapse of three days from the last intercourse, not to
mention the possibility that the subject might have douched herself.

The three appellants who pleaded not guilty (Jose, Aquino and Caal) took the witness stand.
We quote hereunder the portions of the decision under review relative to the theory of the
defense:

Their story is that they and their co-accused Pineda had gone to the Ulog
Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from
9:30 in the evening of June 25 until closing time, which was about 3:30 in the
early morning of the next day. At the cocktail lounge they had listened to the
music while enjoying some drinks. Between them they had consumed a whole
bottle of whisky, so much so that at least Aquino became drunk, according to his
own testimony. They had been joined at their table by a certain Frankie whom
they met only that night. Come time to go home, their new acquaintance asked to
be dropped at his home in Cubao. The five men piled into the red-bodied, black
topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with
Pineda at the wheel repaired to Cubao After dislodging their new friend, Pineda
steered the car to Espaa Extension to bring Aquino to his home in Mayon
Street. But somewhere in Espaa Extension before the Rotonda a small car
whizzed to them almost hitting them. They saw that the driver was a woman.
Pineda gave chase and coming abreast of the small car he shouted, "Putang ina
mo, kamuntik na kaming mamatay." The woman continued on her way. Now
Pineda saying "let us teach her a lesson," sped after her and when she swerved
ostensibly to enter a gate, Pineda stopped his car behind being hurriedly got
down, striding to the small car, opened the door and started dragging the girl out.
Both Jose and Aquino confirm the presence of another woman inside the girl's
car, who helped the girl struggle to get free from Pineda's grip; and that the
struggle lasted about ten minutes before Pineda finally succeeded in pushing the
girl into the red convertible. All the three accused insist they did nothing to aid
Pineda: but they also admit that they did nothing to stop him.

Now the defense contends that Pineda cruised around and around the area just
to scare the girl who was in truth so scared that she begged them to let her be
and return her to her home. She turned to Jose in appeal, but this one told her he
could net do anything as the "boss" was Pineda. Aquino heard her plead with
Jose "do you not have a sister yourself?" but did not bear the other plea 'do you
not have a mother?' Then Pineda stopped at the corner of the street where he
had forcibly snatched the girl presumably to return her, but then suddenly
changing his mind he said, 'why don't you do a strip tease for us. I'll pay you
P1,000.00 and the girl taunted, 'are you kidding?': that after a little while she
consented to do the performance as long as it would not last too long and
provided the spectators were limited to the four of them.

Pineda sped the car until they got to Swanky Hotel where he and Maggie
alighted first, but not before Maggie had borrowed a handkerchief from one of
them to cover her face as she went up the Hotel. The three followed, and when
they saw the pair enter a room, they quickly caught up. All the three accused
testify that as soon as they got into the room, Maggie de la Riva asked the boys
to close the windows before she. undressed in front of them. They themselves
also removed their clothing. Two of them removed their pants retaining their
briefs, while Boy Pineda and Caal stripped to the skin "because it was hot." The
three accused declared that they saw Boy Pineda hand P100.00 to Maggie and
they heard him promise her that he would pay the balance of P900.00 later.
Whereupon, the show which lasted about 10 minutes began with the naked girl
walking back and forth the room about 4 to 5 times. This accomplished, all of
them dressed up once more and the three accused (Jaime Jose, Eduardo
Aquino and Rogelio Caal) left the room to wait in the car for Boy Pineda and
Maggie de la Riva who were apparently still discussing the mode of payment of
the balance. Three minutes later Maggie de la Riva and Boy Pineda joined them.
Now, the question of how and where to drop Maggie came up and it is testified to
by the accused that it was Maggie's idea that they should drop her near the ABS
Studio so that it would appear as if she had just come from her work.

Jaime Jose was picked by the police on the morning of June 29 along Buendia
Avenue. Aquino testifies how, on June 29 Pineda went to him with a problem. He
did not have the P900.00 with which to pay Maggie the balance of her "show"
and he was afraid that if he did not pay, Maggie would have her goons after him.
He wanted Aquino to go with him to Lipa City where he had relatives and where
he could help raise the money. Aquino readily obliged, and to make the company
complete they invited Caal to join them. They used another car of Jaime Jose,
different from the one they had used the day before. At Lipa, Aquino detached
himself from his compassions and proceeded alone to the barrio allegedly to visit
 his relatives. In the meantime his two companions had remained in the City and
had, according to Canal, gone to live in a house very close to the municipal hall
building. They later moved to another house where the PC and Quezon City
police posse found and arrested them. Aquino was the last to be apprehended,
when having read in the newspapers that he was wanted, he surrendered on July
5 to Mrs. Aurelia Leviste, wife of the governor of Batangas.

The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's
credulity and reason, and had utterly to counteract the evidence for the prosecution, particularly
the complainant's testimony and Dr. Brion's medical report and testimony. We quote with
approval the able dissertion of the trial judge on this point:

As main defense in the charge of rape, the three accused advance the
proposition that nothing happened in Swanky Hotel except a strip-tease
exhibition which the complaint agreed to do for them for fee of P1,000.00,
P100.00 down and the balance to be paid "later." The flaw in this connection lies
in its utter inverisimilitude. The Court cannot believe that any woman exists, even
one habitual engaged in this kind of entertainment (which Maggie de la Riva has
not been proven to be) who would consent (and as easily and promptly as
defense claims) to do a performance, not even for all money in the worlds after
the rough handling she experienced from these wolves in men's clothing who
now hungered for a show. There is no fury to match a woman stirred to
indignation. A woman's pride is far stronger than her yen for money, and her
revenge much more keen. The Court cannot believe that after the rudeness and
meanness of these men to her, Maggie would in so short an interval of time
forget her indignation and so readily consent to satisfy their immoral curiosity
about her. The woman in her would urge her to turn the men's hankering as a
weapon of revenge by denying them their pleasure.

Besides, the manner of payment offered for the performance is again something
beyond even the wildest expectations. Assuming that the woman whom the
accused had abducted was in this kind of trade assuming that the price offered
was to her satisfaction, whom woman would be willing to perform first and be
paid later? It is simply preposterous to believe that Maggie de la Riva should
have consent to do a striptease act for a measly down-payment of P100.00 and
the balance to be paid God knows when. Since when are exposition of the flesh
paid on the installment basis? By the very precautious nature of their pitiful
calling, women who sell their attractions are usually very shrewed and it is to be
expected that they could demand full payment before curtain call. How was
Maggie to collect later when she did not even know who these man were, where
they lived, whether they could be trusted with a promise to pay later (!) whether
she could ever find them again? If there is anything that had struck the Court
about the complaint, it is her courage, her intelligence and her alertness. Only a
stupid woman, and a most stupid one that, could have been persuaded to do
what the defense want this Court to believe Maggie de la Riva consented to do.

Finally, it is odd that not one of these men should have mentioned this
circumstances during their interview with anyone, either the press, their police
interrogator, the person who negotiated their surrender (as in the case of Aquino)
or even their counsel. One cannot escape the very strong suspicion that this
 story is a last ditch, desperate attempt to save the day for the accused. It truly
underscores the hopelessness of their stand and projects all the more clearly
their guilt.

Then there is the incident of the men's stripping themselves. Why was there need
for this? The Court realizes that in its desperate need of an explanation for
Maggie's positive identification of Caal as the man with the tattoo mark on his
right buttock, the defense concocted the sickeningly incident story that the four
men removed their underclothing in the presence of a woman simply "because it
was hot." What kind of men were these who were so devoid of any sense of
decency that they thought nothing of adding insult to injury by not only inducing a
woman a strip before them, but for forcing her to perform before
a naked audience? And then they have gall to argue that "nothing" happened.
For males of cold and phlegmatic blood and disposition it could be credible, but
not for men of torrid regions like ours where quick passions and hot tempers are
the rule rather than the exception!

All of these consideration set aside, notwithstanding, it is quite obvious that the version of the
defense has not been able to explain away a very vital piece of evidence of prosecution which, if
unexplained, cannot but reduce any defense unavailing. The result of the physical (external and
internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29,
the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the
time that Maggie de la Riva was examined she bore on her body traces of physical and sexual
assault.

The only attempt to an explanation made by the defense is either one of the
following: (1) the insinuation that when Maggie de la Riva and Boy Pineda were
left behind in the hotel room the bruises and the sexual attack could have taken
place then. But then, the defense itself says that these two persons rejoined the
three after three or four minutes! It is physically impossible, in such a short time,
for Boy Pineda to have attacked the girl and inflicted on her all of these injuries;
(2) it was suggested by the defense that Maggie de la Riva could have inflicted
all of those injuries upon herself just to make out a case against the accused.
The examining physician rules out this preposterous proposition, verily it does
not take much stretch of the imagination to see how utterly impossible this would
be, and for what purpose? Was P900.00 which she had failed to collect worth
that much self-torture? And what about all the shame, embarrassment and
publicity she would (as she eventually did) expose herself to? If she really had
not been raped would she have gone thru all of these tribulation?

A woman does not easily trump up rape charges for she has much more to lose
in the notoriety the case will reap her, her honor and that of her family, than in the
redress she demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151; Medina y
Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-6302, August 25, 1954); (3) it
could also be argued that the contusions and bruises could have been inflicted
on Maggie during her struggle with Pineda when the latter pulled and pushed her
into the red convertible car. The telltale injuries, however, discount this
possibility, for the location in which many of the bruises and traumas were
located (particularly on the inner portion of her thighs) could not have been cause
 by any struggle save by those of a woman trying to resists the brutal and bestial
attack on her honor.

In their Memorandum the accused contend that Maggie's sole and

uncorroborated testimony should not be rated any credence at all as against the
concerted declaration of the the accused. In the first place, it is not correct to say
that Maggie's declaration was uncorroborated she has for corroboration
nothing less than the written extra-judicial statements of Jose and Canal. But
even assuming that Maggie stood alone in her statements, the cases cited by the
accused in their Memorandum notwithstanding which the Court does not
consider in point anyway, jurisprudence has confirmed the ruling that numbers is
the least vital element in gauging the weight of evidence. What is more important
is which of the declarations is the more credible, the more logical, the more
reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234;
Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid
that in the most detestable crime of rape in which a man is at his worst the
testimony of the offended party most often is the only one available to prove
directly its commission and that corroboration by other eyewitnesses would in
certain cases place a serious doubt as to the probability of its commission, so
trial courts of justice are most often placed in a position of having to accept such
uncorroborated testimony if the same is in regards conclusive, logical and
probable (Landicho, VIII ACR 530).

We shall now consider the points raised by the appellants in their briefs.

1. Appellants Jose, Aquino and Caal deny having had anything to do with the abduction of
Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof,
but they generously contend that even as to him the act was purged at any taint of criminality by
the complainant's subsequent consent to perform a striptease show for a fee, a circumstance
which, it is claimed, negated the existence of the element of lewd design. This line of defense
has evidently leg no to stand on. The evidence is clear and overwhelming that all the appellants
participated in the forcible abduction. Miss De la Riva declared on the witness stand, as well as
in her sworn statements, that they helped one another in dragging her into the car against her
will; that she did not know them personally; that while inside the car, Jose and Aquino, between
whom she was seated, toyed with her body, the former forcing his lips on hers, and the latter
touching her thighs and raising her skirt; that meaningful and knowing glances were in the
meanwhile being exchanged among the four; and that all of them later took turns in ravishing
her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been
overthrown by the defense, more than suffices to establish the crimes charged in the amended
complaint. In the light thereof, appellants' protestation that they were not motivated by lewd
designs must be rejected as absolutely without factual basis.

2. The commission of rape by each of the appellants has, as held by the court below, likewise
been clearly established. Jose, Aquino and Canal contend that the absence of semen in the
complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the
NBI, who testified as an expert, declared that semen is not usually found in the vagina after
three days from the last intercourse, especially if the subject has douched herself within that
period. In the present case, the examination was conducted on the fourth day after the incident,
and the complainant had douched herself to avoid infection and pregnancy. Furthermore, the
absence of spermatozoa does not disprove the consummation of rape, the important
consideration being, not the emission of semen, but penetration (People vs Hernandez, 49 Phil.,
980). Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a
noozle deliberately used by the complainant to strengthen her alleged fabricated tale of rape, is
absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and earning as
much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing the same with
a sharply-pointed instrument in order to strike back at four strangers who allegedly would not
pay her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the
insertion of such an instrument in the genital organ would not result in the kind of injuries he
found in the mucosa of the cervix.

3. Other evidence and considerations exist which indubitably establish the commission of
successive rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the
morning of June 26, 1967, she immediately told her mother, " Mommy Mommy, I have been
raped. All four of them raped me." This utterance, which is part of the res gestae, commands
strong probative value, considering that it was made by the complainant to her mother who, in
cases of this nature was the most logical person in whom a daughter would confide the truth.
Aquino and Canal would make capital of the fact that Miss De la Riva stated to the reporters on
the morning of June 26, that she was not abused. Her statement to the press is understandable.
At that time the complainant, who had not yet consulted her family on a matter which concerned
her reputation as well as that of her family, and her career, was not then in a position to reveal
publicly what had happened to her. This is one reason why the complainant did not immediately
inform the authorities of the tragedy that befell her. Another reason is that she was threatened
with disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of
the complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they
possibly have been inflicted by appellant Pineda alone, when the story given by the other three
is that Pineda and the complainant were left in the hotel room for only three or four minutes, and
that they came out to join them in what they would picture to be a cordial atmosphere, the
complainant even allegedly suggesting that she be dropped on a spot where people would
reasonably presume her to have come from a studio? Equally important is the complainant's
public disclosure of her tragedy, which led to the examination of her private parts and lay her
open to risks of future public ridicule and diminution of popularity and earnings as a movie
actress.

4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of
evidence on the grounds that they were secured from them by force and intimidation, and that
the incriminating details therein were supplied by the police investigators. We are not convinced
that the statements were involuntarily given, or that the details recited therein were concocted
by the authorities. The statements were given in the presence of several people and subscribed
and sworn to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants
intimated the use of inordinate methods by the police. They are replete with details which could
hardly be known to the police; and although it is suggested that the authorities could have
secured such details from their various informers, no evidence at all was presented to establish
the truth of such allegation. While in their statements Jose and Canal admitted having waited
together with the two other appellants for Miss De la Riva at the ABS Studio, each of them
attempted in the same statements to exculpate himself: appellant Jose stated that only Pineda
and Aquino criminally abused the complainant; while appellant Canal would make it appear that
the complainant willingly allowed him to have sexual intercourse with her. Had the statements
been prepared by the authorities, they would hardly have contained matters which were
apparently designed to exculpate the affiants. It is significant, too, that the said two appellants
did not see it fit to inform any of their friends or relatives of the alleged use of force and
intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who
examined appellant Canal after the latter made his statement, found no trace of injury on any
part of the said appellant's body in spite of the claims that he was boxed on the stomach and
that one of his arms was burned with a cigarette lighter. In the circumstances, and considering,
further, that the police officers who took down their statements categorically denied on the
witness stand that the two appellants were tortured, or that any detail in the statements was
supplied by them or by anyone other than the affiants themselves, We see no reason to depart
from the trial court's well-considered conclusion that the statements were voluntarily given.
However, even disregarding the in-custody statements of Jose and Canal, We find that the
mass of evidence for the prosecution on record will suffice to secure the conviction of the two.

The admissibility of his extrajudicial statements is likewise being questioned by Jose on the
other ground that he was not assisted by counsel during the custodial interrogations. He cites
the decisions of the Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201),
Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436).

The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1,
par. 17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be
heard by himself and counsel ..." While the said provision is identical to that in the Constitution
of the United States, in this jurisdiction the term criminal prosecutions was interpreted by this
Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the
Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings
before the trial court from arraignment to rendition of the judgment. Implementing the said
constitutional provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In
all criminal prosecutions the defendant shall be entitled ... (b) to be present and defend in
person and by attorney at every stage of the proceedings, that is, from the arraignment to the
promulgation of the judgment." The only instances where an accused is entitled to counsel
before arraignment, if he so requests, are during the second stage of the preliminary
investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18). The rule in the
United States need not be unquestioningly adhered to in this jurisdiction, not only because it has
no binding effect here, but also because in interpreting a provision of the Constitution the
meaning attached thereto at the time of the adoption thereof should be considered. And even
there the said rule is not yet quite settled, as can be deduced from the absence of unanimity in
the voting by the members of the United States Supreme Court in all the three above-cited
cases.

5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross
miscarriage of justice. He contends that because the charge against him and his co-appellants
is a capital offense and the amended complaint cited aggravating circumstances, which, if
proved, would raise the penalty to death, it was the duty of the court to insist on his presence
during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at
the same time it constitutes an admission of all the material facts alleged in the information,
including the aggravating circumstances, and it matters not that the offense is capital, for the
admission (plea of guilty) covers both the crime and its attendant circumstances qualifying
and/or aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People
vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of
the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to
receive his evidence, much less to require his presence in court. It would be different had
appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it
would be the better part of discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91),
cited by Pineda, is not in point, for there this Court ordered a new trial because it found for a fact
that the accused, who had pleaded guilty, "did not intend to admit that he committed the offense
with the aggravating circumstances" mentioned in the information. We are not in a position to
make a similar finding here. The transcript of the proceedings during the arraignment shows that
Pineda's counsel, Atty. Lota prefaced his client's plea of guilty with the statement that .

I have advised him (Pineda) about the technicalities in plain simple language of
the contents of aggravating circumstances and apprised him of the penalty he
would get, and we have given said accused time to think. After a while I
consulted him for three times and his decision was still the same.

Three days after the arraignment, the same counsel stated in court that he had always been
averse to Pineda's idea of pleading guilty, because "I know the circumstances called for the
imposition of the maximum penalty considering the aggravating circumstances," but that he
acceded to his client's wish only after the fiscal had stated that he would recommend to the
court the imposition of life imprisonment on his client. To be sure, any such recommendation
does not bind the Court. The situation here, therefore, is far different from that obtaining in U.S.
vs. Agcaoili, supra.

6. Two of the appellants Jose and Caal bewail the enormous publicity that attended the
case from the start of investigation to the trial. In spite of the said publicity, however, it appears
that the court a quo was able to give the appellants a fair hearing. For one thing, three of the
seven (7) original accused were acquitted. For another thing, Jose himself admits in his brief
that the Trial Judge "had not been influenced by adverse and unfair comments of the press,
unmindful of the rights of the accused to a presumption of innocence and to fair trial."

We are convinced that the herein four appellants have conspired together to commit the crimes
imputed to them in the amended information quoted at the beginning of this decision. There is
no doubt at all that the forcible abduction of the complainant from in front of her house in
Quezon City, was a necessary if not indispensable means which enabled them to commit the
various and the successive acts of rape upon her person. It bears noting, however, that even
while the first act of rape was being performed, the crime of forcible abduction had already been
consummated, so that each of the three succeeding (crimes of the same nature can not legally
be considered as still connected with the abduction in other words, they should be detached
from, and considered independently of, that of forcible abduction and, therefore, the former can
no longer be complexed with the latter.

What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty
of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No.
4111 which took effect on June 20, 1964, and which provides as follows:

ART. 335. When and how rape committed.Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
 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 likewise death.

When by reason or on the occasion of the rape, a homicide is committed, the

penalty shall be death.

As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes
committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of
the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period.
Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is
hardly any necessity to consider the attendance of aggravating circumstances, for the same
would not alter the nature of the penalty to be imposed.

Nevertheless, to put matters in their proper perspective and for the purpose of determining the
proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to
make a definite finding in this connection to the effect that the commission of said crimes was
attended with the following aggravating circumstances: (a) nighttime, appellants having
purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of
superior strength, the crime having been committed by the four appellants in conspiracy with
one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the
appellants in ordering the complainant to exhibit to them her complete nakedness for about ten
minutes, before raping her, brought about a circumstance which tended to make the effects of
the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose,
Aquino and Ca__al, none of these aggravating circumstances has been offset by any
mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating
circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of
the proper penalties to be imposed, for the reason that there would still be three aggravating
circumstances remaining. As a result, appellants should likewise be made to suffer the extreme
penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal
Code.)

In refusing to impose as many death penalties as there are offenses committed, the trial court
applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum
duration of all the penalties therein imposed upon the appellant shall not be more than threefold
the length of time corresponding to the most severe of the penalties imposed upon the
appellant, which should not exceed forty years." The said court is of the opinion that since a
man has only one life to pay for a wrong, the ends of justice would be served, and society and
the victim would be vindicated just as well, if only one death penalty were imposed on each of
the appellants.

We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken
into account in connection with the service of the sentence imposed, not in the imposition of the
penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should
be imposed because man has only one life, the trial court ignored the principle enunciated in the
very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the
judgment of the trial court, found the accused guilty of two murders and one homicide and
imposed upon him two death sentences for the murders and a prison term for the homicide. In
not applying the said principle, the court a quo said that the case of Balaba is different from the
present case, for while in the former case the accused was found to have committed three
distinct offenses, here only one offense is charged, even if complex. As We have explained
earlier herein, four crimes were committed, charged and proved. There is, therefore, no
substantial difference between the two cases insofar as the basic philosophy involved is
concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the
two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-
19060, October 29, 1968, in which this Court imposed on each of the six accused three death
penalties for three distinct and separate crimes of murder, We said that "since it is the settled
rule that once conspiracy is established, the act of one conspirator is attributable to all, then
each conspirator must be held liable for each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by
law." In the said case (which was promulgated after the decision of the court a quo had been
handed down) We had occasion to discuss at length the legality and practicality of imposing
multiple death penalties, thus:

The imposition of multiple death penalties is decried by some as a useless

formality, an exercise in futility. It is contended, undeniably enough, that a death
convict, like all mortals, has only one life to forfeit. And because of this
physiological and biological attribute of man, it is reasoned that the imposition of
multiple death penalties is impractical and futile because after the service of one
capital penalty, the execution of the rest of the death penalties will naturally be
rendered impossible. The foregoing opposition to the multiple imposition of death
penalties suffers from four basic flaws: (1) it fails to consider the legality of
imposing multiple capital penalties; (2) it fails to distinguish between imposition of
penalty and service of sentence; (3) it ignores the fact that multiple death
sentences could be served simultaneously; and (4) it overlooks the practical
merits of imposing multiple death penalties.

The imposition of a penalty and the service of a sentence are two distinct, though
related, concepts. The imposition of the proper penalty or penalties is determined
by the nature, gravity and number of offenses charged and proved, whereas
service of sentence is determined by the severity and character of the penalty or
penalties imposed. In the imposition of the proper penalty or penalties, the court
does not concern itself with the possibility or practicality of the service of the
sentence, since actual service is a contingency subject to varied factors like the
successful escape of the convict, grant of executive clemency or natural death of
the prisoner. All that go into the imposition of the proper penalty or penalties, to
reiterate, are the nature, gravity and number of the offenses charged and proved
and the corresponding penalties prescribed by law.

Multiple death penalties are not impossible to serve because they will have to be
executed simultaneously. A cursory reading of article 70 will show that there are
only two moves of serving two or more (multiple) penalties: simultaneously
or successively. The first rule is that two or more penalties shall be served
 simultaneously if the nature of the penalties will so permit. In the case of multiple
capital penalties, the nature of said penal sanctions does not only permit but
actually necessitates simultaneous service.

The imposition of multiple death penalties, far from being a useless formality, has
practical importance. The sentencing of an accused to several capital penalties is
an indelible badge of his extreme criminal perversity, which may not be
accurately projected by the imposition of only one death sentence irrespective of
the number of capital felonies for which he is liable. Showing thus the
reprehensible character of the convict in its real dimensions, the possibility of a
grant of executive clemency is justifiably reduced in no small measure. Hence,
the imposition of multiple death penalties could effectively serve as deterrent to
an improvident grant of pardon or commutation. Faced with the utter delinquency
of such a convict, the proper penitentiary authorities would exercise judicious
restraint in recommending clemency or leniency in his behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional
power to pardon (one of the presidential prerogatives which is almost absolute)
deems it proper to commute the multiple death penalties to multiple life
imprisonments, then the practical effect is that the convict has to serve the
maximum forty (40) years of multiple life sentences. If only one death penalty is
imposed, and then is commuted to life imprisonment, the convict will have to
serve a maximum of only thirty years corresponding to a single life sentence.

We are, therefore, of the opinion that in view of the existence of conspiracy among them and of
our finding as regards the nature and number of the crimes committed, as well as of the
presence of aggravating circumstances, four death penalties should be imposed in the
premises.

Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation
asking for reversal of that portion of the judgment of the court below ordering the confiscation of
the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-
door Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284,
File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of
the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez.

On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car
from the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon
to secure payment of the purchase price of P13,200, which was stipulated to be payable in 24
monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly
registered with the Land Transportation Commission and inscribed in the Chattel Mortgage
Registry. The mortgage lien was annotated on the motor registration certificate. On April 17,
1967, for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation
assigned its credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The
assignment was duly registered with the Land Transportation Commission and annotated on the
registration certificate.
Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on
July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of
Manila) as a preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court
issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of
replevin because the car was not in Mrs. Gomez' possession, the same having been used by
her son, appellant Jaime G. Jose, together with the other appellants in this case, in the
abduction of Miss De la Riva, as a result of which the car was seized by the Quezon City police
and placed in the custody of Major San Diego, who refused to surrender it to the sheriff on the
ground that it would be used as evidence in the trial of the criminal case.

During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor
filed with the said court a petition for intervention. The said petition was not, however, acted
upon. On October 2, 1967, the trial court rendered its judgment in the present case ordering the
car's confiscation as an instrument of the crime. Although not notified of the said decision, the
intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation;
but the same was denied on October 31, 1967, on the ground that the trial court had lost
jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor
then filed a petition for relief from judgement, but the same was also denied.

On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to
deliver the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in
the alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per
annum from July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The
judgment became final and executory. Attempts to execute the judgment against the properties
of Mrs. Gomez were unavailing; the writ of execution was returned by the sheriff unsatisfied. On
July 26, 1968, the present petition for intervention was filed with this Court, which allowed the
intervenor to file a brief. In his brief the Solicitor General contends, among others, that the
court a quo having found that appellant Jose is the owner of the car, the order of confiscation is
correct.

Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in
the absence of strong evidence to the contrary, must be considered as the lawful owner thereof;
that the only basis of the court a quo in concluding that the said car belongs to appellant Jose
were the latter's statements during the trial of the criminal case to that effect; that the said
statement were not, however, intended to be, nor could constitute, a claim of ownership over the
car adverse to his mother, but were made simply in answer to questions propounded in court for
the sole purpose of establishing the identity of the defendant who furnished the car used by the
appellants in the commission of the crime; that the chattel mortgage on the car and its
assignment in the favor of the intervenor were made several months before the date of
commission of the crimes charged, which circumstance forecloses the possibility of collusion to
prevent the State from confiscating the car; that the final judgement in the replevin case can
only be executed by delivering the possession of the car to the intervenor for foreclosure of the
chattel mortgage; and the Article 45 of the Revised Penal Code bars the confiscation and
forfeiture of an instrument or tool used in the commission of the crime if such "be the property of
a third person not liable for the offense," it is the sense of this Court that the order of the court
below for confiscation of the car in question should be set aside and that the said car should be
ordered delivered to the intervenor for foreclosure as decreed in the judgment of the Court of
First Instance of Manila in the replevin case, Civil Case No. 69993.

Before the actual promulgation of this decision, this Court received a formal manifestation on
the part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants,
died in prison on December 28, 1970. As a result of this development, this case is hereby
dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth
(1/4) of the costs declared de oficio.

WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G.
Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of
forcible abduction with rape, and each and every one of them is likewise convicted of three (3)
other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4)
death penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of
P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay one-fourth
(1/4) of the costs.

Insofar as the car used in the commission of the crime is concerned, the order of the court a
quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered
to deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance
with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof.

49.) G.R. No. L-19069 October 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA,
FLORENCIO LUNA and GERVASIO LARITA, defendants-review.

Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.

PER CURIAM:

In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present
automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio
Larita and Florencio Luna (six among the twenty-two defendants1 charged therein with multiple
murder) were pronounced guilty, and all sentenced to death, to indemnify jointly and severally
the heirs of each of the victims, namely, Jose Carriego, Eugenio Barbosa and Santos Cruz, in
the sum of P6,000, and each to pay his corresponding share of the costs.

The information recites:

That on or about the 16th day of February, 1958, in the municipality of Muntinglupa,
province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, who are convicts confined in the New Bilibid Prisons by virtue of
final judgments, conspiring, confederating and mutually helping and aiding one another,
with evident premeditation and treachery, all armed with deadly weapons, did, then and
there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and
Santos Cruz, also convicts confined in the same institution, by hitting, stabbing and
 striking them with ice picks, clubs and other improvised weapons, pointed and/or
sharpened, thereby inflicting upon the victims multiple serious injuries which directly
caused their deaths.

That the aggravating circumstance of quasi-recidivism is present in the commission of

the crime in that the crime was committed after the accused have been convicted by
final judgments and while they are serving the said judgments in the New Bilibid Prisons.

Contrary to law with the following aggravating circumstances:

1. That the crime was committed with insult to public authorities;

2. That the crime was committed by a band;

3. That the crime was committed by armed men or persons who insure or afford
impunity;

4. That use of superior strength or means was employed to weaken the defense;

5. That as a means to the commission of the crime doors and windows have been
broken;

6. That means was employed which add ignominy to the natural effects of the act;

7. That the crime was committed where public authorities were engaged in the discharge
of their duties.

Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against
one of the accused2for lack of evidence. After the prosecution had rested its case, the charges
against six of the accused3 were dismissed for failure of the prosecution to establish a prima
facie case against them. One of the defendants died4during the pendency of the case. After
trial, the court a quo acquitted eight5 of the remaining defendants.

As early as in 1956, a great number of inmates confined in the national penitentiary at

Muntinglupa arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the
former composed predominantly of Tagalog inmates, the latter comprised mainly of prisoners
from the Visayas and Mindanao. Since then the prison compound has been rocked time and
time again by bloody riots resulting in the death of many of their members and suspected
sympathizers. In an effort to avert violent clashes between the contending groups, prison
officials segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building 1
housed "Sigue-Sigue" members, while a majority of the prisoners confined in Bldg. 4 belonged
to the "OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and 4-B (upper
floor) and 4-C and 4-D (first floor), inmates from Visayas and Mindanao, from whom the "OXO"
drew most of its members, were confined in 4-A.

It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were
preparing to attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue"
and "OXO" gangs occurred in the plaza where the prisoners were assembled, causing a big
commotion. The fight was, however, quelled, and those involved were led away for
investigation, while the rest of the prisoners were ordered to return to their respective quarters.
Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the
"Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many members and
sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the
invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg. 4,
as the inmates of brigade 4-A destroyed the lock of their door and then rampaged from one
brigade to another. The invading prisoners from 4-A, mostly "OXO" members and sympathizers,
clubbed and stabbed to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened
the door of 4-C and killed two more inmates, namely, Eugenio Barbosa and Santos Cruz.

The three victims sustained injuries which swiftly resulted in their death before they could be
brought to the hospital.

Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b)
contusion and hematoma of the back of the neck, about 2 inches in diameter; and (c) five
punctured wounds in the chest, penetrating the lungs. Cause of death: internal hemorrhage
from multiple fatal wounds in the chest.

Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in
depth; (b) two penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated
wounds on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d) several bruises at the
right and left lower extremities. Cause of death: shock, secondary to internal hermorrhage in the
abdomen.

Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound
on the upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which
were penetrating; (e) hematoma on the right hand; and (f) three punctured wounds on the left
hand. Cause of death: fractured skull.

Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was
taking his breakfast with Jose Carriego, who was at the time the representative of the prisoners
confined in 4-B to the inmate carcel, he "suddenly heard commotion" near the door of their
brigade; that his fellow prisoners started shouting "pinapasok na tayo," as the invading inmates
from brigade 4-A stampeded into 4-B; that he and Carriego took hold of their clubs and stood at
the end of the passageway; that he saw Carriego surrender his club to Andres Factora, an
"OXO" member from 4-A; that as Carriego started to walk away, Factora clubbed Carriego on
the nape causing the latter to fall; that Factora turned up the face of his fallen victim and struck
him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta and
Leonardo Dosal, companions of Factora, repeatedly stabbed him.

The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and
Avelino Sauza, both inmates of 4-B. These two prosecution witnesses identified Factora,
Peralta and Dosal as the assailants of Carriego.

From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar
Fontillas, an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that
among the invading inmates who forced open the door of 4-C, with help from the inside
provided by Visayan prisoners confined in 4-C, were Factora, Dosal, Angel Parumog, Gervacio
Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez kill
Barbosa, while the rest of their companies instructed the Visayans to leave their cell and
ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C,
declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and
Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only corroborated the
testimony of Fontillas and Pabarlan but as well added grim details. He declared that while
Barbosa was trying to hide under a cot, he was beaten and stabbed to death by Dosal,
Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing
guard, armed with clubs and sharp instruments, in readiness to repel any intervention from the
Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he saw Parumog, Peralta
Factora and Larita assault and kill Barbosa.

The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO"
members and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego
and Barbosa. Halili testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to
4-A from 4-C; that Santos Cruz knelt down and pleaded for his life, saying, "Maawa kayo sa
akin. Marami akong anak;" that Luna and Peralta were unmoved as they stabbed Santos Cruz
to death. Pabarlan declared that after the death of Barbosa, Santos Cruz was brought to 4-A by
the invading inmates but Cruz was able to slip back to his cell only to be recaptured by Factora,
Dosal and Luna and brought to near the fire escape where he was clubbed and stabbed to
death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated the
declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both
mentioned Larita as one of the assailants of Cruz.

The trial judge summarized the evidence for the prosecution, thus:

"... it clearly appears that the three killings in question were an offshoot of the rivalry
between the two organizations. All those who were killed, namely, Barbosa, Carriego
and Santos Cruz, were Tagalogs and well known as members if not sympathizers of the
Sigue Sigue, while the accused so charged with their killing were mostly members if not
sympathizers of the Oxo organization. These three killings were sparked by the
commotion that happened in the plaza between 8:00 and 9:00 in the morning, while the
prisoners were preparing to go the mass ... It was evident that the clash that occurred in
the plaza produced a chain reaction among the members and followers of the two
organizations. The inmates of Building No. 1, known lair of the Sigue Sigues bolted the
door of their cells and tried to invade Building No. 4 where a big number of the Oxo
members and their sympathizers were confined, but, however, were forced to retreat by
the timely arrival of the guards who sent them back to their building. When the members
of the Oxo in Building No. 4 learned about this, they went on a rampage looking for
members of the Sigue Sigue or their sympathizers who were confined with them in the
same building. As the evidence of the prosecution shows, the accused who were
confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the lock of their
dormitories and with the help of their companions succeeded in bolting the door of the
different brigades, and once they succeeded in bolting the doors of the different
brigades, they went inside and tried to segregate the Tagalogs from their group; that as
soon as they discovered their enemies they clubbed and stabbed them to death ...

Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims
self-defense. He testified that on the morning of the riot he was attacked by Carriego and Juan
Estrella near the door of 4-A while he was returning to his brigade from the chapel with some
companions; that Carriego clubbed him on the head; that he was able to parry the second blow
of Carriego and then succeeded in squeezing Carriego's head with his hands; that forthwith he
whipped out an improvised ice pick and stabbed Carriego several times; that when he (Peralta)
was already dizzy due to the head wound he sustained from the clubbing, Carriego managed to
slip away; that he then became unconscious, and when he regained consciousness he found
himself on a tarima with his head bandaged.

Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who
saw him actively participate in the killing of the three victims pointed to him as the aggressor,
not the aggrieved. Pineda, Marayoc and Sauza positively identified him as one of the assailants
of Carriego. Contrary to the pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member,
would not have attacked him, knowing fully well that Building No. 4 was an "OXO" lair where the
"Sigue-Sigue" members were outnumbered. Anent the killing of Barbosa and Santos Cruz,
Peralta failed to offer any explicit defense to rebut the inculpatory declarations of prosecution
witnesses Pabarlan and Espino who saw him participate in the killing of Barbosa and those of
Halili, Fontillas and Espino who identified him as one of the murderers of Santos Cruz.

For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in
exculpation. He declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and
Oscar Fontillas invaded 4-A where he was confined; that a free-for-all forthwith ensued; that he
then heard Santos Cruz call Carlos Espino, and advise the latter to go away as "I will be the one
to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on the head and then on
the nose; that as Cruz was about to hit him again, he got hold of his ice pick and stabbed Cruz
repeatedly until the latter fell.

Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who
saw him participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-
defense when the latter together with his companions supposedly invaded Dosal's brigade (4-
A), why is it that the body of Santos Cruz was found at the fire escape near the pasillo between
4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located in the upper floor?
Moreover, Dosal failed to explain why he was seen in 4-C, which he does not deny, since he
was an inmate of 4-A where he was allegedly attacked. With respect to the murder of Carriego
and Barbosa with which Dosal was also charged, he did not offer any evidence in his behalf.
Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the killers of
Carriego and those of Pabarlan, Halili and Espino implicating him in the death of Santos Cruz,
stand unrebutted.

Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-
accused who threatened to kill him if he disobeyed their order; that he did not hit Barbosa
anymore because the latter was already dead; that it was his co-accused who actually killed the
three victims. Again, the declarations of the prosecution witnesses, which were accorded full
credence by the trial court, expose the guilt of Factora beyond reasonable doubt. In fact,
according to Pineda, whose testimony was corroborated by Marayoc, it was Factora who started
the mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino
pointed to Factora as one of the killers of Barbosa, while at least three prosecution witnesses,
namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of Santos Cruz.
The active participation of Factora in the killing, which is clear index of voluntariness, thus
negates his claim of compulsion and fear allegedly engendered by his co-accused.

Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of
alibi. Parumog testified that he did not participate in the killing of the three inmates because he
stayed during that entire hapless day in the office of the trustees for investigation after the fight
in the plaza; that he was implicated in the killing by the prosecution witnesses because of his
refusal to accede to their request to testify against his co-accused; that he is not a Visayan but a
Tagalog from Nueva Ecija. Larita claims that he did not know about the killing until he was
informed that three inmates had died; that on the day in question he was brought to the police
trustee brigade for investigation after the incident in the plaza; that he was escorted back to his
brigade only in the afternoon. Luna likewise disclaims any knowledge of the killing and asserts
that for the entire duration of the riot he remained in his cell (brigade 4-A).

The alibis of Parumog, Larita and Luna merit no credence when set against the positive
testimonies of prosecution witness identifying them as participants in the killing of Barbosa and
Santos Cruz. Pabarlan, Espino and Fontillas declared that Larita was one of the killers of
Barbosa; Espino and Fontillas declared that they saw Larita kill Santos Cruz; Pabarlan, Halili
and Espino testified that they saw Parumog participate in the murder of Barbosa; Espino,
Fontillas and Pabarlan stated that Parumog took part in the killing of Santos Cruz. Pabarlan and
Halili declared that Luna participated in the fatal assault on Barbosa and Santos Cruz.

The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The
defense of alibi is generally weak since it is easy to concoct. For this reason, courts view it with
no small amount of caution, and accept it only when proved by positive, clear and satisfactory
evidence.6 In the case at bar, if Parumog and Larita were really confined in the police trustee
brigade for investigation on the day of the incident, there should have been a record of the
alleged investigation. But none was presented. The testimony of Luna that throughout the riot
he stayed in his cell is quite unnatural. He claims that he did not even help his cellmates
barricade their brigade with tarimas in order to delay if not prevent the entry of the invading
inmates. According to him, he "just waited in one corner."

The rule is settled that the defense of alibi is worthless in the face of positive identification by
prosecution witnesses pointing to the accused as particeps criminis.7 Moreover, the defense of
alibi is an issue of fact the resolution of which depends almost entirely on the credibility of
witnesses who seek to establish it. In this respect the relative weight which the trial judge
accords to the testimony of the witnesses must, unless patently inconsistent without evidence
on record, be accepted.8 In the case at bar, the trial court, in dismissing the alibis of Parumog,
Larita and Luna, said that "their mere denial cannot prevail over the positive testimony of the
witnesses who saw them participate directly in the execution of the conspiracyto kill Barbosa,
Carriego and Santos Cruz."

The killing of Carriego constitutes the offense of murder because of the presence of treachery
as a qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay
prostrate and defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on
the nape and the penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor.
Abuse of superior strength qualified the killing of Barbosa and Santos Cruz to the category of
murder. The victims, who were attacked individually were completely overwhelmed by their
assailants' superiority in number and weapons and had absolutely no chance at all to repel or
elude the attack. All the attackers were armed with clubs or sharp instruments while the victims
were unarmed, as so found by the trial court. In fact, Halili testified that Barbosa was clubbed
and stabbed to death while he was trying to hide under a cot, and Santos Cruz was killed while
he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of the
murders. The resolution of this issue is of marked importance because upon it depends the
quantity and quality of the penalties that must be imposed upon each of the appellants.

For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular
emphasis on the facets relating to its nature, the quantum of proof required, the scope and
extent of the criminal liability of the conspirators, and the penalties imposable by mandate of
applicable law.

Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.9 Generally, conspiracy is not a crime except
when the law specifically provides a penalty therefor as in treason,10 rebellion11 and
sedition.12 The crime of conspiracy known to the common law is not an indictable offense in the
Philippines.13 An agreement to commit a crime is a reprehensible act from the view-point of
morality, but as long as the conspirators do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not outraged and the tranquility of the public
remains undisturbed. However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy assumes pivotal
importance in the determination of the liability of the perpetrators. In stressing the significance of
conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto14 opined that

While it is true that the penalties cannot be imposed for the mere act of conspiring to
commit a crime unless the statute specifically prescribes a penalty therefor, nevertheless
the existence of a conspiracy to commit a crime is in many cases a fact of vital
importance, when considered together with the other evidence of record, in establishing
the existence, of the consummated crime and its commission by the conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-
principals regardless of the extent and character of their respective active participation in the
commission of the crime or crimes perpetrated in furtherance of the conspiracy because in
contemplation of law the act of one is the act of all.15 The foregoing rule is anchored on the
sound principle that "when two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively, each individual
whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the
same as though performed by himself alone."16 Although it is axiomatic that no one is liable for
acts other than his own, "when two or more persons agree or conspire to commit a crime, each
is responsible for all the acts of the others, done in furtherance of the agreement or
conspiracy."17 The imposition of collective liability upon the conspirators is clearly explained in
one case18 where this Court held that

... it is impossible to graduate the separate liability of each (conspirator) without taking
into consideration the close and inseparable relation of each of them with the criminal
act, for the commission of which they all acted by common agreement ... The crime must
therefore in view of the solidarity of the act and intent which existed between the ...
accused, be regarded as the act of the band or party created by them, and they are all
equally responsible ...

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by
reason of the conspiracy, and the court shall not speculate nor even investigate as to the actual
degree of participation of each of the perpetrators present at the scene of the crime. Of course,
as to any conspirator who was remote from the situs of aggression, he could be drawn within
the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over
the rest of the conspirators the latter were moved or impelled to carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the
crime amply justifies the imputation to all of them the act of any one of them. It is in this light that
conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing
criminal liability.

The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and
rape committed in furtherance of a common design.

The crime of malversation is generally committed by an accountable public officer who

misappropriates public funds or public property under his trust.19 However, in the classic case
of People vs. Ponte20 this Court unequivocally held that a janitor and five municipal policemen,
all of whom were not accountable public officers, who conspired and aided a municipal treasurer
in the malversation of public funds under the latter's custody, were principally liable with the said
municipal treasurer for the crime of malversation. By reason of conspiracy, the felonious act of
the accountable public officer was imputable to his co-conspirators, although the latter were not
similarly situated with the former in relation to the object of the crime committed. Furthermore, in
the words of Groizard, "the private party does not act independently from the public officer;
rather, he knows that the funds of which he wishes to get possession are in the latter's charge,
and instead of trying to abstract them by circumventing the other's vigilance he resorts to
corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of
accomplishing a deed which by having a public officer as its moral instrument assumes the
character of a social crime."21 In an earlier case22 a non-accountable officer of the Philippine
Constabulary who conspired with his superior, a military supply officer, in the malversation of
public funds was adjudged guilty as co-principal in the crime of malversation, although it was not
alleged, and in fact it clearly appeared, that the funds misappropriated were not in his custody
but were under the trust of his superior, an accountable public officer.

In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of
the separate and distinct crimes of rape perpetrated by his co-conspirators. He may have had
carnal knowledge of the offended woman only once but his liability includes that pertaining to all
the rapes committed in furtherance of the conspiracy. Thus, in People vs. Villa,23 this Court held
that

... from the acts performed by the defendants front the time they arrived at Consolacion's
house to the consummation of the offense of rape on her person by each and everyone
of them, it clearly appears that they conspired together to rape their victim, and therefore
each one is responsible not only for the rape committed personally by him, but also that
committed by the others, because each sexual intercourse had, through force, by each
one of the defendants with the offended was consummated separately and
independently from that had by the others, for which each and every one is also
responsible because of the conspiracy.

The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the
appellant Teofilo Anchita was convicted of forcible abduction with double rape for having
conspired and cooperated in the sexual assault of the aggrieved woman, although he himself
did not actually rape the victim. This Court observed:

We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the
accused inserted his fingers in the woman's organ, and widened it. Whether he acted out
of lewdness or to help his brother-in-law consummate the act, is immaterial; it was both
maybe. Yet, surely, by his conduct, this prisoner conspired and cooperated, and is guilty.

With respect to robbery in band, the law presumes the attendance of conspiracy so much so
that "any member of a band who is present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the band, unless it be shown that he
attempted to prevent the same."25 In this instance, conspiracy need not be proved, as long as
the existence of a band is clearly established. Nevertheless, the liability of a member of the
band for the assaults committed by his group is likewise anchored on the rule that the act of one
is the act of all.

Proof of conspiracy. While conspiracy to commit a crime must be established by positive

evidence,26 direct proof is not essential to show conspiracy.27 Since by it nature, conspiracy is
planned in utmost secrecy, it can seldom be proved by direct evidence.28 Consequently,
competent and convincing circumstantial evidence will suffice to establish conspiracy. According
to People vs. Cabrera,29 conspiracies are generally proved by a number of indefinite acts,
conditions, and circumstances which vary according to the purposes to be accomplished. If it be
proved that the defendants pursued by their acts the same object, one performing one part and
another another part of the same, so as to complete it, with a view to the attainment of the same
object, one will be justified in the conclusion that they were engaged in a conspiracy to effect the
object." Or as elucidated in People vs. Carbonel30the presence of the concurrence of minds
which is involved in conspiracy may be inferred from "proofs of facts and circumstances which,
taken together, apparently indicate that they are merely parts of some complete whole. If it is
proved that two or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among to concert means is
proved ..." In two recent cases,31 this Court ruled that where the acts of the accused, collectively
and individually, clearly demonstrate the existence of a common design toward the
accomplishment of the same unlawful purpose, conspiracy is evident.

Conspiracy presupposes the existence of a preconceived plan or agreement; however, to

establish conspiracy, "it is not essential that there be proof as to previous agreement to commit
a crime, it being sufficient that the malefactors committed shall have acted in concert pursuant
to the same objective."32 Hence, conspiracy is proved if there is convincing evidence to sustain
a finding that the malefactors committed an offense in furtherance of a common objective
pursued in concert.

Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once
conspiracy is proved, all of the conspirators who acted in furtherance of the common design are
liable as co-principals.33 This rule of collective criminal liability emanates from the ensnaring
nature of conspiracy. The concerted action of the conspirators in consummating their common
purpose is a patent display of their evil partnership, and for the consequences of such criminal
enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be
established that he performed an overt act in furtherance of the conspiracy, either by actively
participating in the actual commission of the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime, or by exerting moral ascendancy over
the rest of the conspirators as to move them to executing the conspiracy. The difference
between an accused who is a principal under any of the three categories enumerated in Art. 17
of the Revised Penal Code and a co-conspirator who is also a principal is that while the former's
criminal liability is limited to his own acts, as a general rule, the latter's responsibility includes
the acts of his fellow conspirators.

In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was
convicted by the trial court of robbery with homicide as a conspirator, on the ground that
although he may have been present when the conspiracy to rob was proposed and made,
"Robles uttered not a word either of approval or disapproval. There are authorities to the effect
that mere presence at the discussion of a conspiracy, even approval of it, without any active
participation in the same, is not enough for purposes of conviction." In a more recent case,35this
Court, in exonerating one of the appellants, said:

There is ample and positive evidence on record that appellant Jose Guico was absent
not only from the second meeting but likewise from the robbery itself. To be sure, not
even the decision under appeal determined otherwise. Consequently, even if Guico's
participation in the first meeting sufficiently involved him with the conspiracy (as he was
the one who explained the location of the house to be robbed in relation to the
surrounding streets and the points thereof through which entrance and exit should be
effected), such participation and involvement, however, would be inadequate to render
him criminally liable as a conspirator. Conspiracy alone, without the execution of its
purpose, is not a crime punishable by law, except in special instances (Article 8, Revised
Penal Code) which, however, do not include robbery.

Imposition of multiple penalties where conspirators commit more than one offense. Since in
conspiracy, the act of one is the act of all, then, perforce, each of the conspirators is liable for all
of the crimes committed in furtherance of the conspiracy. Consequently, if the conspirators
commit three separate and distinct crimes of murder in effecting their common design and
purpose, each of them is guilty of three murders and shall suffer the corresponding penalty for
each offense. Thus in People vs. Masin,36 this Court held:

... it being alleged in the information that three crimes were committed not
simultaneously indeed but successively, inasmuch as there was, at least, solution of
continuity between each other, the accused (seven in all) should be held responsible for
said crimes. This court holds that the crimes are murder ... In view of all these
circumstances and of the frequently reiterated doctrine that once conspiracy is proven
each and every one of the conspirators must answer for the acts of the others, provided
said acts are the result of the common plan or purpose ... it would seem evident that the
penalty that should be imposed upon each of the appellants for each of their crimes
should be the same, and this is the death penalty ... (emphasis supplied).

In the aforesaid case, however, the projected imposition of three death penalties upon each of
the conspirators for the three murders committed was not carried out due to the lack of the then
requisite unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven
murders, said through Mr. Justice Tuason:

Some members of this Court opine that the proper penalty is death, under the
circumstances of the case, but they fall short of the required number for the imposition of
this punishment. The sentence consequently is reclusion perpetua; but each appellant is
guilty of as many crimes of murder as there were deaths (eleven) and should be
sentenced to life imprisonment for each crime, although this may be a useless formality
for in no case can imprisonment exceed forty years. (Emphasis supplied.)

In People vs. Masani,38 the decision of the trial court imposing only one life imprisonment for
each of the accused was modified by this Court on appeal on the ground that "inasmuch as their
(the conspirators') combined attack resulted in the killing of three persons, they should be
sentenced to suffer said penalty (reclusion perpetua) for each of the three victims (crimes)."
(Emphasis supplied.)

It is significant to note that in the abovementioned cases, this Court consistently stressed that
once conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-
principals) but also multiple in relation to the number of felonies committed in furtherance of the
conspiracy. It can also be said that had there been a unanimous Court in
the Masin and Macaso cases, multiple death penalties would have been imposed upon all the
conspirators.

Legality and practicality of imposing multiple death penalties upon conspirators. An accused
who was charged with three distinct crimes of murder in a single information was sentenced to
two death penalties for two murders,39and another accused to thirteen (13) separate death
penalties for the 13 killings he perpetrated.40 Therefore there appears to be no legal reason why
conspirators may not be sentenced to multiple death penalties corresponding to the nature and
number of crimes they commit in furtherance of a conspiracy. Since it is the settled rule that
once conspiracy is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law.

The rule on the imposition of multiple penalties where the accused is found guilty of two or more
separate and distinct crimes charged in one information, the accused not having interposed any
objection to the multiplicity of the charges, was enunciated in the leading case of U.S. vs.
Balaba,41 thus: Upon conviction of two or more offenses charged in the complaint or information,
the prescribed penalties for each and all of such offenses may be imposed, to be executed in
conformity with the provisions of article 87 of the Penal Code [now article 70 of the Revised
Penal Code]. In other words, all the penalties corresponding to the several violations of law
should be imposed. Conviction for multiple felonies demands the imposition of multiple
penalties.

The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of
the Revised Penal Code and the special complex crime (like robbery with homicide). Anent an
ordinary complex crime falling under article 48, regardless of the multiplicity of offenses
committed, there is only one imposable penalty the penalty for the most serious offense
applied in its maximum period. Similarly, in special complex crimes, there is but a single penalty
prescribed by law notwithstanding the number of separate felonies committed. For instance, in
the special complex crime of robbery with hommicide the imposible penalty is reclusion
perpetua to death42irrespective of the number of homicides perpetrated by reason or on
occasion of the robbery.

In Balaba, the information charged the accused with triple murder. The accused went to trial
without objection to the said information which charged him with more than one offense. The
trial court found the accused guilty of two murders and one homicide but it imposed only one
death penalty. In its review en consulta, this Court modified the judgment by imposing separate
penalties for each of the three offenses committed. The Court, thru Mr. Justice Carson (with Mr.
Justice Malcolm dissenting with respect to the imposition of two death penalties), held:

The trial judge was erroneously of the opinion that the prescribed penalties for the
offenses of which the accused was convicted should be imposed in accord with the
provisions of article 89 of the Penal Code. That article is only applicable to cases
wherein a single act constitutes two or more crimes, or when one offense is a necessary
means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)

It becomes our duty, therefore, to determine what penalty or penalties should have been
imposed upon the accused upon conviction of the accused of three separate felonies
charged in the information.

There can be no reasonable doubt as to the guilt of the convict of two separate crimes
of asesinato(murder) marked with the generic aggravating circumstances mentioned in
the decision of the trial judge ... It follows that the death penalty must and should be
imposed for each of these offenses ...

Unless the accused should be acquitted hereafter on appeal of one or both

the asesinatos with which he is charged in the information, it would seem to be a useless
formality to impose separate penalties for each of the offenses of which he was
convicted, in view of the nature of the principal penalty; but having in mind the possibility
that the Chief Executive may deem it proper to grant a pardon for one or more of the
offenses without taking action on the others; and having in mind also the express
provisions of the above cited article 87 of the Penal Code, we deem it proper to modify
the judgment entered in the court below by substituting for the penalty imposed by the
trial judge under the provisions of article 89 of the Code, the death penalty prescribed by
law for each of the two separate asesinatos of which he stands convicted, and the
penalty of 14 years, 8 months and 1 day of reclusion temporal (for the separate crime of
homicide) ... these separate penalties to be executed in accord with the provisions of
article 87 of the Penal Code. (Emphasis supplied.)

The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking
again thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of
the Balaba ruling), opined:

For all the offenses of which the accused were convicted in the court below, the trial
judge imposed the death penalty, that is to say the penalty prescribed for the most
serious crime committed, in its maximum degree, and for this purpose made use of the
provisions of article 89 of the Penal Code [now article 48 of the Revised Penal Code].
But as indicated in the case of the United States vs. Balaba, recently decided wherein
the controlling facts were substantially similar to those in the case at bar, "all of the
penalties corresponding to the several violations of law" should have been imposed
 under the express provisions of article 87 [now engrafted in article 70 of the Revised
Penal Code] and under the ruling in that case, the trial court erred in applying the
provision of article 89 of the code.

We conclude that the judgment entered in the court below should be reversed, ... and
that the following separate penalties should be imposed upon him [the accused Jamad],
to be executed in accordance with article 87 of the Penal Code: (1) The penalty of death
for the parricide of his wife Aring; (2) the penalty of life imprisonment for the murder of
Labonete; (3) the penalty of life imprisonment for the murder of Torres; (4) the penalty of
12 years and one day of cadena temporal for the frustrated murder of Taclind ...

The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied the pertinent
provisions of the Revised Penal Code, where this Court, after finding the accused liable as co-
principals because they acted in conspiracy, proceeded to stress that where an "information
charges the defendants with the commission of several crimes of murder and frustrated murder,
as they failed to object to the multiplicity of the charges made in the information, they can be
found guilty thereof and sentenced accordingly for as many crimes the information charges
them, provided that they are duly established and proved by the evidence on record."
(Emphasis supplied.)

The legal and statutory justification advanced by the majority in Balaba for imposing all the
penalties (two deaths and one life imprisonment) corresponding to the offense charged and
proved was article 87 of the old Penal Code which provided:

When a person is found guilty of two or more felonies or misdemeanors, all the penalties
corresponding to the several violations of law shall be imposed, the same to be
simultaneously served, if possible, according to the nature and effects of such penalties.

in relation to article 88 of the old Code which read:

When all or any of the penalties corresponding to the several violations of the law can
not be simultaneously executed, the following rules shall be observed with regard
thereto:

1. In the imposition of the penalties, the order of their respective severity shall be
followed so that they may be executed successively or as nearly as may be possible,
should a pardon have been granted as to the penalty or penalties first imposed, or
should they have been served out.

The essence and language, with some alterations in form and in the words used by reason of
style, of the above-cited provisions have been preserved in article 70 of the Revised Penal
Code which is the product of the merger of articles 87 and 88 of the old Penal Code. Article 70
provides:

When the culprit has to serve two or more penalties, he shall serve them simultaneously
if the nature of the penalties will so permit; otherwise, the following rules shall be
observed:

In the imposition of the penalties, the order of their respective severity shall be followed
so that they may be executed successively or as nearly as may be possible, should a
 pardon have been granted as to the penalty or penalties first imposed, or should they
have been served out.

Although article 70 does not specifically command, as the former article 87 clearly did, that "all
the penalties corresponding to the several violations of law shall be imposed," it is unmistakable,
however, that article 70 presupposes that courts have the power to impose multiple penalties,
which multiple penal sanctions should be served either simultaneously or successively. This
presumption of the existence of judicial power to impose all the penalties corresponding to the
number and nature of the offenses charged and proved is manifest in the opening sentence of
article 70: "When the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit ..." (Emphasis supplied.) Obviously,
the two or more penalties which the culprit has to serve are those legally imposed by the proper
court. Another reference to the said judicial prerogative is found in the second paragraph of
article 70 which provides that "in the imposition of the penalties, the order of their respective
severity shall be followed ..." Even without the authority provided by article 70, courts can still
impose as many penalties as there are separate and distinct offenses committed, since for
every individual crime committed, a corresponding penalty is prescribed by law. Each single
crime is an outrage against the State for which the latter, thru the courts ofjustice, has the power
to impose the appropriate penal sanctions.

With respect to the imposition of multiple death penalties, there is no statutory prohibition or
jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code
presumes that courts have the power to mete out multiple penalties without distinction as to the
nature and severity of the penalties. Moreover, our jurisprudence supports the imposition of
multiple death penalties as initially advocated in Balaba and thunderously reechoed
in Salazar where the accused was sentenced on appeal to thirteen (13) death penalties.
Significantly, the Court in Balaba imposed upon the single accused mixed multiple penalties of
two deaths and one life imprisonment.

The imposition of multiple death penalties is decried by some as a useless formality, an

exercise in futility. It is contended, undeniably enough, that a death convict like all mortals, has
only one life to forfeit. And because of this physiological and biological attribute of man, it is
reasoned that the imposition of multiple death penalties is impractical and futile because after
the service of one capital penalty, the execution of the rest of the death penalties will naturally
be rendered impossible. The foregoing opposition to the multiple imposition of death penalties
suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital
penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it
ignores the fact that multiple death sentences could be served simultaneously; and (4) it
overlooks the practical merits of imposing multiple death penalties.

The imposition of a penalty and the service of sentence are two distinct, though related,
concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity
and number of offenses charged and, proved, whereas service of sentence is determined by the
severity and character of the penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the possibility or practicality of the
service of the sentence, since actual service is a contingency subject to varied factors like
successful escape of the convict, grant of executive clemency or natural death of the prisoner.
All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature,
gravity and number of the offenses charged and proved and the corresponding penalties
prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed
simultaneously. A cursory reading of article 70 will show that there are only two modes of
serving two or more (multiple) penalties: simultaneously or successively. The first rule is that
two or more penalties shall be served simultaneously if the nature of the penalties will so permit.
In the case of multiple capital penalties, the nature of said penal sanctions does not only permit
but actually necessitates simultaneous service.

The imposition of multiple death penalties, far from being a useless formality, has practical
importance. The sentencing of an accused to several capital penalties is an indelible badge of
his extreme criminal perversity, which may not be accurately projected by the imposition of only
one death sentence irrespective of the number of capital felonies for which he is liable. Showing
thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of
executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple
death penalties could effectively serve as a deterrent to an improvident grant of pardon or
commutation. Faced with the utter delinquency of such a convict, the proper penitentiary
authorities would exercise judicious restraint in recommending clemency or leniency in his
behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional power to
pardon (one of the presidential prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life imprisonments, then the practical effect is
that the convict has to serve the maximum of forty (40) years of multiple life sentences. If only
one death penalty is imposed, and then is commuted to life imprisonment, the convict will have
to serve a maximum of only thirty years corresponding to a single life sentence.

Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that
conspiracy attended the commission of the murders. We quote with approval the following
incisive observations of the court a quo in this respect:

Although, there is no direct evidence of conspiracy, the Court can safely say that there
are several circumstances to show that the crime committed by the accused was
planned. The following circumstances show beyond any doubt the acts of
conspiracy: First, all those who were killed, Barbosa, Santos Cruz and Carriego, were
Tagalogs. Although there were many Tagalogs like them confined in Building 4, these
three were singled out and killed thereby showing that their killing has been
planned. Second, the accused were all armed with improvised weapons showing that
they really prepared for the occasion. Third, the accused accomplished the killing with
team work precision going from one brigade to another and attacking the same men
whom they have previously marked for liquidation and lastly, almost the same people
took part in the killing of Carriego, Barbosa and Santos Cruz.

It is also important to note that all the accused were inmates of brigade 4-A; that all were from
either the Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails
from Nueva Ecija; that all were either "OXO" members or sympathizers; and that all the victims
were members of the "Sigue-Sigue" gang.

The evidence on record proves beyond peradventure that the accused acted in concert from the
moment they bolted their common brigade, up until the time they killed their last victim, Santos
Cruz. While it is true that Parumog, Larita and Luna did not participate in the actual killing of
Carriego, nonetheless, as co-conspirators they are equally guilty and collectively liable for in
conspiracy the act of one is the act of all. It is not indispensable that a co-conspirator should
take a direct part in every act and should know the part which the others have to perform.
Conspiracy is the common design to commit a felony; it is not participation in all the details of
the execution of the crime. All those who in one way or another help and cooperate in the
consummation of a felony previously planned are co-principals.45 Hence, all of the six accused
are guilty of the slaughter of Carriego, Barbosa and Santos Cruz each is guilty of three
separate and distinct crimes of murder.

We cannot agree, however, with the trial court that evident premeditation was also present. The
facts on record and the established jurisprudence on the matter do not support the conclusion of
the court a quo that evident premeditation "is always present and inherent in every conspiracy."
Evident premeditation is not inherent in conspiracy as the absence of the former does not
necessarily negate the existence of the latter.46 Unlike in evident premeditation where a
sufficient period of time must elapse to afford full opportunity for meditation and reflection for the
perpetrator to deliberate on the consequences of his intended deed, conspiracy arises at the
very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide
to commit it.47 This view finds added support in People vs. Custodia,48 wherein this Court stated:

Under normal conditions, where the act of conspiracy is directly established, with proof
of the attendant deliberation and selection of the method, time and means of executing
the crime, the existence of evident premeditation can be taken for granted. In the case
before us, however, no such evidence exists; the conspiracy is merely inferred from the
acts of the accused in the perpetration of the crime. There is no proof how and when the
plan to kill Melanio Balancio was hatched, or what time elapsed before it was carried out;
we are, therefore, unable to determine if the appellants enjoyed "sufficient time between
its inception and its fulfillment dispassionately to consider and accept the
consequences." (cf. People vs. Bangug, 52 Phil. 91.) In other words, there is no showing
of the opportunity of reflection and the persistence in the criminal intent that characterize
the aggravating circumstance of evident premeditation (People vs. Mendoza, 91 Phil. 58;
People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs. Lesada 70 Phil.,
525.)

Not a single extenuating circumstance could be appreciated in favor of any of the six accused,
as they did neither allege nor prove any.

In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of

the six accused at the time of the commission of the offenses were serving sentences49 in the
New Bilibid Prison at Muntinlupa by virtue of convictions by final judgments the penalty for each
offense must be imposed in its maximum period, which is the mandate of the first paragraph of
article 160 of the Revised Penal Code. Viada observes, in apposition, that the severe penalty
imposed on a quasi-recidivist is justified because of his perversity and incorrigibility.50

ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres
Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each
pronounced guilty of three separate and distinct crimes of murder, and are each sentenced to
three death penalties; all of them shall, jointly and severally, indemnify the heirs of each of the
three deceased victims in the sum of P12,000;51 each will pay one-sixth of the costs.

50.) G.R. No. L-20183 June 30, 1966

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee,
vs.
EDUARDO BERDIDA Y INGUITO, ET AL., defendants.
EDUARDO BERDIDA Y INGUITO, LORETO SABERON Y CASAS, VICENTE ABERAS Y
CORDERO and JESUS FELICIA Y BALIDBID, defendants and appellants.

Senen S. Ceniza, Emilio G. Opinion and Agustin R. Romeras for defendants and appellants.
Office of the Solicitor General A. A. Alafriz, Acting Assistant Solicitor General I. C. Borromeo
and Solicitor S. C. Jacob for plaintiff and appellee.

PER CURIAM:

This is an automatic review of death sentence pursuant to the Rules of Court.1

On 10 May 1960, an information for frustrated murder2 of Antonio Maravilla and another
information for murder3of Federico Caalete, were filed in the Court of First Instance of Manila.
Said informations were directed against the same eight accused: Eduardo Berdida y Inguito,
Jesus Felicia y Balidbid, Vicente Aberas y Cordero, Cristoto Mitilla y Paral, Demetrio Garin y
Payos, Protacio Libres y Corona, Loreto Saberon y Casas and Mario Mustrado y Sumaya.

After the defendants pleaded not guilty at their arraignment on 16 May 1960, the two cases
were tried jointly. Acting on a motion to dismiss filed by defendants Cristoto Mitilla and Mario
Mustrado, after the prosecution rested its case, the court dismissed the charges against Mario
Mustrado, with costs de oficio. After the trial, the Court of First Instance rendered on 27 July
1962 the decision now under review. Its dispositive portion states:

In view of the foregoing considerations, the Court finds the defendants Eduardo Berdida,
Loreto Saberon, Vicente Aberas and Jesus Felicia guilty beyond reasonable doubt of the
crime of murder. This Court has in previous cases endeavored to avoid the imposition of
the capital punishment. In the case at bar, however, where the offenders, pretending to
be police officers, kidnapped the victims and mercilessly beat one of them to death, the
Court finds no other alternative, in pursuance to the mandate of the law, but to impose,
as it hereby imposes upon the said defendants, the death penalty, to indemnify jointly
and severally the heirs of Federico Caalete in the sum of P4,000.00 and to pay the
costs. May God have mercy on their souls.

In Criminal Case No. 52338, above-said defendants are also hereby found guilty beyond
reasonable doubt of the crime of attempted murder and considering the aggravating
circumstances present, they are sentenced each to suffer a maximum penalty of TEN
(10) YEARS of prision mayor and a minimum of SIX (6) YEARS of prision correccional,
and to pay the costs, without prejudice on the part of the complainant to institute a
separate civil action for the recovery of damages.

The defendants Garin, Mitilla and Libres are hereby acquitted, in both cases, with
costs de oficio, and their immediate release is hereby ordered.

So ordered.

The records show the prosecution's evidence, as follows:

At about 10 o'clock in the evening of 7 May 1960, Antonio Maravilla, Federico Caalete, Virgilio
Haban and Pedrito Rapadas left the store of one Mang Terio at Mabuhay Street, North Harbor,
Tondo, Manila, and proceeded walking towards their homes. They were met on their way by
Eduardo Berdida, Antonio Louie, one Tiquio and one aliasIfugao, who identified themselves as
detectives, told them not to move, and pointed sharp and long bolos to them.4 Antonio Maravilla
and Federico Caalete raised their hands, but Pedrito Rapadas and Virgilio Haban were able to
run away. Antonio Louie then dealt a fist blow on Antonio Maravilla. After that, the group took
Antonio Maravilla and Federico Caalete along the rail tracks, telling them that they had done
something wrong.

At the end of the rail tracks, said group tied the hands of Antonio Maravilla and Federico
Caalete. After doing this, they dragged the two and took them to a place in Pier 8 at the North
Harbor near Vicente Aberas' house. In said place, there were others who joined the group,
among them, Jesus Felicia, Loreto Saberon and Vicente Aberas. At this point Eduardo Berdida
told Antonio Maravilla and Federico Caalete to dig their graves, but they refused. Arturo
Macabebe, who also joined the group, took two sticks of cigarettes and told Antonio Maravilla
and Federico Caalete to smoke. Antonio Maravilla again refused. Following said refusal, the
victims were hit with a piece of wood. Eduardo Berdida and Jesus Felicia then held Antonio
Maravilla and Federico Caalete, respectively, by the hands and from behind. As they were thus
held, Vicente Aberas delivered fist blows on them, first on Antonio Maravilla, then on Federico
Caalete.5 Furthermore, Loreto Saberon also held Federico Caalete while others gave fist
blows to the latter.6 At about 1 o'clock in the morning of 8 May 1960, Antonio Maravilla lost
consciousness, shortly after hearing Loreto Saberon say that the group would cut off the ears of
Antonio Maravilla and Federico Caalete for appetizer or "pulutan".7

Antonio Maravilla's sister, Elizabeth, had meanwhile been informed by Virgilio Haban, one of
those who were able to run away, that her brother and Federico Caalete were taken by armed
men. She therefore went out with some companions in search of her brother. She asked the
help of Patrolman Carlos Pili, who was then at the corner of Kaguitingan and Lakandula Streets
in front of Pier 6. Patrolmen Amado Santos and Fabricante also joined them. As the other
policemen took to separate directions, Patrolman Pili and Elizabeth Maravilla went along
Mabuhay Street. They came upon a group of men, between Piers 6 and 8, who were hesitant to
answer their inquiries. So they proceeded further, entering a small alley. As they went on,
Elizabeth found the shoes of her brother. So they continued until they met Vicente Aberas,
stripped to the waist, with bloodstains on his hands.8 Patrolman Pili detained him. Since
somebody threatened them should they proceed any further, Patrolman Pili and Elizabeth
Maravilla went to Precinct 3, taking along Vicente Aberas. Assistance from the Mobile Patrol
was then requested. Accompanied by her neighbors and more policemen, Elizabeth, together
with Patrolman Pili, returned and went further to the interior of Mabuhay Street. Finally, they
came upon Federico Caalete and Antonio Maravilla, sprawled on the ground, the former face
down, the latter flat on his back. Federico Caalete was found dead. Antonio Maravilla was
alive, though his face was swollen, rendering him barely recognizable. Antonio Maravilla was
taken to the North General Hospital.

Patrolman Pili, meanwhile, went still further to the interior and saw, about 12 meters away from
where they found the victims, a group drinking liquor. At the approach of Patrolman Pili, about
four men ran away, leaving behind four men, namely, Loreto Saberon, Mario Mustrado, Cristoto
Mitilla and Protacio Libres, the last mentioned being then drunk and asleep on a bamboo
bed.9 A Mobile Patrol car thereafter arrived and apprehended them, except Libres. Patrolman
Pili next went towards a house near Tagumpay Street in which direction the others had fled. In
said house, which was that of Crisanta Melgar, the patrolman found some persons who
pretended to be sleeping, namely, Demetrio Garin, Jesus Felicia and Eduardo Berdida.
Patrolman Pili brought them outside and they were taken by the Mobile Patrol to the Detective
Bureau.

Furthermore, the body of Federico Caalete was examined at the scene where it was found by
officers of the Mobile Patrol. Detective Bureau agents likewise went to said place. Finding
bloodstains near an a alley to Tagumpay Street, they went to a house thereat and found
Protacio Libres sleeping on a bamboo bed. Said detectives took Libres to the headquarters.

At the police station, all the apprehended suspects were made to mingle with other persons.
Antonio Maravilla, who was fetched to point out therefrom the persons who attacked him and
Federico Caalete identified Eduardo Berdida, Vicente Aberas, Loreto Saberon and Jesus
Felicia.

An autopsy was made on 8 May 1960 on the body of Federico Caalete by Dr. Luis Larion,
Medical Examiner of the Manila Police Department. The post mortem findings in his report are
as follows: (Exh. M):

CENTRAL NERVOUS SYSTEM:

Hemorrhage extensive, subarachnoid brain.

CARDIOVASCULAR SYSTEM:

Laceration, blood vessels, brain and spleen.

RESPIRATORY SYSTEM:

Contusion, posterior lung, bilateral.

Congestion, lungs, bilateral.

GASTROINTESTINAL SYSTEM:

About 150 cc. partially digested rice meal with slight alcoholic odor.

Hemoperitoneum about 100 cc. blood, abdominal cavity.

SPLEEN: Maceration spleen.

PANCREAS: Contusion, hemorrhagic, pancreas.

BONES AND JOINTS:

Fracture-separation, left parieto-occipital and right fronto-temporal skull.

MISCELLANEOUS:
 Wound, stab, non-penetrating, 1.3 x 0.5 cm. x 1.5 cm. deep, right lumbar region.

Wound, lacerated, 3 x 0.5 cm. occipital region.

Wound, lacerated, 2.5 cm. x 1.5 cm. x 1 cm. deep, non-penetrating, left
abdomen.

Hematoma, frontal, right; left, parieto-occipital, and occipital, scalp, head.

Contusion, multiple, left forehead; left lower eyelids; left face; nose; lower lip; left
lateral neck; posterior neck; left shoulder; left and right posterior chest.

Contused abrasion, anterior left lower chest and right abdomen.

CAUSE OF DEATH:

Shock and hemorrhage due to traumatic fracture of the skull with maceration of
spleen, contusion of the lungs and extensive subarachnoid hemorrhages in the
brain.

Antonio Maravilla, as shown in the medico-legal certificate of Dr. Cumalinga Espinosa of the
North General Hospital (Exh. R), sustained these injuries:

Contusion with abrasion, and periorbital hematoma, eye right.

Contusion upper and lower lip.

Contusion 2" mental region.

Contusion with slight hematoma, malar right, and mandible bilateral.

Abrasion, 3", lateral neck left.

Abrasion, 2" #2 level of the 10th rib right, along the MCL.

For the defense of herein appellants, the following evidence was presented to establish alibi:

Sometime between 7 and 8 o'clock in the evening of 7 May 1960 Crisanta Melgar was filling
drums with water in her house at 1205 Tagumpay Street, Tondo, Manila. Shortly thereafter,
Eduardo Berdida, Loreto Saberon and Jesus Felicia arrived. Since her husband was on night
duty and her brother- in-law was ill, Crisanta Melgar asked the three to remain and help her fill
up the drums with water, intending to sell the same the next morning. Said defendants
consented and for some time helped Crisanta fill the drums with water. At about 9 o'clock in the
evening, however, said defendants went to sleep in the ground floor of Crisanta's new house,
still under construction, adjacent to the house aforementioned. At about midnight a policeman
and someone in civilian clothes knocked at the door and inquired from Crisanta if there were
three persons sleeping in her house. She said yes, and opened the door. The policeman then
told Crisanta that a dead man was found near their place. The one in civilian attire went to the
back of the house. Crisanta told the policeman she knew nothing of any incident and that the
three men had been in her house for some time. She then awoke the defendants Berdida,
Saberon and Felicia. The policeman told them to stand up and the man in civilian was asked if
they were the ones involved. Said man looked at the defendants and replied in the negative.
The policeman and the civilian then left and the defendants went back to sleep. After a while,
Crisanta, who was restless and could not sleep, went down, awoke the defendants, and told
them that it was better for them to leave. So, the said defendants left, but a policeman stopped
them at Tagumpay Street and took them to the police headquarters.

As to the defendant Vicente Aberas, his defense of alibi is as follows:

In the evening of 7 May 1960, he was on board the fishing boat "Don Paulino." At about 10:30
o'clock in the evening, after unloading their catch of fish, he left for home, bringing with him
a tulingan fish. Juan, a co-worker of his, invited him to drink beer in a store near Pier 8. For
some time they stayed there, then he left for home. On the way he met five men beating up
somebody. Approaching them, he asked them to have pity on the man and not to beat him.
Someone in the group, armed with a club, warned him not to interfere, so, becoming afraid, he
left. In reaching home, he took off his shirt, cut the fish he brought with him in half, lengthwise,
and took one of the halves to the house of Emiliano Retone, another co-worker of his, who did
not report for work that day. Retone invited him to drink gin. After drinking, he headed for home,
but on his way he met two policemen and a woman. After being asked where he came from,
which he answered, and whether he had seen a fight, to which he said yes, he was taken to
Precinct 3.

Appellants would, first of all, assail Antonio Maravilla's testimony identifying them as the
assailants, for the reason that he lost consciousness, and, therefore, could not be relied upon to
make said identification. Appellants would further insist on their defense of alibi. Antonio
Maravilla, it is true, lost consciousness' at about 1 o'clock in the morning of 8 May 1960. It is
however equally true that before his sense faded out he saw herein appellants perform their
atrocities on himself as well as on Federico Caalete. It cannot therefore be doubted that he
made no mistake in pointing out to herein appellants as definitely among their assailants. This
he did, not only at the police station but also in open court during the trial. It is furthermore not
disputed by defendants-appellants that Antonio Maravilla has no reason or motive to falsely
accuse them of murder and attempted murder. The positive identification he made must
therefore be given credence.

It follows that the defense of alibi cannot be sustained. The rule is settled, to the point of being
trite, that the defense of alibi is worthless in the face of positive identification by prosecution
witnesses, pointing to the accused as participants in the crime. 10

The trial court, moreover, found the above-related defenses of alibi not credible. For, according
to said court, if defendants Berdida, Felicia and Saberon really went to help Crisanta Melgar,
their provincemate, fill drums with water at her house, it is rather unusual that they went to sleep
at about 9 o'clock in the evening. Furthermore, the policeman who inquired about persons
sleeping in Crisanta Melgar's house strangely knew their number, that is, three persons. And,
finally, it is unbelievable that said policeman did not take them to the headquarters for
identification by Antonio Maravilla himself.1wph1.t

And, with respect to the defendant-appellant Vicente Aberas, the trial court found it too
surprising to believe that he went to such lengths of amiability, as to go, shirtless at that, to his
friend Retone, at an unholy hour, to share with him one-half of his tulingan fish. No previous
agreement, or urgent need for such an act obtained. It could have waited for the next morning,
especially since, having allegedly come from work, defendant Aberas must have been tired.

As this Court stated in People vs. Constante, L-14639, December 28, 1964, the defense of alibi
is an issue of fact that hinges on credibility; that the credibility of an alibi depends so much on
the credibility of the witnesses who seek to establish it; and that, in this inspect, the relative
weight which the trial judge assigns to the testimony of said witnesses must, unless patently and
clearly inconsistent with the evidence on record, be accepted. For, as is well recognized, his
proximate contact with those who take to the witness chair places him, compared to appellate
Justices, in the more competent position to discriminate be between the true and the false.

And in the present appeal, we find no warrant to depart from the lower court's finding on
defendants-appellants' defense of alibi.

It is also contended by appellants that the aggravating circumstances of nighttime, abuse of

superior strength, and evident premeditation should not be appreciated in fixing the penalty.
Appellants would argue that nighttime was not purposely sought to facilitate the offense or to
afford impunity. At any rate, they would further argue, nighttime as well as abuse of superior
strength are deemed absorbed in treachery. As to evident premeditation, they aver that the
premeditation, if any, is not evident, for lack of sufficient lapse of time between the execution of
the offense and a previous showing of intent to commit it, so as to show that the offenders clung
to their determination to commit the crime.

The presence of one generic aggravating circumstance, apart from the qualifying circumstance
of treachery, suffices to fix the penalty for murder at the extreme punishment of death. For there
is no mitigating circumstance in the present case. From the facts and evidence of record in this
case, it is clear that appellants took advantage of nighttime in committing the felonies charged.
For it appears that to carry out a sentence they had pronounced upon Antonio Maravilla and
Federico Caalete for the death of one Pabling, they had evidently chosen to execute their
victims under cover of darkness, at the dead of night, when the neighborhood was asleep.
Inasmuch as the treachery consisted in the fact that the victims' hands were tied at the time they
were beaten, the circumstance of nighttime is not absorbed in treachery, but can be perceived
distinctly therefrom, since the treachery rests upon an independent factual basis. A special case
therefore is present to which the rule that nighttime is absorbed in treachery does no apply. 11

In addition, the presence of evident premeditation is likewise borne out by the record. For the
victims were told at the start, when they were taken captives, that they had done something
wrong, that they were the ones who stabbed and killed one Pabling, and that for this reason
they were to go with the group (T.s.n., 10 October 1960, pp. 20, 22; Exh. D). Not only that; the
victims were then taken to a spot where they were ordered to dig their graves. The assailants
were previously armed with deadly weapons, and their assault was a concerted and group
action. From the time of apprehension of the victims, About 10 o'clock in the evening, to the
time Antonio Maravilla lost consciousness, about 1 o'clock early the following morning, is
sufficient time for the offenders to meditate and reflect on the consequences of their act.

In People vs. Lopez, 69 Phil. 298, this Court found the aggravating circumstance of evident
premeditation present, in view of the repeated statements of the defendants that the hour of
reckoning of the victim would arrive, the existing enmity between them, the fact that they were
previously armed with deadly weapons, and the fact that the aggression was simultaneous and
continuous until the deceased was left unconscious on the ground. And in People vs. Lazada,
70 Phil. 525, four hours was held sufficient lapse of time for purposes of the presence of evident
premeditation. Furthermore, sufficient lapse of time in this regard is not simply a matter of the
precise number of hours, but of the reasonable opportunity, under the situation and
circumstances, to ponder and reflect upon the consequences. In the present case, we find the
facts and circumstances obtaining sufficient to support the trial court's finding of the attendance
of evident premeditation.

Following previous instances, the indemnity to the heirs of the deceased in this case should be
increased to P6,000. 12

Anent the attempted murder case, no appeal therefrom was taken. The record shows that
defendants perfected no appeal from the judgment below. The present automatic review is
limited only to the murder case in which the death penalty was imposed. It was only because of
the joint trial that the record of the attempted murder case was likewise elevated herein. Since
no appeal was taken in the attempted murder case, the judgment with respect thereto has
become final. It therefore cannot now be reviewed herein, as some of the appellants would ask.
And defendants-appellants, who are detained, should accordingly be deemed to have started
serving their respective sentence in said attempted murder case from the time the decision of
the trial court became final as to said case.

Wherefore, the death penalty imposed on defendants-appellants is hereby affirmed, and the
indemnity to the heirs of Federico Caalete is hereby increased from P4,000 to P6,000, with
costs. So ordered.

51.) G.R. No. 173793 December 4, 2007

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CONRADO M. GLINO, accused-appellant.

DECISION

REYES, R.T., J.:

BEWARE of drunk passengers. They pose danger to life and limb. Merely talking to them or
telling them to sit properly can be fatal, as what happened to one of two victims in the case at
bar.

The present law prohibits and punishes only drunk driving.1 There is no law banning a drunk
person from riding a public vehicle, or the latter's driver from allowing a person who appears to
be drunk to board a public conveyance.2

A drunk passenger or one under the influence of liquor or drug poses a veritable peril to the
other passengers. He is prone to react irrationally and violently, due to lack or diminution of self-
control. Senseless loss of lives and physical harm can be avoided, and the riding public duly
protected, if the potential danger posed by drunk passengers can be addressed properly.

It is the duty of the court, whenever it has knowledge of any act which it may deem proper to
repress and which is not punishable by law, to report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of legislation.3 We leave it to the authorities concerned to do the needful as
they see fit.

MAG-INGAT sa mga lasing na pasahero. Sila'y mapanganib. Ang kausapin o sabihan

lamang sila na umupo nang maayos ay maaari mong ikasawi. Ganito ang sinapit ng isa
sa dalawang biktima sa kasong ito.

Ang kasalukuyang batas ay nagbabawal at nagpaparusa lamang sa pagmamaneho ng

lasing. Walang batas na nagbabawal sa taong lasing na sumakay sa pampublikong
sasakyan, o sa drayber na payagan ang taong sa kilos ay lasing na sumakay sa
pampublikong sasakyan.

Ang pasaherong lasing o sino man na nasa impluwensya ng alak o droga ay may dalang
panganib sa ibang pasahero. Malamang na sila ay kumilos nang walang katwiran o
manakit dahil sa kabawasan ng pagwawari o pagpipigil sa sarili. Maiiwasan ang walang
kabuluhang pagkitil ng buhay at pagkapinsala, at ang mga namamasahe ay
mapangangalagaan laban sa panganib, kung ito'y mabibigyan ng karampatang lunas.

Tungkulin ng hukuman, kung alam nito na ang isang gawa ay marapat supilin at hindi pa
ipinagbabawal ng batas, na ipagbigay-alam sa Pangulo, sa pamamagitan ng Kagawaran
ng Katarungan, ang mga dahilan na pinaniniwalaan ng hukuman kung bakit ang
nasabing gawa ay dapat maging layon ng pagsasabatas. Ipinapaubaya namin sa
kinauukulang maykapangyarihan kung ano ang dapat gawin.

Before the Court is an appeal under Rule 124, Section 13(c)4 of the 2000 Rules on Criminal
Procedure, as amended by A.M. No. 00-5-03-SC, from the Judgment5 of the Court of Appeals
(CA) affirming in toto the Decision6of the Regional Trial Court (RTC) in Las Pias City, Metro
Manila, convicting accused-appellant Conrado Glino of murder and attempted murder for the
senseless killing of Domingo Boji and the stabbing of his wife, Virginia Boji.

The Facts

On November 15, 1998, at around 7:20 p.m., in Moonwalk, Las Pias City, husband and wife
Domingo and Virginia Boji hailed a passenger jeepney bound for Alabang-Zapote Road. The
couple sat on the two remaining vacant seats on opposing rows of the jeepney. Virginia seated
herself on the vehicle's left side while Domingo occupied the vacant seat at the right row.7

Moments later, the woman seated next to Virginia alighted. Accused-appellant Conrado Glino
took her place. He was reeking of liquor. As the jeepney ran its normal route, Virginia noticed
accused-appellant inching closer to her. His head eventually found its way on Virginia's
shoulder. Irked, Virginia sought accused-appellant's attention and asked him to sit properly,
citing adequate space. Accused-appellant angrily replied, "Oh, kung ayaw mong may katabi,
bumaba ka, at magtaxi ka!" Virginia decided to ignore his snide remarks. She then turned her
back on him.8

Accused-appellant, however, persisted in violating Virginia's personal space, leaning on the

latter's shoulders. It was at this point that Domingo decided to tell Glino to sit properly. Accused-
appellant arrogantly retorted, "Anong pakialam mo?" Domingo reasoned out that he is Virginia's
husband. Domingo further said, "Kasi lalasing-lasing ka, hindi mo naman kaya!"9
Marvin Baloes, who, it turned out, was Glino's equally drunk companion, cursed Domingo.
Baloes then provokingly asked the latter, "Anong gusto mo?" Domingo replied, "Wala akong
sinabing masama."10 After the heated verbal tussle, accused-appellant and Baloes appeared to
have calmed down, confining themselves to whispering to one another.11

When the jeepney approached Casimiro Village, Baloes turned to the driver and told him that he
and Glino were about to alight. As the jeepney ground to a halt, Baloes unexpectedly drew an
improvised knife and stabbed Domingo in the chest.12 Accused-appellant then unfolded a 29-
inch Batangas knife (balisong) and joined Baloes in stabbing Domingo. Surprised and shocked
at the sudden attack, Domingo failed to offer any form of resistance to the duo's vicious assault.
In all, Domingo sustained nine stab wounds throughout his body.13

Virginia tried vainly to shield Domingo from his assailants. She tightly embraced Domingo.
Virginia's efforts, however, all went for naught as accused-appellant Glino and Baloes were
unrelenting. When the senseless assault ceased, Virginia found herself bloodied from incised
wounds in her fingers.14

The other passengers of the jeepney scampered for the nearest exit immediately after the first
blow was struck. Some of them had to resort to jumping from the vehicle's window to avoid
harm's way.15

Accused-appellant Glino and Baloes attempted to flee the scene of the crime and ran towards
Camella Center. Baloes, however, fell down to the ground due to intoxication. Glino, unmindful
of his companion, was able to run a distance of 45 meters before he was apprehended by traffic
enforcers Alvin Cristobal and Ruben Ramirez. The two traffic aides, who were the first to
respond to the crime scene, caught sight of the slow-moving jeepney and of the passengers
jumping off it. With the help of a concerned motorist, they were able to pin Baloes and Glino to
the ground. They later turned the two suspects over to the police, who arrived shortly
thereafter.16

Subsequently, Virginia and Domingo were brought to the University of Perpetual Help, Rizal
Medical Center in Las Pias City. Domingo was, however, pronounced dead after a few
minutes. Domingo's chest wound proved mortal.17

On November 18, 1998, accused-appellant Glino and Baloes were indicted for murder18 for the
death of Domingo Boji and attempted murder19 for the stabbing of Virginia Boji. The accusatory
part of the Information for murder reads:

Criminal Case No. 98-1310:

That on or about the 15th day of November 1998, in the City of Las Pias, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and both of them mutually helping and aiding each other,
with intent to kill by means of treachery and evident premeditation and without any
justifiable cause, did then and there willfully, unlawfully and feloniously attack, assault
and stab with bladed weapons one Domingo Boji y Daza, suddenly and without warning
hitting him on the different parts of his body, thereby inflicting upon him serious and
mortal stab wounds which directly caused his death.

CONTRARY TO LAW.20
The indictment for attempted murder bears the following accusation:

Criminal Case No. 98-1311:

That on or about the 15th day of November 1998, in the City of Las Pias, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together, acting in common accord and mutually helping and aiding
each other, with intent to kill, with treachery and evident premeditation, and without any
justifiable cause, did then and there willfully, unlawfully and feloniously attack, assault,
and stab with bladed weapons one Virginia Boji y Revillas, suddenly and without
warning, thereby commencing the commission of murder directly by overt acts but did
not perform all the acts of execution which would produce the crime of murder as a
consequence by reason of some cause or accident other than their own spontaneous
desistance, that is, because the injury inflicted to Virginia Boji y Revillas was not
sufficient to cause her death.

CONTRARY TO LAW.21

On June 15, 1999, accused Marvin Baloes succumbed to cardio-pulmonary arrest while on
detention.22Consequently, his name was dropped from the information. Pre-trial commenced
with respect only to accused-appellant Glino. Thereafter, trial ensued.

The People's evidence, which essayed the foregoing facts, was principally supplied by Enrique
Villaruel, Virginia Boji, SPO2 Wilfredo Dalawangbayan and Alvin Cristobal.

Villaruel testified that he was a co-passenger of the spouses Boji in the jeepney where the
gruesome stabbing incident took place. Villaruel was then on his way home to Anabu I, Cavite.
He witnessed the crime as it unfolded. According to him, accused-appellant Glino and Baloes
both stabbed Domingo; that accused-appellant was armed with a Batangas knife while Baloes
used an improvised knife; that the improvised knife was left on the floor of the jeepney as
accused-appellant and Baloes fled the scene of the crime.23

Virginia narrated that she distinctly saw Baloes stab Domingo in the chest area. Glino was
blocking her path, preventing her from giving aid to her husband. When Domingo was about to
fall down from where he was seated, she embraced him. As she was holding Domingo, a knife
was thrusted into her, wounding her in the hands.24

On cross-examination, she disclosed she did not see who between accused-appellant and
Baloes caused her wounds; that she saw accused-appellant Glino stab her husband; that they
met accused-appellant and Baloes only in the jeepney.25

SPO2 Dalawangbayan testified that he was the investigator assigned to handle the case
involving accused-appellant and Baloes. The two suspects were turned over to him by traffic
aides Cristobal and Ramirez. Likewise turned over to him was a bladed weapon, a 12-inch
improvised knife, confiscated from the person of Baloes.26

At the hospital, he found Domingo in critical condition. He later learned that the victim expired
shortly after his visit. Virginia suffered from incised wounds in her right hand.27 After concluding
his investigation, he prepared a report.28
Cristobal narrated that he is a traffic aide assigned at the Casimiro and BF Resort intersection in
Las Pias City. On the night in question, he noticed a slow-moving passenger jeepney creeping
onto the sidewalk. Moments later, the jeepney's passengers were jumping out of its windows.29

Suspecting a robbery, he and his partner Ramirez immediately gave chase. A man with
bloodied clothes, later identified as Baloes, ran away from the vehicle but fell to the ground
shortly after. Another man, accused-appellant Glino, was able to run for more than five minutes
before they caught up with him.30 He and Ramirez later executed a Pinagsamang Sinumpaang
Salaysay.31

Upon the other hand, the trial court summed up accused-appellant's defense, anchored on plain
denial, in the following tenor:

The evidence for the defense consists mainly of the lone testimony of accused Conrado
Glino, who testified that he is the same accused in this case for murder. He did not know
the other accused Marvin Baloes prior to November 15, 1998 whom he knew only at the
UI for the first time. On November 15, 1998, at around 7:20 in the evening, he was inside
the passenger jeepney which he boarded at Equitable, Las Pias City near Moonwalk to
go home at Imus, Cavite. He did not have any companion. He rode on a passenger jeep
bound to Zapote. He could not recall the number of people inside the jeepney because
the seats were all occupied. He occupied the right side seat of the driver at the middle of
the seat on the right side. Then he saw the victim was stabbed by accused Baloes. He
knew the name of Baloes while they were detained at the UI. He did not know who was
stabbed. The stabbing took place between the areas of Casimiro and Uniwide. The
person stabbed died. He was there watching while the person was being stabbed by
Baloes who was seated also at the right side inside the jeep but seated at the rear most
portion of the jeep. The person stabbed seated at the left seat inside the jeep and
seating also at the rear portion of the jeep. Baloes stabbed the person in his body,
started at the chest, stomach and other parts of the body. He did not know how many
times Baloes stabbed the victim. There was an argument between Baloes and the wife
of the victim prior to the stabbing incident. They had an argument for a short period of
time which he did not know what it was about. They were at the vicinity near Uniwide
when the argument started. He would not know how long the argument lasted and would
not recall the statements of the lady. He said they were having an argument because the
lady seating beside Baloes and after that lady was only a passenger away from him.
Victim said to Baloes while pointing his finger "Tumigil ka dyan, susuntukin kita." Then
Baloes suddenly drew a bladed weapon and stabbed him. Together with other
passengers, they alighted from the vehicle because he was afraid. He waited for another
passenger jeep so he could go home. He was not able to go home because he was
arrested by the police. He could not estimate how many minutes lapsed after he was
able to go down that jeep when he was arrested as he had no wrist watch, but that was
for a short period of time. Ramirez, the not so tall police officer, arrested them and they
were brought to the UI after he and Baloes were immediately handcuffed using only 1
handcuff. Baloes hurriedly went down and ran away after the incident, going back
towards Moonwalk. He was not arrested at the same place where Baloes was arrested.
He denied the testimony of Mrs. Boji that he and Baloes had an argument inside the
jeepney they were riding regarding some space and requested that he move a bit which
caused the commotion resulting to this incident. While they were having an argument, he
was seated inside the jeep and he just looked at them. He denied having argued with
 Mrs. Boji and said that none argued with him. He knows that Baloes died already (TSN,
1 September 2004).

On cross-examination, he declared that his complete name is Conrado Montes Glino.

Her mother's name is Juliana Montes Glino. He denied knowing the middle name of co-
accused Marvin, Montes Baloes. Shown a copy of the Information where it appeared
that the middle name of Marvin Baloes is also Montes, he agreed that the middle name
is Montes. His place of residence is Malagasan 1st, Imus, Cavite. Baloes did not tell him
while they were under the custody of the police that he is also a resident of Malagasan
1st, Imus, Cavite. He did not ask Baloes where he was from while they were together at
the UI. But he admitted that on November 15, 1998, at around 7:20 in the evening, he
and Baloes were on board one and the same jeepney bound for Zapote; that while the
jeep was near Uniwide Metro Mall, there was an untoward incident that took place inside
the jeep; that in that incident, a certain Domingo Boji was stabbed to death. He did not
know that Virginia Boji was also stabbed and wounded. He would not know how many
the passengers were in that jeepney as he failed to count, but there were many
passengers. Both seats at the back were occupied by passengers, but he did not notice
if the seat in front of the jeepney was also occupied. There was a commotion when
Domingo was stabbed. He immediately alighted the vehicle because he was afraid and
waited for another jeepney to transfer to another bound to Zapote.

He admitted that among the passengers, only he and Baloes were arrested by the police
officers because he was pointed to by the witness as the assailant of Domingo Boji. Until
the time of hearing, no one among the jeepney passengers were arrested for the death
of Domingo and injury inflicted to Virginia Boji. His co-accused, in this case, Marvin
Baloes is already dead. He has no other co-accused except Baloes. He came to know
her before she took the witness stand and positively identified him as the assailant.
When he was arrested by the police officers, he shouted why they arrested him and the
police said that he had to go with them and just explain at the police precinct. He did not
resist when the police officers arrested him. He was forced to go with them because they
handcuffed him. He was waiting for a ride as he would transfer to another jeepney in
going home. It was PO Ramirez who arrested him. He did not file a case against
Ramirez for arresting him without a valid reason because he was at the detention cell
nor seek for help in filing a case against Ramirez because he did not know how as that
was the first time he had a case. He had plan to file the case against Ramirez who
brought him at the UI before PO1 Dalawangbayan. They were not investigated nor
interrogated. He stayed at the UI for one week, then he was transferred at the Las Pias
City jail. He told the police investigator, PO1 Dalawangbayan, that it was Baloes who
stabbed and killed Domingo Boji but that was not included in the incident. PO1
Dalawangbayan did not do anything when he told him that he was not included in the
stabbing incident because the one who was talking only was Virginia Boji. He did not ask
PO1 Dalawangbayan to enter his statement in the blotter. Before he was transferred to
the city jail of Las Pias City, he was brought to the City Prosecutor's Office for inquest
(TSN, 22 September 2004).32

RTC and CA Dispositions

On November 22, 2004, the RTC handed down a judgment of conviction, disposing as follows:
WHEREFORE, judgment is rendered finding accused Conrado M. Glino GUILTY beyond
reasonable doubt of Murder and Attempted Murder and hereby sentenced as follows:

1. In Criminal Case No. 98-1310, to suffer the penalty of Reclusion Perpetua and its
accessory penalty and indemnify the heirs of Domingo Boji y Daza the sum
of P50,000.00;

2. Criminal Case No. 98-1311, to suffer an indeterminate prison term of 4 years and 2
months of prision correccional medium as minimum, to 8 years and 1 day of prision
mayor medium as maximum and to suffer the accessory penalty provided for by law and
pay Virginia Boji y Revillas the sum of P101,549.00 actual damages and the sum
of P100,000.00 moral damages;

3. And to pay the costs in both cases.

SO ORDERED.33

Accused-appellant elevated his conviction to the CA by way of an intermediate review,

conformably with the ruling in People v. Mateo.34 On May 26, 2006, the CA affirmed the RTC
judgment in full. The fallo of the CA decision reads:

WHEREFORE, premises considered, the assailed decision dated November 22, 2004 of
the Regional Trial Court, Branch 275, Las Pias City in Criminal Cases Nos. 98-1310
and 98-1311 is hereby AFFIRMED.

SO ORDERED.35

Issues

Undaunted, accused-appellant interposed the present recourse.

On September 13, 2006, We resolved to require the parties to submit their respective
supplemental briefs, if they so desired, within thirty (30) days from notice.

In a Manifestation dated November 13, 2006, the Office of the Solicitor General, for plaintiff-
appellee, opted to dispense with the filing of a supplemental brief. Accused-appellant, through
the Public Attorney's Office, hoists the same lone error he raised before the appellate court, viz.:

THE TRIAL COURT GRAVELY ERRED IN RENDERING A VERDICT OF CONVICTION

DESPITE THE PRIVATE COMPLAINANT'S ADMISSION THAT THE ACCUSED-
APPELLANT DID NOT STAB HER HUSBAND AND THAT SHE DID NOT SEE THE
ACCUSED-APPELLANT STABBED HER.36

In his supplemental brief, accused-appellant contends that the identity of the assailant was not
firmly established. The evidence, he argues, points to Baloes, who died even before the trial
began, as the perpetrator of Domingo's killing and Virginia's stabbing. In the alternative,
accused-appellant submits that he is guilty of homicide and attempted homicide only, not
murder and attempted murder, due to the absence of the qualifying circumstance of treachery. 37
 Our Ruling

We first tackle the conviction for murder.

Positive Identification

Accused-appellant makes capital of Virginia's identification of Baloes as the person who

stabbed her husband, Domingo. According to him, the trial court gravely erred in rejecting his
defense that he was an innocent bystander. He insists he was not acquainted with Baloes. They
met each other only when they were both tagged by the police as the persons responsible for
the melee.

We are unconvinced. The witnesses for the People were consistent in the identification of
accused-appellant as one of two assailants who mortally stabbed Domingo. Villaruel, a key
eyewitness for the prosecution, testified thus:

Q: Mr. Witness, at about seven-twenty in the evening of November 15, 1998, do you
remember where you were then?

A: Yes, Sir.

Q: Where were you at that time?

A: I was at the corner of Angela Village in Alabang, Zapote Road waiting for a ride.

Q: While you are waiting there, waiting for a ride at the said place, do you remember
what happened next, if any?

A: So when I was able to take a ride a jeepney in the road going to Baclaran, that is the
time that I witness the incident.

Q: And then, by the way, where were you going at that time, Mr. Witness?

A: I was on my way going on at Anabu I, Cavite.

Q: Mr. Witness, after you took a ride in a passenger jeepney going to on your way home,
do you remember what happened next, if any?

A: When I boarded the jeepney, the jeepney has no vacancy, so I just hang-on at the
back of the jeepney.

Q: And then, what else happened after that, if you remember?

A: When we are already traveled a short distance, one of the passenger alighted, sitted
(sic) on the left side.

Q: And, what happened next, after you are able to take a sit inside the passenger
jeepney. After one of the passenger alighted?
A: After a while, another passenger alighted on the right seat of the jeepney.

Q: What else happened after another passenger alighted from the said jeepney?

A: And then, that is the time that I noticed that the two male persons moved closely to
the woman, who is sitted in front of me.

Q: And then, what happened next, after you noticed two men moved closely to a woman,
in front of yours?

A: One of the male passengers, who moved closely to the woman, little bit lay down his
head on the shoulder of the woman.

Q: And, what the woman do after this male passenger lay down his head on the
shoulder of the woman?

A: I saw that the woman is avoiding the male passenger, and one of my seatmates on
my right side spoke and asked the male passenger to sit properly.

Q: And what did this male passenger do after the man sitted before you told him to sit
properly?

A: He answered and said "ANONG PAKIALAM MO!"

Q: And what was the reaction of the man sitted beside you, when the male passenger
said "ANONG PAKIALAM MO!"?

A: And that, and he answered that because that woman were you lying is my wife.

Q: And what did the male passenger do after the said man introduced himself as the
husband of the female passenger?

A: "NAGMURA PO."

Q: What else happened after the male passenger coursed him?

A: And then the other male passenger who moved closely to the woman told that "KASI,
LALASING-LASING KA HINDI MO NAMAN KAYA."

Q: And what else happened after that?

A: The man sitted beside me thought that it was already okay, but it is not, because the
two male persons, who moved closely to the woman, were companions, were together
and one of them asked to alight from the vehicle.

Q: And what happened next after one of the two male persons, who moved closely to
the woman, told to alight?
 A: Now, we thought that they are going to alight from the vehicle but when they stood up,
they talked to one another and suddenly stabbed the male passenger, sitted beside me.

Q: Who among these two male passengers stabbed the man sitted beside you?

A: The one who stabbed is the one who pacified the incident that happened before and
the second stabbed was made by the other male passenger.

Q: How many times did these two male passengers stabbed the man, who was sitted
beside you?

A: I cannot count but I know it is many times.38

Villaruel's account of the incident dovetails significantly with that of Virginia:

Q: Madam Witness, at about seven-twenty in the evening of November 15, 1998, do you
remember where you were then?

A: Yes, Sir.

Q: Where were you at that time?

A: We were at Moonwalk.

Q: You said we, who are your companions at that time?

A: My husband, Sir.

Q: Who is your husband?

A: Domingo Boji, Sir.

Q: Why were you there at the said place during that particular date and time with your
husband?

A: We bought fish.

Q: And, after you bought fish, do you remember what happened next, if any?

A: And then after that my husband stopped a jeepney bound to Alabang Zapote.

Q: What happened next, after your husband stopped a passenger jeepney bound for
Zapote?

A: Then we boarded a jeepney, with one vacant seat on the right and one on the left.

Q: And where did you seat when you boarded a passenger jeepney?
A: On the left side, Sir.

Q: And how about your husband, where did he seat?

A: On the right side, Sir.

Q: And then, while you were then on board of the said passenger jeepney, at that time,
do you remember what happened next, if any?

A: While we are on board of the jeepney and the jeepney is on motion, seated on my
right side is a lady.

Q: And how about on your left side, do you know who was sitting?

A: A lady also, Sir.

Q: And what else happened after that?

A: And then, after a while, the lady on my right side alighted.

Q: And then, what happened next, after the lady sitting on your right side alighted from
the jeepney?

A: Suddenly, who is drunk get near to me.

Q: And how did you come to know that this man, who went near beside you, was drunk?

A: Because he smells liquor.

Q: And then what happened next after this man, you claimed drunk, seated beside you?

A: And then he leaned on my shoulder.

Q: And what did you do after this man on your shoulder?

A: I asked him to move away, considering that there is still a space.

Q: And what was the reaction of this man?

A: He got mad at me and he said "OH, KUNG AYAW MONG MAY KATABI, BUMABA
KA, AT MAG-TAXI KA."

Q: And what did you do after this man got mad at you and ordered you to alight from the
said jeepney?

A: So I turned my back to him.

Q: And what happened next after you turned your back to him?
A: And again he leaned on my shoulder.

Q: What happened next after this man leaned again on your shoulder?

A: And he was accosted by my husband.

Q: How did your husband accosted this man?

A: My husband asked him to sit properly, and he said that I am his wife.

Q: And what was the reaction of this man?

A: His companion got mad.

Q: Where was the companion of the drunk man seated, who got angry?

A: Beside the man, who is drunk.

Q: And then what else happened?

Court:

This man, who was leaning on your shoulder, and the man, who got mad, was
seated side by side?

A: Yes, Your Honor.

Q: What did this companion of the man, seated beside you, tell you, if any?

A: He answered my husband and asked "what do you want."

Q: And what was the reply of your husband?

A: My husband answered "I did not say anything wrong."

Q: What was the reply of this companion of the man seated beside you?

A: None, Sir.

Q: What else happened, while you were there on board of the said passenger jeepney?

A: While we are still on board on the jeepney approaching the place of Casimiro Village,
and the jeepney moves slowly, the companion of this drunk man asked the driver to stop
because they will alight.

Q: And then what happened after that, after the companion of this drunk man ordered
the driver to stop?
 A: When this man asked his companion, the drunk man, to alight from the vehicle, and I
am seated, while I am looking down and I noticed, I looked to them they are going to
alight the vehicle I noticed that they suddenly stabbed my husband. And the two persons
announced "HOLDAP ITO." And when I look to them, I saw that they stabbed my
husband.

Court Interpreter:

As the witness demonstrating while it seems that she was stabbed on the
downward thrust and the husband was stabbed on the chest.

Q: Who are these man, you are referring to, who stabbed your husband?

A: The one who died already, Marvin.

Q: Who was this Marvin, the one seated beside you or the companion of the drunk man?

A: The other man, Sir.

Q: Did you notice how many times Marvin stabbed your husband?

A: When I look again, I noticed that only once because the knife is still on the chest of
my husband.

Court:

Where was your husband seated in relation to your seat?

A: In front of me, Your Honor, on the other side.

Q: And what did you do when you saw Marvin stabbed your husband?

A: None, Sir, I am just looking to nothing.

Q: And after Marvin stabbed your husband, do you remember what happened next, if
any?

A: Because Conrado is blocking me, he is in front of me, it seems that they are gambling
to a knife to one another.

Q: And then, what else happened after that?

A: And then, when I looked at them again, I saw that my husband seems to fall from
where he was seated, so I embraced, then another stab came in hit my hands.39

As this Court has reiterated often enough, the matter of assigning values to the testimonies of
witnesses is best left to the discretion of the trial judge.40 In People v. Quijada,41 the Court aptly
held:
 Settled is the rule that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has the advantage
of observing the witnesses through the different indicators of truthfulness or falsehood,
such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie
or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or
the furtive glance, the blush of conscious shame, the hesitation, the sincere or the
flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack
of it, the scant or full realization of the solemnity of an oath, the carriage and mien.

The doctrine was reiterated with greater firmness in the ponencia of now Chief Justice Reynato
Puno in People v. Ave:42

x x x It is an established rule that when it comes to credibility of witnesses, appellate

courts generally do not overturn the findings of trial courts. The latter are in a best
position to ascertain and measure the sincerity and spontaneity of witnesses through
their actual observation of the witnesses' manner of testifying, demeanor, and behavior
in court. x x x

Verily, compared to appellate magistrates who merely deal and contend with the cold and
inanimate pages of the transcript of stenographic notes and the original records brought before
them, the trial judge confronts the victim or his heirs, the accused and their respective
witnesses. He personally observes their conduct, demeanor and deportment while responding
to the questions propounded by both the prosecutor and defense counsel. Moreover, it is also
the trial judge who has the opportunity to pose clarificatory questions to the parties. Elsewise
stated, when a trial judge makes his findings as to the issue of credibility, such findings,
especially if affirmed by the CA, bear great weight, at times even finality, on the Court. 43 We see
no cogent reason to depart from these settled doctrines.

Conspiracy

Even assuming, for the nonce, that it was Marvin Baloes who inflicted the fatal stab, accused-
appellant cannot escape culpability. Their obvious conspiracy is borne by the records. There is
conspiracy when two or more persons come to an agreement concerning the commission of a
crime and decide to commit it. Proof of the agreement need not rest on direct evidence. It may
be inferred from the conduct of accused indicating a common understanding among them with
respect to the commission of the offense.44

It is not necessary to show that two or more persons met together and entered into an explicit
agreement setting out the details of an unlawful scheme or the details by which an illegal
objective is to be carried out. Proof that accused acted in concert, each of them doing his part to
fulfill the common design to kill the victim will suffice to support a conviction.45 In conspiracy, it
matters not who among the accused actually killed the victim. The act of one is the act of all;
hence, it is not necessary that all the participants deliver the fatal blow. Tersely put, each of the
accused will be deemed equally guilty of the crime committed.46

The acts of accused-appellant Glino and Baloes before, during and after the killing of Domingo
are indicative of a joint purpose, concerted action and concurrence of sentiment. In her
testimony before the trial court, Virginia categorically narrated that while Baloes was stabbing
Domingo, accused-appellant Glino was blocking her path, effectively preventing her from
rendering aid to her husband.47 Accused-appellant later joined Baloes in stabbing Domingo with
a Batangas knife.48

Lame Denial

Too, we sustain the RTC and the CA's rejection of accused-appellant's defense founded on
denial. Time and again, this Court has ruled that denial is the weakest of all defenses. It easily
crumbles in the face of positive identification by accused as the perpetrator of the crime. 49 Here,
no less than two eyewitnesses in Villaruel and victim Virginia positively and categorically named
Glino as one of the Boji couple's assailants. Their identification of accused-appellant was
unwavering, made in a simple and straightforward manner. Corollarily, they had no ill motive to
testify falsely against Glino.50 Upon the other hand, other than his bare denial, no corroborating
evidence was put forth to substantiate accused-appellant's disparate account of the incident.

Treachery

Accused-appellant next argues that he should be made liable for homicide only. He claims
treachery did not attend the killing of Domingo.

That treachery or alevosia was present is incontrovertible. The essence of this qualifying
circumstance is the sudden and unexpected attack by the assailant on an unsuspecting victim,
depriving the latter of any real chance to defend himself.51 It is employed to ensure the
commission of the crime without the concomitant risk to the aggressor. The rule is well-settled in
this jurisdiction that treachery may still be appreciated even though the victim was forewarned of
danger to his person.52 What is decisive is that the attack was executed in a manner that the
victim was rendered defenseless and unable to retaliate.53

Concededly, victim Domingo was caught unaware that an attack was forthcoming. Although he
had a verbal exchange with accused-appellant and Baloes, the assault was sudden, swift and
unexpected. All of the passengers inside the jeepney, including Domingo, thought all along that
the tension had ceased and that Glino and Baloes were about to alight. Domingo was
overpowered by accused-appellant Glino and Baloes, who took turns in stabbing the hapless
victim. By all indications, Domingo was without opportunity to evade the knife thrusts, defend
himself, or retaliate. In sum, the finding of treachery stands on solid legal footing.

No Attempted Murder But

Less Serious Physical Injuries

We now proceed to calibrate accused-appellant's liability for the incised wounds sustained by
Virginia. Both the trial court and the appellate court found Glino liable for attempted murder. The
RTC and the CA are in agreement that there was intent to kill Virginia as well.

An essential element of murder and homicide, whether in their consummated, frustrated or

attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by
direct or circumstantial evidence, while general criminal intent is presumed from the commission
of a felony by dolo.54

In People v. Delim,55 the Court had occasion to explain the rudiments of proving intent to kill in
crimes against persons. It may consist in: (1) the means used by the malefactors; (2) the nature,
location and number of wounds sustained by the victim; (3) the conduct of the malefactors
before, at the time of, or immediately after the killing of the victim; (4) the circumstances under
which the crime was committed; and (5) the motives of accused. If the victim dies as a result of
a deliberate act of the malefactors, intent to kill is presumed.56

In the case under review, intent to kill Virginia is betrayed by the conduct of accused-appellant
and his co-assailant Baloes before, at the time of, and immediately after the commission of the
crime. In her testimony before the trial court, Virginia disclosed that she was shocked and was
initially unable to come to Domingo's succor as the first blow was struck; that as Domingo was
about to fall down from where he was seated, she embraced him; that she tried to shield him
from further attacks; that when the assault ceased, her finger was gushing with blood.57

If the assailants also intended to kill her, they could have easily stabbed her in any vital part of
her body. They did not. The nature and location of her wound militates against the finding of
their intent to kill. According to the physician who examined her immediately after the incident,
Virginia suffered from an incised wound measuring 2.5 centimeters by 0.2 centimeter in her fifth
digit, right hand.58

Gleaned from the foregoing, it is crystal-clear that the wound on Virginia was inflicted during her
attempt to shield Domingo from accused-appellant's and Baloes' knife thrusts. It bears stressing
that Virginia embraced Domingo while the assault upon him was at its peak. Evidently, the
wound was inflicted while she was in that position.

The wound required medical attendance, and rendered Virginia incapable of labor, for a period
of ten (10) to thirty (30) days.59 Clearly, accused-appellant Glino should be held liable for less
serious physical injuries only, and not attempted murder.

Although the indictment was for attempted murder, a finding of guilt for the lesser offense of less
serious physical injuries is tenable, considering that the latter offense is necessarily included in
the former.60

The essential ingredients of physical injuries constitute and form part of those constituting the
felony of murder.61Simply put, an accused may be convicted of slight, less serious or serious
physical injuries in a prosecution for homicide or murder, inasmuch as the infliction of physical
injuries could lead to any of the latter offenses when carried out to its utmost degree despite the
fact that an essential requisite of the crime of homicide or murder intent to kill is not required
in a prosecution for physical injuries.62

Penalties

Article 248 of the Revised Penal Code (RPC), as amended, penalizes murder in this wise:

Article 248. Murder. Any person who, not falling within the provision of Article 246,
shall kill another, shall be guilty of Murder and shall be punished by reclusion perpetua
to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense, or of means or persons to insure or afford
impunity;
There being no averment of mitigating nor aggravating circumstance63 that attended the killing
of Domingo, the proper imposable penalty is reclusion perpetua, pursuant to Article 63(2) of the
RPC.

On the other hand, Article 265 of the Revised Penal Code defines and penalizes less serious
physical injuries in the following manner:

Article 265. Less serious physical injuries. Any person who shall inflict upon another
physical injuries not described in the preceding articles but which shall incapacitate the
offended party for labor for ten days or more, or shall require medical attendance for the
same period, shall be guilty of less serious physical injuries and shall suffer the penalty
of arresto mayor.

Again, absent any appreciable mitigating or aggravating circumstance, the penalty of arresto
mayor (1 month and 1 day to 6 months) should be imposed in its medium period (between 2
months and 1 day to 4 months).64

The Indeterminate Sentence Law finds no application in both cases. The rule is well-entrenched
in this jurisdiction that the law is not applicable when the penalty imposed is death, reclusion
perpetua or life imprisonment. Likewise, the law does not apply to those whose maximum term
of imprisonment is less than one year.65

Damages

We have arrived at the award of damages. When death results due to a crime, the heirs of the
victim are entitled to the following damages: (1) civil indemnity; (2) actual or compensatory
damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages. 66

Civil indemnity is mandatory and granted to the heirs of the murder victim without need of
further proof.67 Under current jurisprudence, the award of P50,000.00 as civil indemnity ex
delicto is in order.

We sustain the award of actual damages in the amount of P101,549.00. The heirs of the victim
Domingo were able to prove during the trial, with proper receipts, that they incurred the said
expense.

The trial court and the CA, however, blundered a bit in awarding P100,000.00 as moral
damages. Prevailing jurisprudence dictates that in murder, an award of moral damages in the
amount of P50,000.00 is sufficient. 68 For the less serious physical injuries inflicted on Virginia
Boji, moral damages in the sum of P10,000.00 is warranted.69

The heirs of the victim Domingo Boji are likewise entitled to an additional award of P25,000.00
by way of exemplary damages since the People clearly established treachery in the prosecution
for murder.70 Exemplary damages in the amount of P10,000.00 should also be awarded to
Virginia Boji in the separate conviction for less serious physical injuries.71 When a crime is
committed with an aggravating circumstance, either qualifying or generic, an award of
exemplary damages is justified under Article 2230 of the New Civil Code.72

WHEREFORE, the appealed judgment is MODIFIED in that, in Criminal Case No. 98-1310,
accused-appellant Conrado Glino is found GUILTY beyond reasonable doubt of Murder for the
killing of Domingo Boji and is hereby sentenced to reclusion perpetua with its accessory
penalties. He is ordered to indemnify the heirs of the victim in the amounts of P50,000.00 as
civil indemnity, P101,549.00 as actual damages, P50,000.00 as moral damagesand P25,000.00
as exemplary damages.

In Criminal Case No. 98-1311, accused-appellant is likewise found GUILTY beyond reasonable
doubt of Less Serious Physical Injuries for wounding Virginia Boji and he is sentenced to suffer
the straight penalty of four (4) months of arresto mayor, and to pay the victim the sums
of P10,000.00 as moral damages and another P10,000.00 by way of exemplary damages.

SO ORDERED.