Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 122097 June 22, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-Appellee, vs. FERMIN IGAT, accused-appellant. BELLOSILLO, J.: FERMIN IGAT, adjudge guilty of raping his 14-year old daughter, was sentenced to reclusion perpetua and ordered to indemnify her the sum of P50,000.00. 1 He now interposes this appeal from his conviction. 2 Accused-appellant anchors his appeal for reversal of the judgment against him on the theory that the prosecution failed to establish his guilt with the quantum of proof required to overcome the constitutional presumption of innocence in his favor. Alternatively, he proposes that should his conviction be sustained Art. 27 of the Revised Penal Code be applied to him so that the reclusion perpetua imposed on him will have a duration of twenty (20 years and one (1) day to forty (40) years. The facts: On 10 December 1990, between 6:30 and 7:00 o'clock in the evening, after Gresilda finished supper with her parents at Bry. Dangkalan, Molinao, Aklan, her brother Richard arrived from a basketball game at nearby Brgy. Malandayon. He went straight to the kitchen and took his supper. While he was eating Richard was scolded by his father for coming late. Openiana, wife of Fermin and mother of Richard, took up the cudgels for her son. She told Fermin that Richard was already old enough to play basketball at his pleasure. Fermin resented her intervention. He got his bolo and sent Openiana and Richard scampering away. Richard spent the night at an aunt's place in Liloan, Malinao, Aklan, while Openiana went into hiding elsewhere and returned home only the following morning. Meanwhile, during the exchanges between her parents, Gresilda retired to her room. A little later, after the noise had subsided and Gresilda had fallen asleep, she was suddenly awakened by someone mashing her body, particularly her breasts an sexual organ. Since it was dark she could only meekly ask who it was and the reply came in a familiar voice, "I, ne." It was her father. Gresilda was dumb-founded. She could not do anything. Her father threatened to kill her if she made any false move. He covered her mouth with one hand and continued to mash her sensitive parts with his other hand. In no time, he removed her panties and placed himself on top of her. With his libido now approaching its threshold, if not precisely because of it, he sexually assaulted his daughter. Initially, he did not succeed; however, in due time, he was able to consummate the act with her who later claimed she suffered as a result excruciating pain in her vagina and abdomen. After satisfying his lust, the accused warned Gresilda never to squeal or he would kill her, together with her mother, brothers and sisters, if she disobeyed.

Left alone, sore and sorry, Gresilda put on her panties, now torn as a consequence of her misfortune. She remained pensive in her room. The next morning, Gresilda noticed blood in her underwear, or what's left of it, so she changed it. She saw her father wash her torn panties afterwards. She absented herself from school because she was in pain and her gait was impaired. When her mother returned home Gresilda refrained from narrating to her the bestial acts to her by her father. On 13 December 1990 Gresilda attended her classes but spoke nothing about the incident to her schoolmates. She did not report the matter to the police either. On 12 January 1991 Gresilda was raped again by her father but she still remained mum about as she was afraid of him. She had a sigh of relief however on 26 April 1991 when, without knowing what happened, her sister Teresa went to fetch her in Brgy. Dangkalan for a vacation in Manila. They left that same day for Brgy. Dumga, Makato, Aklan, where they stayed for two (2) days at the house of a certain Junior Trasmil before proceeding to Manila on 28 April 1991 aboard "M/V Doa Fatima" with Trasmil and one Jun dela Cruz. While at sea and unable to contain herself any further, Gresilda finally revealed to her sister what their father did to her. Upon reaching Manila, Gresilda and Teresa conferred with their eldest sister Susan and their aunt Bernardita Igat on what to do with their father. On May 1991 Teresa and Gresilda decided to return to Aklan to charge him in court. On 8 May 1991 Gresilda had herself physically examined by Dr. Simeon A. Arce, Jr., of the Dr. Rafael S. Tumbokon Memorial Hospital. His medico-legal report was attached to her criminal complaint filed by her with the assistance of her eldest brother Gilbert Igat. On 19 June 1991 the corresponding Information was filed, docketed as Crim. Case No. 3368. A careful evaluation of the evidence on record fails to disclose any compelling reason to disbelieve the facts established by prosecution witnesses Dr. Simeon Arce, Jr., Terresa and Richard Igat, and the offended party herself Gresilda Igat, who positively identified her father in open court as her ravisher. The only defense accused-appellant could muster was denial after pleading not guilty to the charge. His version was that in the evening of 10 December 1990 he spent an uneventful night with his wife Openiana at her parents' house in Brgy. Dangkalan, Malinao, Aklan, together with their children Gresilda, Gilbert and Gliceria, who was with her husband Noel Vargas and two (2) children. Fermin denied having scolded Richard that evening of 10 December 1990 and having quarelled with his wife Openiana and son Richard to the point of driving them out of the house with his bolo. He also denied having raped his own daughter, suggesting to the court that it was improbable to do so since Gresilda slept on the bamboo bed in the kitchen facing the door while Openiana was beside her with appellant on the other side near the sala, and in the adjoining room were Richard and Gilbert. The rest of the nipa house was occupied by Gilceria's family. The wobbly version of the defense was attemped to be augmented with the equally flawed testimonies of Noel Vargas, Juanito Iscala a neighbor, and Primilin Narciso who presented class records showing that Gresilda was not marked "absent" from her class on 11 December 1990. In the high-profile case of People v. Echegaray, 3 involving the incestuous rape by a father of a hapless daughter, we had occasion to observe thus 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 extereme 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 (cited cases omitted). Like the 15-year old Ronalyn in People v. Magpantay 4 who was thrice raped by her own father, the victim in the case at bar, Gresilda, could not have been easily convinced to have herself physically examined and thereafter undergo the ordeals of a public trial and testifying against her own father if she not motivated by her desire to seek justice. Citing People v. Caballes, 5 we held in Magpantay that Given complainnt's naivete and inexperience in matters of sexuality, was improbable that she would fabricate matters about the rapes committed against her person and concoct lies against her own father, knowing fully well the seriousness of such charges, even granting that she harbored abhorrence for his ways, and run the risk of subjecting herself to humiliating and embarrassing scrutiny wrought by a public trial. By Gresilda's own testimony, the rape committed by her father was the first time ever that she had known a man carnally, a new experience which should have been attended by mutual love, romance and passion for a young Filipina like her. Hence, it is not without reason that, as she recounted in court how her father had forced her to have sex with him, certain inconsistencies and contradictions would surface. In this regard we reiterate our view expressed in People v. Tumala, Jr. 6 Error-free testimonies cannot be expected most especially when a witness is recounting details of a harrowing experience, one which even an adult would like to bury in oblivion. The court cannot expect a rape victim to remember all the ugly detials of the appalling outrage, particularly so since she might in fact be wishing to forget them. 7 The Court believes in the story of Gresilda. As observed by the trial court, she was in tears when she related how she was raped and positively identified her father as the perpetrator of the dastardly act. 8 Her assertions were "direct, positive, straight-forward and candid . . . that she was raped by her father in the evening of December 10, 1990, in the manner and form narrated by he." 9 Moreover, there is nothing in the record from which to conclude that Gresilda had ill motives to falsely testify against her own father. The testimony of a rape victim is credible where she has no motive to testify falsely against the accused 10 who, incidentally and unfortunately, is her own father. The defense attemped to discredit Gresilda on the following point; (a) that she contradicted herself when she stated during her direct testimony that her father palced a bolo on her neck to prevent her from shouting, while on cross-examination she said that her father did not carry a bolo when he entered her room to rape her; (b) that according to the medicolegal officer, Gresilda's hymental tear could have just been a week old at the time of examination so that the sexual intercourse must have occurred while Gresilda was with Junior Trasmil in his house or in Manila; and, (c) that Teresa Igat could not be a competent witness since she was "possessed" by an "evil spirit" and was undergoing treatment by a "medico" in the person of Junior Trasmil.

A careful perusal of Gresilda's cross-examination readily shows that she did not categorically state that her father was not carrying a bolo when he entered her room. Thus Cross-Examination by Atty. A. Iligan; xxx xxx xxx Q: and in fact you did not notice your father enter the room where you were sleeping? A: No. Q: And you also did not notice when he was allegedly mashing your sex organ that he carried comething? A: I do not know if he is (sic) carrying something. Q: The reason is because it was very dark that night? A: Yes.
11

It was during the direct examination that Gresilda testified in no uncertain terms that her father placed a bolo on her neck and covered her mouth as he warned her not to shout, then vividly recalled how he removed the bolo on her neck and placed it beside her before he raised her housedress, removed her panties and forcibly inserted his penis into her vagina. 12 Thus, the contradiction referred to by the defense is obviously nonexistent. Similarly, the insinuation that the rape happened while Gresilda was with Trasmil by virtue of Dr. Arce's description of Gresilda's hymenal tear being "fresh or within a week tear" distorted the testimony of the examining physician as a whole. He only used the phrase "fresh or within a week tear" to differentiate an old hymenal tear that had no bleeding with the edges being well-rounded and without any congestion from a fresh one. 13 With respect to Teresa's testimony, it was presented merely as a corroborative evidence. It is of no moment that Gresilda allegedly told Teresa to withdraw the complaint after the prosecution had already rested 14 because even an affidavit of desistance or a pardon by the offended party cannot justify the dismissal of the complaint for rape considering that the pardon should have been made prior to the institution of the criminal action. 15 Of utmost significance is the basic principle that in rape cases the gravamen of the offense is sexual intercourse with a woman against her will or without her consent. The medical certificate issued by Dr. Arce showed an old hymenal tear, 9:00 o'clock in location, which could have happened at the time alleged by the victim. This complements Gresilda's claim that her father had sexual intercourse with her without her consent. She had consistently, emotionally and convicingly narrated at the trial how his father intimidated so as to leave with no other option but to meekly submit to his lust. In recent case 16 we laid emphasis on the different facets of intimidation relative to rape cases Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim and is therefore subjective, it must be viewed in light of the victim's perception and judgement 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 threof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistence would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary (cited cases omitted). In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation (cited cases omitted). Appellant further tried to discredit Gresida's version by enumerating certain instances which her regarded as contrary to human experience. He argued that a rapist cannot hold his penis with two (2) hands while committing the crime, and that a victim cannot possibly afford to attend school the following day if she suffered some bleeding on account thereof. Furthermore, he wondered why Gresilda failed to immediately report the rape if it was true, and insisted that it was improbable that he raped her given the limited area of their nipa house with several occupants at the time of the supposed incident. There is a stark indication in appellant's brief that he has a strong inclination to misconstrue the facts as presented by the prosecution. Gresilda withstood the cross-examination regarding the use of both hands by her father in inserting his penis into her vagina by explaining that initially her father was frustated but after sometime he succeeded while on top of her. Thus, we can safely assume that in the course of Fermin's attempts to force his penis into Gresilda's vagina he could have freed one hand or even both hands until he finally consummated the act. Whether he held his penis with both hands to penetrate Gresilda, or whether Gresilda went to school on 11 December 1990 and delayed the reporting of the sexual assault were simply minor matters too trivial to affect the prosecution's case for rape.
17

The bottom-line remains that the assertions of Gresilda as to the facts prior to and after the incident were positively corroborated by her brother Richard and her sister Teresa. The witnesses of Fermin could only come up with negative testimonies which are of lesser value for the reason that he who denies a certain fact may not remember exactly the circumstances on which he bases his denial. 18 The trial court even found the testimonies of the defense witnesses as studied, deliberate, rehearsed and somehow biased in favor of the appellant. We have no reason to disagree. Appellant's bare denial cannot overcome the categorical testimony of Gresilda, the victim. 19 Quite telling is the fact that appellant lost no time in fleeing Aklan province after learning about the rape charges against him. He offered no plausible explanation for his precipitate departure. Hence, his flight is a clear indication of his guilt. On the claim of accused-appellant that the duration of his imprisonment of reclusion perpetua be twenty (20) years and one (1) day to forty (40) years, suffice it to state that the crime was committed on 10 December 1990 or long before RA No. 7659 took effect on 31 December 1993, hence, there was as yet no cause for confusion as to whether reclusion perpetua as a penalty was indivisible or not. Art. 247 of the Revised Penal Code, before its amendment, provided Art. 27. Reclusion perpetua Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall

be considered by the Chief Executive as unworthy of pardon (Emphasis supplied.) WHEREFORE, the appealed decision finding accused-appellant FERMIN IGAT guilty of raping his 14-year old daughter Gresilda Igat, sentencing him to reclusion perpetua and to indemnify her in the amount P50,000.00 is AFFIRMED. Costs against accused-appellant. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION G.R. No. 110129 August 12, 1997 PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. EDELCIANO AMACA @ "EDDIE" and "JOHN DOE" @ "OGANG," accused, EDELCIANO AMACA @ "EDDIE," accused-appellant. The ante mortem statement of the victim is sufficient to identify the assailant in the case at hand. However, the accused cannot be convicted of murder attended by treachery, because the Information charged him with murder qualified only by evident premeditation. This legal lapse of the prosecution for that matter, any prosecution lapse should benefit the appellant, because in a criminal case, the accused may be held accountable only for the crime charged (or for the crime necessarily included therein), and every doubt must be resolved in his favor. Thus, we hold him guilty only of homicide. Furthermore, since the heirs of the victim waived their claim through an affidavit of desistance, no award for civil indemnity should be included in this Decision finding the accused guilty of the homicide. Statement of the Case These postulate are explained in the Court's adjudication of this appeal from the Decision 1 dated November 19, 1992 of the Regional Trial Court of Bais City, Branch 45, 2 in Criminal Case No. 550-C convicting Accused Edelciano Amaca of murder and sentencing him to reclusion perpetua. On December 17, 1990, an Information 3 was filed by Bais City Prosecutor Epifanio E. Liberal, Jr. against Appellant Amaca and one known only by his alias "Ogang," charging them as follows: That on October 1, 1990 at around 7:00 o'clock in the evening, more or less, in Purok Liberty Hills, Barangay Mabigo, Canlaon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused mutually helping one another and with evident premeditation and at nighttime did then and there wilfully, unlawfully and feloniously attack, assault and shot with the use of a firearm one Wilson Vergara who, as a result thereof, suffered fatal gunshot wound as reflected in the medical certificate issued on October 2, 1990 by the Guihulngan District Hospital which was the immediate cause of his immediate death. Contrary to Art. 248 of the Revised Penal Code. A warrant for the arrest of accused-appellant was issued on January 16, 1991. 4 However, this was returned unserved on two different occasions for the reason that the subject had already changed address and "his whereabouts [were] unknown." 5 A motion for reinvestigation filed by appellant's Counsel de Oficio Marcelo Ondoy was denied in an Order dated April 15, 1991 on the ground that the trial court had not yet acquired jurisdiction over the accused who was then still at large. 6 Jurisdiction over the person of appellant was acquired by the said court only on July 1, 1991 when he was arrested by police authorities. 7 Thereafter, reinvestigation was conducted but the prosecutor, reiterating his prima facie findings, resolved to continue the prosecution of the accused.

Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy, pleaded not guilty to the charge. 8 Trial ensued in due course. Thereafter, the trial court rendered its Decision, the decretal portion of which reads: WHEREFORE, premises considered, this Court finds accused EDELCIANO AMACA alias "EDDIE" guilty beyond reasonable doubt of the crime of murder as penalized under Article 248 of the Revised Penal Code, and hereby sentences the said accused to a penalty of RECLUSION PERPETUA, without pronouncement as to civil liability, and damages, and to pay costs. SO ORDERED. The Facts The trial court synthesized the facts based on the testimonies of witnesses for the prosecution and the defense, as follows: To prove the injuries sustained by the victim, Wilson Vergara, and his cause of death, the prosecution presented Dr. Edgar P. Pialago, a resident physician of the Guihulngan District Hospital, Guihulngan, Negros Oriental, who testified that on October 2, 1990, he was on duty at the aforesaid hospital, and was able to attend to victim Wilson Vergara who had just undergone a surgical operation conducted by another doctor, Dr. Gonzaga. The major organs of the victim, namely, the heart, lungs and kidney, were no longer functioning normally, and thus, he was suffering from multiple organ system failure. Furthermore, there was injury in the pancreas, causing a leak of the pancreatic juice. Victim suffered two gunshot wounds at the back, and x-ray revealed two (2) bullets inside the body, and there was no exit wound. The patient was admitted at 10:45 in the evening of October 1, 1990, and died at 7:00 in the evening of the following day. He identified the death certificate (Exh. "A"), and the data sheet of the victim and the final diagnosis. (Exh. "B") Even with immediate medical attention, the victim could not have survived with the wounds he sustained. Bernardo Mangubat, member of the Philippine National Police of Canlaon City, testified that as a police investigator one of his companions in the force fetched him from his residence at about 7:00 in the evening of October 1, 1990, and informed him of a shooting incident, where the victim was at the clinic of Dr. Cardenas, which was near his residence. Upon reaching the clinic of Dr. Cardenas, he saw the victim already on board a Ford Fiera pick up ready for transport to the hospital. He inquired from the victim about the incident, and the former answered he was shot by CVO Amaca and Ogang. Upon query why he was shot, the victim said he did not know the reason why he was shot. Upon being asked as to his condition, the victim said that he was about to die. (TSN, p. 22, March 4, 1992) Upon being asked, the victim identified himself as Nelson (sic) Vergara. He was able to reduce into writing the declaration of victim Vergara, and have the latter affixed (sic) his thumbmark with the use of his own blood in the presence of Wagner Cardenas, the brother of the City Mayor. (Exh. "C") Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely, Felix Ponting, and Alfredo Gabucero, portrayed the following scenario: Felix Ponting and Alfredo Gabucero were members of the CAFGU (Civilian Armed Forces Geographical Unit) and accused as member of the Civilian
9

Volunteer Organization (CVO) with station at Barangay Lumapao, Canlaon City. On October 1, 1990, the accused together with his companion Felix Ponting were on duty at the said station from 6:00 o'clock in the evening to 8:00 o'clock that same evening. After their duty at 8:00 o'clock, they went to sleep at the detachment, and were relieved by Alfredo Gabutero, whose duty covered from 8:00 to 9:00 that same evening. 10 Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both desisted from further prosecution of the case; the former because of the "financial help" extended by the accused to her family, and the latter because Segundina had already "consented to the amicable settlement of the case." This notwithstanding, the Department of Justice found the existence of a prima facie case based on the victim's ante mortem statement. 11 The Trial Court's Ruling The trial court deemed the victim's statement to Police Officer Mangubat, positively identifying Appellant Amaca, a dying declaration sufficient to overcome the latter's defense of alibi. However, due to the voluntary desistance of the victim's mother from further prosecuting the case, the court a quo declined to make a finding on the civil liability of the appellant. The Issue In his brief, the appellant filed a lone assignment of error, to wit: The trial court erred in finding accused Edelciano Amaca guilty beyond reasonable doubt of the crime of murder on the sole basis of the alleged dying declaration of the victim to Police Officer Bernardo Mangubat. 12 The Court's Ruling The appeal is partially granted. The appellant is guilty only of homicide, not murder, and civil indemnity shall not be awarded to the heirs of the deceased. Dying Declaration Sufficient to Identify Assailant A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his impending death to accuse, falsely or even carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth." 13 This is the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court. The elements of such exception are: (1) the deceased made the declaration conscious of his impending death; (2) the declarant would have been a competent witness had he survived; (3) the declaration concerns the cause and surrounding circumstances of the declarant's death; (4) the declaration is offered in a criminal case where the declarant's death is the subject of inquiry; and (5) the declaration is complete in itself. 14 All these concur in the present case. Declarant a Competent Witness

The appellant contends that had he survived, the declarant would not have been a competent witness to identify his assailant. He emphasizes that the victim was shot twice at the back at nighttime and that ". . . the witness/victim based on the foregoing circumstance was not able to see the alleged assailants . . . 15 We are not persuaded. True, the victim, Wilson Vergara, was hit at the back by two bullets. But as the prosecution clearly showed by other evidence, Wilson did not lose consciousness upon being shot. In fact, his ante mortem statement clearly indicates that he was able to see and recognize who shot him. In this light, appellant is assailing the credibility, not the competency, of the victim. Competency of a witness to testify requires a minimum ability to observe, record, recollect and recount as well as an understanding of the duty to tell the truth. 16 Appellant does not dispute that the victim was capable of observing and recounting the occurrences around him; appellant merely questions whether the victim, under the circumstances of this case, could have seen his assailant. In effect, appellant challenges merely the credibility of the victim's ante mortem statement. We hold that the serious nature of the victim's injuries did not affect his credibility as a witness since said injuries, as previously mentioned, did not cause the immediate loss of his ability to perceive and to identify his shooter. The Court had occasion in the past to rule on a similar issue as follows: . . . (') The question as to whether a certain act could have been done after receiving a given wound,(') according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), "is always one that must be decided upon the merits of a particular case." They cited a case from Vibert's Precis de Med. Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary. The lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the courtyard. When the fire was extinguished, the man lay down in bed and died. Vibert performed the autopsy, and found that the left ventricle of the heart had been perforated by the revolver's bullet. It is evident from the foregoing that Dr. Acosta's assertion that the victim of a gunshot wound would immediately lose consciousness, after infliction of the wound, may not be true in all cases. . . .
17

Appellant also argues that the declarant could not have seen who shot him because "the actual shooting occurred at 7:00 o'clock in the evening." 18 This statement is bereft of factual basis. The record shows that Police Officer Mangubat was fetched from his house at 7:00 p.m. to investigate the shooting. He was informed that the victim had already been brought to the clinic of Dr. Cardenas. 19 It may thus be inferred that the shooting occurred sometime before the victim was found, brought to the clinic, and before Mangubat was fetched from his house. Thus, a considerable period of time must have elapsed from the time of the actual shooting until the policeman was fetched from his house around 7:00 p.m. That he was shot way before 7:00 p.m. does not lead to the inference that it was pitch-black at the time of the shooting. Indeed, from the foregoing, it is reasonable to assume that the crime was committed before nightfall and that there was sufficient daylight to enable the victim to identify his assailant. At any rate, there are no indicia in the record that lighting conditions made it impossible for declarant to identify his assailant. Ineluctably, the positive assertion of the declarant that he did recognize his shooter has greater persuasive value than the baseless negative speculation of the defense that he did not. Genuineness of the Dying Declaration The defense attempts to cast doubt on the genuineness of the dying declaration by suggesting that since "the relationship between CAFGU and the PNP is marred by jealousy, suspicion and general dislike for one another," 20 Police Officer Mangubat had enough motive to falsely implicate appellant who was a CAFGU member. The defense also asks: "Why was

the alleged dying declaration of the victim merely thumbmark (sic) when in fact he was still coherent, conscious and very capable of writing his name at that time?" 21 Additionally, the defense questions why Wagner Cardenas who signed the ante mortem statement as witness was not presented as such by the prosecution. 22 The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not destroy the genuineness of the ante mortem statement. Police Officer Mangubat is presumed under the law to have regularly performed his duty. There is nothing in the circumstances surrounding his investigation of the crime which shows any semblance of irregularity or bias, much less an attempt to frame Appellant Amaca. As aptly noted by the trial court, even appellant testified that he had no previous misunderstanding with Police Officer Mangubat and knew no reason why the latter would falsely testify against him. 23 This dismal failure of the defense to show any ill motive on the part of said police officer adds credence to Mangubat's testimony. 24 Moreover, that the declarant attested to his ante mortem statement through his thumbmark in his own blood is sufficient to sustain the genuineness and veracity thereof. This manner of authentication is understandable in view of the necessity and urgency required by the attendant extreme circumstances. It cannot be indicative of any ulterior motive on the part of Police Officer Mangubat. We have clearly ruled that an ante mortem statement may be authenticated through the declarant's thumbmark imprinted which his own blood, and serve as evidence in the form of a dying declaration in a criminal case involving his death. 25 Verily, such declaration need not even be in writing and may be proven by testimony of witnesses who heard it. Finally, the non-presentation of Wagner Cardenas as witness during the trial is not fatal, as his testimony would have been merely corroborative of Mangubat's. In addition, the presumption that evidence omitted by a party would be adverse if presented does not obtain in this case, since Wagner Cardenas is also available and could have been called to the witness stand by accused-appellant. Besides, it is the prosecutor's prerogative to choose his own witnesses to prove the People's cause. 26 Ante Mortem Statement as Res Gestae The ante mortem statement may also be admitted in evidence when considered as part of the res gestae, another recognized exception to the hearsay rule provided specifically under Rule 130, Section 36 of the Rules of Court. The requisites for the admissibility of statements as part of the res gestae are: (a) the statement is spontaneous; (b) it is made immediately before, during or after a startling occurrence; and (c) it relates to the circumstances of such occurrence. 27 These requirements are obviously fulfilled in the present case where the statement, subject of this discussion, was made immediately after the shooting incident and, more important, the victim had no time to fabricate. An ante mortem statement may be admitted in evidence as a dying declaration and as part of the res gestae. This dual admissibility is not redundant and has the advantage of ensuring the statement's appreciation by courts, particularly where the absence of one or more elements in one of the said exceptions may be raised in issue. In this manner, the identification of the culprit is assured. 28 Alibi Debunked The defense also contests the trial court's finding that the "alibi interposed by the accused miserably fall short of exculpation. (Decision, p. 7)" 29 Appellant insists that, since the dying declaration was unreliable and since there was no

positive identification aside from this declaration, the defense of alibi gained strength. 30 There is no basis for this contention for, as previously discussed, the ante mortem statement met all requirements for its admissibility either as a dying declaration or as part of the res gestae or both. 31 It must be remembered that alibi is inherently weak and the facts in the case at hand show that it was not at all impossible, considering the circumstances of time and place, for the accused-appellant to have been present at the crime scene at the time of its commission. 32 The military detachment at Barangay Lumapao, where appellant allegedly slept, is a mere seven kilometers away from Barangay Mabigo, Purok Liberty Hills where the crime was committed. In other words, the able-bodied appellant was only an hour's walk and a short fifteen-minute tricycle ride from the locus criminis. 33 As correctly argued by the trial court, "(i)t would not have been impossible for the accused to be at Purok Liberty Hills, and shoot the victim, and come back to his detachment in a matter of thirty (30) minutes, the time testified by the defense witness Gabutero as to going to and coming back from these two places. (TSN, p. 17, July 15, 1992)" 34 The alibi of appellant cannot overcome, therefore, the very persuasive declaration of the victim. 35 Based on the foregoing discussion, the Court's conscience rests easy with the moral certainty that indeed accused-appellant committed the crime charged. His pretense at innocence is futile in view of the overwhelming evidence presented against him. Even his flight eluding the police for almost six months after the issue of the warrant for his arrest clearly bespeaks his guilt. 36 Murder or Homicide? Finally, the defense posits that the appellant may be held liable only for homicide since treachery was not alleged in the Information, while evident premeditation and nighttime, although duly alleged, were not satisfactorily proven. 37 We agree. The Information readily reveals that the killing was qualified only by evident premeditation. The trial court however found that the killing was qualified by treachery. Even assuming that this conclusion is supported by the evidence on record, we cannot appreciate treachery to qualify the crime to murder for the simple reason that this was not alleged in the Information. Treachery is an element of the crime. The Constitution requires that the accused must be informed of the "nature and cause of the accusation against him." 38 Obviously, this failure to allege treachery in the Information is a major lapse of the prosecution. Since every doubt must be resolved in favor of the accused, we cannot convict him of murder through treachery under an Information that charged him with murder qualified by evident premeditation. Moreover, in this case, treachery and nighttime may not be considered even as generic aggravating circumstances, because there is nothing in the testimony of the prosecution witnesses to convincingly show that the accused-appellant consciously and purposely adopted (1) such means of attack to render the victim defenseless and (2) the darkness of night to facilitate the commission of the crime, to prevent its discovery or even evade capture. This conclusion is further bolstered by the simple fact that not one of the prosecution witnesses saw the commencement of the assault or even the actual assault itself. Hence, they are not competent to testify on whether the aggravating circumstances of treachery and nighttime attended the commission thereof. These circumstances cannot be appreciated on the basis of mere presumptions or suppositions; they must be proven as clearly as the crime itself. 39 Appellant may therefore be held liable only for the crime of homicide defined under Article 249 of the Revised Penal Code. Since there are no mitigating or aggravating circumstances, the penalty of reclusion temporal provided under said article shall be imposed in its medium

period . Applying the Indeterminate Sentence Law, appellant should suffer imprisonment of prision mayor in its medium period to reclusion temporal, also in its medium period. Non-Award of Indemnity The trial court did not make a finding on the civil liability of accused-appellant, reasoning that it was prevented from doing so by the "unwillingness" of the victim's mother, Segundina Vergara, to further prosecute the case against the accused. 40 The trial court cited the resolution of the Department of Justice (DOJ) denying the motion for reinvestigation. The DOJ held that the ante mortem statement of the victim testified to by Pfc. Mangubat accorded prima facie validity to the case against the accused, but it noted and confirmed the desistance of the victim's mother and her son-in-law from further prosecuting the case. The salient portions of Segundina Vergara's affidavit of desistance quoted in said resolution reads: That I am the complainant in a case which I filed in the Office of the City Prosecutor, Canlaon City and docketed as Criminal Case No. 550-C of Regional Trial Court, Bais City for Murder against Eddie Amaca as the alleged accused; That in the evaluation of our case against him, I have found out that the death of my son Wilson Vergara was purely accidental that could be attributed to his fault; That due to my compassion to the poor accused who is a family man, I have decided to drop the case against Eddie Amaca for the reason that his family financially help (sic) us in our family problems due to the death of my late son; That with our desire to have a mutual understanding and goodwill among ourselves, since we are neighbors and our respective families are good friends, I have decided to drop the case against Eddie Amaca; That when the said case was scheduled for hearing, I will not testify anymore as the complaining witness; 41 The Solicitor General finds nothing wrong with the trial court's reasoning and recommends that its decision be affirmed. 42 We agree. The facts of this case show that the victim's mother desisted from prosecuting the case in consideration of the "financial help" extended to her family by the accused-appellant. Such "financial help" when viewed as an offer of compromise may also be deemed as additional proof to demonstrate appellant's criminal liability. 43 Parenthetically, her claim that the cause of her son's death was an accident attributable to the latter, has no basis. It is inconceivable that the victim's two gunshot wounds at the back were self-inflicted. Well-settled it is that the desistance of the victim's complaining mother does not bar the People from prosecuting the criminal action, but it does operate as a waiver of the right to pursue civil indemnity. Hence, in effectively waiving her right to institute an action to enforce the civil liability of accused-appellant, she also waived her right to be awarded any civil indemnity arising from the criminal prosecution. 44 This waiver is bolstered by the fact that neither she nor any private prosecutor in her behalf appealed the trial court's refusal to include a finding of civil liability. 45 The records, however, do not show whether the deceased had other compulsory heirs. Such heirs, if there are any, may file an independent civil action to recover damages for the death of Wilson Vergara.

WHEREFORE, premises considered, the questioned Decision is hereby MODIFIED. Accusedappellant Edelciano Amaca is found GUILTY of homicide and SENTENCED to an indeterminate penalty of ten years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. No civil indemnity is awarded. No costs. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 70744 May 31, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE RAMIREZ, accused-appellant. The Solicitor General for plaintiff-appellee. ABAD SANTOS, J.: Pursuant to Rule 124, Section 12, of the Rules of Court, this case was certified to Us by the Intermediate Appellate Court for review in the light of the following antecedents: In a verified complaint filed with the Municipal Trial Court of Tandag, Surigao del Sur, ALMA LAWANGON accused FELIPE RAMIREZ of the crime of rape. After proceedings in said court, the case was elevated to the Regional Trial Court where an information for rape was filed in Criminal Case No. 1128. The information alleges: That on the 30th day of June 1983, at 12:00 o'clock noon, at barangay Telaje, in the municipality of Tandag, province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, FELIPE RAMIREZ, by means of force, violence and intimidation did, then and there wilfully, unlawfully and feloniously have carnal knowledge of the ALMA LAWANGON, a woman of 14 years of age, against the will of the latter to her damage and prejudice. CONTRARY TO LAW. (Article 335 of the Revised Penal Code) with the aggravating circumstances that the crime was committed with abuse and confidence and that advantage was taken of superior strength. (Expediente, p. 2.) After the trial, the following judgment was rendered; Premises considered, this court finds Felipe Ramirez guilty beyond doubt of Rape as defined and penalized under Article 335, par. 1 of the Revised Penal Code. With one mitigating circumstance of being 70 years old, and applying the Intermediate Sentence Law, this court hereby impose upon Felipe Ramirez an intermediate imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of Prision Mayor as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of Reclusion Temporal as maximum; and he is hereby ordered to pay P10,000.00 as moral damages to Alma Lawangon. (Id., p. 78.) It is to be noted that the trial court found no abuse of confidence or superiority in the commission of the crime. However it mistakenly held the presence of the mitigating circumstance of age notwithstanding the fact that the accused was not over 70 years. (Revised Penal Code, Art. 13, par. 2.) The accused appealed and because of the sentence the appeal was properly directed to the Intermediate Appellate Court where he made the following assignment errors: I. THAT THE DECISION OF THE COURT A QUO IS VOID ON THE GROUND THAT THE TRIAL COURT DID NOT ACQUIRE JURISDICTION OVER THE CASE.

II. THAT THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT TO THE TESTIMONIES OF THE PROSECUTION'S WITNESSES WHICH ARE HIGHLY INCONSISTENT, INCREDIBLE AND UNRELIABLE. III. THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. (Brief, p. 1. ) The appellant prayed that the decision of the trial court be set aside and that he be acquitted. Upon the other hand, the Solicitor General contended that the trial court committed no error and prayed "that the appealed decision be affirmed in toto." The Intermediate Appellate Court did not agree with the appellant and agreed partly only with the appellee as witness the following unentered judgment: WHEREFORE, with the sole modification as to the penalty which should be raised to reclusion perpetua as provided by law, the appealed judgment, being in all other respects in accordance with law and the evidence, should be, as it is hereby, AFFIRMED, with costs. Since under the Judiciary Act, the penalty of reclusion perpetua or life imprisonment can only be imposed by the Supreme Court, We refrain from entering judgment and forthwith, We hereby certify this case and elevate the entire records hereof to the Supreme Court for review (People vs. Daniel, 86 SCRA 511; People vs. Ramos, 88 SCRA 486, 490; People vs. Centeno, 108 SCRA 712.) This is now a review of the case at bar. The Intermediate Appellate Court correctly rejected the claim that the trial court did not acquire jurisdiction over the case because the information was signed only by the Fiscal but not by complainant Alma Lawangon. For the expediente shows that Alma filed a verified complaint for rape against Felipe Ramirez in the Municipal Trial Court of Tandag, Surigao del Sur. The rule is that when the offended party in the crime of rape has executed and subscribed to a complaint, the prosecution before the court may be initiated by means of an information signed by the Fiscal alone. (People vs. Cerena, 106 Phil 570 [1959].) Left to be considered is the sufficiency of the evidence which the appellant claims is inadequate to overcome the presumption of innocence in his favor. On this score We quote from the decision of the Intermediate Appellate Court: The Prosecution's evidence discloses that Conchita Villa was a laundrywoman of appellant Felipe Ramirez. Their houses were some 200 meters apart in Bgy. Telaje, Tandag, Surigao del Sur. At about 11:00 a.m. of June 20, 1983, Conchita sent Alma Lawangon, her 14-year old daughter by her first marriage, to Ramirez' house to get clothes for laundering. When she reached Ramirez' house, Alma entered the bedroom to get the clothes and as she was counting the pieces of clothing to be laundered, Ramirez silently entered the room and wrapped a diaper across her mouth. As Alma tried to remove the diaper, Ramirez threatened her with a knife, then wrapped a nylon rope around her body including her arms. Again, she tried to resist but Ramirez threatened her with a knife. After tying her up, he carried her to the bed, took off his short pants and her panty and went on top of her. He inserted his fingers into her vagina and later his penis and while he was having intercourse with her, Conchita called for her. Ramirez told Alma to keep quiet otherwise he would kill her. After Conchita had caged thrice, Ramirez stood up, untied her, put on his short pants and while still buttoning his pants, he proceeded to the door

and opened it. Conchita saw Ramirez still buttoning his pants as he opened the door and she asked him what he had done to Alma but Ramirez replied that he did not do anything. Alma then emerged from Ramirez' house looking very pale and nervous. Conchita asked Alma what Ramirez had done to her but the latter did not answer and then both mother and daughter headed for home. When they arrived home, Conchita again asked Alma what appellant had done to her but Alma did not answer and despite Conchita's asking, Alma persisted in her silence. The next morning, June 21, 1983, Alma revealed to her mother what Ramirez had done to her. Conchita took Alma to the Surigao del Sur Provincial Hospital at about 3:00 p.m. where Alma was found by Dr. Joey L. Hugo to have suffered lacerations in her hymen at 3:00 o'clock, 9:00 o'clock and 11:00 o'clock positions. The lacerations were incompletely healed and no spermatozoa was found inside her vagina which admitted one finger with no resistance and two fingers with difficulty and pain. On July 5,1983, Alma gave her statement to the Tandag Police and, on the same day, she subscribed to a complaint for rape before the Municipal Trial Judge of Tandag, Surigao del Sur. On July 6, 1983, Conchita also gave her statement. The appellant's version, on the other hand, is that Alma voluntarily offered herself to him provided that he would give her money which she needed very badly. He claimed that he agreed to her request and told her to go inside his room because he would first lull his grandchild which he was babysitting to sleep; that he later followed Alma inside his room and found her already lying in bed; that he sat by her side, raised her skirt and discovered that she had already removed her underwear; that he kissed her and touched her private parts such as her breast and vagina while Alma looked up and smiled at him; that he continued touching her private parts but he discovered that his own genital organ could no longer stand erect so he asked her to hold the same in order to arouse him; that despite Alma's consent, his organ would no longer respond so he told Alma that it was useless; and that it was in such situation when Conchita Villa called out for Alma so he immediately put on his pants and opened the door. xxx xxx xxx Appellant also questions the sufficiency of the evidence adduced by the prosecution, pointing to the alleged inconsistencies and lack of trustworthiness of Alma and of her mother Conchita. Specifically, he points to the two women's version that it took them 30 minutes to negotiate the distance between their house and that of the appellant which was only 200 meters. A cautious reading of the transcript reveals that neither Alma nor Conchita declared that it took them 30 minutes to negotiate the distance of 200 meters between their house and that of the appellant. Conchita simply stated that Alma was sent by her to the appellant's house at 11:00 a.m. but when Alma did not return immediately, she (Conchita) herself went after her and reached the appellant's house at 12:00 noon (pp. 4-5, tsn., Sept. 20, 1983; p. 41, tsn., Sept. 21, 1983). Appellant also assails as incredible Alma's version that she was gagged with a diaper, tied with a nylon rope and restrained with a piece of wood; that since the rape was allegedly committed in a room, it was not necessary for him to

bring such materials to fulfill his lustful desire; and that there was absence of bruises, contusions or hematoma on Alma's body. We find the appellant's claim to be scarcely meritorious. He did not have to equip himself with such items because normally, a diaper, a piece of rope and wood are articles commonly found in a house and particularly so in the appellant's abode because he had an infant grandchild which he was babysitting. Moreover, it was necessary for the appellant to tie up Alma otherwise he may not be able to accomplish his purpose because he was 70 years old and Alma was only 14 years old. The absence of bruises, contusions and hematoma in Alma's body can be explained by the fact that there was actually no physical struggle because Alma was threatened with the appellant's knife and the rape took place in the appellant's bed. Appellant also claims that the medical certificate showed that the lacerations in her hymen were already healed. We find this assertion to be incorrect because what the medical certificate states is that the lacerations were incompletely healed or, as Dr. Joey Hugo explained, the lacerations were in the process of healing at the time of his examination. This is plausible because the rape occurred on June 20, 1983 while the hymenal examination took place on the afternoon of the next day, June 21, 1983 and, according to said doctor, the lacerations of the hymen usually heal within two or three days. On the other hand, appellant's version that it was complainant Alma Lawangon herself who voluntarily agreed to submit to sexual intercourse with him in consideration of P25.00 appears highly incredible. Alma was absolutely without motive to testify falsely against the appellant (People vs. Terobias, 103 SCRA 321; People vs. Tejada, 107 SCRA 176). Considering her extreme youth, her virginity, the fact that she and the appellant were neighbors and that the amount allegedly proved by the appellant of P25.00 was too small and insignificant, the appellant's version defies belief. On the other hand, the fact that Alma went through the embarrassment of submitting herself to an examination of her private parts and to a police investigation and the absence of any motive by her to concoct the charge against the appellant all heavily militate against the appellant's pretense of voluntariness of the complainant (People vs. Sambangan, 125 SCRA 726). We have reviewed the records of the case and We agree with the Intermediate Appellate Court that the guilt of the appellant has been demonstrated beyond reasonable doubt. We further agree with the Intermediate Appellate Court that the appropriate penalty is reclusion perpetua because under Art. 335 of the Revised Penal Code rape is punished by said penalty and since reclusion perpetua is a single indivisible penalty it should be applied regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. (Art. 63, par. 1, R.P.C.) In this case there are no attendant circumstances so that with more reason reclusion perpetua should be imposed. WHEREFORE, the conviction of the appellant for the crime of rape is hereby affirmed. He is sentenced to suffer the penalty of reclusion perpetua; to indemnify the complainant P25,000.00; and to pay the costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21475 September 30, 1966

AMANCIO BALITE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent C. Sevilla and R. Daza for petitioner. Office of the Solicitor General Alafriz for respondent. SANCHEZ, J.: Called to trial for grave oral defamation by the Municipal Court [now City Court] 1 of Cebu City, petitioner was found guilty thereof and sentenced to 4 months and 1 day of arresto mayor, to indemnify Delfin Mercader in the sum of P5,000.00, with the corresponding subsidiary imprisonment, and to pay the costs. On appeal, the Court of Appeals 2 voted to modify the judgment by elevating the corporal penalty to one ranging from 4 months and 1 day of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum, also with costs. The case is now before us on review by certiorari. The facts are not disputed. They are: In December, 1958, the Democratic Labor Association declared a strike against the Cebu Stevedoring Company. Delfin Mercader, union president, was offered by Richard Corominas & Co., a copra exporter affected by the strike, P10,000.00 as aid to the union and presumably to pave the way for the amicable settlement of the labor dispute. Petitioner was with Mercader when that offer was made. The disposition of this sum and the pleasure of the union in the premises were referred to the union officers and members, including the strikers. At a meeting called for the purpose, it was decided that the amount be accepted and spread amongst all the members. However, at a subsequent meeting attended by Mercader and petitioner, the latter proposed that the amount thus offered be given solely to the officers of the union, leaving out the members thereof. Petitioner's proposal met with vigorous opposition. Passions seemed to have run so high that petitioner walked out of the meeting, threatened to destroy the union and to expose president Mercader. Petitioner then pursued a smear campaign against Mercader. Petitioner's activities caught the attention of the union board of directors. A general meeting was called also in December, 1958. It was then that a resolution was unanimously adopted expelling petitioner from the union. Came May 21, 1959. Petitioner met at the Cebu City waterfront members of the Marine Officers Guild, namely, Marine Officer Quentin Canlas, Captain Ramirez, First Mates Filemon Go and Alipio Paderanga, Nahum Rada, a certain Banaag, Second Mate Pablito Dael, Fourth Engineer Vivencio Casal, Carlos Cantanas, and Third Mate Divino de la Cruz. The group was on its way to the guild's office. Petitioner then engaged Canlas in conversation whilst the latter's companions gathered around and within hearing distance of the two. Petitioner then uttered the following words in the Cebu Visayan dialect, which, translated into English, means: "Mr. Mercader sold the Union . . . the money of the Union was swindled in the strike staged by the Democratic Labor Association against the Cebu Stevedoring Company. Atty. Mercader received bribe money in the sum of P10,000.00 from the copra exporter Richard Corominas & Co. and another P6,000.00 from the Cebu Stevedoring Company . . . Atty. Mercader is engaged in racketeering and that he is enriching himself with the capitalists. The money of the Union was spent by him to his own personal benefit". At the time of the incident just related, Delfin Mercader was legal counsel of the Marine Officers Guild. The quoted imputation apparently affected the guild's feeling and

attitude towards Atty. Mercader. For, subsequently, he was eased out as the guild's legal counsel. Offshoot is the criminal complaint for grave oral defamation lodged by Mercader with the City Fiscal's Office. In pursuance thereof, the City Fiscal's Office filed in the City Court a formal criminal complaint. This complaint the recital of the factual averments omitted winds up with the following: IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of August, 1959, in the City of Cebu, Philippines.

(SGD.) DELFIN MERCADER Complainant SUBSCRIBED AND SWORN to before me this 28th day of August, 1959, in the City of Cebu, Philippines. (SGD.) JOAQUIN T. MAAMBONG Municipal Judge xxx BAIL RECOMMENDED: P500.00. ATTESTED BY: (SGD.) CIPRIANO VILLORDON Asst. Fiscal, Cebu City CERTIFICATION THIS IS TO CERTIFY that I have conducted preliminary investigation of the above-entitled case, [and there], having taken the testimonies of the witnesses under oath, and there is ground to believe that the crime of grave oral defamation has been committed and that the herein accused is probably guilty thereof. City of Cebu, Philippines, August 28, 1959. (SGD.) CIPRIANO VILLORDON Asst. Fiscal, Cebu City 1. Petitioner challenges the Cebu City court's jurisdiction to hear the case. His reasoning runs thus: The defamation imputes upon Mercader the crime of estafa; estafa can only be prosecuted de oficio; therefore, the criminal prosecution may only be started upon an information lodged in court by the fiscal. Now, to the law. Criminal actions, the general rule states, must be commenced either by complaint or information.3 But petitioner thrusts upon us the view that his case is to be taken out of the operation of this precept. He props up his argument with a citation of the last paragraph of Article 360, Revised Penal Code, viz; "No criminal action for defamation xxx xxx

which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offensed party."4 Read as it should be, the plain import of the statute just reproduced is that where defamation imputes a crime which cannot be prosecuted de oficio,5 the general rule must give way, the criminal action must have to be brought solely "at the instance of and upon complaint expressly filed by the offended party". The converse proposition, however, cannot be true. Reasonable construction will not permit a deduction which would constrict criminal prosecution of defamation which can be prosecuted de oficio by means of information. We do not propose to undertake the impermissible task of writing into the statute an alien concept: that which would exclude criminal action started by complaint. Nor should we attribute to the law an occult content. As unavailing to petitioner is his reliance on the Cebu City Charter which provides that the city prosecuting attorney "shall also have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the Court of First Instance of Cebu and the Municipal Court of the city, and shall discharge all the duties in respect to criminal prosecutions enjoined by law upon provincial fiscals."6 Because, this citation is incomplete. Petitioner only quotes the second part of the first paragraph of Section 37 of the Cebu City Charter. He omits the first part of the second paragraph thereof which reads: "The fiscal of the city shall cause to be investigated all charges of crimes, misdemeanors and violations of ordinances, and have the necessary informations or complaints prepared or made against the person accused." Taken in context, an unembroidered version of the Cebu City Charter on this point simply is this: A criminal charge is first to be lodged with the fiscal who shall investigate the same; if warranted, he shall have the necessary information or complaint prepared or made against the accused; thereafter, he shall have charge of the prosecution of the crime in court. Here, the complaint was first lodged with the fiscal. He conducted a preliminary investigation. He found probable cause. He attested to the complaint verified by the complainant. He recommended bail. He caused the complaint to be filed in the city court. In short, he adopted the complaint as his own. These actuations of the fiscal in the case under review pass the statutory requirement. And, in a literal sense. Because, with the verified complaint, he instituted the criminal proceeding.7 Persuasive is the pronouncement of this Court in a 1918 case.8 There, the complaint for libel was signed by the offended party but was presented in court by the prosecuting attorney. This court was called upon to construe Section 14 of Act 277 (the Libel Law) which contains the mandate that all criminal actions for the crime of libel "shall be begun and prosecuted under the sole direction and control of the ordinary prosecuting officers, anything in the existing laws to the contrary notwithstanding." The language we there employed is: The prosecuting officers "may begin such action by the presentation of either a complaint or information"; and, "if the complaint or information is presented by the ordinary prosecuting officers, even though the complaint is signed by a private person, we are of the opinion that the `criminal action for libel' is `begun' in conformity with the requirements of section 14 (Act No. 277)." The evident purpose of the law, this Court there said, "is that no person shall be annoyed with a prosecution for libel without the consent and intervention of the ordinary prosecuting officers." We do not intend to retreat from this wise pronouncement. For, it should be as valid in oral defamation as it is in libel.1awphl.nt

The criminal proceeding herein was properly commenced. The trial court acquired jurisdiction. 2. Petitioner's next line of defense is that the city court of Cebu has no jurisdiction over the crime of serious oral defamation. Again, he falls back on the Cebu City Charter, Section 40 thereof gives the city court authority to try criminal cases where the maximum punishment is by imprisonment for not more than 6 months or a fine of not more than P200.00 or both. Grave oral defamation is penalized with arresto mayor in its maximum period to prision correccional in its medium period.9 Converted into time, this means a prison term from 4 months and 1 day to 2 years and 4 months. Of course, if gauged merely by the charter limitation, the city court would not have jurisdiction. But the city charter is not controlling. The criminal complaint here was not registered until August 29, 1959. On August 1, 1959, Congress expanded the jurisdictional boundaries of city courts, 10 this time in concurrence with the courts of first instance. By the applicable statute on August 29, 1959, city courts were already empowered to hear and determine criminal offenses where the penalty involved did not exceed six years imprisonment or three thousand pesos fine or both such imprisonment and fine. The jurisdictional question is therefore resolved in the affirmative. 3. Petitioner pleads prescription. The complaint, he insists, is merely one for slight oral defamation punishable by arresto minor or a fine not exceeding P200.00. This offense lapses in two months.11 The incident took place on May 21, 1959; the complaint was filed on August 29, 1959. Three months and eight days having elapsed, petitioner submits that the crime is time-barred. But is there substance to the pose that the oral defamation here is slight? Article 358, Revised Penal Code, spells out the demarcation line, between serious and slight oral defamations in this wise: "Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos." A rule which has long since ripened into dogma is that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried. 12 To differentiate between grave and light slander, we are to be guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending upon, as Viada puts it, ". . . no solo al sentido o significacion gramatical de las palabras pronunciadas, juzgandolasa aisladamente, sino a las circunstancias especiales del caso, antecedentes y relacion que medie entre las personas del injuriante e injuriado, particulares todos que contribuyen eficazmente a demonstrar la intension del culpable en el momento de delinquir: . . .". 13 With these lampposts to guide us, we proceed to analyze the factual recitals in the complaint. The scurrilous words impute to the offended party the crime of estafa. The language of the indictment strikes deep into the character of the victim: He "has sold the union"; he "has swindled the money of the members"; he "received bribe money in the amount of P10,000.00 . . . and another P6,000.00"; he "is engaged in racketeering and enriching himself with the capitalists"; he "has spent the funds of the union for his personal use."

No amount of sophistry will take these statements out of the compass of grave oral defamation. They are serious and insulting. No circumstances need be shown to upgrade the slander. And, no circumstances were alleged in the complaint. Of course, petitioner's disclaimer is that his words were intended "to correct a procedure which was degrading to the affairs of the union". 14 Both of the lower courts rejected his explanation. And, appreciation of testimony is beyond our zone of action. If more were needed, let us dig deep into the backdrop. Petitioner wanted the union officers to pocket the sum of P10,000.00 offered to them by Richard Corominas & Co. He eschewed the idea of spreading the benefits to all the union members. He was frustrated in his wish. Then he conducted a smear campaign against the union president. For these, he was expelled from the union. Long after, came the meeting with the officers of the Marine Officers Guild. There, in cool and forceful deliberation, he let go the slanderous statements here charged in the absence of Mercader. This time, he had his way. Mercader was eased out as legal counsel of the Marine Officers Guild. The People has thus clinched a case for grave oral defamation. 4. On March 24, 1966, after the briefs have been filed and this case submitted for decision, the offended party, Delfin Mercader, submitted to this Court an affidavit dated March 22, 1966. He there stated that the prosecution of petitioner, his former classmate and former co-worker in the Cebu labor movement, "was brought about by a misunderstanding in good faith among friends," that petitioner's remarks "were provoked" by Quintin Canlas and were uttered "out of heat and passion engendered by a heated interchange between the two; that he and petitioner had `made up and reconciled.'" He swore therein to the following: "That in conscience I hereby withdraw, condone, dismiss and waive any and all claims, civil, criminal or administrative, that I may have against Amancio Balite due to or by reason of the misunderstanding which brought about the filing of the said criminal case." At this stage of the action, this change of heart erects no shield against punishment; it will not insulate petitioner from the effects of his criminal act. And this, notwithstanding the stultified apostasy of the victim. Temporizing with crime, courts of justice are not to countenance. Because, pardon by the offended party except as provided in Article 344 of the Revised Penal Code does not extinguish the criminal act. 15 And even in the excepted cases, pardon must come before the institution of the criminal proceedings.16 However, express condonation by the offended party has the effect of waiving civil liability with regard to the interest of the injured party. 17 For, civil liability arising from an offense is extinguished in the same manner as other obligations, in accordance with the provisions of the civil law.18 Mercader's affidavit necessarily wipes out the civil indemnity of P5,000.00 granted by the lower courts. 5. For a slight correction of the penalty imposed by the Court of Appeals. The sentence there is for an indeterminate period ranging from 4 months and 1 day of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum. The penalty for grave oral defamation is arresto mayor, maximum, to prision correccional, minimum. 19 No modifying circumstance is attendant. The minimum of the penalty under the indeterminate sentence law must be within the range next lower in degree, that is, arresto mayor in its minimum and medium periods.20 Conformably to the foregoing, the judgment under review is hereby modified. Petitioner, guilty beyond reasonable doubt of the crime of grave oral defamation, is hereby sentenced to serve a prison term ranging from 4 months of arresto mayor, as minimum, to 1

year and 8 months of prision correccional, as maximum. The civil indemnity of P5,000.00 is deleted from the judgment under review. Costs against petitioner. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur. Barrera and Bengzon, J.P., JJ., took no part.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 91116 January 24, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO GERONES, accused-appellant. The Solicitor General for plaintiff-appellee. Custodio P. Caete for accused-appellant. GUTIERREZ, JR., J.:p For the rape of Liliosa Gargantilla, a mental retardate, a complaint was filed on September 10, 1986 against Calixto Raga alias "Calix" and Leonardo Gerones alias "Nanding or Narding". The complaint was filed with the Municipal Trial Court of Palo, Leyte. After preliminary investigation, the Municipal Trial Court, finding the existence of probable cause forwarded the records to the Office of the Provincial Prosecutor of Leyte. An information was subsequently filed with the Regional Trial Court of Leyte charging Leonardo Gerones and Calixto Raga with the crime of rape. The information reads: That on or about the 30th day of August, 1986, in the Municipality of Palo, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with deliberate intent and with lewd designs, and by means of threats and intimidation and with use of a deadly weapon which Leonardo Gerones had provided himself for the purpose, did, then and there wilfully, unlawfully and feloniously dragged (sic) and pushed (sic) Liliosa Gargantilla to Calixto Raga who had carnal knowledge on said Liliosa Gargantilla, against her will and consent. (p. 15, Original Records) Both accused pleaded not guilty to the crime charged. Trial proceeded and a judgment of conviction was rendered by the trial court. The dispositive portion of said decision reads: WHEREFORE, the Court finds clear evidence convincing beyond reasonable doubt that the accused LEONARDO GERONES and CALIXTO RAGA are guilty of the crime of rape and are hereby sentenced to a penalty of reclusion perpetua and both are ordered to indemnify the heirs of the late Liliosa Gargantilla the sum of P25,000.00 by way of damages. (p. 6, Decision) From the aforementioned decision, both the accused appealed. However, only accused Gerones filed his brief. He specifically assigns the following as error allegedly committed by the trial court: THE TRIAL COURT ERRED IN FINDING THE ACCUSED- APPELLANT, LEONARDO GERONES GUILTY OF THE CRIME OF RAPE IN IMPOSING UPON SAID APPELLANT THE PENALTY OF RECLUSION PERPETUA AND ORDERING HIM TO INDEMNIFY THE HEIRS OF THE LATE LILIOSA GARGANTILLA THE SUM OF TWENTY-FIVE THOUSAND PESOS (P25,000.00) BY WAY OF DAMAGES, AND ERRED IN NOT ACQUITTING SAID APPELLANT INSTEAD. It is a rule in rape cases that sexual intercourse with a woman who is deprived of reason constitutes rape. (People v. Estrebella, 164 SCRA 114 [1988]; People v. Asturias, 134 SCRA 405 [1985]). This is because while, as in this case, the woman may be 22 years old, her mental capacity may be that of a nine or ten year old child. Hence, she is incapable of giving

consent to the sexual intercourse (People v. Sunga, 137 SCRA 131 [1985]). The necessity of proof beyond reasonable doubt of force or intimidation having been applied is absent. The accused-appellant contends that the complaint did not give jurisdiction to the trial court the same having been signed by a mentally incompetent woman. Initially, a complaint was filed with the barangay captain by Francisco Gargantilla, the victim's father. Rule 110, Section 5 also provides that in the case of a deceased or incapacitated person, the State may initiate the criminal action in her behalf. The information filed by the Provincial Prosecutor, the complaint initiated by the father, and the complaint filed by the offended party herself sufficiently confer jurisdiction on the trial court. The records show that the victim managed to communicate her ordeal to the court clearly and consistently. The trial court found Liliosa to have the mental capacity of a ten year old. We are convinced that a ten year old girl can adequately narrate facts which show that she has been raped. Thus, the trial court observed: ". . . In the overall, she was able to communicate that the man who is not blind and the man without eyes helped each other in deflowering her thru force and intimidation. Her narration was crude but she managed to communicate the traumatic incident" (p. 2, RTC Decision). Hence, the trial court concluded: . . . The court observed Liliosa closely when she took the witness stand and the court found that she comprehend (sic) how the rape was done to her which in the opinion of this court is sufficient in extent. (ibid) The case of People v. Rizo, G.R. No. 86743, August 30, 1990 places the determination of the competency of witnesses to testify in the hands of the trial court. As repeatedly held by this Court, the factual findings of the trial court as to the guilt of the accused, particularly the trial judge's assessment of the credibility of the witnesses' testimonies are accorded great respect on appeal in the absence of grave abuse of discretion on the part of the trial judge who has the advantage of actually examining both real and testimonial evidence including the demeanor of the witnesses as they present the same. (People v. Bravo, G.R. No. 68422, December 29, 1989; People v. Ramos, 167 SCRA 476 [1988]) Moreover, while the psychiatry report states that the victim cannot be expected to be a capable witness, at the same time it admitted that Liliosa can comprehend the nature of her acts under a limited extent. The same report concludes that she is verbally productive although she talks in incomplete sentences at times. What is required by the rules merely is that the witness is able to make her perception known to others. Thus, Rule 130, Sec. 20 of the Rules of Court states: "Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. . . . Considering the foregoing, we agree with the trial court that Liliosa Gargantilla is a competent witness. There is likewise no reason to doubt her credibility as she had no motive to testify against the accused (People v. Esquillo, 171 SCRA 571 [1989] citing People v. Ocampo, 143 SCRA [1986]). No motive can be ascribed to complainant or to her father and step-mother other than a desire for justice and redress for a terrible wrong. (See People v. Cayago, 158 SCRA 586 [1988]). She was a poor barrio girl with the mental capacity of a 10year old, inexperienced to the ways of the world. It is highly improbable that she would fabricate matters and impute the crime unless it was true (People v. Baao, 142 SCRA 476 [1986]).

The accused further claims that the evidence presented is against its commission. The finding was that she was negative for spermatozoa and the laceration was old. We held in the case of People v. Paringit, G.R. No. 83947, September 13, 1990 that "the presence or absence of traces of spermatozoa is too immaterial, since it is penetration, however slight, and not ejaculation, that makes for rape (People v. Somera, 170 SCRA 428 [1989]). As to the laceration, which the defense claims is old and could not have been inflicted on the date of the rape as it appears in the Information, the same has been sufficiently explained by the findings of Dr. Perez that "Liliosa is disoriented as to time and person." There is therefore, a great possibility that the rape was committed earlier than the date which Liliosa has given. The absence of precision in stating the time of the crime is understandable (People v. Fajardo, 151 SCRA 696 [1987]). What is decisive in the rape charge is the complainant's positive identification of the accused-appellants as the malefactors (People v. Mustacisa, 159 SCRA 227 [1987]). The victim was even able to testify that only one actually had sexual intercourse with her and that was the blind, man while the other man who was not blind held her and pointed a knife at her while the former was raping her. Equally important in the consideration of the case are the subsequent actuations of the appellant and his co-accused which constitute an admission of guilt on their part. Accused Raga offered marriage to the victim which the latter, however, turned down. There was likewise an attempt to amicably settle the case for the amount of P1,500.00. Not a few number of cases have established that an offer of marriage is considered an admission of guilt of the accused (People v. Valdez, 150 SCRA 405 [1987]; People v. Aragona, 138 SCRA 569 [1985]). The defense of alibi of the appellants is not worthy of belief. Gerones claims that he went to see a movie with a friend but neither of them was able to remember the movie nor was able to narrate the same. Raga, on the other hand, admitted that he worked for Gerones 2 days prior to the rape incident but that he was no longer in the vicinity on August 30. This alibi does not likewise inspire belief As the Solicitor General pointed out, if there is need for cooking the coconuts to copra the following day, he could have attended and helped in the last phase of the work which was on August 30. The defense put up by the accused must fail. The Court has consistently held that the alibi of the accused that he was not at the rape scene cannot stand against the positive identifications made by the complainant (People v. Soriano, 122 SCRA 740 [1983]; People v. Deus, 136 SCRA 660 [1985]). WHEREFORE, the Court hereby affirms the judgment of the court a quo by finding the accused guilty of the crime of rape and, therefore, must suffer the penalty of reclusion perpetua but with the modification that the accused must indemnify the heirs of the late Liliosa Gargantilla, as held in recent cases, the amount of FIFTY THOUSAND PESOS (P50,000.00). SO ORDERED.

Fernan, C.J., Feliciano and Bidin, JJ., concur.