RULE 115 (f) To confront and cross-examine the witnesses against him at the

trial. Either party may utilize as part of its evidence the testimony
Rights of Accused
Section 1. Rights of accused at the trial. In all criminal
prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature and cause of the accusation against
him.
of a witness who is deceased, out of or can not with due diligence
be found in the Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial or
administrative, involving the same parties and subject matter, the
adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of
witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.

(c) To be present and defend in person and by counsel at every (i) To appeal in all cases allowed and in the manner prescribed by
stage of the proceedings, from arraignment to promulgation of the law. (1a)
judgment. The accused may, however, waive his presence at the
trial pursuant to the stipulations set forth in his bail, unless his
presence is specifically ordered by the court for purposes of
identification. The absence of the accused without justifiable cause
at the trial of which he had notice shall be considered a waiver of
his right to be present thereat. When an accused under custody
escapes, he shall be deemed to have waived his right to be present
on all subsequent trial dates until custody over him is regained.
Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly
protect his right without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-

examination on matters covered by direct examination. His silence
shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against

himself.

RULE 115 1

EN BANC
[G.R. No. L-6216. April 30, 1954.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. AMANDO
AUSTRIA, Defendant-Appellee.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Augusto M.
Luciano for Appellant.
Agripino Rabago for Appellee.
SYLLABUS
1. CRIMINAL PROCEDURE; INFORMATION. Where the information is not
merely defective but it does not charge any offense at all, technically speaking,
that information does not exist in contemplation of law.
2. ID.; ID.; DOUBLE JEOPARDY. If an information is dismissed and the accused
discharged on a demurrer, or on petition of the fiscal or the accused, or on the
courts own motion, because the information or complaint is either void or
fatally defective, or what amounts to the same thing, when it does not charge
the proper offense, such dismissal and the consequent discharge of the accused
is not a bar to his prosecution for the same offense.
3. ID.; ID.; VOID INFORMATION CAN NOT BE VALIDATED BY PRESENTING
EVIDENCE. It is true that the motion to quash was interposed by counsel for
RULE 115
the accused after the prosecution had presented its evidence and that a portion
of that evidence tended to prove that the weapon for which the accused was
prosecuted for illegal possession of firearm had been used in killing his victim in
the homicide case, to which evidence, as the record shows, the accused, or his
counsel, did not interpose any objection. This fact, however, cannot have the
effect of validating a void information, or of proving an offense which does not
legally exist.
DECISION
BAUTISTA ANGELO, J.:
Amando Austria was accused before the Court of First Instance of Ilocos Norte in
two separate information, one of murder and the other of illegal possession of
firearm. Because the weapon used by the accused in killing the deceased in the
crime of murder is the same unlicensed firearm for which he was charged in the
case for illegal possession of firearm, the two cases were tried jointly by
agreement of the parties and with the approval of the court.
After the prosecution had presented its evidence, counsel for the defense filed
an oral motion to dismiss the case for illegal possession of firearm on the ground
that the facts alleged in the information do not constitute an offense, invoking in
support thereof Republic Act No. 482 which exempts from criminal liability
persons found in possession of unlicensed firearms unless they are used or
carried in the person of the possessor. The court denied the motion. With this
denial, trial was resumed with the defense presenting its evidence in both cases.
And when the case were submitted for decision, the court convicted the accused
in the case of homicide but dismissed that for illegal possession of firearm on
the ground that the information does not charge an offense under Republic Act
No. 482.
Later, another information was filed against the accused also for illegal
possession of firearm where in it was alleged for the first time that the accused
carried the firearm in his person and used it in killing one Alejo Austria. Counsel
for the accused filed a written motion to quash this information pleading double
jeopardy in his behalf. This motion was denied by Judge Jose P. Flores, then
presiding the court but, on motion for reconsideration, Judge Antonio Belmonte,
2
who took over the court, sustained the motion to quash and dismissed the case
on the ground that if it be continued it would place the accused in double
jeopardy. Not satisfied with this order, the fiscal took the present appeal.
The issue posed in this appeal is: Is the dismissal of the information filed in the
first case for illegal possession of firearm against the accused a bar to a
subsequent prosecution for the same offense?
It should be noted that the court dismissed the first case for illegal possession of
firearm upon the sole ground that the information did not contain facts
sufficient to constitute an offense. Bear in mind that information was filed in
connection with Republic Act No. 482 which exempts from criminal liability
persons found in possession of unlicensed firearms unless the firearm is used or
carried in his person by the possessor. And we already held in a recent case that
in order that an information under that Act may be deemed sufficient it must
allege that the accused was using the unlicensed firearm or carrying it in his
person at the time he was caught by the authorities with the unlicensed weapon
(People v. Santos Lopez y Jacinto, * G.R. No. L-1603, November 29, 1947). And
these essential allegations not having been averred in the information, the court
rightly dismissed the case on the ground that the information did not allege
facts sufficient to constitute an offense.
With this background, it is evident that the plea of double jeopardy cannot be
entertained either under our rules or under our jurisprudence. Thus, section 9,
Rule 113, expressly provides that the dismissal of a case against the defendant
can only be considered as a bar to another prosecution for the same offense
when the case against him is dismissed "upon a valid complaint or information
or other formal charge sufficient in form and substance to sustain a conviction."
And elaborating on the scope of this provision, we find the following rulings: As
a general rule, one is not put in jeopardy if the information under which he is
tried is entirely void because it charges no offense at all known to law. (16 C.J.
sec. 379, p. 243; U.S. v. Balmori, 1 Phil., 660.) Accordingly, if an information is
dismissed and the accused discharged on a demurrer, or on petition of the fiscal
or the accused, or on the courts own motion because the information or
complaint is either void or fatally defective, or what amounts to the same thing,
when it does not charge the proper offense, such dismissal and the consequent
discharge of the accused is not a bar to his prosecution for the same offense.
(U.S. v. Montiel, 7 Phil., 272; People v. Nargatan, 48 Phil., 470; People v. Mirasol,
43 Phil., 860; 16 C.J., pp. 241-6; Hopt. v. Utah, 104 U.S., 631; Murphy v.
Massachusetts, 177 U.S., 155; U.S. v. Openheimer, 24 U.S., 85, 61 Law Ed. 161.)
RULE 115
It is true that the motion to quash was interposed by counsel for the accused
after the prosecution had presented its evidence and that a portion of that
evidence tended to prove that the weapon for which the accused was
prosecuted for illegal possession of firearm had been used in killing his victim in
the homicide case, to which evidence, as the record shows, the accused, or his
counsel, did not interpose any objection. This fact, however, cannot have the
effect of validating a void information, or of proving an offense which does not
legally exist. Such is the situation that obtains in the present case. The
information was not merely defective but it does not charge any offense at all.
Technically speaking, that information does not exist in contemplation of law.
We are not unmindful of the doctrine laid down in the cases of Serra v. Mortiga,
11 Phil., 762, U.S. v. Estraa, 16 Phil., 520, and United States v. Destrito and De
Ocampo, 23 Phil., 28, cited with approval in the case of People v. Abad Santos,
76 Phil., 744, wherein this court held that "Any defect in the accusation other
than that of lack of jurisdiction over the subject matter may be cured by good
and sufficient evidence introduced by the prosecution, and admitted by the trial
court, without any objection on the part of the defense, and the accused may be
legally convicted of the crime or offense intended to be charged and so
established by the evidence." But this doctrine does not apply to our case
because we are concerned here with an information which charges no offense at
all, and not with one which is merely defective.
The present case should be likened to one where, "When the offense proved is
more serious than, and includes the offense charged, as when the offense
charged is less serious physical injuries and the offense proved is serious physical
injuries the accused may be convicted of the former but not of the latter offense
of which he has not been informed." (U.S. v. De Guzman, 8 Phil., 21), or to the
rule which requires that "a qualifying circumstance which constitutes one of the
essential elements of the offense like alevosia in murder should be pleaded,
otherwise it should be considered merely as an aggravating circumstance if
proved (U.S. v. Campo, 23 Phil., 368). The philosophy behind this ruling is that an
accused cannot be convicted of a charge of which he has not been informed.
Wherefore, the order appealed from is set aside, and the case is remanded to
the lower court for further proceedings, without costs.
Pablo, Bengzon, Jugo and Concepcion, JJ., concur.
3

Reyes, J., concurs in the result.
Separate Opinions
PARAS, C.J., dissenting:
The defendant-appellee was charged in the Court of First Instance of Ilocos
Norte with the crime of illegal possession of firearm under Republic Act No. 482,
in an information which failed to allege that the firearm was used by or carried
in the person of the appellee. After the prosecution had presented its evidence
tending to show that the firearm had been used by the appellee in killing one
Alejo Austria, to which evidence the appellee or his counsel did not interpose
any objection, a motion to quash was filed on the ground that the information
did not contain facts sufficient to constitute an offense, in that it failed to allege
that the firearm was used or carried by the appellee. This motion was denied
and the defense accordingly presented its evidence. The court thereafter
rendered a decision dismissing the information for the reason that it did not
charge an offense under Republic Act No. 482.
Subsequently another information was filed against the appellee for the same
illegal possession of firearm, it being now alleged that he carried said firearm in
his person and used it in killing Alejo Austria. Counsel for the appellee filed a
written motion to quash, based on double jeopardy. This was denied by the then
presiding Judge Jose P. Flores but, on motion for reconsideration, the next
presiding Judge, Antonio Belmonte, sustained the motion and dismissed the
case on the ground invoked by the appellee. The fiscal has appealed.
I am of the considered opinion that the appealed order is correct. The
information in the first case was valid, although fatally defective for failing to
allege an essential element of the crime of illegal possession of firearm; but as
said fatal defect was supplied by necessary evidence during the trial; without
objection on the part of the defense, the court below could have rendered a
judgment of conviction against the appellee. As already held in People v. Abad
Santos, 76 Phil., 744, "any defect in the accusation other than that of lack of
jurisdiction over the subject matter may be cured by good and sufficient
evidence introduced by the prosecution, and admitted by the trial court,
without any objection on the part of the defense, and the accused may be
legally convicted of the crime or offense intended to be charged and so
RULE 115
established by the evidence." This Court cited with approval the decision in U.S.
v. Estraa, 16 Phil., 520, in which the accused was prosecuted for the crime of
perjury in an information which failed to allege that the false testimony involved
was material, this allegation being an essential element of the crime of perjury
under section 3 of Act No. 1687; but as no objection to the sufficiency of the
complaint was raised during the trial, this Court held that the fatal defect could
have been supplied by competent testimony. To quote:
The complaint in the case at bar is fatally defective for the want of an allegation
that the testimony, alleged to be false, was material to the issues involved in the
murder case. Our statute (section 3 of Act No. 1687, supra) specifically makes
materiality an essential element of the crime of perjury and without this the
crime can not legal]y exist. As no objection to the sufficiency of the complaint
was raised this fatal defect could have been supplied by competent testimony on
the trial. (United States v. Estraa, 16 Phil., 520, 529.)
The case at bar is on all fours with the case of U.S. v. Estraa, in that in both
cases the information failed to allege an essential element of the offenses
respectively charged therein: in the first, that the appellee carried or used the
firearm; and in the second, that the alleged false testimony was material.
I vote, therefore, for the dismissal of the appeal.
Montemayor, J., concurs.
LABRADOR, J.:
I concur in the dissent of Chief Justice Paras. The grounds upon which the
majority decision are based are too technical to subserve the ends of justice.
4

G.R. No. L-6216 (April 30, 1954) PEOPLE VS AUSTRIA
FACTS:
Amando Austria was accused before the CFI of Ilocos Norte in two
separate information, one of murder and the other of illegal possession of
firearm.Because the weapon used by the accused in killing the deceased
in the crime of murder is the same unlicensed firearm for which he was
charged in the case for illegal possession of firearm, the two cases were
tried jointly by agreement of the parties and with the approval of the court.
So, the court "CFI convicted the accused in the case of homicide but
dismissed that for illegal possession of firearm on the ground that the
information does not charge an offense under Republic Act No. 482,
which exempts from criminal liability persons found in possession
of unlicensed firearms unless they are used or carried in the person
of the possessor.
Later, another information was filed against the accused also for illegal
possession of firearm for killing Alejo Austria. Counsel for the accused
filed a written motion to quash this information pleading double jeopardy
in his behalf. This motion was denied by Judge Jose P. Flores because
the essential allegations to prove that the accused violated Republic Act
482 were not averred in the information.
Upon filing of the motion for consideration, Judge Antonio Belmonte,
dismissed the case on the ground that if it be continued it would place the
accused in double jeopardy. Not satisfied with this order, the fiscal took
the present appeal.
ISSUE:
1. Is the dismissal of the information filed in the first case for illegal
possession of firearm against the accused a bar to a subsequent
prosecution for the same offense. (DOUBLE JEOPARDY)
RULE 115
2. Is a void information can be validated by presenting evidence?
RULING:
1. No. It should be noted that the court dismissed the first case for illegal
possession of firearm because the information did not contain essential
facts sufficient to constitute an offense in connection with Republic Act
No. 482. For the information under that Act may be deemed
sufficient, it must allege that the accused was using the unlicensed
firearm or carrying it in his person at the time he was caught by the
authorities with the unlicensed weapon.
Section 9, Rule 113, expressly provides that the dismissal of a case
against the defendant can only be considered as a bar to another
prosecution for the same offense when the case against him is dismissed
"upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction."
As a general rule, one is not put in jeopardy if the information under which he
is tried is entirely void because it charges no offense at all known to law.
Accordingly, if an information is dismissed and the accused discharged on a
demurrer, or on petition of the fiscal or the accused, or on the courts own
motion because the information or complaint is either void or fatally defective,
or what amounts to the same thing, when it does not charge the proper
offense, such dismissal and the consequent discharge of the accused is not a
bar to his prosecution for the same offense.
2. No, a void information cannot be validated by presenting evidence. It is true
that the motion to quash was interposed by counsel for the accused after the
prosecution had presented its evidence and that a portion of that evidence
tended to prove that the weapon for which the accused was prosecuted for
illegal possession of firearm had been used in killing his victim in the homicide
case, to which evidence, as the record shows, the accused, or his counsel, did
not interpose any objection. This fact, however, cannot have the effect of
validating a void information, or of proving an offense which does not legally
exist.
5

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-43833 November 28, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SOTERO NAVARRETE Y LUCERO, defendant-appellant.
MAKASIAR, J.:
Sotero Navarrete was charged on September 5, 1972 before the
Court of First Instance of Manila, for having raped his own
daughter, Elizabeth Navarrete, allegedly committed as follows:
That sometime in the third week of August, 1972, in the City of
Manila, Philippines, the said accused, by means of force and
intimidation to wit: by then and there pulling the arms of Elizabeth
Navarrete y de Guia, taking off her clothes and panty, forcibly
laying her on bed and touching and kissing her private parts,
threatening to kill her with a sharp pointed instrument should she
resist, did then and there willfully, unlawfully and feloniously have
sexual intercourse with said Elizabeth Navarrete y de Guia, against
her will and consent.
Contrary to law (Exh, C, p. 1, Folder of Exhibits).
RULE 115
Upon arraignment on September 15, 1972, the accused entered a
plea of "not guilty."
The Trial court, presided then by Honorable Juan L. Bocar, after
due trial, rendered its judgment on February 13, 1973, the
dispositive portion of which is worded thus:
WHEREFORE, the Court renders judgment finding the accused
guilty of the crime of rape and sentences him to suffer
imprisonment of not less than twelve (12) years of prision mayor as
minimum and twenty (20) years of reclusion temporal as maximum
and to indemnify the offended party in the amount of P10,000.00
without subsidiary imprisonment in case of insolvency and to pay
the costs (p. 13, rec.).
From this judgment, the accused Sotero Navarrete inter-posed an
appeal to the Court of Appeals. On May 3, 1976, the Court of
Appeals rendered a decision which reads in part as follows:
We find that the guilt of the appellant has been established beyond
reasonable doubt.
Article 335 imposes the penalty of reclusion perpetua for rape.
Under Section 34 of the Judiciary Act, this Court has no jurisdiction
to impose this penalty.
WHEREFORE, let the entire record of this case be elevated to the
Supreme Court for final determination. The Clerk of Court is
hereby directed to certify the case immediately to the Supreme
Court (p. 113, rec.).
In accordance with the aforequoted decision of the Court of
Appeals, the case was certified to this Court and the same was
submitted for decision on May 26, 1976.
6
 I this Court on May 3, 1976, before the ruling in the case of People
It must be noted at the outset that in the case of People vs.
Daniel (L-40330, 86 SCRA 511, November 20, 1978), the Supreme
Court, through the late Chief Justice Fred Ruiz Castro, declared
that:
... Henceforth, should the Court of Appeals be of the opinion that
the penalty of death or reclusion perpetua (life
imprisonment) should be imposed in any criminal case appealed to
it where the penalty imposed by the trial court is less than reclusion
perpetua, the said court, with a comprehensive written analysis of
the evidence and discussion of the law involved, render judgment
expressly and explicitly imposing the penalty of either death or
reclusion perpetua as the circumstances warrant, refrain from
entering judgment, and forthwith certify the case and elevate the
entire record thereof to this court for review (emphasis supplied).
In that case, the trial court imposed a penalty of reclusion
temporal on the accused for the crime of rape. The Court of
Appeals, however, recommended that the penalty of reclusion
perpetua should be imposed and certified the case to this Court.
The accused was sentenced to suffer the penalty of reclusion
perpetua by this Court.
In the instant case, the Court of Appeals in its decision dated May
3, 1976, affirmed the decision of the trial court finding the accused
guilty of the crime charged but certified the case to this Court with
the recommendation that the penalty of reclusion perpetua be
imposed. The case was submitted for decision on May 26, 1976.
While the decision of the Court of Appeals is not in consonance
with the procedural ruling of this Tribunal in People vs. Daniel,
nevertheless We assume jurisdiction rather than demand the case to
the Court of Appeals because the case was decided and certified to
RULE 115
vs. Daniel was made interpreting Section 34 of the Judiciary Act.
Besides, this would avoid the unnecessary and time-wasting
shuttling of the case between the Supreme Court and the Court of
Appeals especially so if the right of the accused to speedy trial is to
be considered.
The ruling in People vs. Daniel should therefore be given
prospective effect so that beginning November 20, 1978, should the
Court of Appeals in criminal cases pending before it be of the
opinion that the penalty of death orreclusion perpetua should be
imposed where the penalty meted by the trial court is less
than reclusion perpetua, it should follow the directive of this Court
in the Daniel case as aforequoted. On the other hand, those certified
criminal cases already pending decision before this Court, like the
present case, at the time People vs. Daniel was decided on
November 20, 1978, should be outrightly decided, rather than
remanded to the Court of Appeals.
(Note: However, in People vs. Traya [89 SCRA 274 (1979)], a
certified criminal case, decided on March 30, 1979, per Justice
Guerrero, this Court [1st Division], invoking the directive
in People vs. Daniel, remanded the case to the Court of Appeals for
rendition of the proper judgment. In that case, the trial court
imposed a penalty of reclusion temporal On appeal, the Court of
Appeals, believing that the penalty should be reclusion
perpetua, refrained from rendering judgment and certified the case
to this Court. As per records, the case was certified by the Court of
Appeals on April 3, 1978 and submitted for decision on April 12,
1978; hence before the directive in the Daniel case).
II
The evidence for the prosecution consisted of the testimonies of
Elizabeth Navarrete the rape victim Caridad de Guia, the mother
7
of the victim, Pat Vifedio Guillen, and Dr. Abelardo V. Lucero, the
Medico-Legal Officer, and Exhibits "A", the crime report; "A-1",
the booking sheet and arrest report; "A-2", the sworn statement of
Elizabeth Navarrete; "B", medical certificate issued by Dr.
Abelardo Lucero; "C". complaint signed by Elizabeth Navarrete;
"C-1", the signature of Elizabeth Navarrete appearing on the
complaint "C-2", the signature of Fiscal Leonardo L. Arguelles
before whom the complaint was sworn by the victim; "D", the
Medico Legal report of Dr. Abelardo Lucero; "E", the marriage
contract of Sotero Navarrete and Caridad de Guia; and "E-1", the
marriage license. The evidence for the defense rested mainly on the
testimony of the accused, Sotero Navarrete.
From the evidence, it appears that Elizabeth Navarrete is the
daughter of the accused, Sotero Navarrete and his wife, Caridad de
Guia. Elizabeth, who was a first year high school student, was only
15 years old when she became the victim of the crime alleged in the
complaint. At the time of her birth, her parents were merely living
together in common-law relationship although they subsequently
got married on November 20, 1957 (Exh. "E", p. 36, Folder of
Exhibits). Sometime in 1959, two years after their marriage,
Elizabeth's parents separated. Her mother was then pregnant and
later gave birth to her other sister, Emma Navarrete. Thereafter,
Elizabeth and her sister lived with their mother at 310 Antipolo
Street, Sampaloc Manila, while their father, the accused, lived
somewhere in Balic-Balic, Sampaloc, sometimes with his friends
and sometimes with his parents (pp. 9-11, 13, t.s.n., Nov. 3, 1972;
p. 10, t.s.n., Nov. 10, 1972). It appears also that the accused was
convicted of homicide sometime in 1959, for which he was
imprisoned for eleven (11) years [pp. 8-9, t.s.n., Dec. 8, 1972; p. 3,
t.s.n. Jan. 29, 1973]. When he was released from prison in 1970 (p.
8, t.s.n., Dec. 8,1972), he discovered that his wife was living with
another man (p. 4, t.s.n., Jan. 29, 1973), but this notwithstanding,
he occasionally visited his two daughters, E Elizabeth and Emma
(pp. 11, 13, t.s.n. November 3, 1972).
RULE 115
The evidence further revealed that in one of his visits which took
place on or about the third week of August, 1972, the accused
invited his daughter Elizabeth to a birthday party somewhere in
Loreto Street: Sampaloc, Elizabeth gladly accepted the invitation
and willingly went with her father, unmindful of his evil designs.
They rode in a passenger jeepney but they did not go down in
Loreto Street and instead proceeded to Quiapo. Upon reaching their
destination, they got off the jeepney and the accused brought his
daughter to the New Star Hotel in Quiapo. When asked why they
were entering that hotel, the accused told his daughter that he was
going to fetch a friend who is waiting for him and who will also
attend the party. Believing her father, Elizabeth followed him in
going up the stairs inside the hotel. Then the accused paid a
Chinese woman after which he entered a room and asked his
daughter to come inside. Once inside, Elizabeth asked her father
why they were there. She also asked him about his friend whom he
was going to fetch. Her father did not say anything but simply
laughed. After closing the door, the accused started to remove his
clothes. At this point, Elizabeth became apprehensive already.
When the accused had removed his clothes, he approached
Elizabeth and told her to undress but she refused to do so. The
accused became angry and threatened to kill her, her sister and
mother if she did not do as she was told. Then the accused held her
arms and pulled her towards the bed and removed her dress.
Elizabeth cried and she lost her strength and composure. The
accused fondled her body and kissed her cheek, neck, breast and
her private parts. She struggled and resisted her father's advances
but she could not do anything because he was holding her hands.
Elizabeth just kept on crying. He succeeded in having sexual
intercourse with his daughter and she felt pain in her private parts.
Soon thereafter, he withdrew his private part from hers when she
continued to cry. Then both of them dressed up without talking to
each other and the accused brought his daughter back home.
Elizabeth narrated the harrowing incident to her aunt, Estrelia
Navarrete, the next day. Her aunt, who is a half-sister of her father
8
and only 16 years old, could only shake her head. Elizabeth asked
for advice but her aunt was also afraid because the same thing
might happen to her (pp. 13-17, t.s.n., Nov. 3, 1972; pp. 3-6, t.s.n.,
Dec. 4, 1972).
The accused visited Elizabeth on August 28, 1972 at about 6:00
o'clock in the evening to ask if she had informed anybody about the
incident at the hotel and she answered in the negative. The accused
came again the next day at about 5:30 in the afternoon to inform
Elizabeth that he was going to rent a room so that he will not pay
anymore for a hotel room. In the afternoon of the following day, the
accused came back to tell his daughter that he had rented a place
near the Balic-Balic church and invited her. He threatened his
daughter that something drastic will happen to her if she will not
come to his place. That same afternoon, Elizabeth and her sister,
Emma, went to the aforesaid place accompanied by the accused.
Arriving at the place, the accused and his two daughters cleaned the
surroundings. Afterwards, he brought them home and asked them to
come again on the 31st of August (pp. 18-20. t.s.n., Nov. 3, 1972).
At about 10:30 in the evening of August 31, 1972, the accused
fetched his two daughters and brought them to his place. When the
two were already asleep, Elizabeth was awakened by her father as
he was getting up and later she felt that he was inserting his hand
inside her T-shirt. She stood up and her father told her that he was
again feeling the sex urge. The accused held her by the arm and
pulled her to a wooden bed. He undressed himself and Elizabeth
started to cry knowing what her father would do to her again. Then
the accused removed the T-shirt and underwear of his daughter.
Thereafter, he held her hands and placed himself on top of her and
succeeded in having sexual intercourse. Elizabeth tried to resist by
closing her legs but the accused was able to open her legs by means
of his legs also, Moreover, she could not do anything because she
was afraid of the knife that was shown to her by the accused and
placed on top of the table. Elizabeth just kept on crying throughout
RULE 115
her ordeal. After satisfying his lust, the accused fell asleep and
Elizabeth dressed up and waited for morning. That following
morning, Elizabeth and her sister were able to go home (pp. 20-23,
t.s.n., Nov. 3, 1972).
The accused invited Elizabeth again to his place and succeeded in
abusing her in the afternoon of September 1, 1972. As in the
previous occasion, she went to his place because she was told that
something drastic would happen to her if she did not come.
Subsequently, on September 3, 1972 at about 6:00 o'clock in the
evening, the accused came and asked his daughter to go to his place
but she refused. He became mad and left. At about 1:00 o'clock in
the early morning of September 4, 1972, he returned drunk and
with a companion. The accused asked Elizabeth why she did not
like to sleep anymore in his place. She told him that she was
already having difficulty or moral conflict because of what he was
doing to her. But he told his daughter that he would come and drag
her to this place if she did not come at about 8:30 in the evening of
that day. Then Elizabeth started crying. Her mother noticed her but
did not talk to her at that moment. When morning came, her mother
asked her why she was crying and she finally narrated what her
father did to her. Upon learning what happened, her mother became
sad and declared that if it were not only a sin she would kill the
accused. In the afternoon of that day, September 4, 1972, Elizabeth
and her mother went to Police Precinct No. 3 to file a complaint.
Elizabeth gave her statement in writing (pp. 23-26, t.s.n., November
3, 1972). She was later physically examined by Dr. Abelardo
Lucero, Medico-Legal Officer, who submitted his findings, as
follows:
xxx xxx xxx
(2) Newly healed laceration in the hymen at 6:00 o'clock position.
The edges are thin and reversible.
9
(3) Introitus vagina admits one adult finger easily but could hardly A He told me if I will 'not do as I tell you,' he will be going to kill
admit 2 fingers (Exhs. "B", "D", pp. 35, 20, Folder of Exhibits). me and also my sister and my mother.

The appellant, in his brief filed by his counsel de officio, Atty. Q At the time he said this, do you know whether he was holding
Virgilio S. Castro, alleged that the trial court committed an error in anything?
finding him guilty of the crime of rape.
A No, sir.
There is no question that the appellant had carnal knowledge with
his daughter, Elizabeth Navarrete; but in avoidance, he claims that Q Now what did you do after your father gave or made this threat
there was no force or intimidation employed and therefore he is not to you and your family?
guilty of the crime charged.
A He held me by the arm and pulled me.
The contention of the appellant does not find support in the
evidence on record. There is sufficient evidence to establish the fact Q To what direction or place were you pulled you father?
that the accused employed force in having sexual intercourse with
his daughter. The offended daughter testified in direct examination A To the bed.
as to the manner the sexual intercourse was consummated and the
pertinent portions of her testimony are quoted below: Q And what happened to you when your father pulled you towards
the bed?
xxx xxx xxx
A He forced me.
Q After your father had removed his clothings what happened next?
Q What do you mean. Will you tell the Court what you mean by
A He asked me to undress. your father forcing you?

Q What did you tell your father when he asked you to do this? A He undressed me. He removed my clothes.

A I refused to undress. Q While your father was undressing you, what did you tell him, if
you told him anything?
Q When you refused to undress, will you tell the Court what your
father did? A I was crying.

A He became angry. Q Did you not ask why he was doing this to you'?

Q Did he say anything when he became mad'? ATTY. GAPUZ

RULE 115 10
Very leading. A He was holding my body, my hands.

COURT Q And what followed next after he was holding your two arms?

The witness may answer. A He was able to succeed his desire.

WITNESS FISCAL

A I lost my composure. Q Please tell the Court how he was able to get what he wanted'.

FISCAL A He forced me.

Q What happened after this? Q How did he force you; in what manner?

A Then he started fondling my body. A He hold my two hands and then he inserted his private part on
mine.
Q When your father was doing this, to you, were you already
undressed? Q Will you tell the Court how he was able to do this when at the
time you had still your clothes on?
A I am still dressed.
A He removed my clothes.
Q What were you doing at the time when he was as you said
fondling your body? Q And after he was able to remove your clothes, what else did your
father do to you?
A Nothing.
A He kissed me.
Q Then what happened next?
Q In what part of the body were you kissed?
A I was struggling.
A On the cheek; on the neck; and then on the breast, and then on
Q Why were you struggling? my private part.

A Because I don't like what he was doing. Q When your father was doing these things to you, will you tell the
Court what you did, if any?
Q Why, what was your father doing when you were struggling?

RULE 115 11
A I was crying.
Q Did you tell him anything?
A None, sir.
Q Will you tell the Court why you were not able to say anything
while your father was doing these things to you?
A Because I lost my composure.
Q Now after your father had done those things that you said to the
Court of caressing you in the different parts of your body, what did
he do next?
A When he saw me crying, he removed his private part from mine,
FISCAL
I would ask, your Honor, that the question be repeated to the
witness, because the (answer) is not responsive.
Q After your father had kissed you on different parts of your body, I
ask you what did he do to you?
A He inserted his private part on mine.
Q And at the time that you said you felt the pain in your private
part, will you tell the Court what was the position of your father?
A He was on top of me.
Q Now as you said when your father saw you crying, he stood up
and removed his private part from your organ. What did you do
when he did this?
RULE 115
A He dressed up and I also dressed up.
Q Did you notice anything on your private part as you were crying?
A None, sir.
Q Was there blood?
A There was.
Q Was there any conversation that transpired at the time that you
were dressing and your father was dressing too?
WITNESS
A No, sir (pp. 15-17, t.s.n., November 3, 1972).
From the foregoing testimony, it can be gleaned that there was an
appreciable degree of force employed by the appellant upon his
daughter. It appears that the appellant did not rebut in the court
below the testimony of his daughter because he denied having
committed the act imputed to him. He did not, therefore, deem it
necessary to present at the trial any evidence at all to show that the
act of sexual intercourse was voluntary on the part of his daughter.
On appeal, however, the appellant apparently has abandoned the
defense of denial interposed by him in the court below, and now
impliedly admits having had sexual intercourse with his own
daughter; but he contends that the prosecution has not shown
satisfactorily that the same was done through force or intimidation.
Not having presented any evidence that the act of sexual
intercourse was voluntary, the unrebutted and uncontradicted
testimony of the offended daughter now assumes more weight and
importance and to which We give full credence. This sudden
change of attitude on the part of the appellant militates against his
claim of innocence.
12
Moreover, the fact of sexual intercourse was substantially
corroborated by the medical report and testimony of Dr. Abelardo
Lucero who examined the offended party and found a newly healed
lacerated hymen. He opined that the offended party could have had
sexual intercourse with a man sometime during the month of
August up to September 1, 1972 as alleged by her (pp. 29-31, t.s.n.,
Nov. 3, 1972).
It must be emphasized also that considering the relationship
between father and daughter, the degree of force or intimidation
need not be the same as in other cases of rape where the parties
involved have no relationship at all with each other; because the
father exercises strong moral and physical control over his
daughter. As correctly stated by the Court of Appeals in its May 3,
1976 decision certifying the case to Us, "indeed the kind of force
and intimidation as between father and daughter need not be of
such nature and degree as would be required in cases where the
parties have no family relationship at all" (p. 5, C.A. decision, p.
111, rec.). And appellant admitted that "the relationship between the
complainant and the appellant herein has ample importance to show
that there was some kind of moral pressure on the complainant" (p.
21, Appellant's Brief; p. 72, rec.). Likewise, this Court has ruled
that: "The force or violence necessary in rape is naturally a relative
term, depending on the age, size and strength of the parties and
their relation to each other" (People vs. Daniel, L-40330, 86,
SCRA 511, 529, Nov. 20, 1978; People vs. Sarile, 71 SCRA 593, 58
[1976]; People vs. Savellano, 57 SCRA 320, 328 [1974], citing 75
C.J.S 475; emphasis supplied).
The claim of the appellant that his daughter practically submitted
herself to him is hard to believe, for no daughter in her right mind
would voluntarily submit herself to her own father unless there was
force or intimidation, as a sexual act between father and daughter is
so revolting. It must be noted that appellant himself admitted that
RULE 115
consent was not previously given by the offended party to the
sexual intercourse (p. 17, Appellant's Brief: p. 68, rec.).
While it may be true that the resistance established in evidence by
the prosecution may be wanting in comparison with the resistance
offered by victims in other rape cases that have reached this Court,
the fact is, there was resistance, and such, for purposes of this case,
is sufficient to qualify the sexual act as rape, considering that the
offender is her own father, whose ruthless assertion of parental
authority accompanied by threats subjugated her will to resist. As
aptly observed by the Solicitor General: "In the present case,
Elizabeth was not only afraid of her father. She must have also been
shocked into submission by an experience that was unnatural and
uncommon and certainly not normally supposed to happen to
persons so closely related" (p. 9, Brief for the Appellee; p. 100,
rec.).
In addition, in a crime of rape, it is not necessary that the force used
by the accused upon the victim be irresistible. What is important is
that through force, the accused is able to accomplish his evil design.
In the instant case, the appellant succeeded in the consummation of
the sexual act against the will of the victim and in spite of her
resistance. As We have repeatedly declared:
It is a doctrine well established by the courts that in order to
consider the existence of the crime of rape it is not necessary that
the force employed in accomplishing it be so great or of such
character as could not be resisted; it is only necessary that the force
used by the guilty party be sufficient to consummate the purpose
which he had in view (People vs. Daniel, supra; People vs.
Sarile, supra; People vs. Savellano, supra, citing United States vs.
Villarosa, 4 Phil. 434 L-1905]).
Along the same line, this Court has held that: "When force is an
element of the crime of rape, it need not be irresistible; it need but
13
be present, and so long as it brings about the desired result, all
consideration of whether it was more or less irresistible is beside
the point" (People vs. Daniel, supra; People vs. Sarile supra, citing
People vs. Momo 56 Phil. 86, 87 [1931]).
It must also be noted that the offended party was intimidated by the
threat of the appellant to kill her, her mother and sister and create a
real fear in her mind considering that the offended was an ex-
convict and she was just an immature teenager, let alone the fact
that the offender is her own father. This fear weakened whatever
resistance she could muster at the time of the assault. It has been
held that: "Rape is likewise committed when intimidation is used
on the victim and the latter submits herself against her will because
of fear for her life and personal safety" (People vs.
Daniel, supra; People vs. Garcines, 57 SCRA 653 [1974]). And it is
an accepted rule that: "Force or violence threatened for the purpose
of preventing or overcoming resistance, if of such character as to
create real apprehension of dangerous consequences or serious
bodily harm or such as in any manner to overpower the mind of the
victim so that she does not resist, is in all respects equivalent to
physical force actually exerted for the same purpose" (People vs.
Gan, 46 SCRA 667, 677 [1904]).
Furthermore, women may have different reactions when confronted
with such heinous act. Some would probably fight, while others
inay assume a silent and fearful attitude because not all women are
of the same mettle (People vs. Olden, 47 SCRA 45,52 [1972]).
The appellant attempted to exculpate himself by showing that his
daughter Elizabeth might have denounced him as the perpetrator of
a very serious crime committed upon her person because he told her
that he would take her and her sister Emma away from their mother
(p. 6, t.s.n.. Jan. 29, 1972). The motive alleged is not strong enough
to make a fifteen-year-old girl with a fair degree of education, like
Elizabeth who is a high school student, invent a charge that would
RULE 115
only bring shame and humiliation upon her and her family and
make her an object of gossip among her classmates and friends. It
cannot be denied that she commenced the present case, impelled by
the enormity of the crime and solely for the purpose of stating the
truth.
Counsel for the appellant also presents a starting allegation in his
brief, thus:
..., the acts of the herein appellant and his daughter, complainant
herein, can be ascribed to the permissive character of the times and
the circumstances which surround their own society. It must be
noted that appellant had spent already the substantial portion of his
life in jail for a previous crime. His moral education was molded by
an abnormal atmosphere. His hunger of the loins is stronger than
his moral self-control, if he has any. While the complainant herein,
in submitting herself freely to the will of appellant as one is wont to
believe, can be best explained by her own parents morality where
from she derives her own and which she has been subjected. It
cannot be expected therefore that the moral standard to which a free
society imposed on its members can be applicable to appellant and
his daughter (pp. 23-24, Appellant's Brief; pp. 74-75, rec.).
Such an allegation is unwarranted under the circumstances and it is
a disgrace to the Bar and an affront to this Court. A lawyer's
language should be dignified in keeping with the dignity of the
legal profession. He should therefore be warned for making such
cavalier statements.
The records further disclose that the information charges only one
crime of rape committed sometime in the third week of August.
However, the evidence presented by the prosecution established
two other separate sexual intercourses on two subsequent dates.
14
An accused cannot be convicted of an offense not charged or
included in the information because the Constitution guarantees
that: "In all criminal prosecutions, the accused ... shall enjoy the
right ... to be informed of the nature and cause of the accusation
against him ..." (Section 19, Art. IV, Bill of Rights, 1973
Constitution). Likewise, "... it matters not how conclusive and
convincing the evidence of guilt may be, an accused person cannot
be convicted in the courts of these Islands of any offense, unless it
is charged in the complaint or information on which he is tried, or
necessarily included therein. He has a right to be informed as to the
nature of the offense with which he is charged before he is put on
trial ..." (Matilde, Jr. vs. Jabson, 68 SCRA 456, 461 [1975], citing
U.S. vs. Campo, 23 Phil. 396 [1912]). Consequently, the appellant
herein may only be convicted of one crime of rape. In the case at
bar, the offended girl is a daughter of the appellant, and because of
the nature of the crime, this relationship is an aggravating
circumstance in accordance with Article 15 of the Revised Penal
Code.

WHEREFORE, WE HEREBY FIND APPELLANT SOTERO

NAVARRETE GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF RAPE AND HEREBY SENTENCE HIM TO
SUFFER THE PENALTY OF RECLUSION PERPETUA, TO
INDEMNIFY THE OFFENDED PARTY IN THE AMOUNT OF
P12,000.00 AND TO PAY THE COSTS.

SO ORDERED.

RULE 115 15