EN BANC G.R. No. L-433 March 2, 1949 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GAUDENCIO ROBLE, defendant-appellant.

Gonzalo D. David for appellant. Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellee. TUASON, J.: Charged with treason on three counts, the defendant pleaded guilty and was sentenced to death by the First Division of the People's Court sitting in Tacloban, Leyte. The correctness of the penalty is the sole question put in issue in this appeal. The information alleges: 1. On or about March 20, 1944, in the municipality of Dalaguete, province of Cebu, Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a member of the Philippines Constabulary did then and there wilfully unlawfully, feloniously and treasonably lead guide and accompany 10 other member of the pro-Japanese constabulary all armed like the accused and did apprehend and arrest Paulino Osorio for having helped the guerrillas and of being the Father of two guerrilla men; that the herein accused after maltreating said Paulino Osorio did detain him in the municipal jail of Dalaguete; that in the same date the accused and his companions did apprehend Melchor Campomanes and 7 other person who were also tortured for being guerrillas supporters and sympathizers and the accused herein with his firearm did shoot Melchor Campomanes killing him instantly; 2. Sometime during the month of March 1944 in the municipality of Dalaguete Province of Cebu, Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a soldier of the Philippines Constabulary did then and there wilfully, feloniously and treasonably lead guide and accompany a patrol of 13 constabulary soldiers and did arrest and apprehend Fortunato Linares for being guerrillas and or guerrilla supporters; that said accused did tie and torture the aforesaid person and cut a portion of their ears, the tortures being so severe especially with respect to Antolin Rodriguez who effectively died as a result of said tortures administered by the accused. 3. On or about May 18, 1944, in Cebu City Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces, said accused being a soldier of the Philippines Constabulary did then and there wilfully, unlawfully feloniously and treasonable accompany a group of Constabulary soldiers all armed, to Mambaling and other parts of Cebu City and did apprehend Eleuterio Padilla, a former USAFFE soldier for being a guerrilla, and there herein accused and his companions did tie and torture said Eleuterio Padilla detain him at the Constabulary Headquarters for several days after which he was taken out and mercilessly killed on May 26, 1944 by said accused. The court held that the facts alleged in the information is a complex crime of treason with murders with the result that the penalty provided for the most serious offense was to be imposed on its maximum degree. Viewing the case from the standpoint of modifying circumstances the court believed that the same result obtained. It opined that the killing were murders qualified by treachery and aggravated by the circumstances of evident premeditation superior strength cruelty and an armed band. We think this is error. The torture and murders set forth in the information are merged in and formed part of treason. They were in this case the overt acts which besides traitorous intention supplied a vital ingredient in the crime. Emotional or intellectual attachment and sympathy with the foe unaccompanied by the giving of aid and comfort is not treason. The defendant would not be guilty of treason if he had not committed the atrocities in question. On the question of the applicability of the aggravating circumstances which impelled the court against its sentiment to give the defendant the extreme penalty we only have to refer to People vs. Racaza (82 Phil., 623) in which this question was discussed and decided. There we said: The trial court found the aggravating circumstances of evident premeditation superior strength treachery and employment of means for adding ignominy to the natural effects of the crime. The first three circumstances are by their nature inherent in the offense of treason and may not taken to aggravate the penalty. Adherence and the giving of aid and comfort to the enemy is in many cases as in this a long continued process requiring for the successful consummation of the traitor's purpose, fixed, reflective and persistent determination and planning.

So are superior strength and treachery included in the crime of treason. Treachery is merged in superior strength; and to overcome the opposition and wipe out resistance movements which was Racaza's purpose in collaboration with the enemy the use of a large force and equipment was necessary. The enemy to whom the accused adhered was itself the personification of brute superior force and it was this superior force which enabled him to overrun the country and for a time subdue its inhabitants by his brutal rule. The law does not expect the enemy and its adherents to meet their foes only on even terms according to he romantic traditions of chivalry. But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the commission of treason. There is no incompatibility between treason and decent, human treatment of prisoners, Rapes, wanton robbery for personal grain and other forms of cruelties are condemned and the perpetration of these will be regarded as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrong to the main criminal objective under paragraphs 17 and 21 of Article 14 of the Revised Penal Code. The atrocities above mentioned of which the appellant is beyond doubt guilty fall within the terms of the above paragraphs. For the very reason that premeditation treachery and use of superior strength are absorbed inn treason characterized by killings, the killing themselves and other accompanying crime should be taken into consideration for measuring the degree and gravity of criminal responsibility irrespective of the manner in which they were committed. Were not this the rule treason the highest crime known to law would confer on its perpetrator advantage that are denied simple murderer. To avoid such incongruity and injustice the penalty in treason will be adapted within the range provided in the Revised Penal Code to the danger and harm and to which the culprit has exposed his country and his people and to the wrongs and injuries that resulted from his deeds. The letter and pervading spirit of the Revised Penal Code adjust penalties to the perversity of the mind that conceived and carried the crime into execution. Where the system of graduating penalties by the prescribed standards is inapplicable as in the case of homicides connection with treason the method of analogies to fit the punishment with the enormity of the offense may be summoned to the service of justice and consistency and in the furtherance of the law's aims. Considering all the facts and circumstances of the case we believe that the appellants spontaneous plea of guilty is sufficient to entitle him to a penalty below the maximum. The appealed decision is therefore modified and the sentence reduced to reclusion perpetua with the legal accessories and costs. EN BANC G.R. No. L-2043 February 28, 1950 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO CARILLO Y ALMADIN ET AL., defendants. ALEJANDRO CARILLO Y ALMADIN and TORIBIO RAQUENIO Y PITAS, appellants. Lino B. Azicate for appellant. Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Inocencio Rosal for appellee. PER CURIAM: On June 4, 1947, between 8 and 9 p.m., Emma Foronda-Abaya and her fried Marcelino Lontok Jr., while walking side by side on Pampanga Street, Manila. on their way home from the Far Eastern University, were held up by two men, each at the point of a pistol, and were robbed of their personal belongings consisting of the following: One Bulova wrist watched valued at One smoked glass with gold rim valued at One Parker fountain pen valued at Cash amounting to Total P50.00 25.00 25.00 . 40 P100.4 0 belonging to Marcelino Lontok, Jr., and One gold bracelet valued at One Elgin wrist watch valued at One umbrella valued at P35.00 80.00 15.00

Cash in loose change 1.00 Total P131.0 0 belonging to Emma Foronda-Abaya. After robbing Emma, one of the two robbers took her to a secluded place, a vacant lot south of the street, and then and there hugged her, kissed her on lips, laid her down, face upward on a log, and after pulling down her drawers placed himself on top of her with intent to satisfy his lust. In the meantime the other robber was holding Marcelino Lontok, J.., at the point of a pistol at a distance of about eight meters from the place where Emma was being ravished. Emma cried for help, saying, "Junior, pity me!" But Marcelino Lontok, Jr., was threatened by his captor with bodily harm if he should move to help her. The satyr did not succeed in raping his victim because she valiantly resisted and in the course of the struggle both of them fell on the mire beside the log. At that precise the other robber left Marcelino and approach his companion, telling him to stop and inviting him to leave the place. Marcelino escaped to seek help. At a distance of about 15 meters he heard two shots. When later in the same evening he returned to the place with a police patrol, they found Emma dead, her chest and abdomen pierced by two bullets. Two empty shells were found at the scene of the crime. The Detective Bureau of Manila Police Department mobilized its forces to discover the authors of the crime. They got the first tangible clue on the morning of June 10 when Detective Leao and Marcelino Lontok Jr., recovered the latter's Bulova wrist watch from a peddler who was offering it for sale in front of the Ideal Theater on Rizal Avenue. The peddler, a colored American named Samuel Rhones, said that he had received the watch from one Jacinto Cornel, alias Wy Teng Seng, to sell. Jacinto Cornel told the detective that he had received the watch from one Salvador Custodio. The latter in turn said that he had brought it from a man called Big Boy, who turned out to be Brigido Carlos. Brigido Carlos said that the watch had been given to him in payment of a debt by a man whom he knew by the name of Visaya and who had a stall at the foot of Quezon Bridge. Visaya's real name turned out to be Saturnino Macawile. The latter at first denied having had anything to do with the watch, but after further investigation he admitted having delivered it to Brigido Carlos alias Big Boy. At first he said he had bought the watch from a small boy about three years old; but after further questioning he said he had brought it from a fellow with tattoos on both arms, on the chest and on the legs. Finally he revealed the identity of the mysterious seller as one known by the name of Romy. In view of his possession of the stolen watch, and because of his evasive answers as to its origin, Saturnino Macawile was suspected as one of the robbers. Indeed Marcelino Lontok, Jr., thought so at first. An information was therefore filed against Saturnino Macawile and John Doe on June 14, 1947, for the crime in question. Subsequently, however, the detectives succeeded in establishing the identity of Romy as that of an ex-convict whose real name was Alejandro Carillo, alias Romy alias Iwahig. They went to the New Bilibid Prison in Muntinglupa, where they found his prison records and his photograph. His records show that he was convicted of robbery in an inhabited house in criminal case No. 63494 of the Court of the First Instance of Manila, sentenced to 4 months and 1 day of imprisonment as minimum and 2 years, 4 months, and 1 day as maximum, and commenced to serve his sentence on June 27, 1941. On January 4, 1942, he was released on conditional pardon. In August, 1942, he was again convicted of robbery in an inhabited house in criminal case No. 511 and sentenced to 6 months imprisonment as minimum and 2 years, 11 months, and 10 days as maximum, plus subsidiary imprisonment. He was also made to serve the unserved portion of his first sentence, he having violated the condition of his pardon. He was released from prison upon the expiration of his sentence on August 30, 1946. (Exhibit G.) After thus ascertaining the identity of Romy, the detectives next task was to find and arrest him. They

discovered that he left Manila on a boat bound for Tacloban, Leyte, on June 8, 19947. Three detectives were dispatched to Tacloban, where they found and arrested Alejandro Carillo in the public market on June 23, 1947. he was at first brought to the police station of Tacloban, where he admittedly verbally that he was the one who shot Emma Foronda-Abaya. On the afternoon Of June 24, 1947, Alejandro Carillo was interrogated by Detective D. Lapia in the presence of Detective L.O. Garcia in the office of the Manila Detective Bureau, the questions propounded to him in Tagalog and his answers having been reduced to writing by Stenographer D.B. Ferrer. He gave his name and personal circumstances as follows: Alejandro Carillo y Almadin, 23 years old, single, a native of Tacloban, Leyte, painter, and a resident of Magallanes Avenue, Tacloban, Leyte. he declared that he resided first at 1472 Calavite, La Loma, Rizal, up to 1943 and then at 13 Esperanza, Quiapo, Manila; that he left Manila for Tacloban on June 8, 1947, because he happened to commit a crime. Answering further questions, he revealed that on the evening of June 4, 1947, about 8:30, he shot a woman on Aurora Avenue. We quote from his answers the following: On June 4, 1947, I was at 1472 Calavite at 5 p.m. Frank and I drank gin. At 8 p.m. we went out and walked on Aurora Avenue. While we were walking we met two persons, a woman and a man. We held them up and took them to a dark place. I took the watch of the man. After that I took hold of a woman and took off her drawers. The woman screamed. I pulled her to a muddy place. The woman pushed me. I also pushed her and then fired two shots at her. Afterwards Frank and I left and we separated. I slept at Blue Dahlia Hotel. Four days after the woman had been killed, I went to Leyte to the house of my sister on Magallanes Ave. He said he had known Frank since May 2, 1947; that Frank did not tell his full name but Frank told him that he lived on San Juan Street, Pasay, City, and that he was a private detective; that on the night in question he was carrying a.45 caliber pistol and Frank, a Japanese Luger. He gave further details of the commission of the crime as follows: I took up the watch of the man and Frank took the watch of the woman; I told Frank to watch the man. I approached the woman and when I saw that she was pretty I intended to have carnal knowledge of her; so I took her on the mouth, pulled down her drawers, grasped her breasts and laid her on the log. She screamed and struggled, so well fell into the mud. When I got up, my feet sank into mud; I got sore and took my pistol and shot her twice. He further revealed that when the woman screamed she called "Junior" in aloud voice; that he sold the man's watch for P11 to Nonoy Macawile, and who according to him was his housemate at 13 Esperanza, Quiapo; that he sold the watch to Macawile near Quezon Bridge in Quiapo the day after the crime; that Macawile knew him by the name of Romy only; that Macawile did not know the watch had been stolen from the man he and Frank held up; that he learned from the newspapers that the victims of the robbery he committed on June 4 were Emma and Lontok. He was shown the Bulova watch Exhibit D, and he identified it as the same watch he had taken from Lontok. He ratified that when he was arrested on June 23 in Tacloban he admitted before the local chief of police that he was the one who had shot Emma Foronda Abaya. he also revealed that when he was seven years old he was confined in the Welfareville Training School for theft, and that in 1939 and in 1941 he was sentenced and incarcerated in Muntinglupa for robbery. After his declaration was put in writing, he signed it and then ratified it under oath before Assistant City Fiscal Julio Villamor. (Exhibit H.) The detectives ascertained the identity of Frank mentioned by Alejandro Carillo to be Toribio Raquenio, who was apprehended on the night of June 25, 1947, and who on the evening of June 28, 1947, was subjected to interrogatories by Detective Tomas A. Calazan of the Manila Detective Bureau in the presence of Detective

Bureau in the presence of Detective J. Senen. He gave his name and personal circumstances as Toribio Raquenio y Pitas, alias Torin alias Frank, 37 years of age, single, jobless, a native of Cabugao, Ilocos Sur, and residing at 55 Main Street, Sampaloc, Manila. The following is an excerpt from his answers to the interrogatories: I am a graduate of public grammar school (seventh grade graduate) at Stockton, California, in the years 1932. at the age of eighteen I went there to work and engaged in cutting asparagus and lettuce in Salina and Stockton, California, earning S7 dollars a day. In July, 1946, desirous of seeing my parents and relatives, I returned to the Philippines on the S.S. Marine Lanes, paying P400 for my fare. After staying a few months in my home province, I came to Manila and stayed in the house of my Uncle Jesus Acosta at 73 Nacar, San Andres, Manila. I left the house of my uncle on the 1st day of June, 1947, and went to reside at 55 Main Street, Sampaloc, Manila, up to the time of my present arrest. I have been jobless since I arrived in Manila. In May, I happened to meet one James Lavaller at the Cosmos restaurant on the corner of Azcarraga and Rizal Ave. and he invited me to live with him in his house at 55 Main Street, Sampaloc, after learning that I was looking for a house to live in. A week later I became acquainted with one Romy while I was at the Star Restaurant on Azcarraga St.. Since then I have met him several times; once at the Central Hotel, corner Azcarraga and Rizal Avenue, and Later in the house Of Simeon Madayag at 1472 Calavite, La Loma; then at the Cosmos restaurant and again in the house of Simeon Madayag; then in the Aroma Cafe near the corner of Rizal Avenue and Azcarraga. The last meeting was on the afternoon of June 4, 1947. Romy invited me to a drink beer and gin at the Star Restaurant after I had a meet him at Cafe Aroma. About 6 p.m. of that day, June 4, 1947, we proceeded to the house of Simeon Madayag on Calavite Street, and there Romy ordered again for alcoholic drinks, and we drank in the house in the presence of an old woman. After drinking, Romy invited me to a walk after showing me his .45 caliber pistol stuck at his belly. Knowing him to armed, I looked for the .38 caliber Japanese Luger which Madayag used to hide underneath the piles of their clothes inside their unlocked dresser. Fortunately I found the said firearm, so I took it without the knowledge of its owner, Simeon Madayag. I became acquainted with Simeon Madayag thru my uncle, I learned that Simeon Madayag was the chief of police of Muoz, Nueva Ecija, from his sister-in-law Viring. Romy and I boarded a bus in La Loma, heading for Santa Cruz, Manila, and we alighted and walked northward on Aurora Avenue. While walking Romy told me that we were going to hold up any passer-by and not long afterwards he was in pursuit of two person, one a girl and the other a man. He held them at the point of his pistol upon reaching a street corner. I then walked towards them and held the man at the point of my gun and took his wrist watch which I put inside the left breasts pocket of my polo shirt, I continued holding the man while my companion Romy held up the girl at the point of his pistol. They passed alongside us heading southward until they (Romy and the girl) reached the log lying on one side of the street. I did not notice what they were doing as I kept holding my man, the companion of the girl. We were at a distance of about five meters from them. I then heard the girl screaming, so I told Romy, 'That is enough; pity her." I noticed then that my man was moving away. i did not stop my man from going away but instead approached Romy, whose victim was calling for "Junior", he companion. I told Romy to stop and leave the place. While I was about ten meters away from them (from Romy and the girl) I again heard the suppressed shots fired from the direction of Romy and the girl) I again heard the suppressed cry of the girl and simultaneously I heard two successive shots fired from the direction of Romy and the girl. I continued my pace in haste southward while I notice that Romy was following me. Upon reaching the street corner which I found this morning to be that of Oroquieta and Bulacan, we separated from each other, Romy heading towards Rizal Avenue while I went to La Loma and returned the .38 caliber Japanese Luger to Simeon Madayag. Madayag was surprised to know that I took his firearm and he asked me for an explanation. I told him that I was drunk, not even telling him about the

crime Romy and I committed on that particular night. Afterwards i left for my home in Sampaloc. The wrist watch which I forcibly took from the man was given by me to Romy on that same night of our robbery, while we were about to separate at the corner of Bulacan and Oroquieta Streets. I do not remember whether I have taken some other articles from our victims, as I was drunk at that time. I did not tell anybody about the crime I committed with Romy on that night of June 4 because I was afraid again yesterday morning, June 28, when I was made to confront him in that office of the other building (pointing to the office of Captain Tenorio in the Bilibid Compound). There he is (pointing to Alejandro Carillo y Almadin, alias Romy alias Romeo Reynaldo alias Amado Vergel). Although the place was dark at that time, I was able to recognize the man whom I held up at the point of my gun on account of his proximity to me. There is the man (pointing to Marcelino Lontok, Jr.). I could hardly recognize the girl because she was led away by Romy, but the memory of her features is still fresh in my mind, specially when she was in a reclining position on the log while Romy was stooping over her. (Exhibit E) On the afternoon of June 29, 1947, Alejandro Carillo was further interrogated by Detective T. Calazan, and he then and there pointed to and identified Toribio Raquenio as the same man whom he knew as "Frank" who was my companion when we held up a couple at the corner of Pampanga and Oroquieta on June 4, 1947." The following is an excerpt from his answers to the questions propounded by Detective Senen: The gun I used in the holdup was left by me in the possession of Simeon Madayag of 1472 Calavite, La Loma, Quezon City. I left it with him on June 7, 1947, before I left Manila for Leyte. That gun is mine. I bought it from a friend of mine who is already dead. It is a .45 caliber Colt pistol. I left it with Madayag because he is the only one I trust to take care of it. Aside from that, I had to leave with him because I was afraid I would be searched on the boat when I went home to Leyte. I have known Madayag since April, 1947, the same day I became acquainted with Frank. The only article I took from my victims was the watch of the girl(Emma), but I think I dropped it when she resisted when I tried to rape her. The watch of Lontok came to my possession because Frank gave it to me. I do not know where the articles taken from our victims are now. As far as I know, the gun used by Frank during the holdup was his, but I do not know where he got it. I do not know where Madayag is now. As to my educational attainment, I finished the sixth grade. (Exhibit F.) After Alejandro Carillo and Toribio Raquenio had confessed as above narrated, and as part of the investigation, they were taken by the detectives on June 29, 1947, together with Marcelino Lontok Jr., to the scene of crime, which was ascertained to be the corner of Pampanga and Oroquieta Streets. Then and there they re-enacted the crime with a policewoman impersonating Emma. Photographs of the re-enactment were taken and introduced in evidence during the trial. (Exhibits B-8, B-9 and B-10.) After apprehending and investigating Alejandro Carillo and Toribio Raquenio the fiscal, on July 1, 1947, amended the information in this case by dropping John doe and charging Alejandro Carillo and Toribio Raquenio as principal of the crime robbery with homicide and with attempted rape and Saturnino Macawile as accessory after the fact. Simeon Madayag, of 1472 Calavite, La Loma, Quezon city, mentioned by Alejandro Carillo and Toribio Raquenio in their confessions, turned out to be a secret agent of the Department of the Interior. When he went to that Department on July 1, 1947, to surrender, according to him, the .45 caliber pistol which he said had been left with his wife by Alejandro Carillo, he was informed that the Manila Detective Bureau wanted him for investigation. He was immediately taken thereto and asked whether the pistol in question was really in his possession. He answered in the affirmative and then and there surrendered it to Detectives Calazan and Senen.

Said pistol (exhibit I) and the two empty shells found at the scene of the crime (Exhibits J and J-1) were delivered to the National Bureau of Investigation for test and examination by Ballistics Expert Edgar Bond of that Bureau to determine whether the said pistol was the same gun from which the two shells had been fired. Mr. Edgar Bond fired three shots from the pistol Exhibit I in order to obtain therefrom the test shells Exhibits K, K-1, and K2. He then examined the two sets shells under a comparison microscope and found from the congruent lines thereof that the two shells Exhibits J and J-1 had been fired from the pistol Exhibit 1. The congruences of the two sets of shells are graphically shown in Exhibits L, L-1, and L-2, entitled "Ballistics Experts Edgar Bond" and explained by him during the trial. He also made a written report (Exhibit M) on the result of his ballistics examination, wherein he established the conclusion that the two shells Exhibits J and J-1 were fired from the pistol Exhibit I. Marcelino Lontok, Jr., one of the offended parties, testified during the trial to the facts set forth in the first two paragraphs of this decision. He also identified the two appellants Alejandro Carillo and Toribio Raquenio as the robbers, saying that it was a moonlight night and that he was able to see their features. He admitted on crossexamination that at first he pointed to the original defendant Saturnino Macawile (in lieu of Alejandro Carillo), but explained: "As you will see from these two accused, there is semblance between the two, specially when Carrillo's hair was still long and not cropped." He further testified that of the articles taken from him on the night in question he had been able to recover the watch (Exhibit D) in the manner and under the circumstances narrated in third paragraph of this decision. He said that he was sure that it was the same watch that had been stolen from him because "just below the secondary dial, on the face of the watch, there is a small crack on the glass," and in the spring balance on the back there are some scratches." Simeon Madayag, of 1472 Calavite, La Loma, Quezon City, testified during the trial in substance as follows: I know Alejandro Carillo because he used to go to my house once in a while in May and June, 1947. He wanted to court my sister-in-law. I know also Toribio Raquenio because he used to go to my house sometimes with Romy (Alejandro Carillo) and one named Nestor; they used to go there about three times a week. The Japanese pistol Exhibit N was the service pistol issued to me by the Department of the Interior in my capacity as secret agent of said Department and the pistol was defective. I gave it to my wife and secured another permit for .45 caliber pistol. On June 4, 1947, that pistol was place by my wife in her vanity case and put under a drawer of the aparador in my house on Calavite. I did not at any time lend that pistol to Toribio Raquenio. After June 23 or 24(1947) I delivered that pistol (Exhibit N) to a repair shop. Members of the Detective Bureau went personally to the repair shop to get it myself and I gave it to them. That was after I had delivered to the Detective Bureau on July 1 the .45 caliber automatic pistol Exhibit I. Exhibit I was given to my wife Antonieta Salazar by one Romy, according to her, but I was not present when it was given to her. Antonieta Salazar, 34 married to Simeon Madayag and residing at 1472 Calavite, Quezon City, testified in substance as follows: I know the pistol Exhibit I because that was left in my possession by Romy (pointing to Alejandro Carillo) on June 7, 1947. He told me, "Mining, I am going to leave this (Exhibit I) to you first because I have to go somewhere." He did not tell me where he was going at that time. I came to know Alejandro Carillo in May, 1947, when he went he went to the Funeraria Nacional. According to him he knew my brother-inlaw who died. Since then he used to come to our house for a visit. Sometimes he would come alone and at other times he would come with companions. I also know Toribio Raquenio (pointing to the defendant by that name) because he used to be with Romy when he came to the house. I know the Japanese pistol Exhibit N "because this is the revolver that my husband used when he was new in the Department of

the Interior." On June 4, 1947, it was in my vanity case which I place in the drawer under my aparador. Although I received the pistol Exhibit I from Alejandro Carillo on June 7, 1947, I did not report the matter to may husband until June 29, or 30 because he was not at home. I was waiting for the owner to get it. The pistol Exhibit N was taken by the police from the repair shop." We have heretofore narrated in chronological order the facts and the developments of the case as established by the prosecution through the testimony of Detectives Jesus P. Senen, Wenceslao R. Leao, Jose Dimagiba, Leon O. Garcia, and Tomas Calazan, Police Photographer Remigio Abolencia, Ballistics Expert Edgar Bond, and witnesses Marcelino Lontok, Jr., Simeon Madayag, and Antonieta Salazar, and through the written statements Exhibits H and F of Alejandro Carillo and Exhibit E of Toribio Raquenio. We shall now relate the evidence for the defense. Aside from his own testimony, Alejandro Carillo presented only one witless, Narciso Villegas. The latter testified that he was 23 years of age, single, a prisoner at Muntinglupa, convicted of robbery; that while he was detained in the isolation cell in Bilibid Prison, he saw the accused Alejandro Carillo there two months before October 1, 1947 (that is to say, about August 1, 1947); that he (witness) was the one keeping the key to the cells of the prisoners; that it was his duty to search a prisoner for the isolation cell to see whether he had some contraband with him; that when he tried to search the person of Alejandro Carillo, the latter told him, that the sides of his body were painful and requested his permission to take off his clothes himself; that witness allowed him to do so" and when he took off his clothes I saw something in his body in the left side of his body and under his chest, left side, was bluish in color. I asked him why his body was black, and he told me, "I was maltreated by the secret service men." I allowed him to get inside the isolation cell, telling his companion prisoners to allow him to lie down because he was not feel. That is all I can say. On cross-examination he testified that the conversation he had with Carillo was witnessed by the guard who had brought Carillo; that the guard did not attempt to stop him from talking with Carillo "because I was the one in charges of the key and it was necessary that I should search his pockets." Testifying his own behalf, Alejandro Carillo declared that on the afternoon of June 4, 1947, he was in Quiapo, Manila working as a laborer or a cargador in the market; That he worked until 9 o'clock in the evening, when he went home and id not go out any more; that he did not know his co-accused Toribio Raquenio until the day the latter was arrested "because the policeman was insisting I was his companion"; that he did not know anything as to the accusation against him of having robbed as killed Emma Foronda-Abaya on June 4, 1947; that he was on Aurora Avenue and Pampanga Street, Manila on June 4, 1947; that he was arrested by the police on June in Tacloban, Leyte; that after his arrest he was ordered by whose who arrested him to admit "that case which occurred"; that he did not yet sign any documents then; that he sign Exhibit F in Manila; that "they ordered me to sign that document Exhibit F without me knowing its contents, they only told me to sign it"; that he did not give the police the information contained in Exhibit F; that he did not sign Exhibit F voluntarily but was forced to do so; that from Tacloban he had fear of them because they were pointing their revolvers at him. Q. They only pointed at you their revolvers? A. Yes they pointed the revolvers at my stomach and they beat me in the body. Q. Who beat you in the body? A. Those who arrested me. He admitted his signature to Exhibit H but claimed that he signed it without knowing its contents and that before signing it they did not read its contents to him. He further testified that he did not know the watch Exhibit D; that he knew the revolver Exhibit I because on June 6 a friend of his name Nestor delivered it to him; that at first he did not want to receive it because it had no license, but that he was afraid of Nestor because he always

beat him and for that reason he told Nestor, "Well, I am going to receive this Exhibit I on condition that I shall not use it; I shall keep"; that when he went to Leyte on June 8 he did not have the revolver in his possession because he left it with a friend of his who lived in La Loma. He denied having sold the watch Exhibit D to Macawile. He claimed that his acts depicted in the photographs of the re-enactment of the crime, Exhibits B-5, B-8, B-9, B-10, B-11, and B-12, were not voluntary but that he acceded to the wishes of the police because he was afraid of them because they carried long revolvers. On cross-examination he admitted that the house on Esperanza Street where he lived on June 4, 1947, was the same house where Saturnino Macawile less than two years; that it was true that during Japanese occupation he used to go with Macawile but that he did not live with him in the same house then; that before going to Leyte he entrusted the revolver Exhibit I to a friend of his whom he knew as Aling Tuning; that he delivered said revolver to Aling Tuning although Nestor did not know her "because if I kept that revolver in my possession I possibly would be in bad plight because that revolver had no license. Q. If that is true, why did you accept this revolver from Nestor? A. Because he was in hurry and he only left this on the table and then left. Q. Is that all the explanation you can give? A. Yes, sir. He reiterated that on June 4 he went at 9 o'clock; that he knew it was 9 o'clock because he had many friends in that house and he asked them what time it was. Q. What did you go home very late that night? A. I went home quite late that night because I entertained myself in the pool. Q. What is that pool you are referring to? A. It is a kind of game. I know how to play it. Q. Do you play pool every night? A. I do not play but only used to see. Q. Are you very sure that on June 4, 1947, about 9 o'clock in the evening, you were playing pool? A. I was not playing, I was only watching those playing pool. He admitted that after he was brought to the police station the police asked him so many questions, but claimed that he was confused them indifferently because he had presentiments about his mother and he was confused and did not know what he was saying; that those who asked him in questions did not write anything down. Q. Did anyone of those who have testified here beat you? A. None of those who testified here beat me, because I know by face those who maltreated me. The accused Toribio Raquenio was the only one who testified in his own behalf. He gave his personal circumstances as 37 years of age, single, residing at 55 Main Street, Sampaloc, Manila. He declared in substance as follows: He was out of work on June 4, 1947, and was looking for a job then. He did not remember having gone out on June 4, 1947. He did not know the accused Alejandro Carillo, alias Romy. He did not know anything about the accusation against him of having, in company with Alejandro Carillo, held up and robbed Emma Foronda Abaya and Marcelino Lontok Jr. He did not remember where he was on June 4, 1947. He was arrested on June 26. The signature on Exhibit E is his . H e did not know the contents of Exhibit E; it was not read to him by the police. He signed it because he was maltreated and in proof of that he had a scar on the lower lip.

He was maltreated by a detective whom he knew by face but who was then in court. He was maltreated before he signed Exhibit E; he was kicked, and when he fell on the floor they continued kicking him and spat blood. He admitted that he knew Simeon Madayag. He did not know whether Simeon Madayag possessed the .38 caliber Japanese Luger. He denied that he ever went with Alejandro Carillo to the house of Simeon Madayag. he did not know whether the contents of Exhibit E are true or not. On cross-examination he admitted having stayed in America 19 years. He indicated Det. Wenceslao Leao as the one and only one who had maltreated him. He said that after his arrest the police asked him many questions, and that is the reason why "they maltreated me"; that the only question he answered was that about his civil status. He admitted that he is from Cabugao, Ilocos Sur. He also admitted that he has an uncle named Jesus Acosta who lives at 73 Nacar, San Andres. Upon being interrogated by the court, he reiterated that he knew Simeon Madayag and knew where he lived but did not know the number. He admitted having been to the house of Simeon Madayag but that he went there alone for a visit, looking for work. The accused Saturnino Macawile, testifying ion his own behalf, declared that he bought the Bulova watch Exhibit D from Romy (indicating the accused Alejandro Carillo) for P3 on June 5 at 6:30 a.m. at his (witness) store in Quiapo; that he sold it for P10 to one Bidoy; that he did not know that it was a stolen watch. Q. Did the detectives employ force or maltreat you before you told them from whom you bought this watch Exhibit D? A. No, sir. He said that he knew Alejandro Carillo only by the named Romy; that Romy used to go to his house because he courted someone there, the daughter of his comadre. Upon the evidence above set forth, Judge Felipe Natividad found the accused Alejandro Carillo guilty beyond reasonable doubt as principal of the crime of robbery with homicide, without any mitigating or aggravating circumstances, and sentenced him to suffer the penalty of reclusion perpetua, to indemnify the heirs of the deceased Emma Foronda-Abaya in the sum of P2,000 and to return the stolen articles for their value aggregating P231.40; and the accused Toribio Raquenio guilty beyond reasonable doubt as principal of the crime of robbery with violence against and intimidation of person, without any mitigating or aggravating circumstance, and sentenced him to suffer an indeterminate penalty of from 4 years and 2 months of prision correctional as minimum to 8 years of prision mayor as maximum and to indemnify, jointly and severally with his co-accused Alejandro Carillo, the offended parties in the sums of P131 and P100.40, respectively. The accused Saturnino Macawile was acquitted on reasonable doubt. In their joint appeal Alejandro Carillo and Toribio Raquenio, through their counsel de oficio, challenge the sufficiency of the evidence to established their guilt and ask for their acquittal. The Solicitor General, on the other hand, recommends the imposition of the death penalty on the appellant Alejandro Carillo and the increase of the maximum penalty meted out to appellant Toribio Raquenio. Having heretofore set forth in detail the evidence adduced during the trial, our task in resolving the appeal is reduced to analyzing the chain of direct and circumstantial evidence against the appellant to determine whether there is any missing or defective link which might warrant reversal. The direct evidence consists of (1) the testimony of the eyewitness Marcelino Lontok Jr. and (2) the confessions of the accused. The circumstantial evidence consists of (1) the sale by Alejandro Carillo to Saturnino Macawile on the morning of June 5, 1947, of the Bulova watch Exhibit D, of which Marcelino Lontok Jr., had been robbed the previous evening; (2) the admission by Carillo and Macawile during the trial that they had known each other

and had lived in the same house for a long time, thus precluding any possible mistake by Macawile as to identify of Carillo as the seller of said watch; (3) the .45 caliber pistol Exhibit I, which was conclusively established to be the gun from which the two empty shells Exhibit J and J-1 found at the scene of crime had been fired; (4) the testimony of the spouses Simeon Madayag and Antonieta Salazar that said pistol was left by Alejandro Carillo during the trial; (5) the testimony of the same spouses that the two appellants knew each other and used to frequent the house of said spouses at 1472 Calavite, La Loma, Quezon city; (6) the .38 caliber Japanese Luger pistol Exhibit N, which according to the confession of Toribio Raquenio he took from the house of said spouses and used in committing the crime in question and which said spouses identified during the trial; and (7) the flight of Alejandro Carillo to Tacloban, Leyte, shortly after the commission of the crime. We find no defective link in this strong chain of circumstantial evidence, which dovetails with the chain of direct evidence. Appellant Carillo hammers on the weakness of the testimony of Marcelino Lontok, Jr., as to his identity, it appearing that said witness at first pointed to Macawile in lieu of Carillo. Considering that Lontok and his companions were held up at night, although with moonlight, and that the robbers were unknown to him, his testimony alone as to their identity would not be sufficient to convict the appellants, for his identification of them under the circumstances could not be absolutely relied upon, as indeed he at first mistook Macawile for Carillo in view of some resemblance between the two. It was, however, undoubtedly a mistake in good faith, not indicative of a will to prevaricate and not sufficient to divest his testimony of portably value as to identity of the appellants, if we consider it, as we must, together with the rest of the evidence in this case. The trial judge, who saw both Carillo and Macawile and who took Lontok's testimony into consideration, must have been satisfied with Lontok's explanation of his mistake due to the resemblance between the said two accused as pointed out by Lontok during the trial. The other link of direct evidence is the written confessions of the two appellants before the members of the Detective Bureau. Inasmuch as these confessions were respectively repudiated by the appellants during the trial, we have to examine with caution and care the circumstances under which they were given and the inherent veracity of their contents in relation to appellants testimony during the trial, to determine whether they had been illegally extorted from them as they claimed. We are not unaware that some officers of the law resort to the illegal and reprehensible tactics of extorting confessions through violence and intimidation, and we have had occasions to express our condemnation of such tactics. Thus, in the case of People vs. Tipay (G.R. No. 49014 [March 31, 1944]; 74 Phil., 615), we said: In this noonday of the twentieth century, when criminology and the investigation of crimes have developed into a science in all civilized countries abreast with the progress and the ever-increasing enlightenment of the human race, to force or induce a suspect to incriminate himself through violence, torture or trickery is a shameful disgrace a reversion into the barbarism and the inquisitorial practices of the Dark Ages; and the minions of the law who would still resort to such crude and cruel methods are universally regarded as anachronistic blockheads, who should be immediately lopped off as a cancerous excrescence of the body politic. The first written confession of appellant Alejandro Carillo is Exhibit H, which was taken by questions and answers in Tagalog by Detective D. Lapia in the presence of Detective L.O. Garcia and written down by Stenographer D.B. Ferrer between 3.20 and 6.30 p.m. on June 24, 1947, the day after Carillo was arrested in Tacloban Leyte. Selective Garcia, as a witness for the prosecution, swore during the trial that Carillo answered the questions propounded by him by Det. Diosdado Lapia and voluntarily signed and swore to Exhibit H before Fiscal Villamor after the latter had read and explained its contents to the affiant. It is apparent from Exhibit H that it contains information which was known only to the affiant and which could not have been known before by the investigator: the personal circumstances of the affiant; the places where he had resided before; that at

the age of 7 he was confined in Welfareville for theft; that he knew Frank (his appellant); that he and Frank were in the house at 1472 Calavite, La Loma, Quezon City, about 5 o'clock on June 4, 1947, and that from the house they went together to commit the crime in question; that he was then armed with a .45 caliber pistol and Frank, with a Japanese Luger. At that time he told an untruth when he told the investigator that the .45 caliber automatic pistol he used belonged to Frank and that after the crime he returned it to the latter before they separated. As a matter of fact, it was the revelation made by appellant Carillo in Exhibit H that led the detectives to arrest his co-appellant Toribio Raquenio, alias Frank. And after the latter was arrested, Carillo in Exhibit H that led the detectives to arrest his co-appellant Toribio Raquenio, alias Frank. And after the latter was arrested, Carillo was subjected to further interrogatories by Detective Senen in the presence of Detective Calazan, as shown by Exhibit F, in which Carillo identified Raquenio as the same person to whom he had referred as Frank. It was then that for the first time Carillo revealed the truth that the gun he had used had been left by him in the house of Simeon Madayag at 1472 Calavite and that the gun was his (Carillo's) Again it was through that information that the detectives recovered the .45 caliber pistol Exhibit I from Madayag. It will be recalled that before Carillo was arrested in Tacloban, Leyte, on June 23, the detectives entertained the theory that the holdup men were Saturnino Macawile and unknown individual designated in the original information as John Doe. The detectives did not then know the facts revealed by Carillo for the first time in his confessions Exhibits H and F. We therefore cannot give the credence to the insinuation made by Carillo for the first time during the trial of the case that the contents of Exhibits H and F were mere inventions of the detectives. The veracity of the facts set forth in said exhibits, with the exception of the statement made by Carillo in Exhibit H that the .45 caliber pistol belonged to Frank and was returned by him to the latter after the commission of the crime, cannot be doubted. The very falsity of said statement as to the ownership of the pistol, which Carillo subsequently rectified in Exhibit f, is in itself a clear proof that the contents of Exhibit H and F were not a fabrication of the detectives. No one can doubt the veracity of a statement that turns out to be in conformity with the reality. If a person tells the police that he killed an individual with a revolver in another place and delivered the watch to another person, and if the police finds the corpse in the place indicated by the killer and also recovers the watch from the person to whom the killer said he had delivered it, it would be impossible not to believe the statement of the killer even if he should subsequently deny it. What could not be believed is such denial. Equally unbelievable is the testimony of Carillo during the trial when at first he said he signed Exhibits F and H without knowing their contents because the detectives ordered him to do so; then later he gave a stronger reason by saying that he was afraid of the police because they were pointing their revolvers at him; and still later, after being prompted by his counsel, he gave a still stronger reason by saying that they beat him in the body. But on cross-examination, when asked whether any of the detectives who had testified before him had beaten him, he answered that none of them had. He could not point to any particular person as his alleged torturer. He did not even care to corroborate the testimony of his only witness, Narciso Villegas, for the latter's testimony was not in any way referred to by him when he (Carillo) took the witness stand. The testimony of Narciso Villegas is inherently incredible. In the first place, he was a convict of crime involving moral turpitude robbery. In the second place, if as he said he was in the isolation cell, we must assume that he was under disciplinary punishment and could not therefore have been entrusted with the duty of a trusty such as keeping the keys. Carillo, who was not yet then convict but a mere detention prisoner, could not have been placed in the isolation cell. And, lastly, the alleged physical examination or inspection made by Convict Villegas, during which he claimed to have found a bluish spot on the chest of Carillo, took place, according to him, about August 1, 1947, that is to say, more than one month after Carillo had signed Exhibits H and F. In any event, even assuming that there was such a bluish spot on Carillo's body, Carillo did not explain or refer to it

when he testified. In this connection it is significant to note that although the detectives at first suspected Saturnino Macawile as the one who had robbed, ravished, and killed Emma Foronda Abaya, they did not use any force upon or maltreat him to extort a confession from him, according to his own testimony. We must, therefore, conclude that Carillo's confession Exhibits H and F were made by him voluntarily and without the employment of force or intimidation on him. The alibi set up by Carillo as a defense hardly merits any considerations at all. At first he claimed that he worked in the Quiapo market as a cargador until 9 o'clock in the evening on June 4, 1947. Later, on cross-examination he said that he stayed out late on that day because he was in a poolroom watching the game. Neither can we believe his testimony that the pistol Exhibit I was delivered to him on June 26, by a friend of his named Nestor. At first he said that he accepted the gun from Nestor although it had no license because he was afraid of Nestor. as latter always beat him. But on cross-examination he changed that the testimony by saying that he accepted the gun from Nestor because the latter was in a hurry "and he only left this on the table and left." The conclusion is inescapable from the foregoing analysis of the evidence that it leaves no room for any hypothesis consistent with appellant Alejandro Carillo's innocence. We do not entertain the slightest doubt that he is guilty of the capital offense of robbery with Homicide and attempted rape, with which he was charged and duly tried. We shall consider the appropriate penalty later. With regard to appellant Toribio Raquenio, he did not even care to set up an alibi. He said he did not remember where he was on June 4, 1947. We find that his guilt has been proved beyond reasonable doubt by his confession Exhibit E; by the testimony of Marcelino Lontok, J., who identified him as the robber who held him up at the point of a gun and robbed him; and by the testimony of the spouses Simeon Madayag and Antonieta Salazar. His confession Exhibit E contains information regarding himself that could not have been known to the police. His claimed, therefore, than it was a mere invention of fabrication of the police cannot be believed. Neither can we accept his pretension that he signed said confession he had been maltreated him was not in court. Later he indicated Detective Wenceslao Leao, who was in court, as the one who had maltreated him . In rebuttal Detective Leao denied that imputation, saying that he was not the one who took part in his investigation. Exhibit E shows that it was taken by Det. Tomas A. Calazan in the presence of Detective Senen. And Det. Jesus P. Senen testified that Raquenio answered the questions propounded to him by Detective Calazan and signed the statement voluntarily after having read it. We likewise, therefore, do not entertain any doubt as to the guilt of this appellant. Appellant Toribio Raquenio did not participate in the attempted rape and killing of Emma Foronda Abaya but tried to induce his companion Alejandro Carillo to desist therefrom. The trial court was right in finding him guilty only of robbery with violence against and intimidation of person, which is penalized in Paragraph 5 of Article 294 of the Revised Penal Code with prision correctional in its maximum to prision mayor in its medium period. However, the trial court erred in not considering the aggravating circumstance of nocturnity, which facilitated the commission of the offense and rendered detection difficult (People vs. Corpus, 43 Off. Gaz., 2249). Therefore with the only modification that the maximum of the indeterminate penalty imposed should be, as it is

hereby, increased to ten years of prision mayor, the sentence as to the appellant Toribio Raquenio is affirmed, with costs. The appellant Alejandro Carillo is guilty of robbery with homicide as well as of attempted rape. Robbery with homicide is penalized in paragraph 1 of article 294 with reclusion perpetua to death. The trial court erred in not considering the aggravating circumstances of (1) recidivism, said appellant having been convicted twice of robbery; (2) nocturnity, which facilitated the commission of the offense and rendered detection difficult; and (3) abuse of superior strength, considering his sex and the weapon he used in the act which overcame the victim and rendered her unable to defend herself from his savage aggression (United States vs. Consuelo, 13 Phil., 612). The attempted rape committed by this appellant on the same occasion may be penalized separately, but we think there is no need to do so, and we consider it only as a further aggravation of the offense. There is no mitigating circumstance. Alejandro Carillo has proved himself to be a dangerous enemy of society. The latter must protect itself from such enemy by taking his life in retribution for his offense and as an example and warning to others. In these days of rampant criminality it should have a salutary effect upon the criminally minded to know that the courts do not shirk their disagreeable duty to impose the death penalty in cases where the law so requires. Conformably to the recommendation of the Solicitor General, we modify the sentenced of the trial court as to the appellant Alejandro Carillo y Almadin by imposing, as we hereby impose upon him, the penalty of death, affirming the sentence in all other respects. This sentence shall be executed in accordance with the provisions of articles 81 and 82 of the Revised Penal Code on a date to be fixed by the trial court within thirty days after the return of the record of the case to said court. It is so ordered.

EN BANC G.R. No. L-17530 October 30, 1962 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CAUSIANO ENOT and PABLO VIALON, defendants-appellants. Office of the Solicitor General for plaintiff-appellee. Manuel J. Llamas for defendants-appellants. PER CURIAM: Review of a decision of the Court of First Instance of Masbate, Hon. Mariano V. Benedicto, presiding, sentencing each of the accused Causiano Enot and Pablo Vialon to undergo the penalty of death for the crime of robbery with multiple homicide and physical injuries. The above-named accused, duly assisted by counsel, pleaded guilty to the charges contained in the information filed against them, which reads as follows: That on or about the 8th day of July, 1960, in the barrio of San Jose, Municipality of Cataingan, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and helping each other, with intent of gain and by means of violence and force upon things, did then wilfully, unlawfully and feloniously enter the house of Macario Conje who was then sleeping with the members of his family and once inside take and carry away one trunk belonging to Macario Conje which said accused forcibly opened outside the house and which they took, stole and carried away therefrom assorted clothings and also one fighting cock all valued in the total amount of P35.00, to the damage and prejudice of the said owner in the aforesaid amount; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the articles

above-mentioned, the herein accused did then and there wilfully, unlawfully and feloniously and with evident premeditation and the aggravating circumstances of nocturnity, the use of superior strength, cruelty, abuse of confidence and treachery all with intent to kill, attack, assault and stab with sharp bolos the person of Macario Conje, Maximina Arreglado, Monina Conje, 5 years old and thereby inflicting upon Macario Conje, Maximina Arreglado, and Monina Conje serious multiple wounds on the different parts of their bodies and upon Baby Conje incise wound at the middle of the head cutting the skull and brains which injuries directly cause their instantaneous death; and upon Santiaga Conje incise wound in the left leg below the knee joint which injury required medical attendance for a period of from 15 to 20 days." After they had entered their plea of guilty, the accused were asked by the judge if they understood the information as read to them, and they both answered "Yes, sir." However, in view of the seriousness of the offense charged and the gravity of the penalty imposable therefor, the trial judge, instead of immediately pronouncing sentence upon their plea of guilty, propounded questions to both of them to assure himself. The examination conducted by the judge himself in open court established the following facts: the accused Causiano Enot and Pablo Vialon, having previously planned to rob the house of Macario Conje located in the barrio of San Jose, Cataingan, Masbate, went up the said house on the night of July 8, 1960, armed with bolos. Upon gaining entrance thereto, they found therein Macario Conje, his wife Maximina Arreglado, Santiaga Conje, 5 years, Monina Conje, a minor, and Baby Conje, 7 months, all of whom were still awake, with the exception of the last. Of those awake "some were sitting and some were lying down." Without provocation whatsoever, and in accordance with their plan to assault the occupants to insure the perpetration of the crime they had conspired to commit, the accused did then and there attack Macario Conje, Maximina Arreglado, Monina Conje, Baby Conje, and Santiaga Conje, by stabbing and hacking them with their bolos and inflicting wounds on their persons, which brought instantaneous death to the first four named and injury to the left leg just below the knees of Santiaga Conje, which required 15 to 20 days of medical care. Having thus eliminating possible obstacles to the accomplishment of their criminal purpose of robbing the victims, the accused then proceeded to bring outside the house one fighting cock and a trunk belonging to Macario Conje, which trunk they forcibly opened the took therefrom assorted clothing. All the things taken by them are valued in the amount of P35.00. The facts above set forth were voluntarily admitted by the two accused before the trial judge. When the judge asked them for the second time if they reiterate their plea of guilty, and if they realized that the court could sentence them to any penalty provided by law, the accused again answered in the affirmative. On the basis of the admissions made by the accused, the court found them guilty beyond reasonable doubt of the crime of robbery with multiple homicide and physical injuries, with the aggravating circumstances of nocturnity, superior strength, treachery, and evident premeditation, with only one mitigating circumstances of plea of guilty, and thereby sentenced them to the penalty of death. Capital punishment having been imposed, the records of the case were forwarded to this court for review. Defendants-appellants do not question the facts as found by the trial judge, but doubt the propriety of the penalty imposed by him, claiming that at most the penalty to which they should have been sentenced is reclusion perpetua. They allege that the death penalty was erroneously imposed because the trial court (1) did not consider intoxication and lack of instruction or education as mitigating circumstances; (2) considered nocturnity and abuse of superior strength as distinct and separate from the aggravating circumstances of treachery; and (3) considered evident premeditation as an aggravating circumstances. We have already held that to be available as a means to lighten the penalty, the fact of intoxication must be proved to the satisfaction of the court. (People vs. Noble, 77 Phil. 93, 101.) In the case at bar, defendants-appellants made no offer to show that during the commission of the crime they were drunk to the point of losing the use of their reason and self-control. Neither has it been shown that just before they committed the crime defendants-appellants had in fact been drinking. The

extrajudicial confession of Pablo Vialon found on page 30 of the record, which counsel for the defense bring to the attention to this court to prove that Vialon was drunk during the commission of the crime, may not be taken into account, not having been offered as an exhibit. Besides, all that said confession states that Vialon had been drinking tuba together with a certain Sulpicio Cuadera before he repaired to the house of Macario Conje, without stating the amount or quantity of liquor they had consumed, upon which the court could base its finding as to the degree of their intoxication. ( Ibid.) Hence the lower court acted rightly in not appreciating drunkenness as a mitigating circumstances in their favor. The benefit of lack of instruction is likewise unavailing to mitigate the crime committed by defendants-appellants as this circumstance is not applicable to crimes of theft or robbery, and much less to the crime of homicide. (U.S. vs. Pascual, 9 Phil. 591; People vs. Melendrez, 59. Phil. 154; People vs. De la Cruz, 47 Phil. 444; People vs. Mendova, G.R. No. L-7030, Jan. 31, 1957.) Needless to say, no one, however, unschooled he may be, is so ignorant as not to know that theft or robbery, or assault upon the person of another is inherently wrong and a violation of the law. However, nocturnity should not have been taken as an aggravating circumstance separate and independent of that of treachery, the reason being that nighttime forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime. (People vs. Balagtas, 68 Phil. 675, 677; People vs. Parde, 79 Phil. 568, 579; People vs. Bautista 79 Phil. 652, 657; People vs. Magsilang, 82 Phil. 271, 275.) The crime committed, that of robbery with multiple homicide and physical injury, is aggravated by treachery, in that the accused took advantage of nighttime to cover up their movements and commenced attack on their victims at a time when the latter, unaware of their approach and their intention, were in no position to offer any defense (People vs. Pengzon, 44 Phil. 224, 234; People vs. Palomo, 43 O.G. No. 10, 4190); by the use of superior strength and disregard of the sex and age of the victims, the latter, with the exception of Macario Conje, all being women, one only five years old, another, a minor, and the third, a seven-month old baby (People vs. Medina, 71 Phil. 383); by evident premeditation, in that prior to the crime, they had conspired to rob the house of Macario Conje an to assault and attack the occupants thereof if necessary better accomplish their purpose (People vs. Galang & Guzman, 73 Phil. 184, 198-200); and by dwelling, consisting in the violation of the privacy of the home of the deceased Macario Conje and his family (People vs. Manuel, 44 Phil. 333, 340; People vs. Bautista, 79 Phil. 653, 657; People vs. Gonzales, 76 Phil. 473, 480). What has attracted the attention of the Court is the senseless depravity with which the accused committed offense. For no conceivable reason, they hacked the head of the baby in two. The three other victims were defenseless women who offered no resistance at all; yet disregarding their helplessness, sex and tender age, defendant stabbed and hacked them to death without mercy. In view of the plea of guilty and the aggravating circumstances which attended the commission of the crime, the Court is constrained to affirm, as it hereby affirms, the death sentence imposed by the trial judge upon each of the accusedappellants. Considering that the decision of the lower court does not impose any indemnity for the death of the victims, namely, Macario Conje, Maximina Arreglado, Monina Conje and Baby Conje, the defendants-appellants are hereby sentenced to pay jointly and several the amount of P6,000 to the heirs of each of the victim. Costs against defendantsappellants. So ordered. EN BANC G.R. No. L-31041 May 29, 1975 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO ALDE Y CORDOVA alias "Waway", defendant-appellant. Office of the Solicitor Estelito P. Mendoza and Assistant Solicitor Santiago M. Kapunan for plaintiff-appellee.

Fernandez, Ambrosio and Avendao Law Office for defendant-appellant. FERNANDO, J.: The basis of a motion for new trial in this automatic review of a death sentence is the Apduhan 1 ruling that frowns on a plea of guilty improvidently made. Stress was laid in that case on the accused having a full and accurate understanding of the serious implications of an admission of culpability. Its ruling has been consistently adhered to in subsequent cases. 2 Accordingly, the most careful scrutiny was made of the proceedings in the lower court. As will hereafter appear, the reliance on Apduhan does not suffice. It does not follow, however, that the death sentence will have to be affirmed. The basis for such a verdict was the presence of two aggravating circumstances, evident premeditation and recidivism and only one mitigating circumstance, the plea of guilty. Evident premeditation, as will later on be shown, was not duly proved and ought not to have been taken into account. The penalty then for the crime of murder committed by appellant should be reclusion perpetua. The plea of guilty was entered on July 30, 1969 before the Circuit Criminal Court of Manila with Judge Manuel R. Pamaran presiding, At the start of the session, his counsel de parte. Paterno Pajares, manifested that the accused sought permission to be allowed to withdraw his former plea of not guilty with one of admission of guilt. The court asked him whether that was his desire, and the accused answered, "Yes, your honor." 3 Judge Pamaran then informed him that the effect would be his admission of the commission of the crime charged, to which he responded, "Yes, your honor." 4 The judge added that he could be sentenced to imprisonment, even death, the maximum penalty provided by law. From the accused: "Yes, your honor." 5 Judge Pamaran continued, "notwithstanding what is explained to you, you still insist in your desire to withdraw your previous plea of not guilty and substitute it with a plea of guilty, to the offense charged?" 6 Again, the same reply from the accused: "Yes, your honor." 7 Judge Pamaran commendably persisted in informing him as to the consequences of his plea. Thus: "Notwithstanding again the warning of the court that the maximum penalty imposable is death?" 8 The same affirmative reply from the accused: "Yes, your honor." 9 After he was arraigned anew, he entered the plea of guilty. When asked what mitigating circumstance was invoked, his counsel stated: 'The plea of guilty, your honor." 10 The fiscal, after stating that there were the aggravating circumstances of evident premeditation, treachery and recidivism, recommended that the death penalty be imposed. The court then asked the accused: "Did you hear the recommendation of the fiscal, death penalty?" 11 This was his answer: "Yes, your honor." 12 Judge Pamaran again warned him about the consequences of his plea: "In all probability, that might [be] adopted by the court, so that the court is still giving you a chance to withdraw your previous plea of guilty if you so desire?" 13 The accused did not change his mind. Thus: "No more, your honor." 14 Afterwards, the judge informed the accused that with only one mitigating circumstance, as against the aggravating circumstances, the death penalty would have to be imposed. He was then given a chance to withdraw his plea of guilty. The accused did not take advantage of such opportunity: "I will not change my plea, your honor." 15 Then this query from Judge Pamaran: "Were you properly advised by your lawyer the consequence of your plea?" 16 The answer: "Yes, your honor." 17 A last chance was afforded him with this question, "You will not change your plea anymore?" 18 The accused remained adamant: "No more, your honor." 19 In the decision under review the judge noted what transpired thereafter. There was, according to him, "the presentation of other evidence aside from the voluntary confession of the accused with respect to the aggravating and qualifying circumstances for it is believed that where an accused is with little or no education, the probable and prudent consideration to follow is to take evidence as were available and necessary in support of the material allegation in the information including the aggravating circumstances to aid the Supreme Court in determining, whether the accused really and fully understood and comprehended the meaning and full consequences of his plea ... . The prosecution, therefore, presented Alejandro Yanquiling, age 36 years, married. detective corporal of the Manila Police Department, who declared that he investigated the accused herein who gave his statement voluntarily ...; that the accused was brought to the crime scene where there was a reenactment of the crime, a picture of which was taken ...; that Detective Natividad played the role of Urbano Mendiola and the white object in the photograph is a folded newspaper representing the bolo; that accused took his position voluntarily and Det. Natividad took his position as told by the accused; that according to the accused, victim was along Tecson towards the east and he was walking towards the south when he stabbed the victim; that the accused then was hidden from the view of the victim because of the Meralco post around three feet; that according to the accused, he immediately drew his bolo from his waistline and without any warning, he stabbed Mendiola; that victim was not able to fight back because he was fatally wounded on the left chest and that there was no exchange of words between the accused and the victim." 20 It was his conclusion that the crime committed was murder qualified by treachery, with the presence of two aggravating circumstances, evident premeditation because the accused "had already planned to kill the victim since 1964 when he was mauled by [him] and his companion and he wanted to take revenged ..., 21 as well as recidivism, one of the exhibits submitted by the fiscal being a certified true copy of a decision of the then Judge E. Soriano dated November 19, 1964 sentencing the accused, Juanito Alde, to the indeterminate penalty of four years, two months and one day of prision correccionalas minimum, to six years and one day of prision mayor as maximum for the offense of frustrated homicide. The penalty imposed, as noted earlier, was one of death as there were two aggravating circumstances, being offset only by the mitigating circumstance of a plea of guilt. Hence the automatic review. From the above recital, it is clear that there is no justification for the assertion that the accused failed to be informed of the serious consequences attendant to a plea of guilt. This is not to say though, as already mentioned, that the decision under review calls for total affirmance. The finding as to the existence of evident premeditation cannot stand the test of scrutiny in the light of authoritative precedents. There must be then, as set forth at the outset, reduction in the sentence imposed. 1. In People v. Ibaez, 22 one of the latest cases in point, there is a restatement of the duty incumbent on judicial tribunals to apprise the accused of the import of a plea of guilty in order that the due process requirement may be satisfied. According to the opinion of Chief Justice Makalintal: "The trial court disregarded our injunction in People v. Apduhan to all

trial judges to 'refrain from accepting with alacrity an accused's plea of guilty, for while justice demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of an inevitable conviction.' In People v. Lacson, this Court had occasion to reiterate the rule 'that in capital offense the taking of testimony, notwithstanding the plea of guilty, is the proper and prudent course to follow to establish the guilt and precise degree of culpability of the accused and not only to satisfy the trial judge but to aid the Supreme Court in determining whether accused really and truly understood and comprehended the meaning, full significance and consequences of his plea.' " 23 The Chief Justice continued: "What this Court said in People v. Busa is particularly apropos: 'In sum and substance, it will not suffice, under the law providing for compulsory review of death sentences by this Court, that the accused's plea of guilty is admitted and, on the basis thereof, that judgment is summarily rendered. The essence of judicial review in capital offenses is that while society allows violent retribution for heinous crimes committed against it, it always must make certain that blood of the innocent is not spilled, or that the guilty are not made to suffer more than their just measure of punishment and retribution. Thus, a judgment meting out penalty of death is valid only if it is susceptible of a fair and reasonable examination by this Court.' " 24 It bears repeating that the strict standard to be met whenever there is a plea of guilt to which this Court has been committed since Apduhan has been more than satisfied by the series of questions asked by Judge Pamaran wherein the accused was fully made aware of the likelihood that the death sentence would have to be imposed if he did admit his guilt. The warning notwithstanding, the accused still did so voluntarily. His prayer for a new trial is thus far from warranted. 2. The lower court did right in thereafter taking testimony as to the circumstances under which the crime was committed. As noted in the decision, a certain Alejandro Yanquiling, a detective corporal of the Manila Police Department, who investigated the accused, was put on the stand. The existence of the qualifying circumstance of alevosia thus came to light. There was nothing in his testimony, however, to indicate that the perpetration of the offense was attended by the aggravating circumstance of evident premeditation. All that Judge Pamaran could say in his decision was that in his statement to the police, wherein he admitted stabbing the deceased, he had planned to do so, as sometime in 1964 he was mauled by the victim and a companion. Actually, a reading of the "salaysay" of the accused would indicate the motive, dahilan, rather than the persistence of a criminal design, the stabbing having occurred in 1969, after five years had passed, a long enough period that more than sufficed for the criminal design, assuming it was seriously contemplated, to have been forgotten. Defense counsel was given a chance to cross-examine, and all he did was to ask four questions rather perfunctory in character. It would appear therefore that the trial court erred in finding that there was evident premeditation. As was clearly pointed out in two of the earliest decisions by Justice Torres, 25 an aggravating circumstance must be proved with no less certainty than that with which the commission of a principal offense is established. Such proof must be clear and positive. 26 "Aggravating circumstances", according to Justice Mapa, "can be applied only when they are as fully proven as the crime itself. Without clear and evident proof of their presence, the penalty fixed by the law for the punishment of the crime cannot be increased". 27 He reiterated the same view in a case decided two years later, United States v. Perdon. 28 Thus: "The circumstances specifying an offense or aggravating the penalty thereof must be proved as conclusively as the act itself, mere suppositions or presumptions being insufficient to establish their presence according to law. No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of the defendant." 29 It has been so since then. 30 Considering the absence of any competent and credible proof of evident premeditation, another excerpt from the opinion of Justice Mapa in United States v. Alverez is relevant: "The record contains no evidence showing that the defendant had, prior to the moment of its execution, resolved to commit the crime, nor is there proof that this resolution was the result of meditation, calculation and persistence." 31 There must be "that fixed determination" of perpetrating the offense. 32 "Premeditation," according to Justice Torres, "can not be considered because it does not appear that the defendants had deliberately planned beforehand the killing of the deceased." It must be "well-defined and established to aggravate the criminal liability of the defendant." 33 For in the language of Viada, what must be shown is "a studied and insistent tenacity in accomplishing the criminal object ..." 34 Then there is this recent decision, People v. Mendova, 35 where the authoritative doctrine is reaffirmed thus: "Evident premeditation qualified the offense, according to the lower court because "the crime was carefully planned, the offenders having previously prepared the means they considered adequate. As there was no direct evidence of the planning or preparation, the court's conclusion may not be endorsed, since it is not enough that premeditation be suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing determination to commit the crime." It is not "premeditation" merely, it is "evident" premeditation." 36 What clearly emerges therefore is that the lower court acted hastily in finding the existence of evident premeditation. The only aggravating circumstance present then is that of recidivism in view of the previous conviction of the accused for frustrated homicide. As against that, the mitigating circumstance of plea of guilt must be appreciated. The death penalty ought not to have been imposed. WHEREFORE, the decision of Judge Pamaran of August 2, 1969 is modified. The accused is sentenced to reclusion perpetua. In all other respects, the decision stands affirmed. EN BANC G.R. No. L-36662-63 July 30, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO CAMANO, defendant-appellant. The Solicitor General for plaintiff-appellee. Deogracias Eufemio for defendant-appellant. CONCEPCION JR., J.:

MANDATORY REVIEW of the death sentence imposed upon the accused Filomeno Camano by the Court of First Instance of Camarines Sur, in Criminal Case Nos. T-20 and T-21, for the killing of Godofredo Pascual and Mariano Buenaflor. The inculpatory facts as stated by the trial court show that: On February 17, 1970, in the barrio of Nato, Municipality of Sagay, Province of Camarines Sur, between the hours of four and five o'clock in the afternoon, after the accused had been drinking liquor, he stabbed twice the victim Godofredo Pascua with a bolo, called in the vernacular Bicol "palas" which is a sharp bladed and pointed instrument about two feet long including the black handle, tapering to the end, about one and one-half inches in width, (Exhibit "C") while the latter was walking alone along the barrio street almost infront of the store of one Socorro Buates. The victim, Godofredo Pascua, sustained two mortal wounds for which he died instantaneously, described by Dr. Constancio A. Tan, Municipal Health Officer, of Sagay Camarines Sur, in his Autopsy Report (Exhibit "A", pp. 5, Record Crim. Case No. T-21) as follows: NATURE OF WOUNDS UPON AUTOPSY: 1. WOUND STAB - three (3) inches long at left side, three (3) inches below left axilla, a little bit posteriorly, cutting the skin, subcutaneous tissues, muscles one (1) rib, pleura of left lung, pericardium, penetrating the ventricles of the heart, Media stinum, the right lung and exit to the right chest. One inch opening. 2. WOUND INCISED, one inch long at the left arm CAUSE OF DEATH - Wound No. 1 causing instant death due to severe hemorrhage. After hacking and stabbing to death Godofredo Pascua, the accused proceeded to the seashore of the barrio, and on finding Mariano Buenaflor leaning at the gate of the fence of his house, in a kneeling position, with both arms on top of the fence, and his head stooping down hacked the latter with the same bolo, first on the head, and after the victim fell and rolled to the ground, after said blow, he continued hacking him, until he lay prostrate on the ground, face up, when the accused gave him a final thrust of the bolo at the left side of the chest above the nipple running and penetrating to the right side a little posteriorly and superiorly with an exit at the back, of one (1) inch opening, (Exhibit B) causing instant death. The victim, Mariano Buenaflor sustained eight wounds, which were specifically described by Dr. Tan in his Autopsy Report (Exhibit "B" dated February 17, 1970, as follows: NATURE OF WOUNDS UPON AUTOPSY: 1. WOUND STAB, Two (2) inches long at the left side of chest above the nipple, running to the right side a little posteriorly and superiorly with an exit at the back of one (1) inch opening. Penetrating the skin, subcutaneous tissues, pericardium the auricles of the heart, the left lung towards the right side of back. 2. WOUND STAB at sternum one and one-half (1-1/2) inches deep three-fourth (3/4) inch long penetrating the skin and the sternum. 3. WOUND STAB left side of neck three-fourth (3/4) inch long one and one-half (1-1/2) inches deep. 4. WOUND HACKED, cutting left ear and bone four (4) inches long. 5. WOUND HACKED, left leg three (3) inches long cutting skin and bone of anterior side. 6. WOUND INCISED left palm two (2) inches long. 7. WOUND STAB, one (1) inch long two (2) inches deep at the back near spinal column. 8. WOUND HACKED, two (2) inches long at dome of head cutting skin and bone. CAUSE OF DEATH Wound number one (1) causing instant death due to severe hemorrhage from the heart." Out of the eight (8) wounds, two (2) are mortal wounds, namely wound Number one (1) and wound Number Three (3), (Exhibit "B") (t.s.n., pp. 18-20, Session November 22, 1971). The two victims Godofredo Pascua and Mariano Buenaflor, together with the accused are neighbors, residing at the same street of Barrio Nato, Sagay, Camarines Sur (t.s.n., pp. 31, Session Nov. 22, 1971). The bloody incident was not preceded or precipitated by any altercation between the victims and the accused (t.s.n. p. 60, Nov. 22, 1971). Likewise, it is an undisputed fact that three years prior to this incident, the two victims had a misunderstanding with the accused while fishing along Sagnay River. During this occasion it appears that the accused requested Godofredo Pascua to tow his fishing boat with the motor boat owned by Mariano Buenaflor but the request was refused by both. This refusal greatly offended and embittered the accused against the victims. From this time on,

the accused begrudged the two, and entertained personal resentment against them. And although on several occasions, the accused was seen at the game table with Godofredo Pascual drinking liquor, the friendly attitude towards Pascua, seems to be merely artificial than real, more so, with respect to Mariano Buenaflor whom he openly detested. He consistently refused to associate since then with the two victim especially, Mariano Buenaflor. In fact, no less than ten attempts were made by Amado Payago, a neighbor, inviting the accused for reconciliation with the victims but were refused. Instead, defendant when intoxicated or drunk, used to challenge Mariano Buenaflor to a fight and announce his evil intention to kill them. (t.s.n., pp. 50-53, session November 22, 1971.) Also proved beyond dispute, the fact that the bolo or "palas" belongs to the accused. That after killing the two victims, he returned to his house, where he subsequently surrendered to Policemen Adolfo Avila, Juan Chavez, Erasmo Valencia, upon demand by laid peace officers for him to surrender. When brought to the Police headquarters of the town for investigation he revealed that the bolo he used in the killing was hidden by him under the table of his house. Following this tip, Patrolman Jose Baluyot was dispatched, and recovered the weapon at the place indicated, which when presented to he Chief of Police was still stained with human blood from the base of the handle to the point of the blade. And when asked as to who was he owner of said bolo, the accused admitted it as his. He also admitted the killing of Godofredo Pascua and Mariano Buenaflor. however, when he was asked to sign a statement, he refused. 1 For the killing of Godofredo Pascua and Mariano Buenaflor, Filomeno Camano was charged, under two (2) separate informations, with the crime of murder attended by evident premeditation and treachery. By agreement of the parties, the two cases were tried jointly. The accused admitted killing Mariano Buenaflor, but claims that he did so in self-defense. He denied killing Godofredo Pascua. He also denied holding a grudge against Godofredo Pascua and Mariano Buenaflor and belittled the fist fight he had with Mariano Buenaflor. He said that while they were drinking, they had a heated discussion, and because they were drunk, it resulted in a fist fight, which they had soon forgotten. 2 His version of the incident is that in the early morning of February 17, 1970, he was fishing in the open sea. He went ashore at about 7:00 o'clock in the morning and was met by Mariano Buenaflor who, upon seeing that he had a big catch, demanded a percentage. for the fishery commission. When he refused to give what was asked, Buenaflor remarked that he was hard-headed. He went home, taking his things along with him. After eating breakfast, he went to sleep and awoke at about 3:30 o'clock in the afternoon. 3 He ate his dinner 4 and prepared to go out to sea again. While he was standing in the yard of his house, Mariano Buenaflor, Godofredo Pascua, Gorio Carable, Jesus Carable, Tomas Carable, Abelardo Bolaye, Amado Payago, and Loreto Payago, who were drinking at the store of Socorro Buates, went to him and Godofredo Pascua, without any provocation whatsoever, boxed him. He recounted what happened next: "I defend myself but inspite of that I was hit on my upper arm. Then after that I was again boxed by Mariano Buenaflor and I was hit on my lower jaw. (Witness pointing to the bolo marked Exhibit C.) And I was able to grab that bolo from him." "When I met Godofredo Pascua he was on the act of boloing me but I was able to take hold of his hands and I was able to grab the bolo. After I have taken the bolo from Godofredo Pascua, all I know is that he fell on the ground and the rest of the group except Mariano Buenaflor run away after seeing that Godofredo Pascua fell already on the ground. Mariano Buenaflor approached me having also a bolo then immediately when we meet each other I boloed him and when he has wounded he run away and when he was running away I run after him. After I have boloed Mariano Buenaflor he run away so I run after him because I know that he has a gun and if he reach home he will get that gun and he might shoot me." 5 Mariano Buenaflor was hit on the head. The trial court, however, rejected the defense of the accused, saying: Coming to the evidence for the defense, the Court, much to its regret cannot give credence to the testimony and story of the accused, and his lone witness, Nemesio Camano, who is his first cousin. The claim of self-defense does not find support in the evidence presented. The claim, that a group of eight (8) men headed by Godofredo Pascua and Mariano Buenaflor ganged up on him by boxing him one after another while others were throwing stones at him; that he was attacked by Godofredo Pascua with a bolo which he succeeded in wresting from him; that he did not know Godofredo Pascua was killed; that he killed said Mariano Buenaflor after a bolo duel, are mere fictions of a desperate man without evidentiary support. His testimony on these points, and that of his cousin Nemesio Camano are simply incredible not only because they are inherently improbable in themselves, but also because of their clear inconsistencies on contradictions against each other. For, conceding in gratia argumenti that he was really ganged up by eight (8) persons, some boxing him while others throwing stones at him, and two of whom were armed with a bolo, and that he was all alone fighting them and yet he did not suffer any physical injury, is indeed incredible and beyond belief. With eight (8) persons to contend with, two armed with bolos, it is simply unbelievable that he should come out of the melee unscathed. The Court has carefully examined and verified very carefully each and every piece of evidence presented by the defense and has relaxed all technical rules of evidence in favor of the accused in search for evidentiary support of his claim of self-defense in vain. Conscious of the enormity of the offense and the bitterness attached to an adverse decision, the Court has earnestly searched in vain for facts upon which to lay the basis at least of a finding of reasonable doubt in favor of the accused at least just to avoid the ugly and unpleasant task of signing an adverse court decision. But, the falsity of their concocted story is so

apparent and self-evident to need further elucidation. This is demonstrated by the record. They simply cannot stand, as basis of belief. Moreover, the Court feels very much intrigued by the fact that notwithstanding that many people witnessed the incidents, having occurred in broad daylight, and that the accused had more sufficient time to look for witnesses among his friends, relatives, and neighbors in the barrio, during the long period that this case has been pending trial since February 17, 1970, that he could not get any witness to testify in his favor, other than his lone witness, Nemesio Camano, whose testimony, coming as it is from a very close relative is naturally very vulnerable to grave doubt and suspicion for coming from a biased source. Could this mean lack of public sympathy because the horrible act was in truth committed by the accused? Is this a sign of public condemnation? Be it as it may, this unpleasant circumstance has no bearing or influence in the painful decision of this case. What impelled and compelled this Court in making this painful decision, much to his dislike, are the bare and incontrovertible facts of the case born out by the evidence presented indicating beyond per adventure of doubt the stark reality which shows that there exist that moral certainty that convinces and satisfies the reason and conscience of those who are to act upon it. (People v. Lavarios, L-24339, June 29, 1968, 22 SCRA 1321) For the bitter conclusions herein reached, is based on the compelling and irresistible facts born out by the evidence of record found after sleepless night of study that the accused is guilty beyond reasonable doubt of the crime charged committed with the aggravating circumstances of evident premeditation, treachery, abuse of superior strength, and intoxication with no mitigating circumstance. The accused and his only witness, Nemesio Camano changed their declarations not only once, twice, or thrice, but many times, placing the Court in quandary and confused what theory or testimony is to be believed and considered among the mess of contradictory, inconsistent, and diametrically opposed statements. Considering the manner and tenor they were given, - the accused and his only witness changing stand in every turn, leaves no room for doubt than that said testimonies are merely concocted and fabricated as a desperate attempt to salvage a hopeless case. 6 In this appeal, the fact of death of Godofredo Pascua and Mariano Buenaflor and the cause of their deaths are not disputed. Counsel de oficio merely claims that the accused is guilty of homicide only in each case, and not murder, as charged; and prays for the modification of the judgment and the consequent reduction of the penalty imposed upon the accused Filomeno Camano. (1) Counsel contends that there is no evident premeditation since the acts of the accused, as testified to by the prosecution witnesses, are all indicative of E, "spur-of-the-moment" decision and action. The contention is well taken. There is evident premeditation when the killing had been carefully Planned by the offender, when he prepared beforehand the means which he deemed suitable for carrying it into execution, and when he had sufficient time dispassionately to consider and accept the consequences, and when there has been a concerted plan. 7 It has also been held that evident premeditation requires proof of the following: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will. 8 In the instant case, it cannot be stated that the killing of Pascua and Buenaflor was a preconceived plan. There is no proof as to how and when the plan to kill Pascua and Buenaflor was hatched or what time had elapsed before the plan was carried out. The trial court merely concluded that the killing of Pascua and Buenaflor was premeditated because "the accused has been nursing the evil design to kill both the victims since three years prior to the occurrence of the incident on February 18, 1970, when both of them refused the request of the accused to have his boat towed by the motor boat belonging to Mariano Buenaflor while fishing along Sagay River," and "from that time on, to the fatal killings, said accused refused consistently to join his neighbors in their drinking spree where both the victims especially Mariano Buenaflor were present;" "in fact, no less than ten attempts made by witness Amado Payago inviting the accused to be reconciled with the victims were rejected;" and that "on the contrary, it has been established that whenever the accused was drunk, he announces his intention to kill the victims, and as a matter of fact he challenged several times Mariano Buenaflor to a fight." The incident referred to, however, does not establish the tune when the appellant decided to commit the crime. If ever, the aforementioned incident merely established the motive for the killing of the two victims. 9 The fact that the accused had challenged Mariano Buenaflor to a fight whenever he was drunk and announces his intention to kill the latter does not reveal a persistence of a criminal design since there is no showing that in between the utterances of the threats and the consummation of the crime, the appellant made plans or sought the deceased to accomplish the killing. As there is no direct evidence of the planning or preparation in the killing of Pascua and Buenaflor and of the marked persistence to accomplish that plan, the trial court's conclusion cannot be sustained. (2) Counsel for the accused also claims that treachery is not present in the commission of the crime. The contention is without merit. Amado Payago categorically declared that Filomeno Camano attacked Godofredo Pascua from behind, a method which has ensured the accomplishment of the criminal act without any risk to the perpetrator arising from the defense that his victim may put up. His testimony reads, as follows:

Q At that time and date while you were in front of your house did you notice whether there is anything unusual incident that happened? A Yes, sir. Q Can you relate before this Honorable Court? A Yes, sir. Q Please relate it? A I saw Filomeno Camano run towards his house and took a bolo and run after Godofredo Pascua and immediately stabbed him. Q How far more or less were you when Godofredo Pascua was stabbed by Filomeno Camano? A More or less 12 to 15 meters. Q What was Godofredo Pascua doing when he was stabbed by Filomeno Camano? A He was walking to his house. Q In relation to Godofredo Pascua where was Filomeno Camano at the time that Filomeno Camano stabbed Godofredo Pascua? A From behind sir. Q After Godofredo Pascua was stabbed by Filomeno Camano what happened to Godofredo Pascua? A He fell down and keep on turning. Q What about Filomeno Camano, what did he do after Godofredo Pascua fell down? A He run towards the seashore looking after Mariano Buenaflor.
10

His testimony is corroborated by the nature and location of the wounds sustained by the deceased Godofredo Pascua. The autopsy report, 11 showed that the point of entry of the stab wound inflicted upon Pascua was three (3) inches long and three (3) inches below the left armpit, a little bit posteriorly or toward the hinder end of the body; and the point of exit was the right chest, one (1) inch Iateral to the right nipple with a one (1) inch opening. If the deceased was stabbed while he was facing his assailant, as claimed by counsel for the accused, the entrance wound would have been in the front part of the body, and its exit wound, if any, would be at the back. The trial court, therefore, did not commit an error in finding that the deceased Godofredo Pascua was assaulted from behind. With respect to Mariano Buenaflor, the evidence shows that he was attacked while in a kneeling position, with his arms on top of the gate of the fence surrounding his hut and his head was "stooping down." 12 He was hacked on the head, causing him to fall to the ground, and then successively hacked and stabbed without respite, as he lay on the ground, until he died. The attack was also sudden, unexpected, and lethal, such as to disable and incapacitate the victim from putting up any defense. (3) Counsel de oficio further claims that the aggravating circumstance of abuse of superior strength, which the lower court appreciated in fixing the penalty, is absorbed in treachery. This contention is likewise correct. The rule is already settled that abuse of superiority is absorbed in treachery.
13

(4) Counsel next contends that the alternative circumstance of intoxication was erroneously appreciated as an aggravating circumstance. Counsel argues thusly: As to the alternative circumstance of intoxication, it is respectfully submitted that there was no proof that the accused was intoxicated at the time of the killing other than the bare testimony of Payago that from his house he allegedly saw the accused drinking in his house which is about 30 meters away. The prosecution did not present any police report or doctor's certification that accused was found to be intoxicated at the time of the killing. Moreover, it was not shown by competent evidence that accused purposedly became drunk to facilitate the commission of the offense.

If at all, intoxication should be properly appreciated as a mitigating circumstance because it affected accused's mental facilities such that it diminished his capacity to know the injustice of his acts and to comprehend fully the consequences of his acts. 14 There is merit in the contention. Drunkenness or intoxication is mitigating if accidental, not habitual nor intentional, that is, not subsequent to the plan to commit the crime. It is aggravating if habitual or intentional. 15 To be mitigating, it must be indubitably proved. 16 A habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. It lessens individual resistance to evil thought and undermines will-power making its victim a potential evildoer. 17 The records of these cases do not show that the appellant was given to excessive use of intoxicating drinks although he used to get drunk every now and then. The testimony of Amado Payago to this effect, reads as follows: Q But after that incident Godofredo Pascua and Filomeno Camano are already in good terms because they even go on drinking spree, is it not? A Yes, sir, that is true but Filomeno Camano has an evil plan against Godofredo Pascua. Q And how did you come to know about this plan? A He talk(s) (about) that very openly specially when he is drunk. Q During the three years that the incident where Camano's boat was not towed, could you remember how many times more or less did you hear him speak about his plan before the stabbing incident? A Whenever he is drunk. Q Can you not remember more or less how many times have you heard him? A I cannot remember, sir. Q About five times? FISCAL CLEDERA: Already answered. A Whenever he is drunk. ATTY. TRIA: Q How often does he drunk (sic), if you know? A I cannot estimate, sir. Q What about Mariano Buenaflor, could you also state that there had been an altercation between him and Filomeno Camano prior to the incident, is it not? A Yes, sir. Q What was this altercation about? A It started when the request of Filomeno Camano to tow his boat was refused by Godofredo Pascua because that boat used by Godofredo Pascua is owned by Mariano Buenaflor. Q How did you also know that Camano resented against (sic) this Buenaflor? A Everytime he is drunk he keep(s) on challenging Mariano Buenaflor. xxx xxx xxx Q Have you ever seen the accused Filomeno Camano drink liquor immediately prior to the incident?

A Yes, sir. Q Where? A In his house. Q When you saw him where were you? A I was also in my house because I can just see his house from our window. Q About how far is your house from the house of Filomeno Camano so that you can see from your house? A More or less 30 meters. Q With whom was Filomeno Camano drinking? A Bienvenido Pascua, Leopoldo Balaye and this (sic) persons (who) are arriving far from our house. Q According to your personal knowledge do you know whether or not the accused was drunk when this incident happened? A Yes, sir. Q But the truth is that, you still affirm that you don't know of any incident immediately prior that has precipitated this stabbing incident between the accused and the victim A None, sir. ATTY. TRIA: Q How about you, did you now drink that time? No, sir.
18

The intoxication of the appellant not being habitual, and considering that the said appellant was in a state of intoxication at the time of the commission of the felony, the alternative circumstance of intoxication should be considered as a mitigating circumstance. 5. Finally, counsel claims that death is a cruel and unusual penalty and not proper in the cases at bar, citing Art. IV, Sec. 21 of the Constitution which provides that: "Excessive fines shag not be imposed, nor cruel or unusual punishment inflicted." The contention is without merit. The death penalty is not cruel, unjust or excessive. In the case of Harden vs. Director of Prisons, 19 the Court said: The penalty complained of is neither cruel, unjust nor excessive. In Ex-Parte Kemmler, 136 U.S. 436, the United States Supreme Court said that "punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the Constitution." It implies there something inhuman and barbarous, something more than the mere extinguishment of life." The trial court, therefore, did not err in finding the accused Filomeno Camano guilty of Murder in each of the two cases. The offense being attended by the mitigating circumstance of intoxication, without any aggravating circumstance to offset it, the imposable penalty is the minimum of that provided by law or 17 years, 4 months and 1 day to 20 years of reclusion temporal. Applying the Indeterminate Sentence Law, the appellant should be, as he is hereby, sentenced to suffer an indeterminate penalty ranging from 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as maximum, in each case. WHEREFORE, with the modification of the penalty imposed upon the appellant, as above indicated, the judgment appealed from should be, as it is hereby, AFFIRMED in all other respects. With costs against the said appellant. SO ORDERED. Separate Opinions

AQUINO, J., dissenting: I dissent. Premeditation is aggravating. The accused should be sentenced to two reclusion perpetuas. MAKASIAR, J., concurring: Besides intoxication, voluntary surrender shall also mitigate the guilt of appellant, who had the choice to surrender or not when demanded by the policemen, who did not place him under arrest nor had an arrest warrant. People v. Camano 115 SCRA 688 FACTS: On February 17, 1970, in the barrio of Nato, Municipality of Sagnay, Province of Camarines Sur, between four and five in the afternoon, after the accused had been drinking liquor, he stabbed twice the victim Godofredo Pascua with a bolo, called in the vernacular of Bicol palas which is a sharp bladed and pointed instrument about 2 feet long including the black handle, tapering to the end, about and one-half inches in width, while the latter was walking alone along the barrio street almost in front of the store of one Socorro Buates. Godofredo Pascua sustained two mortal wounds for which he died instantaneously. After hacking and stabbing to death Godofredo Pascua, the accused proceeded to the seashore and on finding Mariano Buenaflore leaning at the gate of the fence of his house, in a kneeling position, with both arms on top of the fence, and his head stooping down hacked the latter with the same bolo. ISSUE: 1) Whether 2) Whether 3) Whether 4) Whether 5) Whether

or or or or or

not not not not not

there is not evident premeditation; treachery is not present; superior strength is absorbed in treachery; alternative circumstance of intoxication was erroneously appreciated as an aggravating circumstance; death is cruel and unusual penalty.

RULING: 1) As there is no direct evidence of the planning or preparation in the killing of Pascua and Buenaflor and of the marked persistence to accomplish that plan, the trial courts conclusion cannot be sustained; 2) The contention is without merit; 3) The contention is correct. The rule is already settled the abuse of superiority is absorbed in treachery; 4) There is merit in the contention. The alternative circumstance of intoxication should be considered as a mitigating circumstance. 5) Death penalty is not cruel, unjust or excessive. The trial court, therefore, did not err in finding the accused Filomeno Camano guilty of Murder in each of the two cases. The offense being attended by the mitigating circumstance of intoxication, without any aggravating circumstance to offset it, the imposable penalty is the minimum of that provided by law or 17 years, 4 months and 1 day to 20 years of reclusion temporal. Applying the Indeterminate Sentence Law, the appellant should be, as he is hereby, sentenced to suffer an indeterminate penalty ranging from 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as maximum, in each case. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant. 1996 June 25 PER CURIAM: Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a deterrent as far as the commission of heinous crimes is concerned and while the attendant details pertaining to the execution of a death sentence remain as yet another burning issue, we are tasked with providing a clear-cut resolution of whether or not the herein accused-appellant deserves to forfeit his place in human society for the infliction of the primitive and bestial act of incestuous lust on his own blood. Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime of Rape, rendered after marathon hearing by the Regional Trial Court of Quezon City, Branch 104, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y PILO guilty beyond reasonable doubt of the crime of RAPE as charged in the complaint, aggravated by the fact that the same was commited by the accused who is the father/stepfather of the complainant, he is hereby sentenced to suffer the penalty of DEATH, as provided for under RA. No. 7659, to pay the complainant Rodessa Echegaray the sumof P50,000.00 as damages, plus all the accessory penalties provided by law, without subsidiary imprisonment in case of insolvency, and to pay the costs. 1

We note, however, that the charge had been formulated in this manner: COMPLAINT The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as follows: That on or about the month of April 1994, in Quezon City, Philippines, the above-named accused, by means of force and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, his daughter, a minor, 10 years of age, all against her will and without her consent, to her damage and prejudice. CONTRARY TO LAW 2 Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio, entered the plea of "not guilty." These are the pertinent facts of the case as summarized by the Solicitor-General in his brief: This is a case of rape by the father of his ten-year old daughter. Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born on September 11, 1983. Rodessa is the eldest of five siblings. She has three brothers aged 6, 5 and 2, respectively, and a 3-month old baby sister. Her parents are Rosalie and Leo Echegaray, the latter being the accused-appellant himself. The victim lives with her family in a small house located at No. 199 Fernandez St., Barangay San Antonio, San Francisco Del Monte, Quezon City (pp. 5-9, Aug. 9, 1994, TSN). Sometime in the afternoon of April 1994, while Rodessa was looking after her three brothers in their house as her mother attended a gambling session in another place, she heard her father, the accused-appellant in this case, order her brothers to go out of the house (pp. 10-11, ibid). As soon as her brothers left, accused-appellant Leo Echegaray approached Rodessa and suddenly dragged her inside the room (p. 12, ibid). Before she could question the appellant, the latter immediately, removed her panty and made her lie on the floor (p. 13, ibid). Thereafter, appellant likewise removed his underwear and immediately placed himself on top of Rodessa. Subsequently, appellant forcefully inserted his penis into Rodessa's organ causing her to suffer intense pain (pp. 14-15, ibid). While appellant was pumping on her, he even uttered. "Masarap ba, masarap ba?" and to which Rodessa answered: "Tama na Papa, masakit" (p. 16, ibid). Rodessa's plea proved futile as appellant continued with his act. After satisfying his bestial instinct, appellant threatened to kill her mother if she would divulge what had happened. Scared that her mother would be killed by appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of appellant because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The same sexual assault happened up to the fifth time and this usually took place when her mother was out of the house (p. 19, ibid.). However, after the fifth time, Rodessa decided to inform her grandmother, Asuncion Rivera, who in turn told Rosalie, Radessa's mother. Rodessa and her mother proceeded to the Barangay Captain where Rodessa confided the sexual assaults she suffered. Thereafter, Rodessa was brought to the precinct where she executed an affidavit (p. 21, ibid.). From there, she was accompanied to the Philippine National Police Crime Laboratory for medical examination (p. 22, ibid.). Rodessa testified that the said sexual assaults happened only during the time when her mother was pregnant. Rodessa added that at first, her mother was on her side. However, when appellant was detained, her mother kept on telling her. "Kawawa naman ang Tatay mo, nakakulong" (pp. 39-40, ibid.). When Rodessa was examined by the medico-legal officer in the person of Dra. Ma. Cristina B. Preyna, 3 the complainant was described as physically on a non-virgin state, as evidenced by the presence of laceration of the hymen of said complainant (TSN, Aug. 22, 1995, pp. 8-9). 4 On the other hand, the accused-appellant's brief presents a different story: . . . the defense presented its first witness, Rosalie Echegaray. She asserted that the RAPE charge against the accused was only the figment of her mothers dirty mind. That her daughter's complaint was forced upon her by her grandma and the answers in the sworn statement of Rodessa were coached. That the accusation of RAPE was motivated by Rodessa's grandmother's greed over the lot situated at the Madrigal Estate-NHA Project, Barangay San Antonio, San Francisco del Monte, Quezon City, which her grandmother's paramour, Conrado Alfonso gave to the accused in order to persuade the latter to admit that Rodessa executed an affidavit of desistance after it turned out that her complaint of attempted homicide was substituted with the crime of RAPE at the instance of her mother. That when her mother came to know about the affidavit of desistance, she placed her granddaughter under the custody of the Barangay Captain. That her mother was never a real mother to her. She stated that her complaint against accused was for attempted homicide as her husband poured alcohol on her body and attempted to burn her. She identified the certification issued by the NHA and Tag No. 87-0393 (Exh. 2). That the Certification based on the Masterlist (Exh. 3) indicates that the property is co-owned by accused and Conrado Alfonso. That Rodessa is her daughter sired by Conrado Alfonso, the latter being the paramour of her mother. That Conrado Alfonso

waived his right and participation over the lot in favor of the accused in consideration of the latter's accepting the fact that he is the father of Rodessa to simulate the love triangle and to conceal the nauseating sex orgies from Conrado Alfonso's real wife. Accused testified in his behalf and stated that the grandmother of the complainant has a very strong motive in implicating him to the crime of RAPE since she was interested to become the sole owner of a property awarded to her live-in partner by the Madrigal Estate-NHA Project. That he could not have committed the imputed crime because he considers Rodessa as his own daughter. That he is a painter-contractor and on the date of the alleged commission of the crime, he was painting the house of one Divina Ang of Barangay Vitalis, Paraaque, Metro Manila (Exh. 4). The travel time between his work place to his residence is three (3) hours considering the condition of traffic. That the painting contract is evidenced by a document denominated "Contract of Services" duly accomplished (see submarkings of Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11 years old like Rodessa, the said female organ will be "mawawarak." That it is abnormal to report the imputed commission of the crime to the grandmother of the victim. Accused further stated that her (sic) mother-in-law trumped-up a charge of drug pushing earlier and he pleaded guilty to a lesser offense of using drugs. The decretal portion of the judgment of conviction ordering the accused to be confined at the Bicutan Rehabilitation Center irked the grandmother of Rodessa because it was her wish that accused should be meted the death penalty. Accused remain steadfast in his testimony perorating the strong motive of Rodessa's grandmother in implicating him in this heinous crime because of her greed to become the sole owner of that piece of property at the National Housing AuthorityMadrigal Project, situated at San Francisco del Monte, Quezon City, notwithstanding rigid cross-examination. He asserted that the imputed offense is far from his mind considering that he treated Rodessa as his own daughter. He categorically testified that he was in his painting job site on the date and time of the alleged commission of the crime. Mrs. Punzalan was presented as third defense witness. She said that she is the laundry woman and part time baby sitter of the family of accused. That at one time, she saw Rodessa reading sex books and the Bulgar newspaper. That while hanging washed clothes on the vacant lot, she saw Rodessa masturbating by tinkering her private parts. The masturbation took sometime. This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth and last witness for the defense. She stated that she tried hard to correct the flirting tendency of Rodessa and that she scolded her when she saw Rodessa viewing an X-rated tape. Rodessa according to her was fond of going with friends of ill-repute. That (sic) she corroborated the testimony of Mrs. Punzalan by stating that she herself saw Rodessa masturbating inside the room of her house. 5 In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court dismissed the defense of alibi and lent credence to the straightforward testimony of the ten-year old victim to whom no ill motive to testify falsely against accused-appellant can be attributed. The lower court likewise regarded as inconsequential the defense of the accused-appellant that the extraordinary size of his penis could not have insinuated itself into the victim's vagina and that the accused is not the real father of the said victim. The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower court's verdict through the following assignment of errors: 1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER MOTIVE OF PRIVATE COMPLAINANT'S GRANDMOTHER? THAT PRECIPITATED THE FILING OF THE CHARGE OF RAPE, HENCE IT ERRED IN HOLDING ACCUSED GUILTY AS CHARGED. 2. THE COURT BELOW OVERLOOKED THE FACT THAT THE HEALED LACERATIONS AT 3 AND 7 O'CLOCK COULD NOT HAVE BEEN DUE TO THE PUMPING OF THE PENIS OF ACCUSED TO THE VAGINA OF PRIVATE COMPLAINANT, HENCE IT ERRED IN HOLDING THAT ACCUSED COMMITTED THE CRIME CHARGED, NOTWITHSTANDING VEHEMENT DENIAL. 3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE OF ALIBI THAT ACCUSED WAS IN PARAAQUE ON THE DATE AND TIME OF THE IMPUTED CRIME HENCE, IT ERRED IN HOLDING THAT ALIBI IS NOT SUSTAINABLE IN THE CASE AT BAR. 6 Considering that a rape charge, in the light of the reimposition of the death penalty, requires a thorough and judicious examination of the circumstances relating thereto, this Court remains guided by the following principles in evaluating evidence in cases of this nature: (a) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused though innocent to disprove; (b) In view of the intrinsic nature of the crime of rape where only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand and fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 7 Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of justice in favor of the accused-appellant notwithstanding that he cries foul insisting that the rape charge was merely concocted and strongly

motivated by greed over a certain lot situated at the NHA-Madrigal Estate Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon City. The accused-appellant theorizes that prosecution witness Asuncion Rivera, the maternal grandmother of the victim Rodessa, concocted the charge of rape so that, in the event that the accused-appellant shall be meted out a death sentence, title to the lot will be consolidated in her favor. Indeed, the lot in question is co-owned by the accused-appellant and Conrado Alfonso, the live-in partner of Asuncion Rivera, according to the records of the National Housing Authority (Exh. "3"). The accused-appellant would want us to believe that the rape charge was fabricated by Asuncion Rivera in order to eliminate the accused-appellant from being a co-owner. So, the live-in partners would have the property for their own. 8 We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her 10-year old granddaughter to file a rape case against her own father simply on account of her alleged interest over the disputed lot. 9 It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she has no motive to testify against the accused. 10 We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the trial court found convincing enough and unrebutted by the defense. The trial court not surprisingly noted that Rodessa's narration in detail of her father's monstrous acts had made her cry. 11 Once again, we rule that: . . . The testimony of the victim who was only 12 years old at the time of the rape as to the circumstances of the rape must be given weight, for testimony of young and immature rape victims are credible (People v. Guibao, 217 SCRA 64 [1993]). No woman especially one of tender age, practically only a girl, would concoct a story of defloration, allow an examination of her private parts and thereafter expose herself to a public trial, if she were not motivated solely by the desire to have the culprit apprehended and punished (People v. Guibao, supra). 12 The accused-appellant points out certain inconsistencies in the testimonies of the prosecution witnesses in his attempt to bolster his claim that the rape accusation against him is malicious and baseless. Firstly, Rodessa's testimony that the accused-appellant was already naked when he dragged her inside the room is inconsistent with her subsequent testimony that the said accused-appellant was still wearing short pants when she was dragged inside the room. Secondly, Rodessa's sworn statement before the police investigator which indicated that, while the accused was executing pumping acts, he uttered the words "Masarap ba?", differ from her testimony in court wherein she related that, when the accused took out his penis from her vagina, the accused said "Masarap, tapos na." Thirdly, the victim's grandmother, Asuncion Rivera, recounted in her sworn statement that it was the accused who went to see her to apprise her of the rape committed on her granddaughter. However, in her testimony in court , Asuncion Rivera claimed that she was the one who invited the accusedappellant to see her in her house so as to tell her a secret. 13 These alleged discrepancies merely pertain to minor details which in no way pose serious doubt as to the credibility of the prosecution witnesses. Whether or not the accused was naked when he dragged Rodessa inside the room where he sexually assaulted her bears no significant effect on Rodessa's testimony that she was actually raped by the accused-appellant. Moreover, a conflicting account of whatever words were uttered by the accused-appellant after he forcefully inserted his penis into Rodessa's private organ against her will cannot impair the prosecution's evidence as a whole. A determination of which version earmarks the truth as to how the victim's grandmother learned about the rape is inconsequential to the judgment of conviction.

As we have pronounced in the case of People v. Jaymalin: 14 This Court has stated time and again that minor inconsistencies in the narration of the witness do not detract from its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to he expected that he will be able to remember every single detail of an incident with perfect or total recall. After due deliberation, this Court finds that the trial judge's assessment of the credibility of the prosecution witnesses deserves our utmost respect in the absence of arbitrariness. With respect to the second assigned error, the records of the instant case are bereft of clear and concrete proof of the accused-appellant's claim as to the size of his penis and that if that be the fact, it could not have merely caused shallow healed lacerations at 3:00 and 7:00 o'clock. 15 In his testimony, the accused-appellant stated that he could not have raped Rodessa because ofthe size of his penis which could have ruptured her vagina had he actually done so. 16 This Court gives no probative value on the accused-appellant's self-serving statement in the light of our ruling in the case of People v. Melivo, supra, 17 that: The vaginal wall and the hymenal membrane are elastic organs capable of varying degrees of distensibility. The degree of distensibility of the female reproductive organ is normally limited only by the character and size of the pelvic inlet, other factors being minor. The female reprodructive canal being capable of allowing passage of a regular fetus, there ought to be

no difficulty allowing the entry of objects of much lesser size, including the male reproductive organ, which even in its largest dimensions, would still be considerably smaller than the full-term fetus. In the case at bench, the presence of healed lacerations in various parts of he vaginal wall, though not as extensive as appellant might have expected them to be, indicate traumatic injury to the area within the period when the incidents were supposed to have occurred. (At pp. 13-14) In rape cases, a broken hymen is not an essential element thereof. 18 A mere knocking at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction. 19 In the case, Dr. Freyra, the medico-legal examiner, categorically testified that the healed lacerations of Rodessa on her vagina were consistent with the date of the commission of the rape as narrated by the victim to have taken place in April, 1994. 20 Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously argues that the Contract of Services (Exhibit 4) offered as evidence in support of the accused-appellant's defense of alibi need not be corroborated because there is no law expressly requiring so. 21 In view of our finding that the prosecution witnesses have no motive to falsely testify against the accused-appellant, the defense of alibi, in this case, uncorroborated by other witnesses, should be completely disregarded. 22 More importantly, the defense of alibi which is inherently weak becomes even weaker in the face of positive identification of the accused-appellant as perpetrator of the crime of rape by his victim, Rodessa. 23 The Contract of Services whereby the accused-appellant obligated himself to do some painting job at the house of one Divina Ang in Paraaque, Metro Manila, within 25 days from April 4, 1994, is not proof of the whereabouts of the accusedappellant at the time of the commission of the offense. The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint, dated July 14, 1994. The gravamen of the said offense, as stated in paragraph 3, Article 335 of the Revised Penal Code, is the carnal knowledge of a woman below twelve years old. 24 Rodessa positively identified his father accused-appellant, as the culprit of Statutory Rape. Her account of how the accused-appellant succeeded in consummating his grievous and odious sexual assault on her is free from any substantial self-contradiction. It is highly inconceivable that it is rehearsed and fabricated upon instructions from Rodessa's maternal grandmother Asuncion Rivera as asserted by the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court, more than two decades ago, are relevant and worth reiterating, thus: . . . it is manifest in the decisions of this Court that where the offended parties are young and immature girls like the victim in this case, (Cited cases omitted) there is marked receptivity on its, part to tend credence to their version of what transpired. It is not to be wondered at. The state, as parens patria, is under the obligation to minimize the risk of harm to those, who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years deserve its utmost protection. Moreover, the injury in cases of rape is not inflicted on the unfortunate victim alone. The consternation it causes her family must also be taken into account It may reflect a failure to abide by the announced concern in the fundamental law for such institution There is all the more reason then for the rigorous application of the penal law with its severe penalty for this offense, whenever warranted. It has been aptly remarked that with the advance in civilization, the disruption in public peace and order it represents defies explanation, much more so in view of what currently appears to be a tendency for sexual permissiveness. Where the prospects of relationship based on consent are hardly minimal, selfrestraint should even be more marked. 25 Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of the Revised Penal Code was amended, to wit: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eigthteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the trial court by declaring that he is neither a father, stepfather or grandfather of Rodessa although he was a confirmed lover of Rodessa's mother. 26 On direct examination, he admitted that before the charge of rape was riled against him, he had treated Rodessa as his real daughter and had provided for her food, clothing, shelter and education. 27 The Court notes that Rodessa uses the surname of the accused-appellant, not Rivera (her mother's maiden name) nor Alfonso (her grandmother's live-in partner). Moreover, Rodessa's mother stated during the cross-examination that she, the accused-appellant, and her five children, including Rodessa, had been residing in one house only. 28 At any rate, even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot save him from the abyss where perpetrators of heinous crimes ought to be, as mandated by law. Considering that the accused-appellant is a confirmed lover of Rodessa's mother, 29 he falls squarely within the aforequoted portion of the Death Penalty Law under the term "common-law spouse of the parent of the victim."

The fact that the ten-year old Rodessa referred to the accused-appellant as "Papa" is reason enough to conclude that accused-appellant is either the father or stepfather of Rodessa. Thus, the act of sexual assault perpetrated by the accused on his young victim has become all the more repulsive and perverse. The victim's tender age and the accused-appellant's moral ascendancy and influence over her are factors which forced Rodessa to succumb to the accused's selfish and bestial craving. The law has made it inevitable under the circumstances of this case that the accused-appellant face the supreme penalty of death. WHEREFORE, we AFFIRM the decision of the Regional Trial Court of Quezon City, Branch 104. SO ORDERED. EN BANC [G.R. No. 118140. February 19, 1997] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANTE PIANDIONG Y CALDA, JESUS MORALLOS Y CALDA, ARCHIE BULAN Y AMPULAN, and TWO (2) JOHN DOES, accused. DANTE PIANDIONG Y CALDA, JESUS MORALLOS Y CALDA, ARCHIE BULAN Y AMPULAN, Accused-Appellants. DECISION PER CURIAM: The wheels of tragic fate began to turn at around 10 o' clock on the evening of February 21, 1994, when Percival Catindig, PO1 Gerry Perez, Leonisa S. Bacay, and Rowena Reyboneria boarded a passenger jeepney on their way home. After the vehicle had travelled less than a kilometer, another group of five persons, boarded the same jeepney and not long after announced a hold-up, and thereupon divested the passengers of their valuables, and shot and killed PO1 Gerry Perez. For the crime of robbery with homicide, the herein accused-appellants and two unidentified John Does were charged in an Information reading as follows: That on or about the 21st day of February, 1994 in Kalookan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, with intent of gain and by means of force, threats and intimidation employed upon the persons of PERCIVAL CATINDIG Y LACBO and PO1 GERRY PEREZ Y SUBING SUBING, did then and there wilfully, unlawfully and feloniously take, rob and carry cash money in the amount of P200.00 belonging to the former and one (1).38 caliber revolver marked "ARMASCOR" with SN P15111 worth P8,000.00 belonging to the latter, to the damage and prejudice of the victims in the aforementioned amount of; that on the occasion of the said Robbery and for the purpose of enabling them to take, rob and carry away the said articles, the herein accused in pursuance to their conspiracy, did then and there wilfully, unlawfully and feloniously attack and shoot PO1 Gerry Perez hitting the latter on his chest, thereby inflicting upon the latter serious physical injuries which injuries directly caused his death. After due trial, the court a quo on November 7, 1994, rendered a decision disposing: WHEREFORE, in view of the foregoing considerations, the Court finds accused DANTE PIANDIONG Y CALDA, JESUS MORALLOS Y CALDA and ARCHIE BULAN Y AMPULAN GUILTY beyond reasonable doubt of the crime of ROBBERY WITH HOMICIDE and sentences each of them to suffer the maximum penalty of DEATH; to pay, jointly and severally, the heirs of victim PO1 Gerry Perez the sum of FIFTY THOUSAND (P50,000.00) PESOS as death indemnity; the sum of EIGHT THOUSAND (P8,000.00) PESOS representing the value of the.38 caliber revolver of the same victim; to indemnify the said heirs the sum of ONE HUNDRED NINE THOUSAND (P109,000.00) PESOS as actual and compensatory damages; the sum of FIFTY THOUSAND (P50,000.00) PESOS as moral damages and finally, to pay Percival Catindig his stolen money in the sum of TWO HUNDRED (P200.00) PESOS. With costs. The case as against the other two (2) unidentified accused who are still at large is hereby archived pending their arrest. In view of the fact that the penalty imposed is death, the case is now before this Court on automatic review. In his brief, accused-appellant Archie Bulan contends in his lone assigned error that the evidence of the prosecution is insufficient to sustain a finding of guilt (p. 83, Rollo). For their part, accused-appellants Dante Piandiong and Jesus Morallos make the following assignment of errors: 1. The Honorable Regional Trial Court erred in not considering the reason why the prosecution witnesses were able to identify the accused-appellants during the trial. 2. The Honorable Regional Trial Court erred in holding that the evidence adduced by the prosecution clearly established the guilt of the accused-appellants.

3. The Honorable Regional Trial Court erred in holding that there was no motive on the part of the prosecution witnesses to falsely testify against the accused-appellants. 4. The Honorable Regional Trial Court erred in not considering that the police line-up was not properly conducted. 5. The Honorable Regional Trial Court erred in holding that the defense of alibi is weak without looking any further on the veracity of the same. and, 6. In general, the Honorable Regional Trial Court erred in not using the powers of the court to summon other witnesses/persons who can shed light on the case and to exercise extra diligence and efforts to ascertain the true facts of the case considering the gravity of the offense charged. The facts of the case, as supported by the evidence and as correctly summarized by the trial court are as follows: Prosecution witness Percival Catindig is a 28 year old employee and a resident of 346 Libis, Espina, Kalookan City. He testified that on February 21, 1994 at about 10 o'clock in the evening, he boarded a public utility jeepney bound for Novaliches with his companions, namely: PO1 Gerry Perez, Leonisa S. Bacay and Rowena Reyboneria. Accordingly, the group had just visited Eric de Castro at the latter's house in Pangarap Village, Kalookan City. After covering the distance of about 500 meters the vehicle stopped and some passengers alighted from the jeepney. It was at this point that about five to six (5-6) men boarded the said jeepney at Malaria Street, Kalookan City. The witness then identified the herein three (3) accused as belonging to the said group. After the vehicle travelled a distance of another 500 meters, one of the three (3) accused who was seated beside herein witness stood up and announced a hold-up, ordering all the passengers not to make any wrong move. The three (3) accused Piandiong, Bulan and Morallos then pointed their guns at the passengers. Thereafter, the latter who was seated at the rear right side of the vehicle brandished a hand grenade which he held with his right hand while his left hand was holding the bomb's pin. Accused Morallos then warned the frightened passengers not to do any foolish move or else he will pull the grenade's pin and they will all perish together. Thereupon, Archie Bulan who was holding a.38 caliber revolver, started divesting the passengers of their monies, jewelries and other personal belongings. The witness recounted that Piandiong was seated at the left side of the jeepney while Bulan was positioned at the right side of the vehicle opposite the former. The unidentified companions of the three (3) accused who were holding a.38 caliber revolver each, prevented the passengers from alighting the vehicle. At this point, the victim, PO1 Gerry Perez who was seated at the back of the driver's seat, attempted to draw his gun but accused Dante Piandiong swiftly grabbed the former's neck with his left hand and shot the policeman at the right side of his chest. The bloodied police officer then pleaded that he be brought to the hospital. In response, the culprits confiscated the victim's service pistol, his two (2) rings and his necklace. After the hold-uppers alighted from the vehicle with their loot, accused Dante Piandiong again shot the victim at the right side of his cheek. During all the time, herein witness was not able to do anything since a gun was menacingly levelled at the right side of his body. His P200.00 as well as his coin purse was also confiscated by accused Piandiong. The witness immediately took the victim to the nearest hospital. Claiming lack of necessary equipments, the hospital staff refused to admit the victim for medical assistance. When the jeepney neared Baesa, Quezon City, the witness spotted a Red Cross vehicle and lost no time in transferring the wounded policeman in the said vehicle which in turn, rushed the victim to the emergency room of the MCU Hospital. Later on, the witness was informed that SPO1 Gerry Perez died. He stayed at the hospital up to 3 o'clock in the morning of February 22, 1994. He executed his first sworn statement relative to the incident on February 23, 1994 before the Kalookan City Police Station 2 while his second statement was given before the Urduja Police Station, Kalookan City on February 28, 1994. (pp. 68-69, Rollo.) Accused-appellant Bulan contends that conspiracy was not established by positive evidence. He argues that "all that the records could show is the unreliable and uncorroborated declaration of alleged eyewitness Leonisa Bacay that accusedappellant was holding a gun at the time of the alleged hold-up incident. Other than this, the records will indubitably show accused-appellant never did any other act unmistakably tending to show his criminal conspiracy with the acts of the other accused, Dante Piandiong in shooting PO1 Gerry Perez, and commandeering his service pistol, and Jesus Morallos in divesting the money and other valuables of Percival Catindig. We submit, that mere holding of a gun, under an admittedly incriminating and compromising circumstances will not amount to a valid conclusion that accused-appellant subscribed and imbibed the same criminal intent of the herein other accused-appellants Dante Piandiong and Jesus Morallos" (pp. 8990, Rollo). The contention of accused-appellant Bulan runs counter to the evidence. He and his co-accused boarded the jeepney together; they drew out their guns and pointed them at the victims, while simultaneously announcing a hold-up and ordering the passengers not to make any wrong move. Percival Catindig testified that accused-appellant Bulan was one of the malefactors who divested the passengers of their valuables and money. Such act, even if taken independently of another incriminatory deed, that of pointing his gun at the passengers, clearly and unmistakably indicates that he was acting in concert with his fellow co-accused. It is egregiously farcical to state that accused-appellant Bulan was a mere bystander at the scene who just innocently drew out his gun in imitation of the hold-uppers without in any way joining in their design to rob the passengers. What was his intention in drawing out his gun and pointing it at the passengers except to intimidate them into yielding their money and valuables without any fight or resistance? There is no need to prove a previous agreement among the felons to commit the crime if by their overt acts it is clear that they acted in concert in the pursuit of their unlawful design (People vs. Amaguin, 229 SCRA 166 [1994]). Concerted acts of the accused to obtain a common criminal objective signify conspiracy (People vs. Silong, 232 SCRA 487 [1994]). Here, the overt acts of accusedappellants manifestly show that they acted in concert. They were together in boarding the jeepney. They were together in announcing a hold-up. They were one group in divesting the victims of the valuables. Not one of the companions of accused-appellant Piandiong relented even after he shot the policeman. They were together in getting off the vehicle. If

there was no unison among accused-appellants in their evil and criminal designs, there could not ever be a conviction based on conspiracy. In People vs. Dela Cruz (217 SCRA 283 [1993]), a case which is on all fours with the case at bar, the Court categorically ruled that: Conspiracy among the perpetrators was duly proven. Pretending to be passengers, they boarded the jeepney at the same time near the foot of the Lambingan Bridge. When the hold-up was announced, each moved with precision in pursuit of an assigned task obviously earlier agreed upon. One poked his gun at the head of the driver while the rest pointed their knives at the passengers. At the same time, they divested the said passengers of their valuables. They all alighted from the jeepney at the same time with the loot. These acts, taken together, are sufficient to establish the existence of a common design among the appellant and his companions to commit the offense charged. Otherwise stated, such acts showed nothing less than a joint purpose and design, and a concerted action and community of interest; these establish beyond reasonable doubt the existence of conspiracy. Direct proof is not essential to prove conspiracy, it may be shown by acts and circumstances from which may logically be inferred the existence of a common design, or may be deduced from the mode and manner in which the offense was perpetrated. Accused-appellants Piandiong and Morallos put forth the argument that they were not sufficiently identified. According to them, the prosecution witnesses identified them as the perpetrators of the crime only upon the suggestion of Jun Muslim, a policeman, who allegedly held accused-appellants' hands to sort of finger them as the perpetrators of the crime when there was a "confrontation" with the witnesses thus the easy identification later in court. Accused-appellants' arguments are not entitled to any merit. In the first place, this assertion is not corroborated by any disinterested and reliable witness. In the second place, it is contrary to human nature for the witnesses to finger innocent persons as the perpetrators of a very serious crime. The wish of the witnesses, as the victims of the crime, is only for the apprehension and punishment of the actual perpetrators of the crime so that the wrong done to them may be vindicated. To be sure, the record is devoid of any evidence showing that the prosecution witnesses were actuated by ill motives as to testify falsely against accused-appellants. Their testimony must, therefore, be given full faith and credit. When there is no showing that the prosecution witnesses were actuated by any improper motive, the presumption is that they are not so actuated and their testimony is entitled to full faith and credit (People vs. De la Cruz, 229 SCRA 754 [1994]; People vs. Perciano, 233 SCRA 393 [1994]). It must be remembered that the witnesses and the robbers were seated close to or facing each other, thus, the positive identification by Percival Catindig of accused-appellants as the hold-uppers (p. 3, tsn., Aug. 22, 1994). Likewise, Leonisa Bacay was positive and categorical in her identification of accused-appellants as the malefactors, to wit: Q. Would it be correct to say that this person who announced the hold-up situated beside Percival in line with your seat, is not one of the three accused in this case? A. He was one, sir. Q. Who among these three (3) accused are you referring to? A. Dante Piandiong, sir. Q. And the other accused also fronting Gerry Perez is not also one of the three suspects in this case? A. He is one of them, sir. Q. Who is he? A. Morallos, sir. Q. How about the third one, would it be correct to say that he is not one of the suspects in this case? A. He is one, sir. Q. Who is he? A. Archie Bulan, sir. Q. The one situated opposite Percival? A. Yes, sir. Q. How about the other three, were they seated? A. I cannot exactly remember where the three positioned themselves, but three were clinging at the jeepney, sir. Q. How many persons were clinging in the jeep? A. I noticed only two, sir. (p. 6, tsn, September 6, 1994) Accused-appellants try to cast doubt on the veracity of the testimony of, especially the identification by, the prosecution witnesses on the ground that they were friends of the victim Gerry Perez. This argument carries no weight whatsoever. Mere relationship of a witness to the victim does not impair his credibility as to render his testimony unworthy of credence where no improper motive can be ascribed to him for so testifying (People vs. Pastoral, 226 SCRA 219 [1993]; People vs. Jotoy, 222 SCRA 801 [1993]; People vs. Sarino, 221 SCRA 234 [1993]), and there being no ill motives which can be

attributed to the prosecution witnesses in the case at hand, their positive and categorical declarations on the witness stand under solemn oath deserve full faith and credence. Turning their attention to the police line-up, accused-appellants Piandiong and Morallos contend that the same was irregularly conducted. According to them, Jun Muslim coached the witnesses to point to them as among the malefactors. As aforesaid, this argument is totally uncorroborated by an unprejudiced witness. On the other hand, the testimony of PO3 Celerino Susano clearly shows that the police line-up was not attended by any irregularity, thusly: Q: For what purpose were the persons of Piandiong and Morallos turned over to you by the duty desk officer? A: The two (2) suspects were turned over to me by the arresting officers for the reasons that both were charged with robbery with homicide. Q: And after these two (2) persons were turned over to you by the duty desk officer, what did you do if any relative to these two (2) persons namely, Piandiong and Morallos? A: When the two (2) persons were turned over to me, I went to the place of the witness to confront them. Q: And who are these witnesses you are referring to? A: Leonisa Bacay, Rowena Reynoberia and Percival Catindig. Q: In what particular place in Caloocan City did you go so as to contact these witnesses to whom you are earlier mentioned? A: Libis, Caloocan City. Q: By the way Mr. Witness, how did you come to know that these persons were witnesses? A: I know that these persons were witnesses because I met them already at the hospital. Q: And were you able to contact these three (3) persons? A: Yes, sir. Q: Thereafter, where did you invite them to if any? A: I invited them to the headquarters to confront with the witnesses. Q: And did they go with you? A: Yes, sir. Q: And after they arrived at the police headquarters, what did you do next if any? A: When they arrived at the police headquarters we made a police line-up. Q: In what way did you made this police line-up? A: We lined up six (6) persons including the two (2) suspects. Q: Where were they when you lined up these six (6) persons? A: At the precinct. Q: In what particular place of the precinct? A: SID room. Q: Aside from these six (6) persons, who else were there inside the SID room? A: The other members of the police line-up. Q: And after you have lined-up that two (2) suspects on the four (4) other persons, what did these witnesses do the three (3) witnesses you mentioned earlier do? A: The witnesses personally pinpointed Morallos and Piandiong. Q: As what? A: As the persons who robbed them and shot PO1 Perez. Q: And after they were identified by witnesses Catindig, Reyboneria and Bacay, what was the next step you undertook relative to the investigation? A: I took their sworn statements. Q: How about accused Piandiong and Morallos what did you do with them if any? A: After the witnesses were pinpointed Morallos and Piandiong I made a referral letter. Q: Now, Mr. Witness, tell to this Honorable Court whether or not Piandiong and Morallos had any occasion to give their written statements relative to this case? A: I informed them that if they want to give their statements, they can get their own counsel. Q: And what was their answer? A: They answer in the negative, and they were not given any statement. Q: Now, before you told these two (2) suspects namely, Piandiong and Morallos about their right to get a lawyer, what other rights if any did you apprise them about? A: I informed them that they have the right to remain silent. Q: What else if any? A: I think that is the only thing I told them. Q: In what dialect or language did you apprise Piandiong and Morallos about their rights to remain silent? A: In Tagalog, sir. Q: Who was present when you informed them those constitutional rights? A: We only, sir. Q: How about Archie Bulan Mr. Witness, when did you met him relative to the investigation you conducted in this case? A: Archie Bulan I met him when the arresting officer turned over to me. Q: When was that? A: April 11, 1994 about 10 o'clock in the evening. Q: Who turned him over to you? A: The arresting officer, sir. Q: In the person of ? A: PO1 Gilbert Annang, sir. Q: And after accused Archie Bulan was turned over to you by police officer Gilbert Annang, what did you do next if any? A: Again, I went to the residence of the witnesses and brought them to the headquarters for confrontation of the suspects. Q: Who are these witnesses to whom you went?

A: Leonisa Bacay, Rowena Reyboneria and Percival Catindig. Q: Again, Mr. Witness, in what way did you make the police lined-up relative to Archie Bulan? A: I also placed him in a police lined-up with six (6) persons and then the witnesses pinpointed Archie Bulan was the same person who robbed them and shot Perez. Q: Mr. Witness, with regards to the witnesses and then referred them to the fiscal? A: I took the sworn statements of these witnesses if you still remember. (pp. 20-23, tsn, October 5, 1994) When queried by the trial court, Susano testified: Q: Alright, this is a clarificatory questions from the court. When you lined up six (6) persons including the two (2) accused Morallos and Piandiong were the witnesses already present? A: No, your Honor. Q: The question of the court is, when you actually lined up six (6) persons together with the two (2) accused Morallos and Piandiong, tell to the court whether the prosecution witnesses Reyboneria, Bacay and Catindig were already present? A: Are not present, your Honor. Q: So in other words, is it now your testimony that the three (3) prosecution witnesses had not been informed by you or in any police officer of the presence of accused Morallos and Piandiong in that six (6) persons who were placed in a line-up? A: None, your Honor. It is significant to note at this point that the crime was committed on February 21, 1994, and accused-appellants Piandiong and Morallos were arrested and subsequently identified at the police line-up on February 27, 1994 (pp. 7-8, RTC Decision; pp. 23-24, Rollo), or only 6 days after the commission of the crime. The memory of the events and the dramatis personae of February 21, 1994 were thus still fresh in the minds of the witnesses. At any rate, a police line-up is not essential (People vs. Sartagoda, 221 SCRA 251 [1993]; People vs. Buntan, Sr., 221 SCRA 421 [1993]). Decisive of the guilt or innocence of an accused is the testimony of witnesses in court identifying him as the perpetrator of the crime. Judicial decisions are based on testimony and other evidence presented in court, and not on extraneous matters occurring during the police investigation. All three accused-appellants set up the defense of alibi, insisting that they were somewhere else when the crime was committed. Regrettably, this defense cannot save the day for them, for alibi is one of the weakest defenses that can be resorted to by an accused, not only because it is inherently weak and unreliable but also because of its easy fabrication without much opportunity at checking or rebutting it (People vs. Matildo, 230 SCRA 635 [1994]). To prosper, alibi must meet strictly the requirements of time and place (People vs. Dela Cruz, 229 SCRA 754 [1994]), meaning that the accused was not at the scene of the crime at the time it was committed, and that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission (People vs. Saguban, 231 SCRA 744 [1994]); People vs. Dolor, 231 SCRA 414 [1994]). In the case at bar, by their own testimony accused-appellants Piandiong and Morallos were in places only about an hour's travel from the scene of the crime, while accused-appellant Bulan was in Camarin, Caloocan City, which is only a 5-minute walk away from the scene of the crime. It was, therefore, not physically impossible for accused-appellants to have been present at the scene of the crime at the time of commission thereof. More importantly, accused-appellants' alibis cannot prevail over their positive identification by eyewitnesses who had no improper motive to falsely testify (People vs. Javier, 229 SCRA 638 [1994]; People vs. Talaver, 230 SCRA 281 [1994]). Lastly, accused-appellants argue that the trial court failed to summon other witnesses who could have shed light on the case. If accused-appellants were aware that there were certain witnesses who could have given the case a view from another angle, they should have petitioned the trial court to subpoena said witnesses. But they did not. The fault, therefore, lies with them, not with the trial court. In the present case, the commission of homicide on the occasion of robbery is beyond dispute. PO1 Gerry Perez was shot at the right side of his chest by accused-appellant Piandiong. After the hold-uppers had alighted from the vehicle with their loot, accused-appellant Piandiong again shot PO1 Gerry Perez at the right side of his face, with the slug entering the cheek. PO1 Gerry Perez was rushed to the emergency room of the MCU Hospital where he later on died, as indeed, any of the wounds could have been fatal (p. 8, RTC Decision; p. 24, Rollo). For the crime of robbery with homicide to exist, it is enough that a homicide results by reason or on the occasion of robbery (People vs. Saliling, 69 SCRA 427 [1976]). It is a well-settled rule that when homicide takes place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide, although they did not actually take part in the homicide. The exception to the rule is when it is clearly shown that they endeavored to prevent the unlawful killing (People vs. Balanag. 236 SCRA 474 [1994]). In the present case, there is no evidence that accused-appellants Bulan and Morallos tried to prevent accused-appellant Piandiong from shooting PO1 Gerry Perez. Their liability, therefore, is the same as that of Piandiong. All accused-appellants are thus guilty of the crime of robbery with homicide which under Paragraph 1 of Article 294 of the Revised Penal Code, as amended by Republic Act No. 7659, is punishable by reclusion perpetua to death. The Court holds that the court a quo did not err in imposing the maximum penalty of death. The commission of robbery with homicide was attended by the aggravating circumstance of band, having been perpetrated by more than three (3) armed malefactors who acted together in the commission thereof (Paragraph No. 6 of Article 14 of the Revised Penal Code; People vs. Dela Cruz, supra). There being one aggravating circumstance attendant to the commission of the felony without any

mitigating circumstance to offset the same, the penalty imposable under Paragraph 1 of Article 294 of the Revised Penal Code, as amended by Republic Act 7659, is death, the maximum penalty (Paragraph 2, No. 1 of Article 63 of the Revised Penal Code). The imposition of the death penalty for robbery with homicide which is considered a heinous crime "for being [a] grievous, odious and hateful" offense and "which, by reason of [its] inherent or manifest wickedness, viciousness, atrocity and perversity [is] repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society" was found compelling and just by Congress in the interest of justice, public order, and the rule of law. In point of fact, even under the original Article 294 of the Revised Penal Code, the penalty imposable for a crime such as the one committed by accused-appellants, attended as it was by an aggravating circumstance, is death. Said penalty was merely suspended by the 1987 Constitution until it was reimposed by Republic Act No. 7659. The act of accused-appellants before alighting from the jeepney in shooting PO1 Gerry Perez at the right side of the face while he was already mortally wounded and lying crumpled and unconscious in the embrace of his girl friend, Leonisa Bacay, patently reveals the brutality, mercilessness, wickedness, viciousness, atrocity, perversity, and malevolence of accused-appellants which calls for the condign punishment of death, as mandated by law. Nonetheless, two Members of the Court voted to impose the penalty of reclusion perpetua. WHEREFORE, the appealed decision is hereby AFFIRMED, with costs against accused-appellants. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. EN BANC G.R. No. 124895 March 1, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN DE LOS REYES y DIOLA, accused-appellant. PER CURIAM: For automatic review is the Decision
1

of Branch 87 of the Regional Trial Court of Batangas, finding accused-appellant Ruben

de los Reyes y Diola guilty of two (2) counts of rape in Criminal Cases Nos. R95-017 and R95-018, for raping his sixteenyear-old daughter, Bernadette de los Reyes, and five (5) counts of rape in Criminal Cases Nos. R95-022 to R95-026, inclusive, for raping his fourteen-year-old daughter, Melanie de los Reyes; and sentencing him as follows: WHEREFORE, after a painstaking evaluation of these cases, the laws applicable to the cases at bar, the Court finds the accused RUBEN DE LOS REYES Y DIOLA GUILTY beyond reasonable doubt of seven (7) counts of rape and hereby sentences him as follows: 1. In Criminal Case No. R95-017 to suffer the penalty of death, and to pay the offended party Bernadette de los Reyes moral damages in the amount of P50,000.00; 2. In Criminal Case No. R95-018, to suffer the penalty of RECLUSION PERPETUA, and to pay the offended party Bernadette de los Reyes, moral damages in the amount of P50,000.00; 3. In Criminal Case No. R95-022, to suffer the penalty of death, and to pay the offended party Melanie de los Reyes, moral damages in the amount of P50,000.00; 4. In Criminal Case No. R95-023, to suffer the penalty of death and to pay the offended party Melanie de los Reyes moral damages in the amount of P50,000.00; 5. In Criminal Case No. R95-024, to suffer the penalty of death, and to pay the offended party Melanie de los Reyes moral damages in the amount of P50,000.00;

6. In Criminal Case No. R95-025, to suffer the penalty of death, and to pay the offended party Melanie de los Reyes moral damages in the amount of P50,000.00; and, 7. In Criminal Case No. R95-026, to suffer the penalty of death and to pay the offended party Melaine de los Reyes moral damages in the amount of P50,000.00. Pursuant to Republic Act 7659, the death sentence shall be executed with preference, to any other offense and shall consist in putting the person under sentence to death by electrocution. The death sentence shall be carried out not later than one (1) year after the judgment has become final. SO ORDERED. On the basis of the complaints lodged on March 30, 1995 by the complainants, Bernadette de los Reyes and Melanie de los Reyes, with the assistance of their mother, Yolanda R. de los Reyes, the Informations presented by Fourth Assistant Provincial Prosecutors Bella Salva-Gayeta and Juanita G. Areta, indicting the accused-appellant for seven (7) counts of rape, allege:

In Criminal Case No. R-95-017: That on or about the 28th day of August, 1994, at about 10:00 o'clock in the evening, at Brgy. Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with his daughter Bernadette Delos Reyes y Rodriguez, a sixteen (16) year old girl, against her will and consent.

Contrary to Law.

In Criminal Case No. R-95-018: That on or about the 26th day of January, 1992, at about 1:00 o'clock in the morning, at Brgy. Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with his daughter Bernadette De los Reyes y Rodriguez, a sixteen year old girl, against her will and consent. Contrary to Law.
4

In Criminal Case No. R-95-022: That on or about the 3rd day of November, 1994, at about 11:00 o'clock in the evening, at Brgy. Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with the said Malanie de los Reyes y Rodriguez, accused's daughter, who is a fourteen (14) year-old minor, against her will and consent.

Contrary to law.

In Criminal Case No. R-95-023: That on or about the 2nd day of November, 1994, at about 10:45 o'clock in the evening, at Barangay Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with the said Malanie de los Reyes y Rodriguez, accused's daughter, who is a fourteen (14) year-old minor, against her will and consent. Contrary to law. In Criminal Case No. R-95-024: That on or about the 29th day of September, 1994, at about 10:00 o'clock in the evening, at Barangay Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with the said Malanie de los Reyes y Rodriguez, accused's daughter, who is a fourteen (14) year-old minor, against her will and consent. Contrary to law. In Criminal Case No. R-95-025: That on or about the 4th day of November, 1994, at about 10:30 o'clock in the evening, at Barangay Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with the said Malanie de los Reyes y Rodriguez, accused's daughter, who is a fourteen (14) year-old minor, against her will and consent. Contrary to law. In Criminal Case No. R-95-026: That on or about the 8th day of November, 1994, at about 11:00 o'clock in the evening, at Barangay Mabalanoy, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge with the said Melanie de los Reyes y Rodriguez, accused's daughter, who is a fourteen (14) year-old minor, against her will and consent. Contrary to law. In Criminal Cases Nos. R95-017 and R95-018, upon arraignment on May 30, 1995, assisted by Counsel Octavio Macatangay,
6

accused-appellant entered pleas of Not Guilty to the crimes charged. In Criminal

7

Case Nos. R95-022 to R95-026, inclusive, upon arraignment on June 13, 1995, with the assistance his counsel, Dante Resurrection, accused-appellant also entered negative pleas.

Testified on by prosecution witnesses Bernadette de los Reyes, Melanie de los Reyes, Yolanda de los Reyes and Dr. Lea J. Aseron, the version of the People is synthesized by the Solicitor General in the Appellee's Brief, as follows:

Criminal Cases Nos. R95-017 & R95-018 On January 26, 1992, at 1:00 A.M., sixteen (16) year old Bernadette de los Reyes, was sleeping inside their house in Brgy. Mabalanoy, San Juan, Batangas, when she was awakened by her father, appellant Ruben de los Reyes, and told not to shout, otherwise, appellant would kill her. Bernadette tried to struggle but appellant held her right arm and kissed her. Appellant then removed Bernadette's t-shirt and bra and kissed her nipples. Afterwards, appellant removed Bernadette's shorts and panty and went on top of her. While on top of Bernadette, appellant removed his briefs and placed his two legs against Bernadette's two legs, forcing her to spread her thighs. After appellant succeeded in spreading Bernadette's thighs, he forcibly inserted his penis into her vagina. As a result, Bernadette felt pain in her vagina and lost consciousness. All the time that appellant was sexually assaulting her, Bernadette kept on struggling, but because of appellant's superior strength, Bernadette could not do anything to stop the bestial act of the appellant. When Bernadette regained consciousness, appellant was already gone and Bernadette noticed that there was blood in her vagina. It was only before 8:00 A.M. of the same day that Bernadette saw her father at the balcony of their house, where she was warned by appellant not to tell anybody about what happened, or else, appellant would kill her. The assault on Bernadette took place while she was alone at their house since her mother was then in Manila and her brother and sisters were at their aunt's house. After the first incident, appellant continued abusing Bernadette for more than fifteen (15) times. The last occasion was on August 24, 1994, at about 10:00 A.M., when Bernadette was alone in their house with a fever. The rape was committed just like the prior incidents wherein appellant forced Bernadette to have sexual intercourse with him, and thereafter threatened to kill her should she tell anybody about what happened. After the last incident, Bernadette slept at her classmates' and friends' houses which were located at different places in San Juan, Batangas to avert the possible occurrence of another rape by appellant. Bernadette did not tell anybody that she was raped by appellant because she was afraid that appellant would make true his threats to kill her if she would tell anybody about the incident. Later, on March 26, 1995, during her graduation day, Bernadette finally revealed to their mother Yolanda reported that she was abused by appellant. Thereafter, Bernadette and Yolanda reported the incident to the Municipal Mayor of San Juan, Batangas who accompanied them to the PNP Station Command where Bernadette executed a sworn statement attesting to the fact of rape by appellant. After that, Bernadette and Yolanda went to San Juan District Hospital where Bernadette was examined by a physician (TSN, June 27, 1995, pp. 14-26, B. de los Reyes). Criminal Cases Nos. R95-022 to R95-026 On September 29, 1994, at 10:00 A.M., while fourteen (14)-year ( sic) old Melanie de los Reyes was sleeping alone in one of the rooms in their house in Brgy. Mabalanoy, San Juan, Batangas, she felt that someone was on top of her. When Melanie woke up, she saw her father, appellant Ruben de los Reyes, on top of her, kissing her. Thereafter, appellant removed Melanie's t-shirt and bra and sucked Melanie's nipples. Melanie tried to push appellant, but since the latter was stronger, he was able to remove Melanie's shorts and panty with the use of his hands. Thereupon, appellant mashed Melanie's vagina and even inserted into it (sic). Not satisfied, appellant pulled apart Melanie's thighs with the use of his feet and inserted his penis into her vagina. During the coitus, appellant continued sucking Melanie's nipple while pumping his buttocks

up and down. Melanie felt pain and she noticed blood on her thighs and on the mat. After appellant transferred to the room, Melanie cried hard and changed her clothes. The rape occurred while Melanie's mother was in Manila and her brother and sister were sleeping at their aunt's house. 1wphi1.nt In October 1994, Melanie's mother arrived from Manila but she did not mention to her mother that she was abused by appellant because the latter threatened her that he would kill them all if she would tell anybody about the incident. Melanie was afraid of her father's threat because she usually saw him carry a gun. After the first incident, since Melanie's mother was in Manila and her siblings were always out of the house, appellant continued to sexually abuse Melanie on several occasions whenever Melanie was alone, to wit; (1) on November 2, 1994; (2) on November 3, 1994; (3) on November 4, 1994, and (4) on November 8, 1994. During the numerous incidents that Melanie was sexually abused by appellant, the latter was drunk. Melanie would plead to appellant not to abuse her telling him, "why are you doing this to me, I am your daughter." But her pleas always fell on deaf ears. Likewise, after each incident, appellant warned Melanie that he would kill all the members of their family if she would tell anybody about the rape. When Melanie learned that her elder sister Bernadette was also raped by appellant, Melanie revealed to her mother that she was abused by appellant. Thereafter, Melanie filed criminal complaints for rape against appellant. She later submitted herself for a medical examination wherein it was found that she was raped (TSN, June 27, 1995, pp. 5-53, M. de los Reyes).
8

The medico-legal examination conducted by Dr. Lea J. Aseron on Bernadette de los Reyes, disclosed: HYMEN Old Lacerated scar at 3O'clock, 6 and 12 O'clock. Admits up to 3 fingers easily. The medico-legal examination on Melanie de los Reyes showed: HYMEN Old lacerated scar at 5, 7 and 3 O'clock.Admits two fingers easily.
10 9

For the defense, accused-appellant Ruben de los Reyes, and his sister, Imelda Castillo, testified. He interposed the defense of denial, theorizing on "his estranged wife's desire to conveniently escape their stifling but still binding relationship, coupled with his brand of discipline, prompted a retaliatory act manifested with the filing of the two (2) sets of complaints for rape."
11

After trial, the lower court found the People's version credible and on the basis thereof handed down on February 27, 1996, the judgment of conviction under review. Pursuant to Article 47 of the Revised Penal Code, as amended, and Sections 3(e) and 10 of Rule 122, Rules of Court, the aforesaid verdict imposing, the supreme penalty of death is before this Court for automatic review. Accused-appellant contends that: 1.01. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE INCONSISTENCIES IN PRIVATE COMPLAINANTS' TESTIMONY. 1.02. THE TRIAL COURT ERRED IN ADAPTING EN TOTO THE QUESTIONABLE MEDICAL FINDINGS. 1.03. THE TRIAL COURT ERRED IN NOT CITING THE MOTIVE HOVERING OVER THE FILING OF THE COMPLAINT.

1.04. THE COURT GRAVELY ERRED IN HOLDING APPELLANT LIABLE TO PAY HIS ACCUSERS THE SUM OF FIFTY THOUSAND PESOS (P50,000.00) AS CIVIL INDEMNITY.
12

In an appeal from a judgment of conviction in rape cases, the issue boils down, almost invariably, to the tale and credibility of the victim, and just as often, this Court places reliance on the observations by the trial court, which had the singular opportunity, not enjoyed by the appellate court to observe and rate the credibility of the evidence on record. It has thus become doctrinal that the evaluation of testimonial evidence by the trial court is accorded great respect precisely because of its chance to observe first hand the demeanor on the stand of the witnesses, a matter which is important in determining whether what has been testified on should be taken to be the truth or falsehood.
13

In the case at bar, the trial court found complainants' account of their harrowing experience to be positive, convincing and free from serious contradictions, ratiocinating thus: The Court gives credit to the fact that despite the complainants' tender ages, they both testified in a straightforward manner and hurdled the grueling examination conducted on them and remained consistent all throughout the crossexamination. In this sense, the Court gives full faith and credit to their testimonies. After a careful scrutiny and evaluation of the victims' narration of the events complained of, the Court is of the considered opinion, and so holds, that the complainants have narrated the truth with all candor and honesty. Their testimonies are straightforward, without the alleged inconsistencies, which accused-appellant dismally failed to indicate in the appellant's brief. * The Court perceives no tenability in the theory of accused-appellant that the charges levelled against him are but retaliatory moves on the part of his wife, who wanted to end their marriage, and on the part of his daughters, who suffered maltreatment in his hands.
15

In a long line of cases, this Court has consistently ruled that such a defense is simply

unbelievable and too unnatural to merit faith and credit. It is hard to fathom that a parent would use her offsprings as engines of malice especially if the same would subject them to humiliation, nay stigma. No mother in her right mind would expose her daughters to the disgrace and trauma resulting inevitably from a prosecution for rape, if she was not motivated truly by a desire to incarcerate the person responsible for her daughters' defilement. In the same vein, a mother would not subject her daughter to such an ignominy merely to end her relationship with her husband or to retaliate against him for his transgressions as a family man. And it is unbelievable for a daughter to charge her own father with rape at the expense of being ridiculed. Consequently, as the defense utterly failed to prove that the principal witnesses for the People were improperly motivated, the presumption is that they were not so moved and therefore, their testimony is entitled to full faith and credence.Private complainants testified that the accused-appellant threatened to kill them if they divulged to anybody what he had been doing to them. Scared, frightened, and confused, they kept their horrible ordeal to themselves until they mustered enough courage to reveal the unfortunate happening to their mother. In such a scenario, the victims' reluctance to disclose what accused-appellant did to them did not render their testimonies unworthy of belief. It bears stressing that delay in reporting a rape incident due to death threats are not to be taken against the victim.
17

This doctrine applies with

greater force to the present case, where the hesitation of the victims to reveal what happened is due not only to a genuine fear which their father instilled in their mind but also to their young age and the moral ascendancy of accused-appellant. So also, accused-appellant claims that Melanie's continued stay in their house despite the alleged assaults on her virtue, was contrary to the natural reaction of a girl who has been violated.
18

As aptly pointed out by the Solicitor General, the best

19

explanation why Melanie did not leave their house was that, confronted with such a dreadful experience at a tender age, and in the absence of a trusted person like mother, she (Melanie) undoubtedly was at a loss on what to do. Indeed, one should not expect a fourteen-year-old girl to act like an adult or a mature and experienced woman who would know what to do under difficult circumstances, and would have the courage and intelligence to disregard a threat on her life and complain immediately that she had been forcibly deflowered.
20

The issues posed by accused-appellant on the results of the medical examination of the private complainants as well as on the qualification of the doctor who prepared the same, deserve scant consideration because a medical examination is not

indispensable in a prosecution for rape. no vaginal laceration.

22

21

In fact, there could be a finding of rape even if the medical examination showed

Besides, it is settled that when a woman, more so if she is a minor, says that she has been raped,
23

she says, in effect, all that is necessary to constitute the commission of the crime, and this rule applies with more vigor when the culprit is a close relative of the victim.

All things studiedly considered and viewed in proper perspective, the mind of the Court can rest easy on a finding of guilt of accused-appellant. Judgment of affirmance is indicated. Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides: xxx xxx xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim. xxx xxx xxx Conformably, in the case under consideration, with the concurrence of the special qualifying circumstances of relationship of accused-appellant with the victims and the latter's minority, capital punishment has to be imposed on accused-appellant in Criminal Cases Nos. R95-017, R95-022, R95-023, R95-024, R94-025, and R95-026. In Criminal Case No. R95-018, the lower court correctly imposed the penalty of Reclusion Perpetua, the rape charged having been committed on January 26, 1992, before the effectivity of R.A. No. 7659. Consistent with prevailing jurisprudence, an indemnity of P75,000.00 is awardable to the victim, the rape sued upon being qualified by circumstances calling for the imposition of the death penalty.
24

Thus, in Criminal Case Nos. R95-017, R95-022,

R95-023, R95-024, R95-025 and R95-026, where the imposition of death penalty is warranted, accused-appellant has to pay the victim in each case, P75,000.00 as civil indemnity. In Criminal Case No. R95-018, where the penalty meted is reclusion perpetua, civil indemnity of P50,000.00 is proper.
25

The award of P50,000.00 as moral damages for each count of rape is

26

upheld, the said award being imposable in rape cases without need of proof.

Four members of the Court are steadfast in their adherence to the separate opinion expressed in People vs.Echegaray
27

that Republic Act No. 7659 is unconstitutional insofar as it prescribes the death penalty. However, they bow

to the majority opinion that the said law is constitutional and thereunder, the imposition of the death penalty is proper. WHEREFORE, the Decision under automatic review, finding the accused-appellant, Ruben de los Reyes, guilty beyond reasonable doubt of seven (7) counts of rape and imposing him the penalty of Death for each rape in Criminal Cases Nos. R95-017, R95-022, R95-023, R95-024, R94-025, and R95-026, and Reclusion Perpetua in Criminal Case No. R95-018, is AFFIRMED with the MODIFICATION that apart from the award of Fifty Thousand (P50,000.00) Pesos as moral damages in each case, the accused-appellant is sentenced to pay civil indemnity of Fifty Thousand (P50,000.00) Pesos in Criminal Case No. R95-018, and Seventy-five Thousand (P75,000.00) Pesos in each case in Criminal Cases Nos. R95-017, R95-022, R95023, R95-024, R95-025 and R95-026. Costs against the accused-appellant.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon the finality of this decision, let the records of the case be forwarded to the Office of the President for possible exercise of the pardoning power.1wphi1.nt SO ORDERED. EN BANC [G.R. No. 170236, August 31, 2006] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ROBERTO QUIACHON Y BAYONA, APPELLANT. DECISION

CALLEJO, SR., J.: Appellant Roberto Quiachon was charged with the crime of qualified rape committed as follows: On or about May 12, 2001, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, by means of force and intimidation, did then and there willfully, unlawfully, and feloniously have sexual intercourse with one Rowena Quiachon y Reyes, his daughter, 8 years old, a deaf-mute minor, against her will and consent. Contrary to law.[1] The case was docketed as Criminal Case No. 120929-H. At his arraignment, appellant, duly assisted by counsel, entered a plea of not guilty. Trial ensued. The prosecution presented the following witnesses: Rowel Quiachon, 11-year old son of appellant; Rowena Quiachon, the victim and appellant's daughter; Dr. Miriam Sta. Romana Guialani; and SPO2 Noel Y. Venus. Rowel testified that he is appellant's son. He averred, however, that he no longer wanted to use his father's surname describing him as "masama" for raping his (Rowel's) sister Rowena. Rowel recounted that he used to sleep in the same bedroom occupied by his father, sister and youngest sibling. Rowel slept beside his youngest sibling while their father, appellant, and Rowena slept together in one bed. On the night of May 12, 2001, Rowel saw his father on top of his sister Rowena and they were covered by a blanket or "kumot." His father's buttocks were moving up and down, and Rowel could hear Rowena crying. He could not do anything, however, because he was afraid of their father. Rowel remained in the room but the following morning, he, forthwith, told his mother's sister Carmelita Mateo, whom he called AteLita, about what he had witnessed. Together, Carmelita and Rowel went to the police to report what had transpired. During the police investigation, Rowel executed a sworn statement in Tagalog and signed it using the surname Mateo.[2] Rowena, through sign language, testified that her father had sexual intercourse with her and even touched her breasts against her will. She was only eight years old at the time. She cried when she was asked if she was hurt by what appellant did to her. She consistently declared that she does not love her father and wants him to be punished for what he did to her. [3] Dr. Miriam Sta. Romana Guialani of the Philippine National Police (PNP) General Hospital Health Services testified that she received a letter request from the PNP Crime Laboratory to conduct an examination on Rowena. While she was about to proceed with the forensic interview, she noticed that Rowena was deaf and mute, hence, could not verbally communicate her ordeal. Dr. Guialani proceeded to conduct a physical examination and, based thereon, she submitted her medico-legal report. Dr. Guialani, as indicated in her report, found that Rowena had a "contusion hematoma" on her left cheek, which was

compatible with her claim that she was slapped by her father. Rowena also had an "ecchymosis" or "kissmark" at the antero-lateral border of her left breast as well as ano-genital injuries suggestive of chronic penetrating trauma. Dr. Guialani explained that although the external genitalia did not show any sign of sexual abuse, when it was opened up, the following were discovered: "markedly hyperemic urethra and peri-hymenal area with fossa navicularis and markedly hyperemic perineum, markedly hyperemic urethra layer up to the peri-hymenal margin up to the posterior hymenal notch with attenuation." Further, the labia was "very red all throughout, with hymenal notch with attenuation, a pale navicular fossa and a very red perineum."[4] All these, according to Dr. Guialani, were compatible with the recent chronic penetrating trauma and recent injury which could have happened a day before the examination. She pointed out that the hymenal attenuation sustained by Rowena was almost in the 6 o'clock notch.[5] For its part, the defense presented the lone testimony of appellant Roberto Quiachon. He testified that, on May 13, 2001, he was invited to the barangay hall by theirbarangay chairman. He did not know then the reason for the invitation. At the barangay hall, he was surprised to see the two sisters of his deceased live-in partner and his two children. He was shocked to learn that his daughter Rowena had accused him of raping her. Thereafter, he was taken to the Karangalan Police Station. He suffered hypertension and was brought to the hospital. When he recovered, he was taken to the Pasig City Police Station and, thereafter, to jail. Appellant claimed that Rowena is not deaf but only has a minor speech handicap. He denied raping Rowena and alleged that Virginia Moraleda and Carmelita Mateo, both sisters of his deceased common-law wife, held a grudge against him because he abandoned his family and was not able to support them. His common-law wife died of cancer and her relatives were allegedly all interested in his house and other properties. The said house was being leased and they were the ones getting the rental income. Further, the nephew of his deceased partner was sending financial support of US$100 a month for his child. According to appellant, even before the death of his common-law wife, his son Rowel was already hostile to him because he was closer to his daughters. He disclaimed any knowledge of any reason why his children, Rowel and Rowena, accused him of a very serious offense.[6] After consideration of the respective evidence of the prosecution and defense, the Regional Trial Court of Pasig City, Branch 159, rendered its Decision[7] dated September 9, 2003, finding appellant guilty beyond reasonable doubt of the crime of qualified rape defined and penalized under Articles 266-A and B[8] of the Revised Penal Code. The decretal portion of the decision reads: WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape, he is hereby sentenced to suffer the maximum penalty of DEATH, including its accessory penalties, and to indemnify the offended party in the amount of P75,000.00 as compensatory damages, PI00,000.00 as moral damages, and P50,000.00 as exemplary damages. SO ORDERED.[9] The case was automatically elevated to this Court by reason of the death penalty imposed on appellant. However, pursuant to our ruling in People v. Mateo,[10] the case was transferred and referred to the Court of Appeals (CA). Upon review, the CA rendered its Decision[11] dated August 25, 2005, affirming with modification the decision of the trial court. In affirming appellant's conviction, the CA held that there was no justification to make a finding contrary to that of the trial court with respect to the credibility of the witnesses. The CA particularly pointed out that the trial court, after having "meticulously observed" the prosecution witness Rowel and complainant Rowena, had declared that "their narration palpably bears the earmarks of truth and is in accord with the material points involved. When the testimony of a rape victim is simple and straightforward, unshaken by rigid cross-examination, and unflawed by an inconsistency or contradiction as in the present case, the same must be given full faith and credit."[12] Moreover, the CA ruled that the testimonies of Rowel and Rowena recounting the bestial act perpetrated by appellant on the latter were corroborated by physical evidence as presented by Dr. Guialani in her medico-legal report. On the other hand, the CA noted that appellant could only proffer a bare denial. On this matter, it applied the salutary rule that denial is not looked upon with favor by the court as it is capable of easy fabrication. Consequently, the CA held that appellant's bare denial could not overcome the categorical testimonies of the prosecution witnesses, including Rowena, the victim herself.

The CA believed that Rowena could not possibly invent a charge so grave as rape against her father because "it is very unlikely for any young woman in her right mind to fabricate a story of defloration against her own father, undergo a medical examination of her private parts, and subject herself to the trauma and scandal of public trial, put to shame not only herself but her whole family as well unless she was motivated by a strong desire to seek justice for the wrong committed against her."[13] In sum, the CA found that the trial court correctly found appellant guilty beyond reasonable doubt of the crime of qualified rape and in imposing the supreme penalty of death upon him. In the Pre-Trial Order dated September 10, 2001, the prosecution and the defense agreed on the following stipulation of facts: 1. The minority of the victim who is eight (8) years old; 2. That the accused is the father of the victim; and 3. The victim is a deaf-mute.[14] According to the CA, the qualifying circumstances of the victim's minority and her relationship to the offender were alleged in the Information and were duly proved during trial. These circumstances, i.e., minority of the victim and her relationship to appellant, are special qualifying circumstances in the crime of rape that warrant the imposition of the supreme penalty of death . The CA, however, modified the trial court's decision with respect to the damages awarded to conform to prevailing jurisprudence. The decretal portion of the CA decision reads: WHEREFORE, the assailed Decision dated September 9, 2003 of the Regional Trial Court of Pasig City, Branch 159, in Criminal Case No. 120929-H finding the accused-appellant Roberto Quiachon y Bayona guilty beyond reasonable doubt of qualified rape and imposing upon him the DEATH penalty is AFFIRMED, with the MODIFICATION that the accused-appellant is also ordered to pay the victim, Rowena Quiachon, the amount of P75,000 as civil indemnity; P75,000 as moral damages; and P25,000 as exemplary damages. In accordance with A.M. No. 00-5-03-SC which took effect on October 15, 2004, amending Section 13, Rule 124 of the Revised Rules of Criminal Procedure, let the entire records of this case be elevated to the Supreme Court for review. Costs de oficio. SO ORDERED.[15] In this Court's Resolution dated December 13, 2005, the parties were required to submit their respective supplemental briefs. The Office of the Solicitor General manifested that it would no longer be filing a supplemental brief. Similarly, appellant, through the Public Attorney's Office, manifested that he would no longer file a supplemental brief. After a careful review of the records of the case, the Court affirms the conviction of appellant. In reviewing rape cases, this Court has always been guided by three (3) well-entrenched principles: (1) an accusation for rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.[16] Accordingly, the primordial consideration in a determination concerning the crime of rape is the credibility of complainant's testimony.[17] Likewise, it is well settled that when it comes to the issue of credibility of witnesses, the trial court is in a better position than the appellate court to properly evaluate testimonial evidence having the full opportunity to observe directly the witnesses' deportment and manner of testifying.[18] In this case, as correctly found by the CA, there is nothing on the record that would impel this Court to deviate from the well-entrenched rule that appellate courts will generally not disturb the factual findings of the trial court unless these were reached arbitrarily or when the trial court misunderstood or misapplied some facts of substance and value which, if considered, might affect the result of the case.[19]

In convicting the appellant, the trial court gave full faith and credence to the testimonies of Rowel and Rowena. The trial court observed that Rowel and Rowena "never wavered in their assertion that accused sexually abused Rowena. Their narration palpably bears the earmarks of truth and is in accord with the material points involved."[20] Further, the trial court accorded great evidentiary weight to Rowena's testimony. It justifiably did so as it characterized her testimony to be "simple, straightforward, unshaken by a rigid cross-examination, and unflawed by inconsistency or contradiction."[21] Significantly, Rowel and Rowena's respective testimonies were corroborated by Dr. Guialani's medico-legal report:[22] PERTINENT PHYSICAL FINDINGS/PHYSICAL INJURIES Contusion hematoma about 3x4 cm noted at the left mandibular area of the left cheek compatible with the disclosed slapping of the cheek by her father; 2x2 cm ecchymosis (kissmark) noted at the antero-lateral border of the left breast ANO-GENITAL EXAMINATION EXTERNAL GENITALIA Tanner 2 Pubic hair - none Labia majora - no evident sign of injury at the time of examination Labia minora - no evident sign of injury at the time of examination URETHA AND ERIURETHRAL AREA PERIHYMENAL AREA AND FOSSA NA VICULARIS HYMEN Tanner 2 Annular hymen; hymenal notch noted at 5 o 'clock with attenuation of the hymenal rim from 5 o 'clock to 7 o 'clock; very hyperemic hymen PERINEUM DISCHARGE IE AND SPECULUM EXAM ANAL EXAMINATION REMARKS FORENSIC EVIDENCE COLLECTED LABORATORY EXAMINATION Requested a) Urinalysis b) Gram Stain of Vaginal smear Hyperemic perineum Whitish, foul-smelling discharge, minimal in amount noted Not indicated No evident sign of injury at the time of examination; None Markedly hyperemic perihymenal area, and pale fossa navicularis Markedly hyperemic urethra meatus and periurethral area

IMPRESSIONS No verbal disclosure of sexual abuse (pt is a deaf-mute) For referral to NCMH for evaluation of developmental stage and competence to appear in court. Presence of contusion hematoma on the Left Cheek (slapmark) and ecchymosis on the antero-lateral border of the left breast show clear evidence of Physical Abuse. Ano-genital findings suggestive of chronic penetrating trauma.

Dr. Guialani explained during her testimony that the foregoing findings were consistent with Rowena's claim of sexual abuse. Specifically, her internal genitalia showed signs of sexual abuse such as: "markedly hyperemic urethra and perihymenal area with fossa navicularis, markedly hyperemic perineum, markedly hyperemic urethra layer up to the perihymenal margin up to the posterior hymenal notch with attenuation." Further, Rowena's labia was "very red all throughout, with hymenal notch with attenuation, a pale navicular fossa and a very red perineum."[23]All these, according to Dr. Guialani, were compatible with the recent chronic penetrating trauma and recent injury which could have happened a day before the examination. She pointed out that the hymenal attenuation sustained by Rowena was almost in the 6 o'clock notch.[24] Dr. Guialani, likewise, confirmed that Rowena was deaf and mute. Viewed against the damning evidence of the prosecution, appellant's simple denial of the charge against him must necessarily fail. The defense of denial is inherently weak. A mere denial, just like alibi, constitutes a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.[25] All told, the trial court and the CA correctly found appellant guilty of raping his daughter Rowena pursuant to Article 266-B of the Revised Penal Code. The special qualifying circumstances of the victim's minority and her relationship to appellant, which were properly alleged in the Information and their existence duly admitted by the defense on stipulation of facts during pre-trial,[26] warrant the imposition of the supreme penalty of death on appellant. However, in view of the enactment of Republic Act (R.A.) No. 9346[27] on June 24, 2006 prohibiting the imposition of the death penalty, the penalty to be meted on appellant is reclusion perpetua in accordance with Section 2 thereof which reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. The aforequoted provision of R.A. No. 9346 is applicable in this case pursuant to the principle in criminal law, favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to accused are given retroactive effect. This principle is embodied under Article 22 of the Revised Penal Code, which provides as follows: Retroactive effect of penal laws. - Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same.[28] However, appellant is not eligible for parole because Section 3 of R.A. No. 9346 provides that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole." With respect to the award of damages, the appellate court, following prevailing jurisprudence,[29] correctly awarded the following amounts: P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, and; P25,000.00 as exemplary damages in light of the presence of the qualifying circumstances of minority and relationship. Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor,[30] the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity." Notwithstanding the abolition of the death penalty under R.A. No. 9364, the Court has resolved, as it hereby resolves, to maintain the award of P75,000.00 for rape committed or effectively qualified by any of the circumstances under which the death penalty would have been imposed prior to R.A. No. 9346. IN LIGHT OF ALL THE FOREGOING, the Decision dated August 25, 2005 of the Court of Appeals finding appellant Roberto Quiachon guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED with MODIFICATION that the penalty

of death meted on the appellant is reduced to reclusion perpetua pursuant to Republic Act No. 9346. SO ORDERED. EN BANC [G.R. No. 122770. January 16, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. EDUARDO AGBAYANI y MENDOZA, accused-appellant. DECISION PER CURIAM: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent person who recognize that a womans cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on ones own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. i[1] At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration. ii[2] Before this Court on automatic review is the decision iii[3] of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. 7659.iv[4] On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Region Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y. Mendoza. v[5] After appropriate preliminary investigation, a complaint vi[6] for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October, 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and trial on 22 December 1994. vii[7] At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin dela Cruz as counsel de oficio, entered a plea of not guilty.viii[8] Upon agreement of the parties, trial on the merits immediately followed, with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal Officer of the PNP Crime Laboratory, ix[9] who cross-examined by Atty. Baldado.x[10] On the succeeding dates of trial, the prosecution presented EDEN xi[11] and SPO1 Salvador Buenviaje.xii[12] During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorneys Office.xiii[13] On this part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EN who identified her and Fedelinas affidavit of desistance,xiv[14] which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows: We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]: That we are the complainant [sic] against our father, Eduardo Agbayani pending before this Honorable Court docketed as Criminal Case No. 59149; That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same;

That I am executing this affidavit for purposes of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. This affidavit was executed freely and voluntarily. As EDEN declared in open court what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her intentional falsehood was offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice. Accordingly, the trial court ordered her committed to incarceration and imprisonment within the period provided by law, xv[15] which penalty however was modified to a fine of P200.00 upon EDENs motion for reconsideration. xvi[16] On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial courts summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows: The evidence adduced on the record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas fo Branch 7, Regional Trial Court, Bulacan. The case was, however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13, 1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana, and Edina, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico-Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that the above mentioned address, the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani was awakened from her sleep by hands caressing her breast and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan? and threatened to kill her [sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previous provisionally dismissed case and issued a warrant of arrest against the herein accused. With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accuseds arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report. xvii[17] Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter. xviii[18] He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts on night. Then on 24 July 1994, she left their rented apartment and did not return anymore. xix[19] Adoracion Cruz corroborated appellants alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 1994. xx[20] The trial court gave full credence to the testimony of EDEN, who appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive; futher, it commended her for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case. It also ruled that EDEN did not voluntarily execute the affidavit of desistance, as it was procured at the behest of her mother and sister for whom the sanctity of the family and the familys good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused. Besides, even assuming arguendo that no such pressure was exerted by her mother and sister,

the trial court declared that it understood EDENs moral predicament, viz for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and hereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit E) of Fedelina Agbayani. Turning to the defense of appellant, the trial court found his alibi wholly self-serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellants claim that EDEN filed the complaint because of a grudge against him, the trial court found this incredible,if not totally absurd, for: The complainant is an innocent girl of tender years who is likely to possess such vindictiveness and death of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court the seriousness of the injury upon he person and dignity inflicted upon by the accused. Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her familys reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defenses proposition would be stretching the imagination too far, if not to the extreme. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common law spouse of the parent of the victim, rendered judgement against appellant, to wit: WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This Court as a consequence thereof, hereby imposes upon him the supreme penalty law R.A. 7659. Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED. On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trialxxi[21] on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counsel de oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on basis of his certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruzs testimony; (c) present private complainants mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about the execution of the affidavit of desistance; and (d) cross examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficio was never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Trial, xxii[22] the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. In its Orderxxiii[23] of 31 July 1995, the trial court denied the motion for new trial being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellants Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court.

In his second assigned error, appellant contends that EDENs testimony is not sufficient to convict, since its is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. Finally, appellant asserts that EDENs testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her subsequent turn-around that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused. The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellants other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latters request for a continuance because he had not yet conferred with appellant was not evidence of counsels lack of sincerity. On the contrary, it showed counsels awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellants presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellants favor. As to the manner appellants counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as barren of merit. EDENs positive identification of appellant as the author of the crime rendered appellants defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDENs candid and categorical manner of testifying the OSG concluded that she was a credible witness. xxiv[24] As to the commission of rape in a small room and in presence of other persons, the OSG maintains that such was not at all improbable.xxv[25] There was, as well, nothing unusual in EDENs silence; as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter.xxvi[26] Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter substitutes for violence or intimidation.xxvii[27] As regards EDENs affidavit of desistance, the OSG maintains that court look with disfavor on retraction of testimonies previously given in court, for such can easily be secured from poor and ignorant witnesses usually for monetary consideration,xxviii[28] as well as the probability that it may later be repudiated. In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio his arraignment did not relieve the court of its duty under c to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows: This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in RJ Franciscos Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is denied the right recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of justice and remove all doubt that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned. Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right: [H]as been held to be mandatory and denial of this right is reversible error and a ground for new trial. (R.J. Franciscos Criminal Procedure, Third Ed., 1986, p. 404, citing people vs. Mijares, et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA 259). This must be so xxx to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him.

The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficio counsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficio were appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus: COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA: Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness. ATTY. BALDADO: For the accused Your Honor, appointed as counsel de oficio. ATTY. DE LA CRUZ: For the accused, Your Honor appointed by the court as counsel de oficio.xxix[29] This obviously means that the appointment had taken place earlier. The trial courts order xxx[30] of 22 December 1994 states that said de oficio counsel were duly appointed by the Court with the consent of the accused. Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. xxxi[31] In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 xxxii[32] of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him.xxxiii[33] It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. xxxiv[34] In U.S. v. Labial,xxxv[35] this Court held: Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of Section 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. While in People v. Mirandaxxxvi[36] this Court explicitly stated: However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court.

This precise issue was determined in United States v. Labial (27 Phil., 87,88), in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. *** If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly. (United States vs. Labial, supra.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. xxxvii[37] Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsels extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform of his right to counsel. xxxviii[38] The cases of People v. Domendenxxxix[39] and People v. Cacheroxl[40] cited by appellant are inapplicable. In both casis the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their prearraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellants right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: Sec. 9. Time to prepare for trial. -- After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. xli[41] Only when so demanded does denial thereof constitute reversible error and a ground for new trial. xlii[42] Further, such right may be waived, expressly or impliedly. xliii[43] In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorneys Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanils services were obtained pursuant to the law creating the Public Attorneys Office (PAO), formerly the Citizens Legal Assistance Office (CLAO).xliv[44] There is at all no showing that Atty. Temanil lacked the competence and skill to defend appellant. The latters contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has not yet interviewed [his] client, xlv[45] is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 oclock in the afternoon and both of them were already hungry, thus: ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of the trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 oclock in the afternoon and we are both hungry now. ATTY. TEMANIL: I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your Honor. xlvi[46] Neither is there merit in appellants claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDENs mother and sister Fedelina in sur-rebuttal; and (3) in not cross-examining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellants alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30-A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his

children were not renting the entire house, but merely a room, which could probably be the unit numbered 30-A referred to by EDEN. As to the presentation of EDENs mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDENs claim. Finally, contrary to appellants allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his cross-examination, it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the records some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. xlvii[47] He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the minds eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.xlviii[48] On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt. xlix[49] At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside within school premises, and inside a house where there are other occupants.l[50] In People v. Opena,li[51] rape was committed in a room occupied also by other persons. In the instant case, EDENs other companions in the room when she was molested by appellant were young girls who were all asleep. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victims and is therefore subjective, it must be viewed in light of the victims perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victims submission to the sexual act voluntary.lii[52]

In any event, in a rape committed by a father against his own daughter, as in this case, the formers moral ascendancy or influence over the latter substitutes for violence or intimidation.liii[53] Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. liv[54] Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion.lv[55] Neither does the fact that EDEN continued to live with appellant in the same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. Nor is there merit in the insistent claim that EDENs affidavit of desistance must have necessarily contradicted her previous testimony. We have earlier quoted if full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; lvi[56] and affidavits or recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. lvii[57] This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is Gods exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in cases of heinous crimes,lviii[58] hence the passage of R.A. No. 7659. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of P75,000.00 as damages, which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon the finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Martinez, JJ., concur.

i[1] People v. Ramos, 165 SCRA 400, 408 [1988] ii[2] See also People v. Matrimonio, 215 SCRA 613, 633 [1992]. iii[3] Original Record (OR), 121-133; Rollo, 76-88. Per Judge Julieto P. Tabiolo. iv[4] Entitled An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revisd
Penal Code, as Amended,Other Special Laws, and for Other Purposes. It took effect on 31 December 1993 (People v. Simon, 234 SCRA 555 [1994]) v[5] OR 11-12.

vi[6] Id., 1-2 vii[7] OR, 19. viii[8] Id., 32; TSN, 22 December 1994, 26. ix[9] Ibid., id., 3 x[10] TSN, 22 Dember 1994, 15. xi[11] TSN, 20 January 1995 xii[12] TSN, 9 February, 1995 xiii[13] TSN, January 1995; TSN, 9 February 1995, 1; TSN, 16 March 1995, 1; TSN, 24 March 1995, 1; TSN, 20 April
1995,1. xiv[14] Exhibit 1, OR, 95.

xv[15] Order of 16 March 1995, id., 72. xvi[16] Order of 17 March 1995, id., 82. xvii[17] OR, 122-123; Rollo, 77-78. xviii[18] TSN, 24 March 1995, 4, 12-13. xix[19] Id., 6-8 xx[20] TSN, 20 April 1995, 4-5 xxi[21] OR, 148-154 xxii[22] Id., 160-168 xxiii[23] id., 176-179 xxiv[24] Citing People v. Palicte, 27 January 1996 xxv[25] Citing People v. Manuel, 236 SCRA 545 [1994]. xxvi[26] Citing People v. Dusohan, 227 SCRA 87 [1993]. xxvii[27] Citing People v. Matrimonio, 215 SCRA 613 [1992]. xxviii[28] Citing People v. Mangulabnan, 200 SCRA 611 [1991]. xxix[29] TSN, 22 December 1994, 2. xxx[30] Id., 26. xxxi[31] Sections 3 (ff) and (m), respectively, Rule 131, Rules of Court. xxxii[32] The section provides:
Sec. 6. Duty of court to inform accused of his right to counsel Before arraignment, the court shall inform the accused of his right to counsel and shall ask him is he desires to have one. Unless the accused is allowed to defend himself in person, or he has employed counsel of his choice, the court must assign a counsel de oficio to defend him. xxxiii[33] People v. Holgado, 85 Phil. 752, 756 [1950]. VICENTE J. FRANCISCO, THE REVISED RULES OF COURT (CRIMINAL PROCEDURE) 559 (2d, 1969). xxxiv[34] U.S. v. Labial, 27 Phil. 82, 84 [1914]; U.S. v. Escalante, 36 Phil. 743, 746 [1917]. People v. Abuyen, 52 Phil. 722, 724 [1937]; People v. Miranda, 78 Phil. 418 [1947]; People v. Nang Kay, 88 Phil. 515, 517-518 [951]. xxxv[35] Supra note 34, at 84.

xxxvi[36] Supra note 34, at 419. xxxvii[37] TSN, 22 December 1994, 15-25. xxxviii[38] U.S. v. Escalante, supra note 34 at 746-747. xxxix[39] 73 Phil. 349 [1941]. xl[40] 73 Phil. 426 [1941]. xli[41] People v. Kagui Malasugui, 63 Phil. 221, 229 [1936]. xlii[42] People v. Mejares, 85 Phil. 727, 729 [1950]; Montilla v. Arellano, 89 Phil. 434, 437 [1951]; People v.
Nabaluna, 101 Phil. 402, 404-405 [1957]. xliii[43] People v. Moreno, 77 Phil. 548, 553-554 [1946], citing People v. Cruz, 54 Phil. 24, 28 [1929].

xliv[44] Integrated Reorganization Plan which was decreed into law by P.D. No. 1, dated 24 September 1972, and
by Letter of Implementation No. 4 dated 23 October 1972. The CLAO was renamed PAO by Sec. 14, Chapter 5, Title

III of Book IV of the 1987 Administration Code. xlv[45] TSN, 20 January 1994, 31.

xlvi[46] Id., 31. xlvii[47] People v. Conde, 322 Phil. 757, 766 [1996]. xlviii[48] People v. Delovino, 317 Phil. 741, 753 [1995], citing Creamer v. Bivert, 214 MO 473, 474 [1908] as cited
in M. FRANCES MCNAMARA, 2000 FAMOUS LEGAL QUOTATIONS 548 [1967]. xlix[49] People v. De Guzman, 188 SCRA 407, 410 [1990]; People v. De Leon, 245 SCRA 538, 546 [1995].

l[50] People v. Aragona, 138 SCRA 569, 580 [1985]; People v. Viray, 164 SCRA 135, 143 [1988]; People v. De los
Reyes, 203 SCRA 707, 723 [1991]. li[51] 102 SCRA 755 [1981].

lii[52] People v. Grefiel, 215 SCRA 596, 608, 609 [1992]; People v. Matrimonio, supra note 2, at 630; People v.
Pamor, 237 SCRA 462, 472 [1994]. liii[53] People v. Erardo, 127 SCRA 250 [1984]; People v. Lucas, 181 SCRA 316 [1990]; People v. Caballes, 199 SCRA 152 [1991]; People v. Matrimonio, supra note 2. liv[54] People v. Matrimonio, supra note 2.

lv[55] People v. Cabradilla, 133 SCRA 413, 418-419 [1984]; People v. Grefiel, supra note 54. lvi[56] People v. Marcelo, 223 SCRA 24, 37 [1993]; People v. Enciso, 223 SCRA 675, 686 [1993]. lvii[57] People v. Mangulabnan, 200 SCRA 611, 623 [1991]. lviii[58] Section 19(1), Article III, Constitution.