RAFAEL T. FLORES, HERMINIO C. ELIZON, ARNULFO S. SOLORIA, Petitioners, vs. HON.

LYDIA QUERUBIN LAYOSA, In her capacity as Judge of RTC,Quezon City, Branch 217, BENIGNO S. MONTERA and PEOPLE OF THE PHILIPPINES, Respondents. FACTS: Respondent Benigno Montera (Montera) of the Enforcement, Investigation and Prosecution Department of the National Food Authority (NFA) filed an affidavit-complaint with the Office of the Ombudsman, charging Judy Carol L. Dansal and Ronaldo Vallada, together with petitioners Rafael T. Flores, Herminio C. Elizon and Arnulfo S. Soloria, with Estafa through Falsification of Public Document. After conducting a preliminary investigation, the Office of the Ombudsman filed an Information charging petitioners with the offense of Estafa through Falsification of Public Documents with the Regional Trial Court of Quezon City (RTC). Subsequently, the prosecutors filed a motion to suspend the accused pendente lite.4 Petitioners opposed the motion. The RTC issued an Order suspending petitioners pendente lite for a period of ninety (90)-days. Petitioners filed a Motion for Reconsideration of the Order but the same was denied by the RTC in another Order. Petitioners thereafter filed a Petition for Certiorari with the Sandiganbayan, alleging that the RTC erred in ordering their suspension pendente lite even though the crime charged in the Information is within the ambit of Section 13 of R.A. No. 3019. The Sandiganbayan promulgated its Decision dismissing the petition for lack of merit and further affirmed the trial courts suspension pendente lite of the accused because the offense for which they are charged is included in the offenses referred to in Section 13, R.A. No. 3019. It further stated that the Information is valid because it sufficiently informs the accused that they are being charged for estafa through falsification of public document even though the word fraud or deceit is not used therein. Hence this petition. While petitioners concede that the Information sufficiently alleges the elements of the offense of falsification of public document, they assert that it does not contain an averment of fraud or deceit on their part. Hence, they claim that the Information does not charge them with estafa but only falsification of public document. Accordingly, they claim that their suspension from office during the pendency of Criminal Case No. Q-96-66607 is not warranted under Section 13, R.A. No. 3019. In their Comment, the People of the Philippines, through the Office of the Special Prosecutor, argue that the Information sufficiently alleges the elements of estafa through falsification of public document under Article 318 in relation to Article 171 of the Revised Penal Code. According to the People, this complex crime is an offense involving fraud upon government or public funds or property under Section 13, R.A. 3019. Thus, the suspension pendente lite of petitioners is justified under the aforementioned provision. ISSUE: 1. WON the offense charged in the information falls within the coverage of Section 13 of R.A. No. 3019. 2. WON the motion for suspension filed by the counsel for the government agency concerned in this case, with the conformity of the public prosecutor, sufficed to enable the lower court to issue the suspension order pursuant to Section 13 of R.A. No. 3019. HELD [1]: PETITION DENIED. It is settled that once a court determines that the information charging a public officer with an offense under R.A. No. 3019 or Title 7, Book II of the Revised Penal Code, or any other offense involving fraud upon government or public funds or property is valid, it is bound to issue an order of preventive suspension of the accused public officer as a matter of course. The order of suspension pendente lite, while mandatory in nature, is by no means automatic or self-operative. Before such suspension is imposed, a determination as to the validity of the information must first be made in a pre-suspension hearing. There is no hard and fast rule as to the conduct of such hearing, as the Court has previously explained in several cases. Suffice to say, the accused is afforded the opportunity of challenging the validity or regularity of the proceedings against him and that the information charging the accused of any of the offenses mentioned under Section 13, R.A. No. 3019 is found to be valid before the court suspends the accused pendente lite. In the present case, the record shows that petitioners were given the chance to dispute the validity of theInformation against them and the Order suspending them for ninety (90)-days while their case is pending when they opposed Monteras motion for their suspension. HELD [2]: Petition denied.

Any error in the Information, with regard to the specification of the particular mode of estafa, allegedly committed by petitioners will not result in its invalidation because the allegations therein sufficiently inform petitioners that they are being charged with estafa through falsification of public document. The Revised Rules of Criminal Procedure provides that an information shall be deemed sufficient if it states, among others, the designation of the offense given by the statute and the acts of omissions complained of as constituting the offense. However, the Court has clarified in several cases that the designation of the offense, by making reference to the section or subsection of the statute punishing, it is not controlling; what actually determines the nature and character of the crime charged are the facts alleged in the information.20 The Courts ruling in U.S. v. Lim San21 is instructive: Notwithstanding the apparent contradiction between caption and body, we believe that we ought to say and hold that the characterization of the crime by the fiscal in the caption of the information is immaterial and purposeless, and that the facts stated in the body of the pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this doctrine is permitted by the Code of Criminal Procedure, and is thoroughly in accord with common sense and with the requirements of plain justice. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the accused to vex the court and embarrass the administration of justice by setting up the technical defense that the crime set forth in the body of the information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, Did you perform the acts alleged in the manner alleged? not, Did you commit a crime named murder? If he performed the acts alleged, in the manner, stated, the law determines what the name of the crime is and fixes the penalty therefore. It is the province of the court alone to say what the crime is or what it is named.22 Thus, notwithstanding the discrepancy between the mode of commission of the estafa as alleged in the Information (which states that petitioners committed estafa under Article 315), or as claimed by the People in their Comment (that petitioners committed estafa under Article 318) and the absence of the words fraud or deceit in the Information, the Court agrees with the Sandiganbayan and the RTC that the factual allegations therein sufficiently inform petitioners of the acts constituting their purported offense and satisfactorily allege the elements of estafa in general committed through the offense of falsification of public document. It bears stressing that the words fraud or deceit need not be used in an information for the allegations therein to sufficiently allege the offense of estafa. It is enough that acts constituting abuse of confidence or deceit, which are indispensable to estafa, are averred in the information in such a manner that would sufficiently apprise an accused that he is being charged with that offense. Whether the act involved constitutes abuse of confidence or deceit within the technical meaning of the terms as used in Article 315, it is inescapable that it falls within the common and generic signification25 of fraud as used in Section 13 of R.A. No. 3019. In any case, the information in question not only alleges the elements of estafa through falsification of public document with sufficiency, it also clearly states that petitioners are charged with having committed fraudulent acts involving government funds. Thus, whether on the face of the Information, the offense charged is estafa under paragraph 1(b),26 or paragraph 2(a)27 of Article 315, or under Article 318,28 through falsification of public document, or even only falsification of public document, is of no consequence. For the purpose of resolving the propriety of petitioners suspension pendente lite, it is sufficient that the Informationunequivocally recites that the offense charged involves fraud upon government or public funds or property.

PEOPLE OF THE vs. MARTIN CAGADAS, JR., et al, appellants.

PHILIPPINES, plaintiff-appellee,

FACTS: Rex Ballena and his sister Lucia left their residences at Longganapan, San Vicente, Davao, for Tagum to withdraw some money with which to pay their farm laborers. Along the way, they met the respondents who were members of the Integrated Civil Home Defense Force (ICHDF), a para-military group organized by local units of the Armed Forces of the Philippines and composed of selected civilians in the locality to assist the Army in its peace-keeping duties. Rex Ballena informed the respondents that they were on their way to Tagum to withdraw money from the bank with which to pay his farmhands. When asked if they would be returning to Longganapan that day, Lucia replied that only her brother, Rex, would do so. Rex and Lucia arrived in Tagum at nearly noon. After withdrawing P800, Rex purchased some necessities for his family, reserving P500 for his workers' wages. He returned to Longganapan leaving his sister Lucia in Tagum. The following day, Lucia returned to Longganapan and discovered that her brother never arrived home and was missing. Together with other farmers, they searched for Rex where they met with some accuseds who dissuaded them from pursuing with their plans. Two days later, the decaying body of Rex was found lying face down in a deep ravine below the mouth of the Macjum River. His body bore multiple stab wounds in the chest and stomach and his mouth was still gagged with a red handkerchief and his hands bound. His money was gone but his Savings Account passbook was found beside the decaying corpse. The respondents were charged of murdering Rex after reports from eyewitnesses. The accused were arraigned and all pleaded "Not Guilty" to the charge. At the trial, two prosecution witnesses, Ramos Magunot and Jose Magunot, testified that they saw from their farm huts Rex Ballena hogtied and being led by the accused toward the Macjum River, where his corpse was later discovered. Magunot testified that he was summoned by the ICHDF team the same evening because their leader caught him watching when they hogtied Rex. He was warned not to tell on them at the risk of his own life. There was, however, no eyewitness to the actual killing. All the accused put up the defense of alibi, claiming that they were not in the place pointed to by the prosecution witnesses, having either worked in another ICHDF detachment center or in some other place. The Regional Trial Court found them "guilty beyond reasonable doubt of the crime of murder. The defendants appealed to this Court and argued that the lower court erred in convicting them of murder despite the prosecution's failure to prove their guilt beyond reasonable doubt, among others and in convicting Roberto Cultura even if he was not one of the charged in the information. ISSUE: WON ROBERTO CULTURA CAN BE CHARGED ALONG WITH THE OTHER ACCUSED EVEN IF HE WAS NOT NAMED IN THE INFORMATION. HELD: Petition denied. Direct evidence is not the only basis upon which their guilt may be predicated. Their guilt may be established through circumstantial evidence which suffices for conviction if the following requisites are present, namely: (1) there must be more than one circumstance, (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Sec. 5, Rule 133, Revised Rules of Court) The web of circumstantial evidence in this case constitutes an unbroken chain leading to a reasonable conclusion that the appellants detained the victim while he was on his way to Sangab that fateful afternoon. Their individual participation need not be specified for they were all coconspirators in the commission of the crime. Alibi is the weakest of all defenses especially in the absence of proof that it would have been physically impossible for them to have been at the scene of the crime. ISSUE 2: Appellants' contention that the trial court erred in convicting Roberto Cultura for he was not one of those indicted in the information but "Jose" Cultura (his father's name), has no merit. The erroneous designation of his name in the information will not vitiate it, as it was clearly proven that the accused, Roberto Cultura, was part of the group that arrested, hogtied and killed the victim. Besides, Cultura did not raise this question of his identity during the arraignment. His acquiescence to be tried under the name "Jose" at that stage of the case is deemed to be a waiver on his part to raise the question of his identity as one of the accused for the first time on appeal.

LOURDES P. SAN DIEGO, Presiding judge, Court of First Instance of Rizal, Quezon City Branch IX and BENJAMIN M. GRECIA, Assistant City Fiscal of Quezon City, petitioners, vs. THE HON. FERNANDO HERNANDEZ, HON. JOSE RODRIGUEZ, HON. ANTONIO CAIZARES, CHAIRMAN and MEMBERS OF THE HONORABLE COURT OF APPEALS, SECOND DIVISION, MODESTO A. OBISPO and CIPRIANO VALERIANO, respondents. FACTS: Juancho G. Gutierrez, Celedonio P. Cayado alias Tony Cayado, Alfonso D. Tagle alias Panchito Alba, Benjamin A. Johnson, Eliseo C. Estanislao and three (3) other persons designated in said pleading as John Doe, Richard Doe and Peter Doe were charged of frustrated murder by Benjamin M. Grecia Assistant Fiscal of QC. Among those implicated in the alleged mauling Manuel Abella were Modesto Obispo and Cipriano Valeriano, Assistant City Fiscal and member of the Police Force, respectively, of Quezon City; but they were not named specifically in the information for the reason "that only the victim Manuel Abella identified them, while his two other witnesses were negative in their identification of the two..." Owing to the danger that any action taken by his office may be "misinterpreted", because a member of his staff Assistant Fiscal Obispo was involved, the City Fiscal requested that a special prosecutor of the Department of Justice be designated "to continue . . . said investigation." The Secretary designated State Prosecutor Francisco Villa, who proceeded to conduct the investigation. He recommended to the Secretary the dismissal of the case against Obispo and Valeriano on the ground that Manuel Abella had refused to testify. This recommendation was, however, disapproved by the Secretary, who instructed the prosecution to do everything possible to secure Abella's testimony. The defendants designated in the information by their true names were arraigned before the CFI. Judge San Diego asked Assistant Fiscal Grecia about the identity of the persons referred to in said pleading as John Doe, Richard Doe and Peter Doe. Grecia replied that the first two (2) were Assistant City Fiscal Modesto Obispo and Patrolman Cipriano Valeriano. Judge San Diego authorized Grecia to cross out the conventional names John Doe and Richard Doe, in the information, and write, instead, "Fiscal Modesto Obispo" and "Patrolman Cipriano Valerians" and the warrants for their arrest were issued. Respondents moved to set aside said warrants of arrest but was denied. Respondents moved to quash the information on the ground of absence of a preliminary investigation. Judge San Diego denied the motion and set the date on which date respondents would be arraigned. Respondents filed, with the Court of Appeals a petition for "certiorari, prohibition and injunction," to annul the information against them and restrain Judge San Diego and Assistant Fiscal Grecia from proceeding with their arraignment and trial. The same was granted. Judge San Diego and Assistant Fiscal Grecia in turn, filed the present action against the respondents and the Members of the Division of the Court of Appeals that passed said resolution on the ground of grave abuse of discretion. Respondents alleged in their petition therein that the amended information against them is null and void: (1) because they were given no preliminary investigation, before being included in said pleading HELD: PETITION DENIED. The Constitution does not require the holding of preliminary investigations. The right thereto exists only, if and when created by statute. When so created, the absence of a preliminary investigation if it is not waived may amount to a denial of due process. Section 38 of the Revised Charter of QC states that defendant in a case "triable only in the Court of First Instance" of Quezon City, "shall not be entitled as of right to preliminary investigation . . . where the Fiscal of the City, after due investigation of the facts, shall have presented an information against him in proper form." In the case at bar, such investigation had been conducted and said "information in proper form" was filed. Hence, the action of Assistant Fiscal Grecia in inserting the true names of those accused therein as John Doe and Richard Doe, and the authority given therefor by Judge San Diego, are violative of neither the Fundamental Law nor the statutes, and do not constitute a denial of due process. Assistant Fiscal Grecia had conducted an investigation, and had not dismissed, either expressly or impliedly, the charges against them. What is more, he included them in the information, although under the conventional names of John Doe and Richard Doe, and their true names were not revealed until the arraignment of their co-defendants.

LEONILA vs. PEOPLE OF THE PHILIPPINES, respondent.

BATULANON, petitioner,

However, in Criminal Case No. 3627, the crime committed by Batulanon is estafa and not falsification. The trial court convicted petitioner Batulanon for falsifying Dennis Batulanon's signature in the cash voucher based on the Information charging her of signing the name of her 3 year old son, Dennis. The records, however, reveal that in Cash Voucher No. 374A, petitioner Batulanon did not falsify the signature of Dennis. What she did was to sign: "by: lbatulanon" to indicate that she received the proceeds of the loan in behalf of Dennis. Said act does not fall under any of the modes of falsification under Article 171 because there in nothing untruthful about the fact that she used the name of Dennis and that as representative of the latter, obtained the proceeds of the loan from PCCI. The essence of falsification is the act of making untruthful or false statements, which is not attendant in this case. As to whether, such representation involves fraud which caused damage to PCCI is a different matter which will make her liable for estafa, but not for falsification. Hence, it was an error for the courts below to hold that petitioner Batulanon is also guilty of falsification of private document with respect to the cash voucher of Dennis. Petitioner is guilty of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code.

FACTS: Leonila Batulanon was convicted by the RTC of four counts of estafa through falsification of commercial documents for allegedly taking advantage of her position as manager-cashier of Polomolok Credit Cooperative Incorporated (PCCI). Batalunan allegedly forged the signature of Erlinda Omadlao, Gonafreda Oracion and making it appear that the latter were granted a loan of P4,160, P4,000 but it was in fact Batalunan who received the amount; by making it appear that Ferlyn Arroyo and Dennis Batulanon deposited and were granted a loan in fact they did not. Batulanon denied all the charges against her. She claimed that she did not sign the vouchers in the names of Omadlao, Oracion and Arroyo, that the same were signed by the loan applicants in her presence at the PCCI office after she personally released the money to them and that she signed the voucher on behalf of her son Dennis Batulanon because he was a minor. The Court of Appeals affirmed the decision of the trial court but modified it and found her guilty of Falsification of Private Documents Batulanon filed the instant petition and argued that in any falsification case, the best witness is the person whose signature was allegedly forged, thus the prosecution should have presented Erlinda Omadlao, Gonafreda Oracion and Ferlyn Arroyo instead of relying on the testimony of an unreliable and biased witness such as Theresa Medallo., the posting clerk whose job was to assist Batulanon in the preparation of cash vouchers. ISSUE: WON Batalunan can be charged of falsification of private documents. HELD: PETITION DENIED. Although the offense charged in the information is estafa through falsification of commercial document, appellant could be convicted of falsification of private document under the wellsettled rule that it is the allegations in the information that determines the nature of the offense and not the technical name given in the preamble of the information. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. The elements of falsification of private document under Article 172, paragraph 2 of the Revised Penal Code are: (1) that the offender committed any of the acts of falsification, except those in paragraph 7, Article 171; (2) that the falsification was committed in any private document; and (3) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. The prosecution is not duty-bound to present the persons whose signatures were forged as Medallo's eyewitness account of the incident was sufficient. Moreover, under Section 22, Rule 132 of the Rules of Court, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. The claim that Batulanon's letter to the cooperative asking for a compromise was not an admission of guilt is untenable. Section 27, Rule 130 of the Rules of Court provides that in criminal cases, except those involving quasi-offenses or criminal negligence or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. The Court of Appeals correctly ruled that the subject vouchers are private documents and not commercial documents because they are not documents used by merchants or businessmen to promote or facilitate trade or credit transactions nor are they defined and regulated by the Code of Commerce or other commercial law. Rather, they are private documents, which have been defined as deeds or instruments executed by a private person without the intervention of a public notary or of other person legally authorized, by which some disposition or agreement is proved, evidenced or set forth. However, as there is no complex crime of estafa through falsification of private document, it is important to ascertain whether the offender is to be charged with falsification of a private document or with estafa. If the falsification of a private document is committed as a means to commit estafa, the proper crime to be charged is falsification. If the estafa can be committed without the necessity of falsifying a document, the proper crime to be charged is estafa. In view of the foregoing, we find that the Court of Appeals correctly held Batulanon guilty beyond reasonable doubt of Falsification of Private Documents.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RALPH VELEZ DIAZ alias "JIMBOY," accused-appellant. FACTS: On 3 December 1996 at around 8:00 p.m. Francis Bart Fulache and his 10-year old brother Felbart went to Pier 3 to defecate. They were with 30-year old Ralph Velez Diaz, a friend Francis Bart knew from the hantakan, a gaming place near their store. Francis Bart then invited his brother Felbart to go with them to Pier 4 but the latter declined and went home. Francis Bart did not return home that evening and when he again failed to show up in the afternoon of the next day their parents got worried and started searching for him. He was found dead at the Bulacao Bridge, nude, and with evidence of having been abused physically. The autopsy revealed that the cause of death was "intracranial hemorrhage, extensive, with skull fracture, traumatic." The examination also disclosed contusions, abrasions and lacerations all over the boy's body the most prominent of which was the comminuted and depressed fracture on his head. There were, quite notably, multiple lacerations in his rectum, which the doctor said was caused by a blunt instrument like a male organ in full erection. At the wake of Francis Bart, a person acting suspiciously but unknown to the Fulache spouses went to the wake. There he created a spectacle of himself by reciting poems for Francis Bart and singing the theme song from the movie "The Lion King," and giving emphasis to the word "surrender." Bartolome Fulache reported to the authorities the unusual behavior of their "uninvited guest," who was identified as Ralph Velez Diaz. The accused admitted to his acts and revealed his sexual perversity by narrating in detail how he perpetrated the ghastly crime against Francis Bart but set up the defense of insanity by presenting government physician, who however diagnosed the accused to be afflicted with pedophilia. The trial court found Ralph Velez Diaz guilty beyond reasonable doubt of "murder in relation to sexual abuse (sodomy) of a child, attended by treachery." Accused-appellant submits that the trial court erred in (a) finding him guilty beyond reasonable doubt of murder, and (b) imposing upon him the supreme penalty of death. It is the contention of accused-appellant that if he is guilty his guilt would only be for homicide and not murder as the qualifying circumstances of treachery, abuse of superior strength and evident premeditation are absent. ISSUE: WON THE ACCUSED WAS GUILTY OF MURDER OR HOMICIDE. HELD: Petition denied. We agree with the trial court that the crime committed by accused-appellant was murder even in the absence of the qualifying circumstance of evident premeditation because treachery and abuse of superior strength were present - either of which qualified the crime to murder. There is treachery or alevosia when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make." Well-settled is the doctrine that the killing of children who by reason of their tender years cannot be expected to put up a defense is considered attended with treachery even if the manner of attack is not precisely shown. Thus, the killing of Francis Bart must be deemed ipso facto qualified by treachery by reason of his inherent defenselessness. Likewise, there is a clear case of abuse of superior strength given the blatant inequality of strength between the victim and accused-appellant. However, this cannot be appreciated even as a generic aggravating circumstance being necessarily absorbed in treachery. Anent the second assigned error, we agree with accused-appellant that he should not be meted the supreme penalty of death. A careful scrutiny of the records shows that the Information charged him only with murder qualified by treachery, abuse of superior strength and evident premeditation. It failed to mention the commission of sexual abuse or "sodomy" on the victim. The Information designated the crime as "murder in relation to RA 7610," but as a rule, what controls is not the designation of the offense but its description in the complaint or information. The real nature of the criminal charge cannot be determined from the caption or preamble of the information or from the mere reference to a particular provision of law alleged to have been violated because they are conclusions of law. On the contrary, it is determined by the actual recital of facts in the complaint or information. The technical name given by the fiscal appearing in the title of the information does not determine the character of the crime but the facts alleged in the body of the information. Thus, even if there is positive proof of sexual abuse accused-appellant cannot be convicted therefor as it was not so alleged in the information.

We cannot share the view of the Solicitor General that the trial court did not apply the provisions of RA 7610 in imposing the death penalty but merely made reference to them as sexual abuse, which was established to have been committed by accused-appellant. He contends that the sodomy could be considered as an aggravating circumstance for adding ignominy to the crime as the sexual abuse certainly augmented the wrong done to the victim thus unduly increasing his pain. We do not agree. The trial court was clear in declaring that "[c]onsidering the aggravating circumstance ofalevosia and the seriousness of the sexual assault on the victim (in itself a heinous crime), this court after a soul-searching and prayerful consideration has arrived at a firm resolution to impose the maximum penalty of death." Moreover, "ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime." Thus, for ignominy to be appreciated as an aggravating circumstance in the instant case, it must be shown that the sexual assault on Francis Bart was done by accused-appellant to put the former to shame before killing him. This is clearly not the case here. The killing was done to eliminate the only witness to his crime. We should not be misunderstood for our failure to hold accused-appellant responsible for committing sexual abuse on his victim despite strong evidence in support thereof. We have no choice as our hands are tied by the failure of the public prosecutor to file the appropriate information for accused-appellant's sexual assault on the victim.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEPH PAMBID y CORNELIO, accused-appellant. FACTS: Joseph Pambid y Cornelio, 23-year-old, and six-year-old Maricon Delvie C. Grifaldia were neighbors at Purok 3-A Luzon Avenue, Barangay Culiat, Quezon City. The accused was found guilty beyond reasonable doubt of two (2) counts of statutory rape for raping Maricon. The first rape took place when Maricon was on her way home after having been sent on an errand. As she was nearing her house, accused-appellant pulled her and took her to his house. As soon as they were inside the house, accused-appellant got a knife from the kitchen and, at knifepoint, ordered Maricon to remove her short pants, then ordered her to lie on the bed while issuing threats that he would beat her up. At first, accused-appellant inserted his forefinger into Maricons vagina. He then inserted his penis and commenced the sexual act, but was interrupted by the arrival of his mother who asked why the door was closed. At that point, accusedappellant hurriedly hid the knife under the bed and asked Maricon to leave. Because of accusedappellants threat, Maricon never reported the incident to anyone. The second rape happened one morning in the house of Antonia Adovera, accused-appellants aunt, which is situated beside accused-appellants house. Accused-appellant saw Maricon on her way to a nearby store. As nobody was present, accused-appellant took Maricon to his aunts house. He ordered her to remove her clothes and to lie down on the sofa. Accused-appellant then went on top of her and inserted his penis into her vagina. Thereafter, he licked her private parts. She was later released and allowed to go home, but not before she was warned not to tell anyone what had happened to her. Maricon and her mother went to the house of Melita Calzada Ervi, who is Delias sister. Melita told Delia how her daughter, Lady Ann Calzada, who was then 10 years old, was nearly raped by their neighbor, Boni Tolentino, then aged 15. Maricon suddenly interrupted them and told her mother of the two incidents. The defense evidence consists of denial, alibi and plea of insanity. Accuseds mother said the accused-appellant was not home during the time the first incident of rape was alleged to have happened. The doctor who testified for the defendant said accused-appellant to have very poor attention, a blunt facial expression and is easily distracted. According to her, accused-appellant was often deep in thought, hypoproductive and kept on mumbling things to himself and also exhibited subnormal intellectual functioning which made him experience hallucinations and delusions. Her conclusion was that it was possible that, at the time of the alleged rapes, accused-appellant was suffering from mental illness. The trial court found the accused guilty, hence this appeal. Accused argued that Maricons statement that he was only "fingered" puts in doubt her claim that he succeeded in having sexual intercourse with her. HELD: Petition denied. Maricon had no motive to falsely claim that she had been raped by accused-appellant if this was not true. We have ruled that a young girls revelation that she has been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give details of the assault on her dignity, cannot be easily dismissed as mere concoction. Maricons testimony is likewise corroborated by medical findings of hymenal lacerations. It is true that the supposed dates of the two rape incidents were not alleged in the information. But under Rule 110, 6 and 11 of the Rules on Criminal Procedure, an information is sufficient as long as it states the statutory designation of the offense and the acts or omissions constituting the same, since in rape cases, the time of commission of the crime is not "a material ingredient of the offense." It is thus sufficient if it is alleged that the crime took place "as near to the actual date at which the offense(s) are committed as the information or complaint will permit." We also ruled that in rape cases, victims of rape hardly retain in their memories the dates, number of times and manner they were violated. In the same vein, to be material, discrepancies in the testimony of the victim should refer to significant facts which are determinative of the guilt or innocence of the accused, not to mere details which are irrelevant to the elements of the crime, such as the exact time of its commission in cases of rape, and are not grounds for acquittal. Moreover, accused-appellant entered his plea during arraignment without objecting to the sufficiency of the information. He thus waived objection on this ground, as provided in Rule 117, 8. On the other hand, the alleged discrepancy in Maricons testimony whether she had been raped or merely "fingered" by accused-appellant is more apparent than real. What she said was that accused-appellant touched her private parts and then had sexual intercourse with her. In any case, the alleged discrepancy concerns mere matters of details which can be expected to happen when a young girl, aged six and inexperienced, is asked to narrate in court how she was violated. Such minor inconsistencies, far from detracting from the veracity of her testimony, in fact, tend to bolster it. Second. Accused-appellants mother claimed that her son was in the house of his father in Bagong Bayan, Caloocan City, when the first incident of rape allegedly happened in Barangay Culiat, Quezon City. This assertion, however, is inconsistent with her testimony on cross-

examination that on April 15, 1993, accused-appellant came back and never left home thereafter. As we have held time and again, the testimony of rape victims who are young and immature deserves full credence, specially if they are without any motive to testify falsely against accusedappellant. We find accused-appellants plea of insanity unacceptable. To begin with, his shift of theory, from denial and alibi to plea of insanity, made apparently after realizing the futility of his earlier defense, is a clear indication that his defenses are nothing but mere concoctions. While Art. 12(1) of the Revised Penal Code provides that an imbecile or insane person is exempt from criminal liability, unless he has acted during a lucid interval, the presumption, under Art. 800 of the Civil Code, is that every man is sane. Anyone who pleads the exempting circumstance of insanity bears the burden of proving it. He must show that he was completely deprived of reason when he committed the crime charged. As held in People v.Baez, 31 "the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability." By the totality of his acts, accused-appellant showed that he was fully conscious of what he was doing.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER TAO y CABALLERO, accused-appellant.HATOL FACTS: Amy de Guzman was tending a Video Rental Shop owned by her employer and cousin, Ana Marinay located at Caloocan City when accused, a relative of Anas husband Gerry Marinay arrived. Tao asked Amy the time when Gerry would be coming home, to which she replied, 10:00 p.m. He then asked about the time when Ana would be coming home and Amy replied that she did not know. Tao kept on going in and out of the Video Shop, and on the last time that he went inside said shop, he jumped over the counter of the shop to where Amy was and seized the latter by placing one of his arms around Amy s neck, while his other hand held a knife which he poked at her neck. Amy started shouting for help but Alexander Tao increased the volume of a karaoke. He then dragged Amy to the kitchen of the shop where, at knife point, he ordered the latter to undress and he thereafter started raping her. While Alexander Tao was raping Amy, somebody knocked at the door of the shop prompting the former to stop and directed Amy to go upstairs to the second floor of the shop to change clothes as he will be taking her with him. Suddenly Tao pulled her down and punched her in the stomach thrice causing her to lose her balance. Tao then started cursing her and again placed himself on top of her while poking a knife at her neck. Amy pleaded with Tao to just take anything inside the shop and to spare her life, to which Tao replied no, I will not leave you here alive. But after a while and upon Amys pleading, Tao put down his knife. Tao became violent again and banged Amys head on the wall causing the latter to lose consciousness. When she regained consciousness she found herself and Tao inside the toilet of the shop and the latter again banged her head, this time on the toilet bowl, several times causing Amy to again lose consciousness. Tao went upstairs and looted the place of valuables belonging to Amys employer, Ana. Amy, herself lost her ring, bracelet and wristwatch during the incident. Amys employer Ana arrived and found the shop in disarray with the karaoke in full volume. Ana proceeded to the toilet where she found Amy bathed in blood. The defense provided a different version of the story and denied raping Amy but admitted robbing the place. The trial court convicted the accused of the complex crime of robbery with rape and further appreciated the dwelling as an aggravating circumstance. ISSUE: WON accused can be charged of the complex crime. HELD: Appellant is guilty of two separate crimes -- rape and robbery, (b) dwelling cannot be appreciated as an aggravating circumstance, and (c) the proper penalty for rape is reclusion perpetua, not death. Rape is committed by having carnal knowledge of a woman under any of the following instances: (1) force or intimidation is used, (2) the woman is deprived of reason or otherwise unconscious, or (3) she is under twelve years of age. We find the necessary elements of rape duly established by Private Complainant Amy de Guzman when she candidly. With respect to the robbery, its elements are: (1) the subject is personal property belonging to another; (2) there is unlawful taking of that property, (3) the taking is with the intent to gain, and (4) there is violence against or intimidation of any person or use of force upon things. There is no question on the unlawful taking of valuables belonging to Amy and her employer, Ana Marinay. Appellant openly admitted in court the unlawful asportation. We do not, however, agree with the trial court that appellant is guilty of the special complex crime of robbery with rape. This felony contemplates a situation where the original intent of the accused was to take, with intent to gain, personal property belonging to another; and rape is committed on the occasion thereof or as an accompanying crime. Such factual circumstance does not obtain here. As related by Private Complainant Amy de Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at the left side of her neck, pulled her towards the kitchen where he forced her to undress, and gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her alive. At this point, appellant conceived the idea of robbery because, before they could reach the upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness; then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head, first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then

proceeded upstairs where he took as well the jewelry box containing other valuables belonging to his victim's employer. Under these circumstances, appellant cannot be convicted of the special complex crime of robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and thereafter robbed her and Ana Marinay, he committed two separate offenses -- rape with the use of a deadly weapon and simple robbery with force and intimidation against persons. Appellant may well be convicted of the separate offenses of rape and robbery notwithstanding the fact that the offense charged in the Information is only "Robbery with Rape." In a similar case, People v. Barrientos,[39] this Court held: "x x x Controlling in an Information should not be the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being, by and large, mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. Neither is it the technical name given to the offense by the prosecutor, more than the allegations made by him, that should predominate in determining the true character of the crime. There should also be no problem in convicting an accused of two or more crimes erroneously charged in oneinformation or complaint, but later proven to be independent crimes, as if they were made the subject of separate complaints or informations." In the case at bar, we find the Information filed against appellant to have sufficiently alleged all the elements necessary to convict him of the two separate crimes of rape and robbery. Needless to state, appellant failed, before his arraignment, to move for the quashal of the Information which appeared to charge more than one offense. He has thereby waived any objection and may thus be found guilty of as many offenses as those charged in the Information and proven during the trial. ISSUE 2: Dwelling not an aggravating circumstance. Dwelling aggravates a felony when the crime was committed in the residence of the offended party and the latter has not given any provocation. It is considered an aggravating circumstance primarily because of the sanctity of privacy that the law accords to human abode. In the case at bar, the building where the two offenses were committed was not entirely for dwelling purposes.

PEOPLE OF THE PHILIPPINES vs EDWIN MEJIA FACTS: AAA, 18 years old, single was fetched by her mother BBB from her grandmothers house where she lives. She was to take care of her two- month-old brother at BBBs house. Accused-appellant was BBBs live-in partner, who resided in the same house as BBB. BBB left for Dagupan City, where she sold vegetables at the market. While AAA was babysitting her brother, accused-appellant, who was armed with a bolo, forcibly held her, laid her on the living room floor (sala) and raped her. Later that afternoon, accusedappellant went inside the bedroom where AAA was babysitting her brother, pulled AAAs hair and placed himself on top of her, but failed to insert his penis into her private part. AAA did not inform her grandparents about the abominable act accused-appellant committed upon her person out of fear due to his threats. However, she told her aunt with whom she lived in about her pregnancy, for she could no longer hide the change in her physical appearance. The defense presented the twin defenses of denial and alibi and claimed it was impossible for him to have raped AAA because he was not at home. The trial court found the accused guilty of Rape and Acts of Lasciviousness for the second offense. The trial court appreciated the qualifying circumstance of minority and relationship, so that under Article 266-B of Republic Act No. 8353, the penalty would have been death. With the suspension of the death penalty due to the enactment of Republic Act No. 9346, the RTC imposed reclusion perpetua. The Court of Appeals affirmed the decision but modified it by disregarding the qualifying circumstance of minority in view of the informations failure to allege such circumstance and the prosecutions failure to adduce proof as to the age of AAA at the time the alleged rape took place. The appellate court said the qualifying circumstance of minority was not sufficiently established by independent proof during trial. Hence, this appeal before this Court. ISSUE: WON THE TRIAL COURT ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF MINORITY OF THE VICTIM ALTHOUGH THE INFORMATION DOES NOT ALLEGE SUCH CIRCUMSTANCE AND THAT THE PROSECUTION INTRODUCED NO PROOF AS TO THE AGE OF THE VICTIM AT THE TIME THE ALLEGED RAPE INCIDENT HAPPENED. HELD: PETITION DENIED. In resolving rape cases, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the accused, though innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense; and (d) the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying. Indeed, at the heart of almost all rape cases is the issue of credibility of witnesses, where conviction or acquittal of the accused may depend entirely on the credibility of the victims testimony, as only the participants therein can testify to its occurrence. By the nature of rape, the only evidence that oftentimes is available is the victim's own declaration. The rule is clear that the lone testimony of the victim in the crime of rape, if credible, is sufficient to sustain a conviction. Moreover, when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial court is generally given the highest degree of respect, if not finality. The assessment made by the trial court is even more enhanced when the Court of Appeals affirms the same, as in this case. For alibi to succeed as a defense, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime. No other principle in criminal law jurisprudence is more settled than that alibi is the frailest of all defenses as it is prone to fabrication. AAAs testimony indubitably shows that accused-appellant had carnal knowledge of her by using force and intimidation and the defense failed to prove the physical impossibility of his presence at the scene of the crime. As testified to by accused-appellant, the distance from Casantiagoan, Pangasinan to the house of BBB in XXX town, which was the scene of the crime, can be traversed by ordinary commute in a span of one hour. It was thus not physically impossible for him to have been at the locus criminis. Accused-appellants defense of denial is inherently weak. Jurisprudence has established that the defense of denial assumes significance only when the prosecutions evidence is such that it does not prove guilt beyond reasonable doubt. Mere denial, unsubstantiated by clear and convincing evidence, is negative, self-serving evidence, which cannot be given greater evidentiary weight than the testimony of the complaining witness who testified on affirmative matters. In all, the totality of the evidence presented by the prosecution proves beyond reasonable doubt that accused-appellant is guilty of Rape in Criminal Case No. SCC-4081. Simple rape is punished under Article 266-A of the Revised Penal Code by the single indivisible penalty of reclusion perpetua. Article 266-B of the Revised Penal Code mandates that the death penalty shall be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: (1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; Although the qualifying circumstances of minority and relationship were appreciated by the trial court, the Court of Appeals correctly disregarded them. These qualifying circumstances cannot be considered in fixing the penalty because minority, though proved, was not alleged in the information. As regards relationship, the same was alleged and proved. Pursuant, however, to Section 266-B of the Revised Penal Code, in order to fall within subparagraph 1 of said provision, both circumstances of minority and relationship must be alleged in the information and proved during trial. Jurisprudence dictates that when the law specifies certain circumstances that will qualify an offense and thus attach to it a greater degree of penalty, such circumstances must be both

alleged and proven in order to justify the imposition of the graver penalty. Recent rulings of the Court relative to the rape of minors invariably state that in order to justify the imposition of death, there must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused. A duly certified certificate of live birth accurately showing the complainant's age, or some other official document or record such as a school record, has been recognized as competent evidence. In the instant case, we find insufficient the bare testimony of private complainants and their mother as to their ages as well as their kinship to the appellant. We cannot agree with the solicitor general that appellant's admission of his relationship with his victims would suffice. Elementary is the doctrine that the prosecution bears the burden of proving all the elements of a crime, including the qualifying circumstances. In sum, the death penalty cannot be imposed upon appellant. The twin circumstances of minority of the victim and her relationship to the offender must concur to qualify the crime of rape. In the instant case, only relationship was duly alleged and proved. As amended, and effective 1 December 2000, Secs. 8 and 9, Rule 110 of the Revised Rules on Criminal Procedure now provide that aggravating as well as qualifying circumstances must be alleged in the information and proven during trial; otherwise they cannot be considered against the accused. Proof of the age of the victim cannot consist merely of testimony. Neither can a stipulation of the parties with respect to the victims age be considered sufficient proof of minority. Thus, the same cannot be used to impose the higher penalty of capital punishment on the accused-appellant. With respect to Criminal Case No. SCC-4080, we are in full agreement with the trial court and Court of Appeals in downgrading the crime from rape to acts of lasciviousness inasmuch as carnal knowledge was not established. The mere act of lying on top of the alleged victim, even if naked, does not constitute rape.

PEOPLE OF THE PHILIPPINES vs ERNESTO MALIBARAN FACTS: In 2001, AAA was a child of seven when Ernesto Malibaran raped her around 20 times when members of the family were out. Ernesto would usually pull her inside the room, strip her of her shorts, lay her down, go on top of her, and insert his penis into her sex organ, the process accompanied by the mashing and sucking of breasts. In the first of the series of rape incidents, Ernesto threatened AAA with death should she report the matter to her mother. At about noon of May 13, 2002, BBB, while resting in their house, noticed her father suddenly pulling AAA to the kitchen. When she stood up and approached the two, Ernesto pushed AAA away. When AAA was later asked by BBB what Ernesto did to her, AAA replied that Ernesto had mashed her breast and touched her private part. It was at this juncture that AAA disclosed to her mother about the sexual abuses she had suffered in the immediate past. Ernesto offered by way of exculpation the twin defenses of denial and alibi. He testified that he could not have raped AAA before Christmas of December 2001 as the child was at the nearby house and returned home the following day. Neither could he have committed the crime one morning after Christmas of 2001 but before May 13, 2002 since, according to him, AAA spent Lent with the same neighbor, while practically the entire family was at the house on May 13, 2002. On that day of May, so Ernesto claimed, he hit AAAs arm with a piece of wood for meddling with his cooking, an event which ended in an altercation between him and BBB. He surmised that BBBs act of charging him was motivated by the anger she harbored after he mauled two of her suitors. The RTC found Ernesto guilty beyond reasonable doubt of qualified rape on all three counts and sentencing him to death. The CA affirmed the RTCs decision. ISSUE: WON Ernesto was beyond reasonable doubt of two counts of Qualified Rape under Articles 266-A and 266-B of the RPC. HELD: PETITION DENIED. First, the testimony of private complainant AAA was categorical and positive as to the molestations committed by Ernesto through force and threats of physical harm; Second, medical evidence provides confirmatory dimension to the fact of rape; Third, the defenses of denial and alibi do not foreclose the commission of rape by Ernesto; Fourth, the qualifying blood relationship between the minor AAA and Ernesto had adequately been proved. Ernesto would have this Court believe AAAs testimony bordered on the absurd when she testified that Ernesto was on top of her with his penis on her vagina, doing an up-and-down movement, mashing her breast, and sucking her nipple at the same time. It was, according to Ernesto, physically impossible for him to have performed the foregoing overt acts simultaneously. We are not persuaded. AAAs above testimony ought to be taken in the light of her tender years and of her being innocent to the ways of the world. When the offended party is of tender age and immature, courts are inclined to give credit to their accounts of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed if the matter to which they testified is not true. Minority and relationship which, in a prosecution for rape, constitute special qualifying circumstances must be alleged in the information and proved during trial. These qualifying, circumstances have been duly alleged and proved beyond reasonable doubt. In the instant case, the twin aggravating circumstances of minority of the victim and her blood ties to the offender were properly appreciated. Ernestos filial ascendancy was properly alleged in the informations and duly established by the presentation of the birth certificates of BBB and AAA as well as the marriage certificate of Ernesto. The birth certificate of BBB as well as the marriage contract of Ernesto and his wife Edna Caballe proved BBB to be Ernestos daughter. And the birth certificate of AAA proved that she is the daughter of BBB and, thus, the granddaughter of Ernesto. Ernesto was duly identified by AAA as her grandfather, the latter not even impugning the relationship during trial. Likewise, alleged in the information and duly proved during trial by virtue of her birth certificate was AAAs minority.

CLAUDIO J. TEEHANKEE, JR., petitioner, vs. HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents. FACTS: Petitioner was originally charged in an information for the crime of frustrated murder allegedly committed in the Municipality of Makati where the accused while armed with a handgun shoot one Maureen Navarro Hultman on the head. But due to the timely and able medical assistance rendered to said Maureen Navarro Hultman, she did not die. After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a demurrer to evidence. However, before the said motion could be filed, Maureen Navarro Hultman died. Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion for leave of court to file an amended information and to admit said amended information. The amended information said the accused shoot with the said handgun Maureen who was hit in the head, thereby inflicting mortal wounds which directly caused her death. At the scheduled arraignment, petitioner refused to be arraigned on the amended information for lack of a preliminary investigation thereon. By reason of such refusal, respondent judge ordered that a plea of "not guilty" be entered for petitioner. Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's counsel manifested that he would not take part in the proceedings because of the legal issue raised, the trial court appointed a counsel de oficio to represent herein petitioner. ISSUE: 1. WON an amended information involving a substantial amendment, without preliminary investigation, after the prosecution has rested on the original information, may legally and validly be admitted; (b) Whether or not a counsel de oficio may legally and validly be appointed to represent an accused who is represented by counsel of choice who refuses to participate in the proceedings because of a perceived denial of due process and after a plea for appellate remedies within a short period is denied by the trial court; and HELD: Petition denied. Petitioner avers that the additional allegation in the amended information, as herein underscored, that the accused ". . . did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . . ." constitutes a substantial amendment since it involves a change in the nature of the offense charged, that is, from frustrated to consummated murder. Petitioner further submits that "(t)here is a need then to establish that the same mortal wounds, which were initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of the victim, because it could have been caused by a supervening act or fact which is not imputable to the offender." From this, he argues that there being a substantial amendment, the same may no longer be allowed after arraignment and during the trial. Corollary thereto, petitioner then postulates that since the amended information for murder charges an entirely different offense, involving as it does a new fact, that is, the fact of death whose cause has to be established, it is essential that another preliminary investigation on the new charge be conducted before the new information can be admitted. We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders of the trial court. Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleaded, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, and amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. 10 Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder, hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. In the present case, therefore, there is an identity of offenses charged in both the original and the amended information. What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper. Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed after a plea has been entered. The proposition is erroneous and untenable. As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 12 (2) an amendment which does not charge another offense different or distinct from that charged in the original one; 13 (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. 14 We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. 16 Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein petitioner may adduce

under the original information for frustrated murder equally applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment as to form which is allowed even during the trial of the case. It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary. 17 We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner whose counsel of record refused to participate in the proceedings because of an alleged legal issue. Such issue having been demonstrated herein as baseless, we apprehend his refusal to participate in the trial as causative of or contributive to the delay in the disposition of the case. And, finally, for as long as the substantial rights of herein petitioner and other persons charged in court are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELQUIADES FERNANDEZ alias "Moding", and FEDERICO CONRADO, defendants-appellants. FACTS: Teofilo Malong employed Rebecca Soriano as a househelper. Rebecca Soriano testified that on 13 January 1982 at about 2:00 o'clock in the afternoon, and after she had just finished taking a bath and still naked, the two (2) accused, both in short pants, surreptitiously entered the bathroom. To prevent her from making an outcry, a piece of cloth was tightly tied around her neck, after which she was forcibly laid down. Conrado held her hands behind her while Fernandez sexually abused her. She declared that, immediately after Fernandez had raped her, Conrado in turn went on top of her and likewise succeeded in having sexual congress with her against her will. She added that, thereafter, Fernandez got a handful of mud near the bathroom and placed it on her vagina. Thereupon, she ran to the upper floor of the house to report the tragic incident to Amelita Malong. Amelita reported the incident to her father and told the court that she knew the accused because Fernandez used to spray their mango trees while Conrado sold to them a dog. In defense, the two (2) accused denied any involvement in the offense, both claiming they were nowhere at the scene of the crime when it was committed. Fernandez claimed he was in his house weaving baskets when the incident happened, while Conrado alleged that when the crime was committed, he was at Malimpuec, Malasiqui as he was hired to spray the mango trees. The trial court found the two accused guilty beyond reasonable doubt of the crime of rape, aggravated by cruelty or ignominy. ISSUE: WON the lower court erred in convicting the accused and in stating that the crime was attended by the aggravating circumstances of cruelty or ignominy. HELD: Petition denied. The trial court is accused of violating the rule against duplicity of offenses in that, the accused were convicted for two (2) crimes of rape even when under the criminal complaint against them, there is only one (1) crime of rape alleged. The rule invoked in Section 13, Rule 110 of the Rules of Court which states that there should be only one (1) offense charged in a criminal complaint or information, the purpose of which is to afford the defendant a necessary knowledge of the charge so that he may not be confused in his defense. But it is likewise the rule that if ever duplicity of offenses is committed, the same constitutes a ground for a motion to quash the complaint; and failure of the accused to interpose the objection constitutes waiver. 14 Conrado, after he had been convicted by the court a quo, can no longer assail its judgment by raising this issue. Neither can he claim, as he now does, that he was denied the information that he was to be tried for two (2) separate crimes of rape. The acts complained of, as constituting the offenses, were stated in the 2 June 1982 complaint in ordinary and concise language that any person of common intelligence would be able to understand and thereby know what acts he was to defend himself against. The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is proper, because of the existence of conspiracy. In a long line of decided cases, it has been held by this Court that in multiple rape, each defendant is responsible not only for the rape personally committed by him, but also for the rape committed by the others, because each of them (accused) cooperated in the commission of the rape perpetrated by the others, by acts without which it would not have been accomplished. The trial court is correct in appreciating the aggravating circumstance of ignominy because of the greater perversity displayed by the offenders. The testimony of the examining physician that he did not find mud on the victim's private organ, does not necessarily belie the latter's asseveration that the accused "plastered" mud on her private part. It is worthwhile mentioning that the victim was examined and treated by Dr. Claudio at 3:55 p.m. or about almost two (2) hours after the rape was committed. Given this circumstance, the absence of mud in the victim's private part when she was examined by the physician, may be attributed to the possibility that the mud washed or fell off even before the victim left the house for her physical examination. Moreover, Rebecca's testimony was corroborated by that of Amelita Malong who swore that she saw mud smeared on Rebecca's private part when she (Amelita) saw Rebecca right after the incident.

POTENCIANA M. EVANGELISTA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), respondents. FACTS: Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an application for tax credit in the amount of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes from January 1, 1986 to August 31, 1987. Tanduay claimed that it is a rectifier of alcohol and other spirits, which per previous ruling of the BIR is only liable to pay specific taxes and not ad valorem taxes. Upon receipt of the application, Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue Accounting Division (RAD), headed by petitioner, requesting the said office to check and verify whether the amounts claimed by Tanduay were actually paid to the BIR as ad valorem taxes. After making the necessary verification, the RAS prepared a certification in the form of a 1st Indorsement which stated that Tanduay made tax payments classified under Tax Numeric Code (TNC) 3011-0001 totalling P102,519,100.00 and payments classified under TNC 0000-0000 totalling P78,182,582.00. Meanwhile, Teodoro Pareo, head of the Tax and Alcohol Division, certified to Justino Galban, Jr., Head of the Compounders, Rectifiers and Repackers Section, that Tanduay was a rectifier not liable for ad valorem tax. Pareo recommended to Larin that the application for tax credit be given due course. Hence, Larin recommended that Tanduays claim be approved, on the basis of which Deputy Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00. Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was irregular and anomalous. Based on this, Larin, Pareo, Galban and petitioner Evangelista were charged before the Sandiganbayan with violation of Section 268 (4) of the National Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and Corrupt Practices Act. Larin, Pareo and petitioner were later convicted of both crimes, while Galban was acquitted inasmuch as his only participation in the processing of Tanduays application was the preparation of the memorandum confirming that Tanduay was a rectifier. The three accused filed separate petitions for review. Pareos and Larins petitions were consolidated and, in a decision dated April 17, 1996, both were acquitted. In this petition, on the other hand, we acquitted petitioner in Criminal Case No. 14208, for violation of Section 268 (4) of the National Internal Revenue Code. However, we found petitioner guilty of gross negligence in issuing a certification containing TNCs which she did not know the meaning of and which, in turn, became the basis of the Bureaus grant of Tanduays application for tax credit. Thus, we affirmed petitioners conviction for violating Section 3 (e) of the Anti-Graft and Corrupt Practices Act. Petitioner filed a Motion for Reconsideration, wherein she asserts that there was nothing false in her certification inasmuch as she did not endorse therein approval of the application for tax credit. Rather, her certification showed the contrary, namely, that Tanduay was not entitled to the tax credit since there was no proof that it paid ad valorem taxes. Petitioner also claims that she was neither afforded due process nor informed of the nature and cause of the accusation against her. She was found guilty of an offense different from that alleged in the information; consequently, she was unable to properly defend herself from the crime for which she was convicted. The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in fine that they caused undue injury to the Government and gave unwarranted benefits to Tanduay when they endorsed approval of the claim for tax credit by preparing, signing and submitting false memoranda, certification and/or official communications stating that Tanduay paid ad valorem taxes when it was not liable for such because its products are distilled spirits on which specific taxes are paid, by reason of which false memoranda, certification and/or official communications the BIR approved the application for tax credit, thus defrauding the Government of the sum of P107,087,394.80. According to petitioner, instead of convicting her of the acts described in the Information, she was convicted of issuing the certification without identifying the kinds of tax for which the TNCs stand and without indicating whether Tanduay was really entitled to tax credit or not. ISSUE: HELD: Motion for Reconsideration granted. After a careful re-examination of the records of this case, it would appear that the certification made by petitioner in her 1st Indorsement was not favorable to Tanduays application for tax credit. Far from it, petitioners certification meant that there were no payments of ad valorem taxes by Tanduay in the records and hence, it was not entitled to tax credit. In other words, the certification was against the grant of Tanduays application for tax credit. It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes according to their kinds and rates, in order to facilitate the preparation of statistical and other management reports, the improvement of revenue accounting and the production of tax data essential to management planning and decision-making. Petitioners 1st Indorsement lists down the confirmation receipts covering tax payments by Tanduay, during which Tanduay alleges that it made erroneous ad valorem tax payments, classified according to TNC numbers. The tax payments therein are described only as falling under TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-0000, i.e., unclassified taxes. There are no tax payments classified as falling under TNC No. 3023-2001, the code for ad

valorem taxes. The import of this, simply, is that Tanduay did not make any ad valorem tax payments during the said period and is, therefore, not entitled to any tax credit. Further, petitioner contends that she was convicted of a supposed crime not punishable by law.[ She was charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act. The elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they cause undue injury to any party, whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence. R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both. In the instant case, we find that petitioner, in issuing the certification, did not cause any undue injury to the Government. She also did not give unwarranted benefits, advantage or preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor act with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioners certification was against the interest of Tanduay. It did not advocate the grant of its application for tax credit. The certification can even be read as a recommendation of denial of the application. Petitioner further argues that her conviction was merely based on her alleged failure to identify with certainty in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for, which acts were different from those described in the Information under which she was charged. This, she claims, violated her constitutional right to due process and to be informed of the nature and cause of the accusation against her. It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. In the case at bar, we find merit in petitioners contention that the acts for which she was convicted are different from those alleged in the Information.

PEOPLE OF THE vs. RADEL GALLARDE, accused-appellant.

PHILIPPINES, plaintiff-appellee,

than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused. The importance of circumstantial evidence is more apparent in the prosecution of cases of rape, where it is homicide. The nature of the crime of rape, where it is usually only the victim and the rapist who are present at the scene of the crime, makes prosecutions for the complex crime of rape with homicide particularly difficult since the victim can no longer testify against the perpetrator of the crime. In these cases pieces of the evidence against the accused are usually circumstantial. As to the crime of rape, there is much to be desired with respect to the prosecution's evidence therefor, but not for the reason adduced by the trial court, namely, the absence of spermatozoa in EDITHA's private part and thereabout. It is well settled that the absence of spermatozoa in or around the vagina does not negate the commission of rape. Our doubt on the commission of rape is based on the fact that there is at all no convincing proof that the laceration of the vagina and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ. Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the laceration and the rupture could have been caused by the penis of a human being. Needless to state, these could have been caused by any object other than the penis of a person. We cannot sustain the contention of GALLARDE that he was not positively identified as the assailant since there was no eyewitness to the actual commission of the crime. It does not follow that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have positively identified him. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identity a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.25 If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection. As discussed above, the circumstantial evidence as established by the prosecution in this case and enumerated by the trial court positively established the identity of GALLARDE, and no one else, as the person who killed EDITHA. We cannot agree with the trial court's rejection of the photographs (Exhibits "I," "J" and "K") taken of GALLARDE immediately after the incident on the ground that "the same were taken while [GALLARDE] was already under the mercy of the police." The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self-incrimination. There is also no merit in GALLARDE's argument that the failure of the prosecution to prove beyond reasonable doubt the place and time of the commission of the crime is fatal and will justify his acquittal. The place, time and date of the commission of the offense are not essential elements of the crime of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that on the occasion of or as a reason thereof, the crime of homicide was committed. Conviction may be had on proof of the commission of the crime provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information, within the period of the statute of limitation, and within the jurisdiction of the court. The allegation of the place of commission of the crime in the complaint or information is sufficient if it can be understood therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court. The rule merely requires that the information shows that the crime was committed within the territorial jurisdiction of the court. The Court may even take judicial notice that said place is within its jurisdiction. As to the time of the commission of the crime, the phrase "on or about" employed in the information does not require the prosecution "to prove any precise date or time," but may prove any date or time which is not so remote as to surprise and prejudice the defendant." With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say that any objection, defect, or irregularity attending an arrest must be made before the accused enters his plea. The records show no objection was ever interposed prior to arraignment and trial. GALLARDE's assertion that he was denied due process by virtue of his alleged illegal arrest is negated by his voluntary submission to the jurisdiction of the trial court, as manifested

FACTS: On May 26, 1997, spouses Eduardo and Elena Talan and their neighbors, among them accused-appellant, were having a drinking spree. Idling by was 10-year-old daughter Editha. After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. While they were eating, appellant suddenly left and Jaime, too, stepped out of the kitchen to urinate. Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled at appellant but instead of minding him, the latter sprinted towards the road leading to his house. Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and asked where she was going. Editha answered that she would look for appellant. Soon Editha left enroute to where appellant fled. By 10:00 o'clock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin and Rose regrouped at Renato's place where they talked and relaxed. Moments later, Roger arrived and informed them that Editha was missing. Roger asked the group to help look for her. When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers went back to the house of appellant. About 7 meters away from appellant's house, one of the searchers, Alfredo Cortez, found Editha's left foot slipper. The searchers found appellant squatting with his short pants. His hands and knees were covered with soil. The searchers saw a wide hole among the disheveled grass and after scratching some earth aside, Editha's naked body was recovered. The cause of Editha's death as revealed in the postmortem examination showed "suffocation of the lungs as a result from powerful covering of the nose and mouth, associated with laceration of the vagina and raptured hymen. On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and the alibi that he was at home with his mother and brothers at the time the crime occurred. The trial court convicted Gallarde of murder only and not of the complex crime of rape with homicide because of the lack of proof of carnal knowledge. The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating or aggravating circumstance pursuant to Article 15 of the Revised Penal Code. Gallarde filed this appeal and alleges that the trial court committed an error in convicting him of the crime of murder in an information for rape with homicide. ISSUE: WON Gallarde can be convicted of a crime different from what is stated in the information. HELD: PETITION GRANTED. A reading of the accusatory portion of the information shows that there was no allegation of any qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape, it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other. In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged. It is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right. Nevertheless, we agree with the trial court that the evidence for the prosecution, although circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as the following requisites are present: (1) there must be more

by the voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial thereafter. In fine, we find Gallarde guilty of homicide.

PEOPLE OF vs. FLORENCIO CADAMPOG, appellant.

THE

PHILIPPINES, appellee,

FACTS: Felipe Lasara went to neighboring Barangay Dagumbaan to attend the festivities with his friends. His wife, Prudencia was left alone in the house with their three young children. Prudencia heard the voice of a man asking her two children, who were then playing downstairs, where she was. The children replied that their mother was upstairs. Momentarily, she heard footsteps going up the house. Suddenly, the person, who turned out to be the appellant Florencio Cadampog, their neighbor and her husbands friend, rushed towards her. It was then where Florencio Cadampog raped her. The accused denied the charge and interposed the defense of alibi and said that on the day of the incident, he was with his wife and eldest daughter, cutting cogon grasses all day long. The appellants wife and Constancio Paragoso corroborated the appellants alibi. The trial court nonetheless found the accused guilty of simple rape. The accused elevated his case to the Supreme Court and said that trial court erred in finding him guilty beyond reasonable doubt of the crime of rape committd through force and intimidation when the information was fatally defective since it does not allege one of its elements, i.e, force or intimidation. He argues that the Information is void. Even if the prosecution was able to prove that he forced Prudencia to have sexual intercourse with him, he cannot be convicted of the crime charged; otherwise, he would be deprived of his right to be informed of the charge against him and to prepare for his defense. ISSUE: WON the accused can be charged of rape even if the information failed to allege force and indimation. HELD: Petition denied. Contrary to [the] appellants claim, a perusal of the information shows that force was alleged therein. As stated in the information "the above-named accused prompted by lewd design entered the house of Prudencia Lazara and once inside, did then and there, unlawfully and criminally wrestle, kiss, remove the panty of PRUDENCIA LAZARA and, accused remove also his pants and have sexual intercourse with the latter against her will." An information is sufficient where it clearly states the designation of the offense by the statute and the acts or omissions complained of as constituting the offense. In the case at bar, the failure of the information to state that [the] appellant raped Prudencia "through force and intimidation" was not a fatal omission nor did it make the information defective since the word "wrestle" was used in lieu of the word "force". Moreover, the use of the phrase "against her will" in the information also implies that the rape was committed with force. The Revised Rules of Criminal Procedure re-enacted Section 6, Rule 110 of the old Rules, thus: Sec. 6. Sufficiency of Information - A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a) The Information need not use the language of the statute in stating the acts or omissions complained of as constituting the offense. What is required is that the acts or omissions complained of as constituting the offense must be stated in ordinary and concise language sufficient to enable a person of common understanding to know the offense charged. Thus, Rule 110, Section 9 of the Revised Rules of Court provides: Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. In the case at bar, the appellant is charged with rape through force, threats or intimidation under Article 335, paragraph 1 of the Revised Penal Code. The gravamen of rape is carnal knowledge of a woman against her will or without her consent. We have reviewed the Information and found that it contains all the elements of rape defined in Article 335, paragraph 1 of the Revised Penal Code, as amended.

Although the Information does not allege that the appellant used force, threat or intimidation in having sexual intercourse with the victim, it alleges that the appellant "criminally wrestled" with the private complainant and succeeded in having carnal knowledge of her against her will. The import of such allegations is that the appellant used physical force and intimidation in having carnal knowledge of her. To wrestle is to contend by grappling with and striving to trip or throw down an opponent; or to combat or overcome an opposing tendency or force, or an antagonistic person or group; or to engage in or as if in a violent or determined purposive struggle. It applies to a struggling for mastery by the use, mainly or solely of dexterous holds with the hands, arms or legs. The appellants submission that the Information does not sufficiently charge him of rape under Article 335, paragraph 1 of the Revised Penal Code or that the Information is defective is but an afterthought. The appellant never filed a motion to quash the Information or a motion for a bill of particulars under Rule 116, Section 10 of the Rules of Court before his arraignment. He was arraigned, assisted by counsel, and after the Information was read and explained to him in a language or dialect known to him, he entered a plea of not guilty. There was no complaint from the appellant, before he entered his plea, that the Information was defective and that he did not understand the charge against him. The appellant is, thus, deemed to have waived whatever objections as to form or substance in the Information. The credibility of the victim is further strengthened by the spontaneity of her act immediately after the incident. We note her courage in reporting the rape, unmindful of what the incident could do on her reputation in their barrio. The appellants imputation of ill motive on the part of the private complainant is absurd. The appellant alleged that he was charged with rape because of his refusal to testify in Prudencias behalf against a certain Romeo Alinas, who is Prudencias alleged real rapist. This reason posited by the appellant is too chimerical. It bears stressing that when it comes to the issue of credibility, the trial court judge is in the best position to rule on the matter, considering that he has the vantage point of observing first hand the demeanor and deportment of the witnesses. In the absence of proof that the trial court had overlooked or disregarded arbitrarily certain facts and circumstances of significance in the case, as in the case at bar, its appreciation of the credibility of witnesses will not be altered on review. The appellants defenses of denial and alibi deserve scant consideration, in view of Prudencias positive identification of the appellant as the one who defiled her, coupled with Dr. Tagardes testimony and medical findings. Nevertheless, generic aggravating circumstances may be appreciated as basis for an award of exemplary damages, in line with prevailing case law. In this case, the aggravating circumstance of dwelling is attendant because the appellant raped the victim in her house. Hence, the victim is entitled to an award of exemplary damages.

Carson and Trent, JJ., dissent. . THE UNITED STATES, plaintiff-appellant, vs. APOLINARIO CUNANAN, defendant-appellee.

This defendant was charged with the crime of desertion. The complaint was presented in the Court of First Instance of the city of Manila and alleged: That on or about the 22d day of June, 1912, the said Apolinario Cunanan was duly enlisted in the Bureau of Navigation, of the city of Manila, Philippine Islands, as a seaman, and had been assigned by said Bureau of Navigation to render services on board the steamship Rover of said Bureau of Navigation; that said date said steamship Rover was in the navigable jurisdictional waters of the Philippine Islands, to wit, tied up at the port of Cebu, Province of Cebu, Philippine Islands, making trips from Cebu to Samar and intermediate ports in the Philippine Islands; that said Apolinario Cunanan on said date and before the term of his enlistment had expired, did then and there willfully, unlawfully, and feloniously absent himself for more than ten days, without license from his superiors, and with the intention not to return, by then and there abandoning said steamship Rover in said port of Cebu, Philippine Islands and deserting from the service, in order not to return, in violation of section 9 (c) of Act No. 1980, enacted by the Philippine Legislature. Upon this complaint the defendant was duly arrested, and brought before the court. Upon arraignment, the defendant demurred to the complaint, upon the following grounds, to wit; "(1) That the court had no jurisdiction of the person of the defendant or of the subject of the action; (2) that the complaint did not show facts sufficient to constitute a cause of action; and (3) that the complaint was ambiguous, unintelligible, and uncertain. Upon the issue thus presented the Honorable Simplicio del Rosario, judge, sustained the demurrer, holding that the Courts of First Instance of the city of Manila did not have jurisdiction to try the accused, and ordered that he be held and delivered to the proper authorities of the Province of Cebu, where the crime was alleged to have been committed, for accusation and trial, in accordance with the provisions of section 23 of General Orders, No. 58. From that sentence the Attorney-General appealed to this court. The attorney-General contends in his argument in this court that the offense is a continuing offense, and that any court, in the jurisdiction of which the defendant is found, may try the defendant. In support of this contention he cites some authorities. In case of a desertion from the United States Army, for instance, the deserter may be tried by a court-martial in any jurisdiction in which he may be found. But this authority is conceded to courts-martial upon the theory that the jurisdiction of a court-martial is not limited by territorial bounds. The jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases, is limited to certain well-defined territory. They cannot take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory. There are well-defined offenses which are continuing or transitory offenses. Such offenses are well recognized at common law. (4 Blackstone's Commentaries, 305.) Such offenses may be tried by the court of any jurisdiction in which the defendant may be found. Such offenses are continuing or transitory upon the theory that there is a continuance or repetition of the offense wherever the defendant may be found. For example, in a case of larceny, if the defendant should commit the crime in one country or state and flee with the property stolen into another county or state, the courts have held that in each new county or state there is a continuance of the unlawful taking, and all the essential elements of larceny exist in the new county or state. (Commonwealth vs. Uprichard, 3 Gray, Mass., 434; Commonwealth vs. White, 123 Mass., 430; Clark's Criminal Law, 366.) While the common law treated certain offenses as transitory, as in the case of larceny, many of the States of the Union have regulated it by statute, such statutes expressly authorizing the trial of persons accused of certain offenses, to be tried in any county or state where they may be found with the effects of the larceny. Act No. 518 of the Philippine Commission provides in section 3 that persons who conspire together to form a band of robbers, for the purpose of stealing carabaos or other personal property, by means of force and violence, etc., may be punished therefor in the Court of First Instance of any province in which they may be taken or from which they have fled. We find no such provision, however, in Act No. 1980, under which the present defendant is accused. The theory upon which the accused in the continuing or transitory offense may be tried in any jurisdiction in which he is found, is based upon the ground that there is a new commission of the offense in the county or state in which he is found. The complaint presented in such cases does not, like that in the present, allege that the crime was committed in some other county or state, where it was originally committed, but in the county or state where the defendant is found. In the present case it will be noted from reading the complaint copied above, that the same alleges that the offense was committed in the Province of Cebu. There is no allegation in the complaint that the offense was committed within the jurisdiction of the Court of First Instance of the city of Manila. The complaint should show that the offense was committed within the jurisdiction of that court. A complaint which shows positively that an offense was not committed within the jurisdiction of the court is demurrable. We do not feel called upon at the present time to decide whether the offense of desertion under Act No. 1980 is a continuing offense or not. We simply decide, at the present time, that, inasmuch as there is no allegation in the complaint alleging that the crime with which the defendant is charged was committed within the jurisdiction of the Court of First Instance of the city of Manila, that said court is without jurisdiction to try said offense. The judgment, therefore, of the lower court sustaining the demurrer, is hereby affirmed and it is ordered that the cause be remanded to the lower court whence it came and that an order be issued permitting the plaintiff, within a period of five days, to make such amendments in the complaint originally presented, as may be deemed necessary, within the provisions of the law. If within said period of five days, no amendments are made, then and in that case the judgment heretofore rendered by the Honorable Simplicio del Rosario, judge, shall become final. Arellano, C.J., Torres and Moreland, JJ., concur.

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HON. JUDGE PEDRO C. NAVARRO, Presiding Judge of the Court of First Instance of Pasig, Rizal, Branch II, and JAIME CATUDAY, respondents. FACTS: This is a petition by the State for certiorari to annul the joint decision of the Court of First Instance of Rizal, insofar as it acquits Jaime Catuday of the charge of light threat. The ground alleged is that the case for light threat was never tried in the lower court. On March 6, 1968, respondent Catuday was charged in the Municipal Court of Makati, Rizal, with the crime of light threat allegedly committed against Henry Dioquino (Criminal Case No. 12846). Almost a year later, or on February 3, 1969, and while the light threat case was still pending, he was charged in the same court, with a different offense, frustrated theft, allegedly committed against the Commonwealth Foods, Inc. In two separate decisions rendered on September 10, 1969, the Municipal Court convicted him of the two charges. He appealed both decisions to the Court of First Instance. In the Court of First Instance of Rizal, the Provincial Fiscal filed two separate informations, one for light threat (Criminal Case No. 20145) and the other for frustrated theft (Criminal Case No. 20146). Both cases were assigned to Branch XI of said Court of First Instance. The theft case was first set for hearing on December 16, 1969. The threat case was originally set for hearing on December 22, 1969. On December 16, 1969, the court ordered continuation of the trial of the theft case for January 14 and 21, 1970 (Annex A, Motion for Reconsideration). On December 22, 1969, the court rescheduled the hearing of the threat case for January 26, 1970. On January 14, 1970, the court reset for January 21, 1970 the theft case hearing of that day (Annex C, Motion for Reconsideration). When January 21, 1970 came, the court rescheduled the theft case hearing for February 11 and 24, 1970 (Annex B, Motion for Reconsideration). On January 26, 1970, the scheduled threat case hearing was rescheduled for February 11, 1970. This was the first time the two cases were scheduled for hearing on the same day, February 11, 1970. For the theft case, it was for continuation of trial; for the threat case, it was for start of the trial. On said February 11, 1970, the court in two separate orders, directed that the threat case be rescheduled for February 24, 1970 (Annex D, Motion for Reconsideration), and that the trial of the theft case be continued also on February 24, 1970. (Annex E, Motion for Reconsideration). On February 24, 1970, counsel de oficio for both cases failed to appear. For the first time, the court issued a single order in the two cases (Annex E, Motion for Reconsideration), directing arrest of said counsel "and to show cause why she should not be punished for contempt"; and ordering that "the trial set for today is hereby re-set for March 25, 1970, at 8:30 in the morning." On March 25, 1970, trial of the theft case continued. The threat case was not tried at all at this or any subsequent trial. In the hearings after March 25, 1970, it was always the theft case which was heard. Sometime in December 1972, upon retirement of Judge Flores of Branch XI, respondent District Judge Pedro C. Navarro took over in the two cases. The theft case was then in the rebuttal stage. On March 20, 1973, rebuttal evidence closed, and upon order of the court, the parties filed their respective "offer and submission of exhibits", and submitted the theft case for decision. On July 20, 1973, respondent Judge rendered one decision, acquitting Catuday of both charges for lack of proof of guilt beyond reasonable doubt. The dispositive portion of this decision reads thus: t.hqw WHEREFORE, for lack of proof of his guilt beyond reasonable doubt, judgment is hereby rendered declaring the accused JAIME CATUDAY not guilty in both cases and he is hereby acquitted in Criminal Case No. 20145 for Light Threat as well as in Criminal Case No. 20146 for Frustrated Theft. The bonds for his provisional liberty in both cases are ordered cancelled. Notably, the decision also stated that "these (light threat case and frustrated theft case) were tried jointly." On September 6, 1973, the private prosecutor, with the conformity of the provincial fiscal, filed the prosecution's motion for reconsideration of said decision insofar as Criminal Case No. 20145 for light threat is concerned. On November 10, 1973, respondent judge denied the motion, reiterating that there was joint hearing of the two criminal cases. On December 13, 1973, the provincial fiscal filed the prosecution's second motion for reconsideration, which was, however, denied on February 27, 1974. On March 25, 1974, the provincial fiscal, together with the private prosecutor, filed with this Court a petition for certiorari, proving that respondent Judge's decision be annulled for lack of due process insofar as Criminal Case No. 20145 is concerned, and that record of this case be remanded to the court of origin for trial. On April 17, 1974, the Court (Second Division) issued a resolution to the effect that "considering the allegations contained, the issues raised and the arguments adduced in the petition for certiorari, the Court Resolved to DISMISS the petition for lack of merit." On June 6, 1974, Provincial Fiscal Castillo filed his motion for reconsideration of said Resolution, which motion was co-signed by the Private Prosecutors praying that this Court reconsider and set aside said resolution, and that their petition for certiorari be given due course.

While we fault the petitioner for having presented an unconvincing original petition which induced this Court to dismiss the same in a minute resolution "for lack of merit," We now have to commend Rizal Provincial Fiscal Castillo for his well-prepared and well-documented motion for reconsideration which has persuaded Us to grant the same, notwithstanding the vigorous opposition of respondents, in view of the facts and the reasons that now follow, which are also the facts and the reasons for our granting the petition for certiorari. Petitioner claims that the threat case was never tried in the lower court so the charge therein should not have been dismissed on the ground of lack of proof beyond reasonable doubt. Respondents, on the other hand, claim that there was joint trial of the threat case and the theft case, and since the prosecution failed to present evidence respecting the alleged threat, the case was properly dismissed on the stated ground. Thus the question of denial of due process to the State hinges on whether or not there was really a joint trial of both the threat and the theft cases. We have specific rules on joint trial in criminal cases. There is the rule that "when two or more defendants are jointly charged with any offense, they shall be tried, jointly, unless the court in its discretion upon motion of the fiscal or any defendant orders separate trial." (Sec. 8, Rule 119, Revised Rules of Court). As long as the condition therein is fulfilled, that is, two or more defendants are jointly charged with any offense, joint trial is automatic, without need of a court order. The rule is inapplicable here because there is only one defendant in the two cases. Then there is the rule that "charges for offenses founded on the same facts, or which form or are part of a series of offenses of the same or similar character may, in the discretion of the court, be tried jointly." (Sec. 15, Rule 119, Revised Rules of Court). In contrast, this second rule clearly requires a court order for a joint trial, since the court has discretion whether or not to order the same. Respondents here have not pointed to any court order for joint trial, as indeed there is none. The order of February 24, 1970 (Annex E, Motion for Reconsideration), does not qualify as such, even though it is the first court order which covers the two cases. Insofar as hearings are concerned, all this court orders says is that "the trial set for today is hereby re-set for March 25, 1970." Note that the term "trial" is singular, and the court did not specify which trial it intended to reschedule. All we can infer from this order is that the court intended to have a common date of hearing for the two cases, as was true of the two hearings set for February 11, 1970 and the two hearings scheduled for February 24, 1970, obviously a concession to defense counsel who have previously asked that hearings of the two cases be scheduled on the same day, so she would come to court on only the same day for the two cases. Furthermore, joint trial is not called for in the two criminal cases. It is true that the accused in the two cases is only one person, but there are two different complainants: Henry Dioquino, in the threat charge, and Commonwealth Foods, Inc., in the theft case. The threat was supposed to have been made on March 5, 1968; the theft was allegedly committed on January 31, 1969, almost a year thereafter. Also, the charges are different. They do not even belong to the same class of crimes. Light threat is a crime against personal liberty and security; frustrated theft is a crime against property. So, We cannot say the charges are for offenses founded on the same facts or form or are part of a series of offenses of the same or similar character. Consequently, the court had no power to try them jointly. Going to the matter of the captions in the pleadings, subpoenas, court orders, transcript of stenographic notes, etc., it has been argued that since most of the captions include both Criminal Case No. 20145 (light threat) and Criminal Case No. 20146 (frustrated theft), there was joint trial of the cases, and the court properly treated the hearing as joint and acted accordingly with respect to the two cases. It has been held, however, that a mistake in the caption of an indictment in designating the correct name of the offense is not a fatal defect, for it is the sufficiency of the averments of the charging part that is the gist of the accusation. 1 It is almost the universal rule that the caption of a pleading is not controlling but what is embodied therein. 2 More, the office of a caption is to declare the purpose of the acts, and if the matter mentioned in the caption is not contained in the body of the act, it is merely surplusage, and does not affect the matters set forth in the act itself. 3 Captions are purely formal, and may be amended. Despite the captions of some of the portions of the transcript of stenographic notes, an examination thereof reveals that the light threat case was never tried at all.

THE UNITED STATES, plaintiff-appellant, vs. ANTONIO JAVIER DICHAO, defendant-appellee. FACTS: This is an appeal from an order of the Court of First Instance of the Fourteen Judicial District sustaining a demurrer to a information and dismissing the case. The information is as follows: The undersigned accuses one Antonio Javier Dichao of the crime of rape, committed as follows: On or about and during the interval between October, 1910, to August, 1912, in the municipality of Davao, District of Davao, Moro Province, P.I., the aforesaid accused did then and there, willfully, maliciously, and feloniously have sexual intercourse with, and did lie with, and carnally know a woman, Isabel de la Cruz, under 12 years of age, in the following manner, to wit: the aforesaid accused is the stepfather of the aforesaid Isabel de la Cruz and during the aforesaid period was the legal guardian of the said Isabel de la Cruz; that by threats and corporal punishment upon said Isabel de la Cruz, the aforesaid accused, Antonio Javier Dichao, had sexual intercourse with and did lie with and carnally know said Isabel de la Cruz; as a result whereof the said Isabel de la Cruz gave birth on August 5, 1912, to a child. All contrary to law. The demurrer alleged: That the facts therein set forth and contained do not constitute a public offense. That the said criminal complaint does not conform substantially to the prescribed form. That said complaint is vague and ambiguous. We are of the opinion that the order appealed from must be affirmed. The allegations of an information should, if possible, be sufficiently explicit and certain as to time to inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to defend himself. While section 7 of the Code of Civil Procedure provides that "except when time is a material ingredient of an offense, the precise time of commission need not be stated in a complaint or information, but the cat may be alleged to have been committed at any time before the filing thereof," this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation

so indefinite as to amount to the same thing. Where the exact date cannot fixed, or where the prosecuting officer is not thoroughly satisfied that he can prove a precise date, he should allege in the information that the crime was committed on or about a date named. Under such allegation he is not required to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise the court may allow an amendment of information as to time and an adjournment to the accused, if necessary, to meet the amendment. Among the many defects of this information the court pointed out the following: The complaint is also defective in not stating the time at which the offense occurred. While it is not necessary, unless time is a material ingredient of the offense, that the precise time of the commission of the offense should be stated, still the act should be alleged to have been committed at some time before the filing of the complaint. The question whether the allegations of the information are sufficiently definite as to time and question which arises on a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles. In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not curd by setting out the date when a child was born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done by any date may be prove which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date of such an indefinite allegation with reference thereto as amounts to the same thing. As before intimated, we are not to be understood as saying that a variance between the date of the commission of the crime as alleged in the information and that as proved on the trial warrants necessarily the acquittal of the accused. The result of what we intend to say is that, if such a variance occurs and it is shown to the trial court that the defendant is surprised thereby, and that, by reason of that surprise, he is unable to defend himself properly, the court may, in the excercise of sound discretion based n all the circumstances, order the information amended so as to set forth the correct date and may grant an adjournment for such length of time as will enable the defendant to prepare himself to meet the variance in the date which was the cause of surprise. The judgment appealed from is affirmed.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVID GARCIA y QUITORIO, accused-appellant. Facts: Accused-appellant David Garcia was found guilty beyond reasonable doubt of having raped herein complainant Jackielyn Ong, 1 a minor, one hundred eighty-three (183) times during the period from November, 1990 up to July 21, 1994 In an information dated July 25, 1994, appellant Garcia was charged with the crime of multiple rape allegedly committed as follows: That from November 1990 up to July 21, 1994, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have multiple carnal knowledge of one Jackielyn Ong, a minor about twelve (12) years old, to the damage and prejudice of the latter. Complainant Jackielyn Ong and her younger brother, Darwin, had been abandoned by their mother since birth and when their father Danilo Ong died, the latter's sister, Elizabeth Ong, took them under her care and custody. Jackielyn, who was born on June 3, 1982, was only eight years old when she, together with Darwin and a stepbrother, Allan, were left to the care of herein appellant Garcia, who was then the live-in partner of the victim's aforesaid aunt, when the latter left for the United States sometime in November, 1990. Appellant Garcia stayed with the children in the house of Elizabeth Ong at Fontaine Street, East Bajac-Bajac, Olongapo City. 2 On that fateful day of November 1990, after Elizabeth Garcia had left for the airport, complainant, who was then playing with Darwin outside the house, was called by appellant Garcia who told her to go upstairs. Once there, Garcia ordered her to remove her shirt and panty and, when she refused, the former was the one who removed them. He made her lie on the bed and he then removed his pants and brief. Thereafter, he climbed into the bed with her, spread her legs apart and inserted his private organ into hers. She felt pain when he forced himself upon her and he was moving up and down. Jackielyn narrated that Garcia pulled out his organ when a whitish substance was discharged therefrom. Then he ordered her to put back her shirt and panty. Later, complainant went back to play with her brother. According to Jackielyn, from November, 1990 up to July 21, 1994, appellant Garcia raped her almost weekly. 3These incidents happened in all the three places where they lived, that is, at Fontaine Street, East Bajac-Bajac, at 12th Street, Pag-asa, and at #40 14th Street, East Tapinac, all in Olongapo City. 4 On July 21, 1994. Jacqueline was sleeping in bed beside her brother, Darwin, when appellant woke her up, asked her to lie down beside him on the cushion inside the same room where he slept, and had intercourse with her. Prosecution witness Angelito Ong testified that sometime in May, 1994. his sister Elizabeth Ong called to inform him that their brother in the States met an accident, and he was requested to support and take care of the children because she would not be able to send them money in the meantime. Thenceforth, the children would go to Angelito Ong's house for their food and other needs. In the evening of July 22, 1994, Angelito was already becoming apprehensive because the children had not yet arrived to get their food. He decided to go to the house where the children were staying but he only saw the children's bags there. The door of the house was locked, and he found Jackielyn and Darwin at a nearby store. When he asked them why they did not get their food, they answered that the house was locked and the key was with appellant Garcia. They likewise told him that Garcia scolded them and would not allow them to go out of the house without the former's permission. Angelito told the children that just because they were getting their food from him, appellant had no right to be angry at them. Thereafter, Angelito asked Jackielyn if she was having an affair with appellant or if she had been abused by him. When Jackielyn refused to answer and merely kept silent, Angelito took it as an admission that what he was asking her was true, so he brought Jackielyn to the Perpetual Help Clinic for checkup. It appears that Angelito had already harbored suspicion because sometime in June, 1994, Darwin told him that several times in the past, although Jackielyn slept beside Darwin at night, the latter would wake up in the morning and see her sleeping beside appellant Garcia. At that time, Angelito merely warned Jackielyn that it was not proper for her to be sleeping beside appellant because she was already a big girl. He did not bother to confront appellant about it then because he did not want to appear invidious. Yet even before that, Angelito already thought it odd and suspicious why appellant would not allow the children's relatives to go to their house. Since the doctor at the Perpetual Help Clinic was not available, Angelito decided to bring the children home. Along the way, Angelito kept on asking Jackielyn if she had been raped by appellant Garcia. At first, Jackielyn refused to answer, but due to Angelito's persistence and after threatening her that he would eventually know once she is examined by a doctor, she finally admitted that she had been raped several times by appellant. He then brought her to the Olongapo City General Hospital where Jackielyn was examined by Dr. Laila Patricio who thereafter issued a medicolegal certificate. 5 According to Dr. Patricio, the hymen of Jackielyn was no longer intact and, considering that there was no laceration, it was possible that there had been sexual contact for more than five times. She discounted the probability that there had been only one or two contacts, or that the loss of virginity was caused by biking, because otherwise there should have been a laceration. She likewise conducted a "spermatozoa determination" to see if there had been sexual intercourse during the past 24 hours, but the result was negative, although she clarified that the sperm normally stays in the vagina for 24 hours unless the woman washes herself very well. Jackielyn told her, during the medical examination, that she had been raped by the husband of her aunt who was in the States. From the hospital, Angelito and Jackielyn proceeded to the police station where they filed a complaint for rape 6against Garcia and later executed their sworn statements. 7 On the strength thereof, Garcia was apprehended in his house at 32 Jones Street, Olongapo City. At the time of his arrest, no formal complaint had as yet been filed in court nor had a warrant of arrest been issued. 8 Appellant Garcia could only offer bare denials to the inculpatory testimonies of the victim and the prosecution witnesses that he raped Jackielyn. He contends, however, that probably the reason why he was being falsely charged was because Elizabeth Ong's family was not satisfied with the way he managed the house entrusted to him and the money being sent by Elizabeth for the support of the children. He rationalizes that as the supposed guardian of the children and with the trust reposed in him by Elizabeth, he could not and would never do such a thing to Jackielyn. In his cross-examination, however, appellant Garcia admitted having sent a letter addressed to Elizabeth Ong and several others, dated August 24, 1994, 9 wherein he disclosed that he and Jackielyn were having a relationship and that he was asking for forgiveness from Elizabeth for what happened between him and Jackielyn. The conviction of herein appellant is now being controverted and assailed essentially on two grounds, namely, that the information is defective and that the trial court erred in relying on the credibility of the testimony of the victim.10 I. Appellant avers that the information for multiple rape filed against him is defective for failure to state the exact dates and time when the alleged acts of rape were committed since it was merely stated therein that the offense was committed "from November 1990 up to July 21, 1994." He asserts that each sexual act is a separate crime and, hence, must be proven to have been committed on a precise date and time. The defense, in support of this argument, relies mainly on Section 11, Rule 110 of the Rules of Court, as revised, which provides:

Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. It invokes the early case of U. S. vs. Dichao 11 wherein an order sustaining a demurrer to an information for failure to conform to the subscribed form was upheld by the Court, in effect authorizing the outright dismissal of the case, on the ground that: . . . The allegations of an information should, if possible, be sufficiently explicit and certain as to time to inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to defend himself. While Section 7 of the Code of Criminal Procedure provides that "except when time is a material ingredient of an offense, the precise time of commission need not be stated in a complaint or information, but the act may be alleged to have been committed at any time before the filing thereof," this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. Where the exact date cannot be fixed, or where the prosecuting officer is not thoroughly satisfied that he can prove a precise date, he should allege in the information that the crime was committed on or about a date named. Under such an allegation he is not required to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise the court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment. In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October 1910 and August 1912, is too indefinite to give the accused an opportunity to prepare his defense . . . Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference thereto as amounts to the same thing. Assuming that this is still good case law, reliance cannot be placed thereon by appellant since the dicta are not squarely applicable to the present case due to factual differences. Taking into consideration the circumstances obtaining herein vis-a-vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of a motion to quash in that case as pointed out in the aforequoted decision. There is no such motion in the case at bar, and this spells the big differences. The rule is that at any time before entering his plea, the accused may move to quash the information 12 on the ground that it does not conform substantially to the prescribed form. 13 The failure of the accused to assert any ground for a motion to quash before he pleads to the information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds for a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. 14 Perforce, a formal defect in the information not being one of the exceptions to the rule, appellant's failure to invoke the same through a motion to quash is deemed to be a waiver of such objection and he cannot now be heard to seek affirmative relief on that ground. Moreover, objections as to matters of form or substance in the information cannot be made for the first time on appeal. 15 At any rate, even laying aside procedural technicalities and assuming arguendo that appellant Garcia could validly raise this legal question before us, we are still not inclined to apply the ruling in Dichao to the case now before us. It may readily be inferred from the decision in Dichao that where there is such an indefinite allegation in the information as to the time of the commission of the offense which would substantially prejudice the defense, a motion to quash the information may be granted and the case dismissed without the benefit of an amendment. On the other hand, where there is a variance between the date of the commission of the crime alleged in the information and that proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and that by reason thereof, he is unable to properly defend himself, the court may, in the exercise of sound discretion based on all the circumstances, order the information amended so as to set forth the correct date. It may further grant an adjournment for such a length of time as will enable the accused to prepare himself to meet the variance in date which was the cause of his surprise. Apparently, that distinction was premised on the theory that the question on whether the allegations of the information are sufficiently definite as to time, and the question which arises from a variance between the particulars of the indictment and the proof, are different in nature and legal effect, and are decided on different principles. It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will not be allowed, and the motion to quash should instead be granted, where the information is, on its face, defective for failure to state with certainty when the offense was committed, and such ambiguity is so gross as to deprive the accused of the opportunity to defend himself. For all intents and purposes, however, a strict adherence thereto would no longer be a sound procedural practice, especially in criminal proceedings which bears the mandate on speedy trial and wherein the availability of bills of particulars have over time been adopted and recognized. We believe that the principle laid down in the more recent case of Rocaberte vs. People, et al. 16 involving exactly the same issue, presents the more logical and realistic interpretation of the rules. While the Court there adverted to the Dichao case, it nevertheless resorted to a less restrictive application of the rules by disposing of the case in this wise: A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the time with particularity. The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964. xxx xxx xxx From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed. WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge . . . , and DIRECTING the amendment of the information in said case by the prosecution within such time as the respondent Judge may deem proper, failing which the criminal prosecution against the petitioner and his co-defendants shall be dismissed (Emphasis supplied). Conformably thereto, where the allegation in the information as to the date or time of the commission of the offense is so uncertain, indefinite or ambiguous as to constitute a violation of the right of the accused to be informed of the nature and cause of the accusation against him, the proper disposition where a motion to quash is filed on that ground, is for the trial court to overrule the motion and order the prosecution to amend the information by stating the date or time with particularity, within such period as the trial court may deem proper under the circumstances.

This rule finds support in Section 4 of Rule 117 which provides that "if the motion to quash is based on an alleged defect in the complaint or information which can be cured by amendment, the court shall order the amendment to be made." Corollarily, Section 14 of Rule 110 states that "the information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused." In the event that the public prosecutor still fails to make the necessary amendment within the time allowed therefor by the court, only then may the court order the dismissal of the case. Hence, if herein appellant Garcia had filed a motion to quash, the case would not require an outright dismissal. Furthermore, it bears stressing that Section 11 of Rule 110 does not require that the precise time when the offense was committed be stated in the information, except when time is a material ingredient of the offense. In rape cases, the date or time is not an essential element of the crime and, therefore, need not be accurately stated. 17 II. The second issue hinges on the credibility of complainant's testimony. Appellant contends that the prosecution failed to prove multiple rape and that the trial court erred in accepting in full complainant's testimony that she was raped every week during the period earlier stated. It is averred that while complainant remembered the details of the first and last acts of rape, she failed to narrate with similar clarity the other acts that allegedly transpired in the interim. We are strongly convinced that, based on the testimonies of complainant and the prosecution witnesses, appellant Garcia is guilty as charged. Absolute certainty of guilt is not demanded by the law for conviction of any criminal charge; only moral certainty is required as to every proposition of proof requisite to constitute the offense. 18 Such requirement has been complied with in the case at bar with respect to the criminal acts hereinafter specified. Besides, a prima facie case affords sufficient basis for conviction if not overcome by the evidence of the accused.19 We have thoroughly examined the testimony of complainant Jackielyn Ong and we cannot but conclude that complainant, in spite of her youth at the time she testified, was very candid, spontaneous and consistent in her testimony in court, both in the direct and cross-examination. Her testimony is forthright, clear and free from serious contradictions. It is a basic rule, founded on reason and experience, that when the victim testifies that she has been raped, she says in effect all that is necessary to show that rape was committed. 20 Thus, if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. On this aspect, it is an accepted precept that testimonies of rape victims who are young and of tender age are credible. Hence, the revelation of an innocent child whose chastity was abused deserves full credence. 21 Nor have we chosen to merely rely on such doctrinal rules. Our conclusion further resulted from a painstaking analysis of the evidence on record. The alleged inconsistency pointed out by appellant, to the effect that complainant remembered the details of the first and last acts of rape but failed to expound on the other violations committed against her, is not sufficient to render her testimony doubtful. Such failure does not necessarily detract from her credibility nor negate the commission of the rape. The testimony of a witness must be considered and calibrated in its entirety and not by truncated portions thereof or isolated passages therein. 22 Rape, as a harrowing experience, is usually not remembered in detail. For, such an offense is not something which enhances one's life experience as to be worth recalling or reliving but, rather, something which causes deep psychological wounds and casts a stigma upon the victim for the rest of her life, which her conscious or subconscious mind would prefer to forget. Thus, a rape victim is not and cannot be expected to keep an accurate account of her traumatic experience. 23 With more reason must we have greater compassionate understanding of herein complainant's plight who, at a very tender age, was mercilessly corrupted by a conscienceless human being with bestial desires. The failure of complainant to immediately disclose the violations committed against her, and the fact that she went on to play with her brother after the first rape incident, cannot be considered as absolutely unnatural and contrary to normal human behavior. It must be remembered that the subject of appellant's lust is an innocent, naive and frail little girl of eight years, extremely ignorant of the ways of the world and of men. One cannot and should not expect such a wisp of a girl to act like an adult or like a mature and experienced woman who would know what to do under such difficult circumstances. 24 In fact, her subsequent action is confirmatory of the unreasoning innocence of childhood which in this case was mercilessly betrayed. The alleged absence of resistance cannot likewise alter the condemnatory verdict against appellant. This Court has consistently held that rape is committed when intimidation is used on the victim and this includes the moral kind of intimidation or coercion. Intimidation is a relative term, depending on the age, size and strength of the parties, and their relationship with each other. 25 It can be addressed to the mind as well. 26 Moreover, the intimidation must be viewed in the light of the victim's perception and judgment at the time of the rape and not by any hard and fast rule. It is therefore enough that it produces fear fear that if the victim does not yield to the lustful demands of the accused, something would happen to her at the moment or thereafter. 27 In the instant case, a clear situation bespeaking abuse of transient authority is established by the records. There can be no doubt that appellant Garcia had a sort of moral dominance and influence over Jackielyn such that he could easily intimidate and force her to submit to his satyric desires, considering that she was very young at that time and under his custody. 28 Jackielyn was only eight years old when Garcia started molesting her sexually. Appellant himself admitted that he was expected to take care of complainant and her brother, and to give them guidance and advice. Hence, the victim could hardly be expected to use any discretion and discernment as to how she could resist the coercive power of appellant. 29 Jackielyn disclosed during her direct examination that she was afraid of appellant because sometimes he would get mad at her and beat her. 30 On cross-examination, she declared that she never confided to her older brother about the rape incidents because she feared that if she did so, appellant might get angry and beat her. 31 Her fear of appellant is vividly illustrated by the testimony of her uncle. Angelito Ong, about that incident when the victim and her younger brother failed to get their food from his house and he found them in a nearby store because they were locked out of the house by appellant. 32 So great was the fear instilled by appellant in the victim's mind that she would rather go hungry, which is an ordeal for young children, than incur his ire. In sum, complainant's tender age and appellant's custodial control and domination over her, had rendered her so meek and subservient to his needs and desires, thus becoming an easy prey to appellant's lecherous advances.33 This psychological predicament, in the mind of the Court, explains why the offended girl did not give any outcry or offer any resistance when she was being raped, 34 especially when she became inured to the outrage repeatedly committed over a period of time and which sexual assaults were corroborated by medicolegal evidence. Perhaps, though, the most convincing evidence that appellant Garcia committed the acts charged is his very own admission of having had repeated carnal knowledge of the victim in a letter which he sent on August 24, 1994 from his place of detention to Elizabeth Ong, his live-in partner and aunt of the victim, wherein he pleaded that he be given another chance and promised to change for the better. 35 The following excerpts therefrom, to quote just a few, are indeed revealing and revolting: . . . OO, tutuong may ng yari sa amin ni Jackylyn, Yon ay alam niya. Kayo mismo ang kumausap. Nitong May at June hanggang July 16, 1994. Yan ay inaamin ko pero hindi ko siya tinakot at ni rape. Alam ni Jackylyn yon . . . Una halikan lang muna siya panga ang nag-umpisa. Ng umabot ng June bago magpasukan nitong 1994 lang kami lumag-pas sa hindi dapat. At siya pa nga ang nagsabi sa akin dinadatnan na siya kaya mag-ingat kami at baka raw mabuntis ko siya. Di kako bahala ka ikaw ang babae. Mga 7 o 8 beses kami naulit. Mula May, June, July 16, 1994. Tapos kako nga pa sa kanya bakit gustong-gusto mo na ginaganoon ko siya at anong dahilan. Ang sabi niya ay wala. Kako hindi mo ba alam maraming magagalit at masasaktan. At saka kako hindi ka papayag ipaubaya ang pinakamahalagang bagay na iniingatan ng babae. Bakit kako mahal mo ba ako sabi naman OO. . . Humihingi ako sa inyo ng isang pagkakataon na ibalato na lang ninyo ang buhay ko kay Jackylyn . . . at Beth kung talagang mahal mo rin ako ay pabayaan mo na ang kalayaan ko at sarili kay Jackylyn. . . Kaya humihingi ako sa inyong lima ng isa pang pagkakataon na panagutan si Jackylyn. . . At yong ng yari samin ni Jackylyn ay kapwa namin kagustuhan. . . At hindi kunaman talaga ni rape. . . Handa kunaman panagutan. . . Kayo ang pag-asa ko para sa kaligtasan ng buhay ko dahil sa paratang nayan. . . Kaya nakikiusap ako at humihingi ng awa ninyo at isang pag-kakataon. . . . If what appellant claims in his letter that he and Jackielyn were lovers is true, it is paradoxical that he never mentioned that in his testimony nor did he present any evidence to prove such supposed relationship. His silence on the matter becomes highly suspect, considering that such a defense was undeniably intended to possibly save the day for him. An elementary knowledge of human nature would expose his pretensions as merely an afterthought on the part of appellant, in a desperate and vain attempt to exculpate himself from his shameless and heinous acts.

Besides, it is the height of incredibility that, as appellant would want to suggest in his aforestated letter, the initiative came from the victim herself, this despite her age and the inbred modesty of a provincial lass. That would be stretching the imagination too far and insulting to the intelligence and credulity of even an ordinary layman. It has never been shown, nor has an insinuation been made, that Jackielyn was a girl of loose morals with the capacity to lure a much older man into such indiscretions over an incredible period of time. In contrast, the defense relied solely on the testimony of appellant which, as earlier observed, leaves very much to be desired as it consists mainly of bare and pharisaical denials. Time and again we have said that denial, like alibi, is a weak defense which becomes even weaker in the face of the positive identification of the accused by prosecution witnesses. Appellant's denial constituted selfserving negative evidence which can hardly be considered as overcoming a straightforward and creditworthy eyewitness account. As between positive and categorical testimony which has the ring of truth on one hand, and a bare denial on the other, the former is generally held to prevail, 36 especially given the facts obtaining in this case. III. Be that as it may, however, on the bases of the evidence adduced by the prosecution, appellant can be convicted only of the two rapes committed in November, 1990 and on July 21, 1994 as testified to by complainant, and for the eight counts of rape committed in May and June and on July 16, 1994 as admitted in appellants aforementioned letter of August 24, 1994. We cannot agree with the trial court that appellant is guilty of 183 counts of rape because, as correctly asserted by the defense, each and every charge of rape is a separate and distinct crime so that each of them should be proven beyond reasonable doubt. On that score alone, the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence, fall within this category. We are fully convinced, however, that appellant is guilty of statutory rape for the sexual act committed in November, 1990 when Jackielyn was only eight years old. Sexual congress with a girl under twelve years of age is always rape although there might have been consent to the sexual act. Being of such tender age, she is presumed not to have a will of her own. The law does not consider any kind of consent given by her as voluntary. 37 It has likewise been sufficiently established beyond reasonable doubt that Jackielyn was raped by appellant on July 21, 1994. The evidence is well-nigh conclusive that she was intimidated into submitting to appellant's libidinous craving and loathsome assault by reason of his authority and predominance over her. Jackielyn may well have been over twelve years of age at that time, but what is the difference in mental fitness and attitude between a twelve-year old girl and one who is twelve years and one month old? 38 Finally, appellant's admission in his letter of August 24, 1994 that "it happened 7 or 8 times in May, June until July 16, 1994," which was never explained away nor successfully refuted by the defense, should definitely be taken into consideration. It is said that although written admissions have sometimes been treated as competent evidence under the head of one of the exceptions to hearsay evidence, yet they are open to but few of the objections which may be urged against hearsay testimony. They are, it is true, declarations made out of court and without sanction of an oath, yet they are statements, not of third persons, but of a party to the litigation; and, where they are offered against him, it is only fair to presume, until the contrary is shown, that they are correct. Whatever a party voluntarily admits to be true, though the admission be contrary to his interest, may reasonably be taken for the truth. 39 No compelling reason exists in the case at bar to warrant the exclusion or disregard of these admissions of appellant. These are admissions against his own interest which no sane or reasonable man would make if they were not true. He voluntarily and intelligently made and even put them down in single-spaced handwriting on four full pages of legal size ruled pad. On top of that, he identified the same and testified thereon, without any repudiation, in open court on January 13, 1995, thus converting such extrajudicial admissions into judicial admissions. One might ask why, having been burned the first time, the offended girl did not thereafter stay away from appellant, thereby giving him other opportunities to inflict his lust on her. The obvious explanation is that we are dealing here not with a worldly-wise woman but with a young and innocent child of tender age whose acts were dominated more by fear than by reason. 40 This is especially understandable in this case where the victim is practically an orphan abandoned in the care of a stranger masquerading in the guise of a guardian, and who never felt a sense of belonging except to such a stranger whom she wrongly believed had a familial concern for her, but whom she realized too late was devilishly unworthy of her trust and respect. IV. We now proceed to consider the proper imposable penalty on appellant in light of his proven criminal misdeeds consisting of ten acts of rape. Having been charged with the simple crime of rape, each of which warrants the imposition of the penalty of reclusion perpetua, both the trial court and the People's Tribune agree on that penalty to be imposed for each crime, although both contend that such penalty should be imposed on 183 acts of rape. We have already explained that appellant can be convicted of only ten crimes of rape, but we have not answered the unspoken question, since both the trial court and the Solicitor General have passed sub silentio thereover, on whether the ten convictions we sustain should be for simple rape or for its qualified form under the circumstances stated in Republic Act No. 7659 which amended Article 335 of the Revised Penal Code. It is true that the appellant has been charged with simple rape, that the court below found him guilty only of simple rape as charged, and that no issue over the effect of the amendatory law has been raised. However, it is a long-settled rule in criminal procedure, which is now enshrined in the Rules of Court, 41 that an appeal throws the criminal case open for review by the appellate court which may thereafter reverse the decision a quo, or modify the same by reducing or increasing the penalty upon a concomitant modification of the findings on the nature of the crime committed or the computation of the penalty therefor. Here, we are further confronted by the situation wherein the first crime of rape in 1990 of which we find appellant guilty is covered by the original provisions of the Revised Penal Code, while the other nine crimes of rape committed in 1994 are governed by the amendatory provisions of Republic Act No. 7659, with circumstances necessitating higher penalties, and which took effect on December 31, 1993. 42 Section 11 of Republic Act No. 7659 provides that where the victim of the crime of rape is under eighteen years of age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed. The inevitable query, since the fact is mentioned in passing in the records, is whether or not appellant is a guardian in the contemplation of this amendment to the law on rape such that, the victim being a minor, he should be punished with the higher penalty of death for the nine crimes of rape committed by him in May and June, 1994 and on July 16 and July 21, 1994. In the law on rape, the role of a guardian is provided for in Article 344 of the Revised Penal Code, specifically as one who, aside from the offended party, her parents or grandparents, is authorized to file the sworn written complaint to commence the prosecution for that crime. In People vs. De la Cruz, 43 it was held that the guardian referred to in the law is either a legal or judicial guardian as understood in the rules on civil procedure. That holding was rationalized as follows: Article 344 of the Revised Penal Code, paragraph 3, is as follows: "Tampoco puede procederse por causa de estupro, rapto, violacion o abusos deshonestos, sino en virtud de denuncia de la parte agraviada, o de sus padres, o abuelos or tutor, ni despues de haberse otorgado al ofensor perdon expreso por dichas partes, segun los casos." Without passing at this time on the question whether the tutor (legal guardian) may file a complaint in the temporary absence of the parents or grandparents of the offended party, it suffices to say that we cannot accept the view of the Government that an aunt who has the temporary custody of a minor in the absence of her father occupies the position of a tutor (legal guardian). The word "tutor" (guardian) appearing in article 344, supra, must be given the same meaning as in section 551 of the Code of Civil Procedure, that is to say, a guardian legally appointed in accordance with the provisions of Chapter XXVII of the Code of Civil Procedure. It would not be logical to say that the word "guardian" in the third paragraph of Article 344 which is mentioned together with parents and grandparents of the offended party would have a concept different from the "guardian" in the recent amendment of Article 335 where he is also mentioned in the company of parents and ascendants of the victim. In Article 344, the inclusion of the guardian is only to invest him with the power to sign a sworn written complaint to initiate the prosecution of four crimes against chastity, while his inclusion in the enumeration of the offenders in Article 335 is to authorize the imposition of the death penalty on him. With much more reason, therefore, should the restrictive concept announced in De la Cruz, that is, that he be a legal or judicial guardian, be required in the latter article. The Court notes from the transcripts of the proceedings in Congress on this particular point 44 that the formulators were not definitive on the concept of "guardian" as it now appears in the attendant circumstances added to the original provisions of Article 335 of the Code. They took note of the status of a guardian as contemplated in the law on rape but, apparently on pragmatic considerations to be determined by the courts on an ad hoc basis, they agreed to just state "guardian" without the qualification that he should be a legal or judicial guardian. It was assumed, however,

that he should at the very least be a de facto guardian. Indeed, they must have been aware of jurisprudence that the guardian envisaged in Article 335 of the Code, even after its amendments by Republic Act No. 4111, would either be a natural guardian, sometimes referred to as a legal or statutory guardian, or a judicial guardian appointed by the court over the person of the ward. They did agree, however, that the additional attendant circumstances introduced by Republic Act No. 7659 should be considered as special qualifying circumstances specifically applicable to the crime of rape and, accordingly, cannot be offset by mitigating circumstances. The obvious ratiocination is that, just like the effect of the attendant circumstances therefore added by Republic Act No. 4111, although the crime is still denominated as rape such circumstances have changed the nature of simple rape by producing a qualified form thereof punishable by the higher penalty of death. 45 Coming back to the categorization of the functions of appellant in relation to private complainant and her brother, we are not prepared to say that, under the particular and peculiar facts obtaining in this case, the former sustained the relation of guardian to the latter, whether as a natural or legal, or even de facto and, much less, judicial guardian. He cannot be a legal or natural guardian as that refers to parents, nor even a guardian de son tort (sometimes referred to as a quasi-guardian or guardian by estoppel) since he did not on his own assume to act as a guardian of, say, a foundling. 46 The fact is that he is not related to and he did not even support the children as it was Elizabeth Ong, then later her brother who provided the food, other necessities and instructions for the care of the children, and they have been living in Elizabeth's house wherein appellant was in that respect merely a hanger-on and a freeloader. He was merely expected to carry out Elizabeth's directions, and Elizabeth continued to be the guardian de facto of the children. Appellant has not been proven to have exercised any valid act of patria potestas over complainant and her brother, unless we consider beating and abusing them as within that concept. In fine, at the very most, appellant was only an unwilling custodian and caretaker, not unlike a domestic majordomo or steward of the house and the children, and for which services he obtained free board and lodging. Ironically, that amorphous role that he played in the lives of the children, and which enabled him to abuse them, offers him salvation from the death penalty which he deserves. This is because the Court proceeds only under the dictates of the law and never under errant emotionalism or maudlin sentimentality. The law requires a legal or judicial guardian since it is the consanguineous relation of the solemnity of judicial appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating its objectives. Such considerations do not obtain in appellant's case or, for that matter, any person similarly circumstanced as a mere custodian of a ward or another's property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he betray the trust. In results, therefore, that appellant cannot be considered as the guardian falling within the ambit of the amendatory provision introduced by Republic Act No. 7659. He would not fall either in the category of the "common-law spouse of the parent of the victim" in the same enumeration, since his liaison is with respect to the aunt of Jackielyn. Since both logic and fact conjointly demonstrate that he is actually only a custodian, that is, a mere caretaker of the children over whom he exercises a limited degree of authority for a temporary period, we cannot impose the death penalty contemplated for a real guardian under the amendments introduced by Republic Act No. 7659, since he does not fit into that category. One further observation, Article 335 originally provided only for simple rape punishable by reclusion perpetua, but Republic Act No. 4111 introduced amendments thereto by providing for qualified forms of rape carrying the death penalty, that is, when committed with the use of deadly weapon or by two or more persons, when by reason or on the occasion of the rape the victim becomes insane, or, under the same circumstances, a homicide is committed. The homicide in the last two instances in effect created a special complex crime of rape with homicide. The first two attendant circumstances are considered as equivalent to qualifying circumstances since they increase the penalties by degrees, and not merely as aggravating circumstances which effect only the period of the penalty but do not increase it to a higher degree. The original provisions of Article 335 and the amendments of Republic Act No. 4111 are still maintained. As earlier observed, Republic Act No. 7659 thereafter introduced seven more attendant circumstances the presence of any of which takes the case out of the purview of simple rape, and effectively qualifies the same by increasing the penalty one degree higher through the imposition of the death penalty. All these new attendant circumstances, just like those introduced by Republic Act No. 4111, partake of the nature of qualifying circumstances, and not merely aggravating circumstances, on the same rationale already explained. Now, it has long been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstance, 47 since the latter admit of proof even if not pleaded. 48 Indeed, it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with a simple rape and be convicted of its qualified form punishable with death, although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned. Recapitulating, the information filed against appellant charged only the felony of simple rape and no attendant qualifying circumstance, specifically that of his being supposedly a guardian of the victim, was alleged. On this additional consideration, he cannot, therefore, be punished with the penalty of death even assuming arguendothat he is such a guardian. Neither can that fact be considered to aggravate his liability as the penalty for simple rape is the single indivisible penalty of reclusion perpetua. 49 The end result, therefore, is that for the ten crimes of rape of which we declare him guilty, only the penalty ofreclusion perpetua can be imposed. He must, however, be further held liable for the corresponding indemnity to the victim, as well as exemplary damages for each count of rape. 50 WHEREFORE, the challenged judgment of the court a quo is MODIFIED. Accused-appellant David Garcia y Quintorio is hereby declared guilty of ten (10) felonies of simple rape and ordered to serve the penalty of reclusion perpetua for each felony, subject to the provisions of Article 70 of the Revised Penal Code. He is further ordered to indemnify Jackielyn Ong in the sum of P50,000.00 for each of the ten (10) felonies of rape, to pay her exemplary damages of P25,000.00 likewise for each of the ten (10) felonies of rape, and to pay the costs in all instances of this criminal proceeding. SO ORDERED.