Monday, January 9, 2012

CHILD WITNESS

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 137933 January 28, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTIN BARING, JR., accused-appellant.

BUENA, J.:

Valentin Baring, Jr., herein accused-appellant, was indicted for statutory rape committed against a seven-year-old girl in an information that reads-

"That prior to August 2, 1997 and on several occasions thereto, in the Municipality of Dasmariñas, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force, violence and intimidation taking advantage of his superior strength over the person of the victim who is only seven (7) years old, did, then and there, wilfully, unlawfully and feloniously, have carnal knowledge of one Jennifer Donayre, against her will and consent, to her damage and prejudice.

"CONTRARY TO LAW."1

On his arraignment accused-appellant pleaded not guilty to the crime charged.

After trial, the Regional Trial Court of Imus, Cavite rendered a decision dated January 20, 1999, convicting accused-appellant of rape, to wit

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape, the accused-Valentin Baring Jr. is sentenced to die by lethal injection and to pay the victim an indemnity of P50,000.00 plus moral damages of another P50,000.00 plus the cost of this suit.

"SO ORDERED."2

In a sworn complaint,3 Jennifer Donayre accused Valentin Baring, Jr., her grandmother’s common–law husband, of raping her on several occasions. It appears that Jennifer was living with her grandmother in Dasmariñas, Cavite. She does not know her real father since her mother and father were separated.4 Since 1990, when she was about 8 months old5 until 1997, she was left under her grandmother’s care and custody. She calls Valentin Baring, Jr. as "Papa."6

According to Jennifer, the repeated sexual abuse happened when she was about 6 years old whenever she was left alone in the house. Accused-appellant would touch her private parts, and on such occasions, accused-appellant would remove her panty, mount on her and violate her. She informed her grandmother that accused-appellant sexually abused her.7

On July 29, 1997, Jenelyn Donayre-Mendoza visited her daughter Jennifer, herein victim, in Dasmariñas, Cavite. She learned from her daughter that the latter was sexually abused by accused-appellant. Acting on her daughter’s accounts of sexual abuse, she took Jennifer to the National Bureau of Investigation and filed a complaint. Thereafter, Jennifer underwent a medical examination at the Philippine National Police (PNP) Crime Laboratory Service in Camp Crame, Quezon City. Dr. Dennis G. Bellen, the medico-legal officer at Camp Crame found that Jennifer was in "non-virgin state physically." The examination disclosed a "congested, fleshy-type hymen with shallow healing laceration at 9 o’clock position and the external vaginal orifice admits tip of the examiner’s smallest finger."8

For his defense, accused-appellant denied the allegations against him.9 According to accused-appellant, he has been living with Jennifer’s grandmother for ten (10)10 or eighteen (18) years.11 Accused-appellant claimed that Jennifer was not living with them during the time the alleged rape occurred.12 Later on, he testified that prior to July, 1997, Jennifer was living with them since 1990.13 However, Jennifer was taken from them sometime in July 1997, but he does not know why.14

The trial court meted out its judgment of conviction on the basis of the victim’s clear, trustworthy and positive testimony that she was raped several times by accused-appellant. Because of the penalty imposed, this case is now before us on automatic review.

On April 20, 1999, accused-appellant, through his counsel, filed a petition before this Court to dismiss the case that is subject of our automatic review because (i) the three-page double-spaced decision of the trial court is bereft of material facts supporting the conviction; (ii) the medico-legal certificate is merely a scrap of paper since the physician who conducted the examination was not presented as a witness that deprived accused-appellant of his right to cross-examination; (iii) the case of attempted homicide filed by the victim’s grandmother against accused-appellant was provisionally dismissed; and (iv) accused-appellant was merely a "fall guy" and that another person is responsible for the commission of the crime charged against him.15

In the appellant’s brief filed on November 4, 1999, accused-appellant assigns the following errors-

"The lower court erred:

"I. In promulgating a brief and short decision with material facts that have been omitted with no allusions to the transcripts of records erroneous of tenses and grammar jotted by the Court Stenographer.

"II. In denying the accused his right to plead for a DNA Test to determine that the blood found in the panty of the victim is not his but of another man, Venancio Mendoza, live-in husband of Jennelyn, mother of Jennifer Donayre, the victim.

"III. In not finding the accused as a ‘fall guy’ framed up to take the place of Venancio Mendoza, live-in husband of Jennelyn, mother of Jennifer, whose behavior in the courtroom as a witness has been beyond normal."16

The Philippine Constitution no less, mandates that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.17 This vital requirement is not only demanded from the courts. Quasi-judicial bodies are similarly required to give basis for all their decisions, rulings or judgments pursuant to the Administrative Code18 whose roots may also be traced to the Constitutional mandate.

A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis are clearly and distinctly set forth supporting the conclusions drawn therefrom, the decision arrived at is valid. Nonetheless, in order to effectively buttress the judgment arrived at, it is imperative that a decision should not be simply limited to the dispositive portion but must state the nature of the case, summarize the facts with references to the record, and contain a statement of the applicable laws and jurisprudence and the tribunal’s assessments and conclusions on the case. This practice would better enable a court to make an appropriate consideration of whether the dispositive portion of the judgment sought to be enforced is consistent with the findings of facts and conclusions of law made by the tribunal that rendered the decision.19 Compliance with this requirement will sufficiently apprise the parties of the various issues involved but more importantly will guide the court in assessing whether the conclusion arrived at is consistent with the facts and the law.

In the case at bar, the trial court’s decision may cast doubt as to the guilt of accused-appellant. Such doubt may be engendered not by the lack of direct evidence against accused-appellant but by the trial court’s failure to fully explain the correlation of the facts, the weight or admissibility of the evidence presented for or against the accused, the assessments made from the evidence presented, and the conclusions drawn therefrom after applying the pertinent law as basis of the decision.

Accused-appellant claims that the trial court erred in convicting him of the crime of rape despite prosecution’s failure to present the examining physician to appear in court depriving him of his constitutional right to confront a witness against him.20 However, a review of the transcript of stenographic notes reveal that accused-appellant’s counsel waived presentation of the medico-legal officer and thus, was not deprived of his constitutional right to confront said witness, to wit-

"PROS. ORQUIEZA:

Your Honor, I was informed by the mother of the private complainant that the doctor is no longer connected with the Crime Laboratory Service at Camp Crame, Quezon City but was reassigned to the Eastern Police District at Mandaluyong City.

"PROS. ORQUIEZA:

I just prefer that a subpoena be sent. We have to ask for the postponement.

"ATTY. ABUBAKAR:

We can dispense with the testimony.

"COURT:

Provided this is admitted.

"COURT:

Do you admit the due execution and authenticity of the report of the doctor?

"ATTY. ABUBAKAR:

We admit everything written here because (sic) doctor says.

"COURT:

Yes, whatever is written there, do you admit that?

ATTY. ABUBAKAR

Yes, your Honor.

"COURT:

No need to present the doctor

"PROS. ORQUIEZA:

We will no longer present Dr. Dennis G. Bellen of the Philippine National Police Crime Laboratory Service at Camp Crame, Quezon City. We have here the xerox copy of the medico legal report no. M-2831-97.

"COURT:

Will you show that to Atty. Abubakar.

"ATTY. ABUBAKAR:

Yes, your Honor.

"COURT:

Admitted.

You dispense the testimony of the doctor.21

A medical certificate after all is not indispensable to prove the commission of rape.22 It is well entrenched in our jurisprudence that a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victim’s testimony alone, if credible, is sufficient to convict the accused of the crime.23 Besides, testimonies of rape victims who are of tender age are credible,24 and the testimonies of child-victims are given full weight and credit.25

Accused-appellant likewise impugns the credibility of the victim by pointing out that the rape was filed one year after its commission, which allegedly leaves doubt as to the real identity of the culprit.

Delay in reporting an incident of rape does not create any doubt over the credibility of the complainant nor can it be taken against her.26 The following realities justified the delay in the filing of the case against accused-appellant: (1) the victim was merely six years old when she was sexually abused; (2) the victim lived separately from her mother and was left under her grandmother’s care; and, (3) the victim’s sexual abuser happens to be her step-grandfather.

According to accused-appellant, he was simply ‘framed-up’ and that another person also raped the victim.27 He avers that his allegation is supported by the testimony of the victim’s mother Jenelyn that the victim was likewise abused by the latter’s husband.

The categorical testimony of the victim that she was raped by accused-appellant cannot be overturned by the bare denial and defense of being ‘framed-up’ interposed by accused-appellant. The victim made a positive, clear and categorical declaration pointing to accused-appellant as the person who sexually ravaged her-

"Q: Are you the same Jennifer Donayre the private complainant against the accused Valentin Baring, Jr.?

"A: Yes, sir.

"x x x x x x x x x

"Q: Who is your father?

"A: I do not know the name of my father because my father and mother are separated.

"Q: If your father is in the courtroom can you point to him?

"A: Yes, sir. (Witness pointing to a man inside this courtroom when asked given [sic] his name as Valentin Baring.)

"Q: Is he your true father?

"A: No sir. He is my stepfather.

"Q: You were pointing to your stepfather, do you know what things or particular things, if any, he did to you?

"A: Yes, sir.

"Q: What were those particular things your stepfather had done to you?

"A: He raped me.

"Q: When your stepfather raped you, what actually did your stepfather do to you?

"A: He removed my panty.

"Q: What did your stepfather do after removing your panty?

"A: He placed himself on top of me.

"Q: Was he naked when he placed himself on top of you?

"A: Yes, sir.

"Q: When he was on top of you, did he place his penis inside your private parts?

"A: Yes, sir.

"Q: What did you feel when his penis was inside your private parts, if any?

"A: I felt pain.

"Q: Was your private part bleeding as a result of the insertion of the penis of your stepfather into your private parts?

"A: Yes, sir.

"Q: Did he kiss you while he was on top of you?

"A: Yes, sir.

"Q: What parts of your body or face was kissed?

"A: My cheek.

"Q: Where did this happen?

"A: Dasmariñas, Cavite.

"Q: In whose house or place?

"A: In the house of my grandmother.

"Q: Who are the residents of that house at that time?

"A: At that time nobody was in the house because they were working.

"xxx xxx xxx

"Q: Can you recall if the rape you mentioned to us happened while you were 7 years old, 6 years old? What was your age then if you can recall?

"A: 6 years old.

"Q: How many times did your stepfather do to you these things you mentioned to us that is by placing (sic) on top of you and inserting his penis into your private parts and kissing you?

"A: 10 times.

"Q: Do you know how to count?

"A: Yes, sir.

"Q: How many is this? (prosecutor is depicting two fingers)

"A: Two, sir.

"Q: How about this, how many? (Prosecutor is depicting five fingers).

"A: Five, sir.

"Q: How about this?(Prosecutor is depicting 10 fingers)

"A: Ten, sir.28

Accused-appellant even contends that the failure of the prosecution to establish the dates when the other alleged rapes were committed justifies the outright dismissal of the case.29

Failure to specify the exact date or time when the rapes occurred does not ipso facto make the information defective on its face.30 When all the essential elements of the crime of rape are stated in the information, an accused is sufficiently apprised of the charged against him. Moreover, the precise time of the commission of the crime of rape is not an essential element of rape.31 Neither is the exact date of commission of rape an element of the crime32 for the gravamen of the offense of rape is sexual intercourse without consent.33

Accused-appellant contends that the trial court denied him his right to subject the blood found on the victim’s panty for DNA testing.

The records reveal that accused-appellant’s counsel initially asked the court to subject the alleged blood found in the victim’s panty to a DNA test for comparison with accused-appellant’s blood.34 However, he voluntarily withdrew his proposition.35 Obviously, accused-appellant’s counsel is misleading the Court. It was even accused-appellant’s counsel who recalled the submission for DNA testing. The alleged denial of accused’s right to avail of the DNA tests is a futile attempt to confuse the issues. He lost sight of the categorical testimony of the victim pinning him down as the perpetrator. It would have been more prudent for him to attack this damaging evidence directly. It must be noted that in the prosecution of rape cases, the presentation of the bloodstained panty is not even essential.36 The victim’s credible testimony, standing alone, is sufficient basis for the conviction of accused-appellant.

Cases subject of our review, especially those in the nature of child sexual abuse, often involve victims of tender years. On account of the increased number of children coming into the realm of the judicial system, we adopted the "Rule on Examination of a Child Witness" to govern the examination of child witnesses who may either be victims, accused or witnesses to a crime.37 This rule ensures an environment that allows children to give reliable and complete evidence, minimize trauma, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.38

In line with our foregoing thrust to protect children, we observed the peculiar physical examination performed by the doctor on the seven-year-old victim in this wise-

"GENITAL

There is absence of pubic hair. Labia majora full, convex and slightly gaping with the pinkish brown labia minora presenting in between. On separating, the same disclosed a congested, fleshy-type hymen with shallow healing laceration at 9 o'clock position. External vaginal orifice admits tip of the examiner’s smallest finger."39 (emphasis ours)

This Court is disturbed by the method of physical examination done on the seven-year-old victim. We noticed that in the examiner’s effort to show the existence of abuse, the examining physician inserted his smallest finger, as shown in the medico-legal report that the ‘external vaginal orifice admits tip of the examiner's finger.’

It bears to stress that this particular manner of establishing evidence – by determining the diameter/hymenal opening in rape cases – was a common practice in the past. With the passage of R.A. 7610, this Court has nonetheless allowed the utilization of the same kind of evidence in the prosecution of Child Abuse cases. In light however of radical medical developments and findings, specifically as to the determination of the existence of child sexual abuse, this Court deems it necessary to firmly adopt a more "child sensitive" approach in dealing with this specie or genre of crime.

In the international scientific community, recent medical studies have shown that measurement of hymenal opening is unreliable in determining and/or proving child sexual abuse –

"The diameter of the hymenal opening previously has been used as a diagnostic criterion for abuse. More recent studies have shown this to be undependable (Paradise, 1989).Factors affecting hymenal and anal diameter include the examination position (McCann, Voris, Simon, & Wells, 1990) and the degree of relaxation of the child. The anal diameter is also affected by the presence of stool in the ampulla. Hymenal diameter may increase with age and with the onset of pubertal development."40

In fact, there is no evidence, nor published research studies which show that enlarged hymenal opening diameter is any more common in abused than in non-abused children."41 Thus -

"In the latest revision of the classification system, ‘enlarged hymenal opening’ is also removed as a criterion that should be considered suspicious for abuse. With labial traction, the hymenal opening may appear quite large, especially to the less experienced clinician, and internal structures such as vaginal ridges, rugae, and vaginal columns may be visualized. This is purely a matter of how much traction is applied, and the degree of patient relaxation, and has no proven correlation with past sexual abuse. Likewise, it is not possible to obtain accurate measurements of the dilated hymenal opening, unless photographs are taken at the point of maximal dilation and measurements are taken from the photographs using a calibrated measuring device. Rings of different sizes that are etched into eyepieces of certain types of colposcopes can be used to estimate diameter size but not to obtain exact measurements."42

Hence, insertion of a finger or any foreign matter inside the hymenal opening under the pretext of determining abuse is unnecessary and inappropriate. The Philippine Judicial Academy [PHILJA] training program for family court judges,43 through the auspices of the U.P.-P.G.H. Child Protection Unit, sanctioned that in prepubertal girls44 without active bleeding, all that is needed is an external examination with a good light source and magnification. Be that as it may, the physical findings alone will not be conclusive of child sexual abuse, for a child who gives a clear, consistent, detailed, spontaneous description of being sexually molested may still have normal genital examination. Despite the physical or laboratory findings, however, a child’s clear and convincing description of the abuse has a high rate of probability.

We are not at all uninformed in this regard for we, in a plethora of cases, have consistently upheld the full weight of a young victim’s unwavering testimony.45 Also, there is Section 22 of the Rule on Examination of a Child Witness, which categorically states:

Section 22. Corroboration.- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard proof required in criminal and non-criminal cases.

What is important at this point, and we do not hesitate to reiterate, is that forensic examination – inclusive of physical examination and forensic interview – of sexually assaulted children [adolescents included] must be conducted with maximum sensitivity to the young victim’s feelings of vulnerability and embarrassment. Great care must be observed in order to make the examination less stressful lest they be more traumatic to the victim than the very assault itself. The value of collecting evidence should always be weighed against the emotional cost of the procedure and examination of the child.

We now come to the matter of the death penalty imposed by the trial court. The single information filed against accused-appellant, docketed as Criminal Case No. 6334-98, charged him with the crime of "Multiple Statutory Rape."46 Even then, accused-appellant cannot be held answerable for the other incidents of rape committed. Each and every charge of rape is a separate and distinct crime so that each of the other rapes charged should be proven beyond reasonable doubt.47

Article 266-B, paragraph No.5 of the Revised Penal Code, imposes death penalty when the victim is a child below seven (7) years old. The allegation in the information specifically stated that "xxx the victim xxx is only seven years old" which clearly rules out the application of this specific provision that can justify the imposition of the capital punishment. Paragraph No. 1 of the same article which warrants the imposition of the death penalty if the crime of rape is committed where the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common–law spouse of the parent of the victim,48 will not apply for while the victim is under eighteen (18) years old, the accused-appellant is not the common-law husband of the victim’s mother. The trial court therefore erred in meting out the death penalty upon accused-appellant for qualified rape. Thus, accused-appellant may only be sentenced to suffer the penalty of reclusion perpetua.

In line with our prevailing jurisprudence,49 we sustain the trial court’s award of P50,000.00 civil indemnity and P50,000.00 moral damages.

WHEREFORE, the decision of the Regional Trial Court, Branch 21, Imus, Cavite, in Criminal Case No. 6334-98, finding accused-appellant Valentin Baring, Jr., guilty beyond reasonable doubt of rape is hereby AFFIRMED with the MODIFICATION that the sentence is reduced to reclusion perpetua.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.


Footnotes

1 Rollo, p. 4, 12 and 37; records, p. 1.

2 Rollo, pp.14; 39; records, p. 90.

3 Records, pp. 7-8.

4 TSN, June 17, 1998, p. 3.

5 TSN, July 13, 1998, p. 11.

6 TSN, July 13, 1998, p. 12.

7 TSN, June 17, 1998, p. 6.

8 Rollo, p. 20.

9 TSN, August 26, 1998, p. 4.

10 Ibid., p. 10.

11 Ibid., p.11.

12 Ibid., pp. 14-15.

13 Ibid., p. 15.

14 Ibid., pp. 15-16.

15 Rollo, pp. 17-18.

16 Rollo, pp. 29-30.

17 Article VIII, Section 14, Philippine Constitution.

18 Section 14, Chapter III, Book VII of the Administrative Code of 1987 explicitly states that "Every decision rendered by the agency in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based."

19 Oil and Natural Gas Commission vs. Court of Appeals and Pacific Cement Company Inc., 315 SCRA 296, [1999].

20 Rollo, pp.32-34.

21 TSN, July 20, 1998, pp. 2-3.

22 People vs. Dawisan, G.R. No. 122095, September 13, 2001.

23 People vs. Agunos, 316 SCRA 836 [1999].

24 People vs. Mengote, 305 SCRA 380 [1999].

25 People vs. Perez, 319 SCRA 622 [1999].

26 People vs. Montefalcon, 305 SCRA 169 [1999].

27 Rollo, pp. 30-32.

28 TSN, June 17, 1998, pp. 2-8.

29 Rollo, p. 36.

30 People vs. Magbanua, 319 SCRA 719 [1999].

31 People vs. Eddie Sernadilla, G.R. No. 137696, January 24, 2001.

32 People vs. Alba, 305 SCRA 811[1999].

33 Supra at footnote # 21.

34 TSN, August 26, 1998, p. 6.

35 TSN, August 26, 1998, p. 7.

36 People vs. Gastador, 305 SCRA 659 [1999].

37 Section 1, Rule on Examination of a Child Witness, effective December 15, 2000.

38 Section 2, ibid.

39 Rollo, p. 20; records, p. 43, p. 72.

40 The APSAC[American Professional Society on the Abuse of Children] Handbook on Child Maltreatment,1996 edition, pp.199-200:citing the ff. Articles: (1)"Predictive accuracy and the diagnosis of sexual abuse: A big issue about a little tissue;" by J.E. Paradise, Child Abuse and Neglect Journal, No. 13, pp. 169-176; and (2)"Comparison of genital examination techniques in prepubertal girls," and "Genital findings in prepubertal girls selected for non abuse: A descriptive study." By J. McCann, R. Wells, M. Simon & J. Vorris, Pediatrics Journal, Nos. 85-86, pp. 182-187, and pp. 428-439, respectively.

41 Philippine Judicial Academy [PHILJA: Judicial Career Development Seminar Workshop for Regional Trial Court Judges (NCJR and Regions 1 to 12), "Child Abuse and the Medico-legal Examination," held at Ridge Convention Center, Tagaytay City held on December 8 to 11, 1998.

42 See Evolution of a Classification Scale: Medical Evaluation of Suspected Child Sexual Abuse," by J. A. Adams, Child Maltreatment Journal, #6, February 2001, p. 32.

43 Philippine Judicial Academy[PHILJA]: Training Program for Family Court Judges, "Application of Child Psychology in Family Courts: During Trial, Rehabilitation and Integration," held at Development Academy of the Philippines Tagaytay City, held on March 21-24,2000.

44 Pre-adolescent or young girls who have yet to have their menstruation.

45 see People vs. Perez, 319 SCRA 622 [1999].

46 Records, p. 1.

47 People vs. de Leon, 319 SCRA 743 [1999].

48 People vs. Carullo, 311 SCRA 680 [1999].

49 Supra at footnote # 21 and 31.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 140895 July 17, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
ALMA BISDA y GAUPO and GENEROSA "JENNY ROSE" BASILAN y PAYAN, appellants.

PER CURIAM:

Before this Court on automatic review is the Decision1 of the Regional Trial Court (RTC) of Marikina City; Branch 272, convicting appellants Alma Bisda and Generosa "Jenny Rose" Basilan, of kidnapping for ransom; sentencing each of them to the extreme penalty of death by lethal injection, and ordering them to indemnify the parents of the victim Angela Michelle Soriano the amount of P100,000 as moral damages, and to pay the costs of the suit.

The Case

In an Amended Information docketed as Criminal Case No. 98-2647-MK, the appellants were charged with the felony of kidnapping for ransom committed as follows:

That on or about the 3rd of September 1998, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, did there and then willfully, unlawfully, feloniously and knowingly kidnap, detain and deprive ANGELA MICHELLE SORIANO y SAN JUAN of her liberty for six (6) days for the purpose of extorting ransom from her/or her family.

Contrary to law.2

When arraigned, the appellants, assisted by counsel, entered separate pleas of not guilty.3

The Evidence for the Prosecution4

William Soriano, a training consultant by profession, and his wife Marymae Soriano, had two children: Kathleen Denise and Angela Michelle. They rented a house at No. 5 Col. Divino St., Concepcion, Marikina. Their landlady who lived nearby had a telephone with number 942-49-18.5 During the school year 1997-1998, then five-year-old Angela was in Prep at the Mother of Divine Providence School in Marikina Heights, Marikina City. The couple employed Lea and Wendy Salingatog as the yayas of their children. Angela met appellant Jenny Rose Basilan when the latter visited her niece Wendy in the Soriano residence. Jenny Rose was, thus, no stranger to Angela.

About 11:00 a.m. on September 3, 1998, Angela's classes had just ended and she was on her way to her school bus which was parked outside the school campus near the exit gate. She was in her school uniform and wore black shoes. Unknown to Angela, appellants Alma and Jenny Rose were outside of the school gate waiting for her. When they saw Angela, Alma and Jenny Rose proceeded to the gate and showed a visitor's gate pass to the security guard. They approached the young girl, and told her that her parents were waiting for her at the Jollibee Restaurant. Angela initially refused to go with the two women, but because Alma held on to her hand so tightly and poked a knife at her, Angela had no choice but to go with them. They rode a tricycle and went to the Jollibee Restaurant where Jenny Rose ordered spaghetti for Angela. When Angela did not see her parents, she wondered why she went with Jenny Rose and Alma in the first place. With Angela in tow, Alma and Jenny Rose boarded a white taxi and went to a "dirty house" where they changed Angela's clothes. The girl was made to wear blouse and shorts, yellow t-shirt and a pair of panties.6 Alma and Jenny Rose took her earrings. They fed her with the spaghetti they earlier bought at the restaurant. Alma then left, leaving Angela and Jenny Rose in the house.

Jenny Rose sent Angela to sleep, and after a while, Alma returned. When Angela woke up, Alma and Jenny Rose served her merienda and allowed her to watch television. Henceforth, Angela was kept in the house. At one time, Alma and Jenny Rose tied up Angela's hands and feet, and placed scotch tape on her mouth. Angela was sometimes left alone in the house but the door was kept locked. To pass the time, Angela watched television and made drawings. Jenny Rose and Alma did not fail to feed and bathe Angela. Angela did not call her parents through the telephone number of their landlady.

In the meantime, when William arrived home shortly before noon on that day, Lea and Wendy told him that Angela had not yet arrived home from school. He rushed to the school to fetch Angela, but was informed by the school security guard that his daughter had already been picked up by two women, one of whom was registered in the visitor's slip as Aileen Corpuz. Because he did not know anyone by that name, William immediately proceeded to the registrar's office to verify the information, only to find out that "Aileen Corpuz" had earlier inquired at the said office about the possibility of transferring Angela to another school. The school staff panicked when William demanded to know how unknown persons were able to get his daughter. He then started calling his friends and relatives to help him locate Angela. He also sought the help of Rizza Hontiveros, a TV personality who promised to relay his plea to the Presidential Anti-Organized Crime Task Force (PAOCTF). The school staff also reported the incident to the Marikina Police Force which dispatched a team of investigators to the Soriano residence.7

When apprised of the incident, the PAOCTF organized a team headed by then Chief Inspector Ricardo Dandan with SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian agent George Torrente, as members, to conduct surveillance operations and to recover the victim and arrest the culprits. The team proceeded to the Soriano residence and to Angela's school to conduct an initial investigation.

At about 6:00 a.m. on September 4, 1998, William's landlady went to his apartment to tell him that a lady had called up earlier and left a message for him: "Pakisabi na lang kay Mr. Soriano na kakausapin ko siya bukas ng umaga." When the landlady asked who the caller was, the voice replied, "Hindi na importante iyon."8 William thereafter convinced his landlady to have her telephone set transferred to his residence to facilitate communication with his daughter's abductors.9

Shortly before midnight that same day, George arrived at the Soriano residence and asked William if the kidnapper had already made contact. William responded that a woman had earlier called, through his landlady. George then instructed William to prolong the conversation should the kidnapper call again, to enable the agents to establish the possible location of the caller.10

On September 5, 1998 at around 9:25 p.m., William received a call from an unidentified woman who told him, "Kung gusto mo pang makita yong anak mo, maghanda ka ng five million pesos." He replied, "Saan naman ako kukuha ng five million? Alam mo naman na nakatira lang ako sa apartment." The caller said, "Hindi ko masasagot yan. Tatanungin ko na lang sa aking mga boss." William informed George of his conversation with the caller. George relayed the information by means of a hand-held radio to the other PAOCTF operatives standing by.11

On September 7, 1998, at about 11:25 a.m., Marymae received a telephone call from a woman demanding for ransom money. The caller called two more times, at 7:00 p.m. and at 9:26 p.m. Marymae pleaded with the caller to reduce the ransom money to P25,000, or if that was not possible, to an amount not exceeding P50,000. The caller said, "Hindi ko masasagot iyan. Dadalhin na lang namin ang bata sa boss namin." Marymae relayed the conversation to William, their other daughter Kathleen and to George.12

At about noon that day, PAOCTF Chief of Operations Superintendent Michael Ray Aquino received a call from an anonymous source informing him that a woman who had talked about a ransom and had acted in a suspicious manner was spotted at the MSC Freight Service office located at No. 1303 Paz Street, Paco, Manila. Acting on the information, Ricardo, Charles, Tito and other PAOCTF operatives swooped down on the place and saw a woman, who turned out to be Alma Bisda, emerging from a small house at No. 1258 Paz Street, some fifty meters or so away from the said office. She had just bought food from an adjacent store at No. 1246 Paz Street, Paco, Manila. Surveillance operations were thereafter conducted.

At about 3:40 p.m. on September 8, 1998, George and Charles were at the Soriano residence. Ricardo and Tito were in the periphery of Alma's house, monitoring her whereabouts and movements. Alma again left her house and after locking the door, went to the small store nearby. She lifted the telephone and called someone. The telephone in the Soriano residence rang. When William lifted the receiver, he heard a voice similar to that of the woman who had called him the first time. The caller was asking where the money was. William told her that the P25,000 was ready, to which she replied, "Hindi ko masasagot iyan, dadalhin na lang namin ang bata sa aking boss." William told the caller that he was willing to give P50,000 but pleaded that he be given ample time to produce the money. The woman reiterated: "Hindi ko masasagot iyan."13

Ricardo and Tito heard the sound of a car horn blowing while Alma was using the telephone. Tito called up Charles and inquired whether he (Charles) heard the same sound while William was talking to the caller. After William hung up the telephone, he told George that he could hear the horn of a car blowing in the background. George then called up Ricardo by phone and relayed the information. When George inquired if Ricardo heard the sound of the horn of a car while Alma was talking over the telephone, Ricardo replied in the affirmative. The PAOCTF operatives concluded that Alma was the kidnapper.

After making the call, Alma hung up the telephone and returned to her house. The PAOCTF operatives followed. When Alma unlocked the door to the house, the operatives accosted her. She tried to escape, to no avail. Tito heard the cry of a child coming from inside the house, pleading for help: "Tita ilabas mo ako!"14 He rushed to the house and saw the victim Angela. He then carried her outside to safety. The agents searched the house for evidence and found a pair of black shoes, a pair of panties, a yellow shirt, a set of blouse and shorts with red, yellow and white stripes. The evidence was placed in a plastic bag.15 The victim and the suspects were thereafter brought to the PAOCTF office for proper documentation.

When informed that his daughter had already been rescued, William rushed to the PAOCTF headquarters where he and Angela were reunited. Angela identified Alma as her kidnapper. When William asked Alma why she kidnapped Angela and what she would do with the one-million-peso ransom she was demanding, she replied: "Kuya, wag kang maghusga, pareho lang tayong biktima." When William asked Alma: "Biktima, saan?" Alma replied: "Ang anak ko, kinidnap din nila."16

Chief Inspector Dandan turned over to Evidence Custodian PO2 Joseph Bagsao, the pieces of evidence contained in a blue Shoe Mart (SM) plastic bag which the operatives found in Alma's house: a pair of black shoes, a pair of panties, a yellow shirt, a set of white blouse and shorts with red, yellow and white stripes, all of which were sized to fit a child of 4 to 7 years of age.17

On October 19, 1998, an information for kidnapping for ransom was filed against Alma and Jane Doe.

On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived at the PAOCTF Headquarters in Camp Crame, and proceeded to PO2 Joseph Bagsao's office where she announced that she was one of Alma's cohorts. PO2 Bagsao took Jenny Rose's fingerprints and entered the data in a fingerprint index card.18 Jenny Rose was thereafter placed in a police line-up. Angela, who arrived at the PAOCTF office with her father, identified Jenny Rose as one of her kidnappers. Police Chief Inspector Atty. Aurelio C. Trampe, Jr., the Legal and Investigation Division Chief of the PAOCTF, later referred Jenny Rose to the Office of the City Prosecutor of Marikina City, for preliminary investigation.19

The prosecutor later amended the Information by deleting the name Jane Doe and substituting the name Jenny Rose Basilan y Payan as the second accused.

Alma's Evidence

Alma denied having kidnapped Angela for ransom. She testified that she was married, and a resident of Block 38, Lot 38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village, Navotas, Metro Manila. She was a businesswoman who ran a local employment agency for household help. She was also engaged in the business of buying and selling palay grains. Her local employment agency was located in Navotas. She had another office at No. 1258 Paz Street, Paco, Manila, which served as a bodega for items she sent to the province, as well as items she purchased. She had an adopted daughter named Mary Rose, who, in September 1998, studied at Harris School in Antipolo. She had employed Wendy Salingatog for a time as the yaya of her adopted daughter. Alma was then residing in V. Luna Street, Quezon City.

Alma employed Jenny Rose as secretary in her employment agency. In payment for services rendered, Jenny Rose was sent to school at the Lyceum of the Philippines to study B.S. Business Administration. She was also given an allowance.

In September 1998, Alma was looking for a school run by nuns that would be willing to accept her adopted daughter in the middle of the school year. Jenny Rose suggested the Divine Providence School in Marikina City. In the morning of September 3, 1998, Jenny Rose brought her to the said school. They proceeded to the administration office where Alma inquired if the school would allow her adopted daughter to enroll. When Jenny Rose and Alma were about to leave, a little girl, who turned out to be Angela, approached them and asked what Jenny Rose was doing in her school. Jenny Rose introduced Angela to Alma as her niece, and informed Alma that she would be bringing Angela with her to her boarding house in España Street.

At that point, Alma asked Jenny Rose and Angela if they wanted to eat. When they agreed, the three of them proceeded to the Jollibee Restaurant near the Meralco office in Marikina City. After eating, Alma bade them goodbye and was about to leave for her office when Jenny Rose asked if she and Angela could come along with her to Cubao. She acceded to the request, and they rode a Tamaraw FX taxi. Because Angela was getting sleepy, Alma offered to bring them to Jenny's boarding house in España, and dropped them off there. Alma thereafter proceeded to her office at 1258 Paz St., Paco, Manila, where she had been holding office since January 1997, and arrived thereat at about 2:00 p.m.

At or about 8:00 p.m. of the same day, Alma passed by Jenny Rose's boarding house to give her instructions on what to do the following day. She saw Angela crying profusely. She told Jenny Rose to bring Angela home, but Jenny Rose told her that Angela's parents would be coming to fetch her. Thinking that Angela was probably bored, Alma suggested that they stay in her office in Paco so that they could watch television while waiting for Angela's parents. Jenny Rose agreed. They arrived at the said office at around 8:40 p.m. Alma left at around 10:00 p.m. and went home to her rented house in Palmera Homes, Antipolo, where she stayed until September 6, 1998.

On September 7, 1998, at around 12:00 noon, Alma arrived at her office in Paco, Manila, and found that Jenny Rose and Angela were still there. Jenny Rose assured Alma that Angela would be fetched by her parents. At around 4:00 p.m., Alma instructed Jenny Rose to go to the province to collect some debts. Jenny Rose left for the province on the same day. Alma stayed in the office because she was having her menstrual period at the time and was not feeling well. She took care of Angela while Jenny Rose was away.

The next day, September 8, 1998, Alma was still in her office with Angela. At about 3:00 p.m., while she was watching television with Angela, someone knocked at the door. When she opened it, two male persons entered. One of them was Inspector Ricardo Dandan who showed her a photograph of Angela and asked if she knew the child. Alma answered in the affirmative. Ricardo then asked her, "Don't you know that this is kidnapping?" to which Alma replied, "I do not know." She also told Dandan that she did not know what was happening to her. Suddenly, Alma was handcuffed. Angela cried and asked Alma: "What are they doing to you, Tita?" She was brought to Camp Crame where she was interrogated and detained. Alma did not make any telephone calls that day. William, Marymae and Angela arrived at Alma's detention cell. When Angela saw her, the girl tried to run to Alma but William held on to his daughter. William asked Alma why she took Angela, Alma replied that it was Jenny Rose who brought the girl along with them. She told William that they were both victims.

Sometime on October 26, 1998, Jenny Rose visited Alma to ask for forgiveness and to assume full responsibility for the incident. Jenny Rose also informed her that she wanted to ask forgiveness from the Sorianos so that she could finish her schooling. It was only then that she realized what Jenny Rose had done to her. Nevertheless, she still believed that Jenny Rose was a good person. She advised her to go home and continue with her studies.

When Angela's sworn statement was shown to her, Alma noticed that Angela did not mention Jenny Rose as one of the two persons who had kidnapped her. Alma executed a handwritten statement denying the truth of the contents of Angela's affidavit.20

Jenny Rose's Evidence

Jenny Rose did not testify in her defense. She presented Atty. Aurelio Trampe, Jr. as her witness who testified21 that he was the Legal and Investigation Division Chief of the PAOCTF. On October 26, 1998, he interviewed Jenny Rose when the latter surrendered to the task force. Jenny Rose insisted that she wanted to help Alma and get all the blame for the kidnapping. She wanted to admit her participation in the crime, and volunteered the information that she and Alma kidnapped Angela. Atty. Trampe, Jr. wrote a letter22 to the Department of Justice requesting for her inclusion in the ongoing preliminary investigation. He believed that it would be more appropriate for the prosecutor handling the case to investigate and determine whether Jenny Rose was the Jane Doe referred to in the complaint. Atty. Trampe, Jr. admitted, however, that aside from the voluntary surrender of Jenny Rose, he did not have any other evidence to include her as one of the suspects in the case. Further, he did not provide a lawyer for Jenny Rose because he did not intend to conduct an exhaustive interrogation, and he knew that even if she admitted her participation, the statement would not be admitted as evidence.23

Jenny Rose adduced in evidence the letter of Atty. Trampe, Jr. to prove that she voluntarily surrendered and that there was lack of evidence against her.

On September 16, 1999, the trial court rendered judgment, the decretal portion of which reads:

WHEREFORE, foregoing premises considered, the accused ALMA BISDA y GAUPO and GENEROSA BASILAN y PAYAN are hereby found GUILTY beyond reasonable doubt of the crime of Kidnapping for Ransom penalized under Article 267 of the Revised Penal Code, as amended by RA 7659 and is sentenced to suffer the extreme penalty of DOUBLE DEATH by lethal injection, the two accused having conspired in the commission thereof. They are further ordered to pay solidarily the parents of the victim the amount of P100,000.00 as moral damages and costs of the suit.

SO ORDERED.24

The assigned errors ascribed by the appellants to the trial court may be synthesized, thus: (a) the trial court erred in convicting the appellants of kidnapping; (b) the trial court erred in sentencing the appellants to double death.25 The Court will delve into and resolve the issues simultaneously.

The prosecution adduced proof beyond reasonable doubt that the appellants kidnapped the victim.

The appellants aver that the prosecution failed to muster proof beyond reasonable doubt that they kidnapped and illegally detained Angela. Angela in fact voluntarily went with them, and she was free to roam around the house, and to call her parents through the telephone of their landlady which Angela knew by heart.

There is no proof beyond reasonable doubt that the appellants conspired to kidnap Angela. Appellant Bisda avers that she is guilty only of slight illegal detention under Article 268 of the Revised Penal Code because (a) Angela stayed in her office for only three days; and (b) the circumstance of a female offender and a female offended party is not one of those included in the definition of kidnapping or serious illegal detention under Article 267 of the RPC.

The trial court's reliance on Angela's testimony is misplaced because the records do not show that Angela had the capacity to distinguish right from wrong when she testified in open court. The appellants point out that she was merely six years old at the time. Although Angela took an oath before she testified, the trial judge failed to ask any questions to determine whether or not she could distinguish right from wrong, and comprehend the obligation of telling the truth before the court. Hence, one of the standards in determining the credibility of a child witness was not followed. There is, thus, a veritable doubt that Angela told the truth when she testified.

Moreover, Angela's testimony is, besides being inconsistent on material points, contrary to ordinary human experience. Angela did not shout or cry when she was forced to leave the school premises and brought to the Jollibee Restaurant. Angela could have easily sought help from the security guard at the exit gate of the school and from the customers in the restaurant, or even from the tricycle and taxi drivers; but Angela did not. Angela even admitted that she voluntarily went with the appellants. She did not cry while detained in the office of appellant Bisda, and even admitted that it was only that time when she was rescued that she cried. The conduct of Angela, the appellants insist, is contrary to ordinary human experience, knowledge and observation. By her own admission in her sworn statement26 to the PAOCTF agents, Angela was assisted by her parents while she was giving the said statement. This raised doubts as to the veracity of her testimony.

The contentions of the appellants are bereft of merit.

Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:

ART. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death.

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659).27

For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely, (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer.28 If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.29 The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers to the gender of the victim and not of the offender.

The essence of the crime of kidnapping is the actual deprivation of the victim's liberty under any of the above-mentioned circumstances, coupled with indubitable proof of intent of the accused to effect the same.30 There must be a purposeful or knowing action by the accused to forcibly restrain the victim because taking coupled with intent completes the offense.31 Kidnapping which involves the detention of another is by its nature a continuing crime.32

The victim's lack of consent is also a fundamental element of kidnapping. The involuntariness of the seizure and detention is the very essence of the crime.33 The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim. However, where the victim is a minor especially if she is only five years old, lack of consent is presumed. She is incompetent to assent to seizure and illegal detention.34 In this case, Angela was merely five years old when she was kidnapped; thus incapable of giving consent. The consent of such child could place the appellants in no better position than if the act had been done against her will. The appellants cannot rely on Angela's initial willingness to go along with them to the restaurant. As Judge Shepherd stated in State v. Chisenhall:35

It is clear that the consent of the child, obtained by means of persuasion, is no defense, since the result of such persuasion is just as great an evil as if it had been accomplished by other means.

A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to conceal her true motive from her victim until she is able to transport the latter to another place.

Although Angela was free to roam around in the "dirty house," to draw and to watch television during the entire period of her detention, and was regularly fed and bathed, the appellants are nevertheless guilty of kidnapping and illegally detaining the five-year-old child. As Judge McGill of the United States Court of Appeals said in United States v. McCabe,36 "to accept a child's desire for food, comfort as the type of will or consent contemplated in the context of kidnapping would render the concept meaningless."

In People v. Baldogo,37 this Court held that illegal serious detention under Article 267 of the Revised Penal Code as amended, includes not only the imprisonment of a person but also the deprivation of her liberty in whatever form and for whatever length of time. It includes a situation where the victim cannot go out of the place of confinement or detention or is restricted or impeded in his liberty to move.38 In this case, the door to the office of appellant Bisda was locked while Angela was detained therein. Even if she wanted to escape and go home, Angela, at her age, could not do so all by herself. During the period of her confinement, Angela was under the control of the appellants. The helpless child was waiting and hoping that she would be brought home, or that her parents would come and fetch her.

The prosecution adduced proof beyond reasonable doubt that the appellants conspired to kidnap and illegally detain Angela. The appellants' testimonies even buttressed the testimonies of both the victim and the other witnesses for the prosecution.

Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it.39 In People v. Pagalasan,40 this Court held that conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design.41 Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once found, continues until the object of it has been accomplished unless abandoned or broken up.42 To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.43 There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.44

Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design.45 Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended.46 Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable with intending that result.47 Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and substantively from that which they intended to commit.48 As Judge Learned Hand put it in United States v. Andolscheck,49 "when a conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them."

The appellants inveigled Angela into going with them by telling her that her parents were waiting for her at the Jollibee Restaurant. Appellant Bisda poked a knife at Angela and held her hands so tightly that the helpless child had no recourse but to come along. The appellants transported Angela on board a taxi and brought her to Cubao, and then to appellant Bisda's office at No. 1258 Paz St., Paco, Manila. The appellants tied her hands, covered her mouth with scotch tape, and detained her from September 3, 1998 until September 8, 1998, when she was providentially rescued by the operatives of the PAOCTF.

The collective, concerted and synchronized acts of the appellants before, during and after the kidnapping and the illegal detention of Angela constitute indubitable proof that the appellants conspired with each other to attain a common objective, i.e., to kidnap Angela and detain her illegally. The appellants are thus principals by direct participation in the kidnapping of Angela and illegally detaining her.

Appellant Basilan cannot escape conviction for the crime charged on her barefaced claim that she merely accompanied appellant Bisda to the latter's office with the victim in tow. The records show that the appellant presented as her sole witness Atty. Aurelio Trampe, Jr., then PAOCTF Legal and Investigation Division Chief, who testified that when she surrendered to him, the appellant admitted that she and appellant Bisda had kidnapped Angela:

ATTY. SALAMERA:

This court would like to be cleared (sic). Did she admit to you the condition of the alleged kidnapping on September 3, 1998?

WITNESS:

She volunteered that statement that she was together with Ms. Alma Besda (sic) kidnap (sic) Angela Michelle Soriano.50

The appellants' contention that the prosecution failed to establish that Angela understood the nature of an oath and the need for her to tell the truth must fail.

Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of witnesses shall be under oath or affirmation:51

SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1a).52

An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God.53 The object of the rule is to affect the conscience of the witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he willfully falsifies.54 A witness must be sensible to the obligation of an oath before he can be permitted to testify.55 It is not, however, essential that he knows how he will be punished if he testify falsely.56 Under modern statutes, a person is not disqualified as a witness simply because he is unable to tell the nature of the oath administered to a witness.57 In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of the difference between his duty to tell the truth after being sworn and before, or that he be able to state it, but it is necessary that he be conscious that there is a difference.58 It cannot be argued that simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole truth, the competency of the witness and the truth of her testimony are impaired. If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency.59 The court may motu proprio conduct the voir dire examination. In United States v. Buncad,60 this Court held that when a child of tender age is presented as a witness, it is the duty of the judge to examine the child to determine his competency. In Republic v. Court of Appeals,61 this Court held that:

[W]hen a witness is produced, it is a right and privilege accorded to the adverse party to object to his examination on the ground of incompetency to testify. If a party knows before trial that a witness is incompetent, objection must be made before trial that a witness is incompetent, objection must be made before he has given any testimony; if the incompetency appears on the trial, it must be interposed as soon as it becomes apparent.62

The competency of a person to take the prescribed oath is a question for the trial court to decide.63

If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by the court, and made the basis of a judgment, such party can no longer object to the admissibility of the said testimony.64 He is estopped from raising the issue in the appellate court. This was the ruling of this Court in Republic v. Court of Appeals,65 thus:

Simply put, any objection to the admissibility of evidence should be made at the time such evidence is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The failure of petitioner to interpose a timely objection to the presentation of Divinaflor's testimony results in the waiver of any objection to the admissibility thereof and he is therefore barred from raising said issue on appeal.

In this case, Angela was six years old when she testified.66 She took an oath to "tell the truth, the whole truth and nothing but the truth" before she testified on direct examination. There was nary a whimper of protest or objection on the part of the appellants to Angela's competence as a witness and the prosecution's failure to propound questions to determine whether Angela understood her obligation and responsibility of telling the truth respecting the matter of her testimony before the court. The appellants did not even bother requesting the trial court for leave to conduct a voir dire examination of Angela. After the prosecution terminated its direct examination, the appellants thereafter cross-examined Angela extensively and intensively on the matter of her testimony on direct examination. It was only in this Court that the appellants raised the matter for the first time, that there was failure on the part of the prosecution to examine Angela on the nature of her oath, and to ascertain whether she had the capacity to distinguish right from wrong. It is too late in the day for the appellants to raise the issue.

The determination of the competence and capability of a child as a witness rests primarily with the trial judge.67 The trial court correctly found Angela a competent witness and her testimony entitled to full probative weight. Any child regardless of age, can be a competent witness if she can perceive and perceiving, can make known to others, and that she is capable of relating truthfully facts for which she is examined.68 In People v. Mendiola,69 this Court found the six-year-old victim competent and her testimony credible. Also in Dulla v. Court of Appeals,70 this Court gave credence to the testimony of a three-year-old victim. It has been the consistent ruling of the Court that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate courts high respect if not conclusive effect absent clear and convincing evidence that the trial court ignored, misconstrued, or misinterpreted cogent facts and circumstances which if considered warrants a reversal or modification of the outcome of the case.71 In this case the Court finds no basis to deviate from the findings and conclusions of the trial court on the competency of Angela, and the probative weight of her testimony.

Appellants must come to grips with case law that testimonies of child victims are given full weight and credit. The testimony of children of sound mind is likewise to be more correct and truthful than that of older persons.72 In People vs. Alba,73 this Court ruled that children of sound mind are likely to be more observant of incidents which take place within their view than older persons, and their testimonies are likely more correct in detail than that of older persons. Angela was barely six years old when she testified. Considering her tender years, innocent and guileless, it is incredible that Angela would testify falsely that the appellants took her from the school through threats and detained her in the "dirty house" for five days. In People v. Dela Cruz,74 this Court also ruled that ample margin of error and understanding should be accorded to young witnesses who, much more than adults, would be gripped with tension due to the novelty and the experience in testifying before the trial court.

The credibility of Angela and the verisimilitude of her testimony is not impaired by her failure to shout for help when the appellants took her, or to make any attempt to call her parents or to escape from her captors and to use the telephone to call her parents. At five years old, she could not be expected to act and react to her kidnapping and detention like an adult should. She did not shout and seek help from the school security guards because the appellants told Angela that her parents were waiting for her. Appellant Basilan was the niece of Angela's yaya. She then believed that nothing was amiss. It was only when she failed to see her parents that Angela blamed herself for going with the appellants in the first place.

Atty. Laracas:

Now, they told you that your parents were at Jollibee. When you did not see your parents, what did you do?

Witness:

I told myself, why did I go with them.

Atty. Laracas:

So you just told that to yourself?

Witness:

Yes, ma'am.

Atty. Laracas:

So initially, Angela, you are not blaming yourself when you went with Jenny Rose?

Witness:

Yes, ma'am.75

The evidence on record shows that appellant Bisda poked a knife at Angela and her hands were held tightly by the appellants as they proceeded to the restaurant from the school. Although the Soriano spouses were by Angela's side when the latter gave her sworn statement76 in the PAOCTF office, there is no showing on record that the spouses ever influenced their daughter to prevaricate. Significantly, the appellants' counsel did not even cross-examine Angela on her sworn statement.

In this case, appellant Bisda asserts that Angela's testimony contains four inconsistencies on material points; hence, is incredible. First, Angela testified on cross-examination that the appellants approached her but she did not talk to them.77 In contrast, Angela testified on cross-examination that she saw appellant Basilan, and talked to her.78 Second, Angela testified on direct examination that she first came to know the identities of the kidnappers when she was brought to the "dirty house."79 Angela contradicted herself when she testified on cross-examination that when she was brought to the said house, she already knew appellant Basilan.80 Third, Angela testified on direct examination that she went with the appellants to the Jollibee Restaurant when they held her hands firmly.81 On cross-examination, Angela testified that the appellants threatened her when they kidnapped her by pointing a knife at her which made her cry.82 Angela further contradicted herself when she testified on direct examination that the appellants pointed a knife at her "one night."83 Fourth, Angela said that when she was in the office of appellant Bisda in Paco, Manila, her feet were tied and her mouth was covered with scotch tape.84 However, on cross-examination, Angela revealed that she was free to roam around and even watched television and made drawings.85

Anent the first and second set of inconsistencies adverted to by the appellants, the same pertain only to minor and peripheral matters and not to the principal occurrence or the elements of the crime charged, and the positive identification of the appellants. Hence, the credibility of Angela, and that of her testimony were not impaired by the said inconsistencies.86 The inscrutable fact is that the appellants took the victim from the school and detained her at the office of appellant Bisda at No. 1258 Paz St., Paco, Manila, until she was rescued. Whether or not Angela talked with the appellants as she was being brought to the restaurant or that she came to know of the identities of the kidnappers before or when she was brought to the dirty house, are inconsequential. The overwhelming evidence on record is that no other than the appellants kidnapped her from her school and illegally detained her from September 3 to 8, 1998. Indeed, when asked to point and identify her kidnappers, Angela did so spontaneously and positively.87

Pros. Junio:

If you see. . . this Alma Besda (sic), if you will be able to see her again, if you see her again, will you be able to recognize her?

Witness:

Yes, ma'am.

Pros. Junio:

Will you point to her.
(The witness is pointing to a lady, seated at the second from the left at the corner at the last seat.)

Court:

Identify yourself.
(The person pointed to, stood up and identified herself as Alma Besda [sic]).

Pros. Junio:

What about Jenny Rose, will you be able to recognize her?

Witness:

Yes, ma'am.

Pros. Junio:

You point to her Angel.
(The witness is pointing to the first lady seated on the left side)

Court:

Stand up and identify yourself.
The lady stood up and identified herself as Jenny Rose Basilan.88

Appellant Basilan did not controvert the evidence of the prosecution that she was the niece of the yaya of the victim, and that the said appellant, at one time, went to the Soriano residence where Angela saw and met her. The victim was, thus, acquainted with appellant Basilan even before the kidnapping.

Angela testified on direct examination, thus:

Atty. Junio:

So when Alma and Jenny Rose told you that Mommy and Daddy were at Jollibee, what did you do?

Witness:

I did not want to go with them but they held me firm.

Pros. Junio:

What part of the body did they hold firmly?

Witness:

My hands.

Pros. Junio:

After Alma and Jenny Rose held your hand firmly, what did, where did you go?

Witness:

To Jollibee.89

Angela was not asked by the public prosecutor whether or not the appellants threatened her with any weapon before proceeding to the Jollibee Restaurant. The additional fact was revealed by Angela, ironically, on cross-examination:

Atty. Salamera:

Now, were you threatened on September 3 at around eleven in the morning when both accused allegedly abducted you?

Witness:

Yes, sir.

Atty. Salamera:

There are two accused, who threatened you?

Witness:

They pointed knife against me.

Atty. Salamera:

Who pointed the knife upon your person?

Witness:

Alma, sir.

Atty. Salamera:

Did you cry?

Witness:

Yes, sir.

Atty. Salamera:

Did you also cry inside the Jollibee?

Witness:

No, sir.

Atty. Salamera:

Was Alma still holding a knife at the Jollibee?

Witness:

No, sir.90

The prosecutor tried on re-direct to take advantage of Angela's revelation but the appellants' counsel, realizing that he had just committed a faux pas, objected to the questions of the public prosecutor. It turned out that the latter was himself confused because instead of adverting to a knife, as testified to by Angela, he blurted that appellant Bisda used a gun in intimidating the victim. Even Angela must have been bewildered by the repartees of the prosecution and the appellants' counsel such that, instead of answering "one time," to the questions of the prosecutor, she said "one night."

Redirect:

Pros. Junio:

Angel, how many times did Alma and Jenny Rose point a knife at you?

Atty. Salamera:

Objection. Improper at this point in time. First it was not covered.

Pros. Junio:

How many times did Alma point a gun?

Atty. Salamera:

Knife, your Honor.

Pros. Junio:

It was covered on cross.

Court:

Objection denied. Overruled. Witness may answer.

Witness:

One night.91

There was, thus, no inconsistency in Angela's testimony on this point.

Angela's hands were tied, and her mouth was covered with scotch tape the day after she was brought to the dirty house. Angela testified on direct examination, thus:

Pros. Junio:

Okay, where did you go?

Witness:

To the dirty house.

Pros. Junio:

Who was with you or who were with you at that time?

Witness:

Alma Besda (sic) and Jenny Rose, ma'am.

Pros. Junio:

Where is this dirty house located?

Witness:

I do not know, ma'am.

Pros. Junio:

Upon arriving at that dirty house, what did you do?

Witness:

They changed my clothes once.

Pros. Junio:

Do you remember the color of the dress?

Witness:

No, ma'am.

Pros. Junio:

After they changed your dress or your clothes, what happened next? What did they do to you?

Witness:

They fed me, ma'am.

Pros. Junio:

After they fed you, what did you do?

Witness:

They send (sic) me to sleep.

Pros. Junio:

When you woke up, what did they do to you?

Witness:

They fed me (pinamiryenda) (sic)

Pros. Junio:

After you ate your "miryenda" (sic) what else did they do to you?

Witness:

They allowed me to watch tv, ma'am.

Pros. Junio:

What about your hands, your mouth, what did they do?

Witness:

They tied my hands.

Pros. Junio;

And your mouth?

Witness:

It was sealed with scotch tape.

Pros. Junio:

And your feet?

Witness:

They were also tied, ma'am.

Pros. Junio:

Who tied your hands?

Witness:

The two of them, ma'am.

Pros. Junio:

Will you mention their names again?

Witness:

Alma Besda (sic) and Jenny Rose.92

On cross-examination, Angela testified that on the day she was rescued, she could watch the television, make drawings and roam around the room:

Atty. Larracas:

You did . . . At that time you were allegedly rescued, Jenny Rose was not at the place where you were rescued?

Witness:

She was not there, ma'am.

Atty. Larracas:

All along you were watching tv (sic) at the place where you were taken?

Witness:

Only once, ma'am.

Atty. Larracas:

And when you were not watching tv (sic), what were you doing Angela in that dirty house?

Witness:

I was drawing, ma'am.

Atty. Larracas:

So you watched tv once and the rest of the time you were drawing?

Witness:

Yes, ma'am.

Atty. Larracas:

Of course, you cannot draw if your hands were tied, Angela?

Witness:

Yes, ma'm.

Atty. Larracas:

So your hands were not tied?

Witness:

No, ma'am.

Atty. Larracas:

You can move along freely at that time?

Witness:

Yes, ma'am.

Atty. Larracas:

You can walk?

Witness:

Yes, ma'am.

Atty. Larracas:

You can drink?

Witness:

Yes, ma'am.

Atty. Larracas:

Of course, you cannot walk if your feet were tied and cannot drink if your mouth was sealed?

Witness:

Yes, ma'am

Atty. Larracas:

When the police arrived, what were you doing?

Witness:

I cried, ma'am.93

It is not quite clear whether the counsel for the appellants were asking about Angela's activities during her detention, or during her rescue. Taking into account Angela's answers, it is evident that her hands were tied and her mouth covered with scotch tape the day after she was kidnapped, but that she was free to roam around the room, practice on her drawings and watch television during the rest of the period of her detention.

PROPER PENALTIES

The appellants aver that the prosecution failed to prove that in kidnapping and illegally detaining the victim, they intended to demand ransom from her parents. William Soriano, the victim's father, failed to prove that the appellants or any of them called through the telephone demanding ransom. The collective testimonies of police operatives Tito Tuanggang, Ricardo Dandan and George Torrente were hearsay evidence; hence, barren of probative weight. The trial court likewise failed to take into account the voluntary surrender of appellant Basilan.

The Office of the Solicitor General, for its part, posits the view that the prosecution mustered the requisite quantum of evidence to prove that the appellants and no other demanded ransom from the parents of the victim.

The appellants' contention does not hold water. Admittedly, the prosecution failed to adduce direct evidence that the appellants demanded ransom for the release of the victim. However, the prosecution adduced circumstantial evidence to prove beyond reasonable doubt that the appellants, or at least one of them, demanded ransom from the Soriano spouses for the release of their daughter.

To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond reasonable doubt: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is ransom for the victim or other person for the release of the victim. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proved by his words and overt acts before, during and after the kidnapping and detention of the victim.94 Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.95 Ransom as employed in the law is so used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity.96 It may include benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of the victim.97

Circumstantial evidence is sufficient to prove the qualifying circumstance if (a) there is more than one circumstance; (b) the facts from which the inferences are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. The circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of others as the one who demanded ransom. The circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and that at the same time inconsistent with any other hypothesis except that of guilty.98 The prosecution must rely on the strength of its evidence and not on the weakness of that of the appellants.99

In this case, the chain of circumstantial evidence adduced by the prosecution proves that no one other than the appellants or one of them called up the spouses Soriano through the telephone and demanded ransom of P5,000,000:

1. Appellant Basilan is the niece of Wendy Salingatog, who was for a time the housemaid of appellant Bisda;

2. The appellants kidnapped Angela shortly before noon on September 3, 1998, and detained her at No. 1258 Paz Street, Paco, Manila, where appellant Bisda held office;

3. The following morning, William was informed by his landlady that a woman had earlier called up over the telephone requesting her to inform William that she (the caller), would call again the next day, September 5, 1998;

4. On September 5, 1998, William received a telephone call from a woman demanding a ransom of P5,000,000 for Angela's freedom. When William complained that he did not have the amount, she told William that she cannot be responsible for it and that she would inquire from her bosses. William's testimony reads:

Pros. Junio:

And what did she tell you?

Witness:

She told me KUNG GUSTO MO PANG MAKITA IYONG ANAK MO, MAGHANDA KA NG FIVE MILLION PESOS.

Pros. Junio:

What did you told (sic) her if any?

Witness:

SAAN AKO KUKUHA NG FIVE MILLION PESOS? ALAM MO NAMAN NA NAKATIRA LANG AKO SA APARTMENT.

Pros. Junio:

What did she say?

Witness:

She answered, HINDI KO MASASAGOT YAN.

Pros. Junio:

Did she tell you why she could not respond to you?

Witness:

She continued to say "TATANUNGIN KO NA LANG SA AKING MGA BOSS."100

5. In the morning of September 7, 1998, Inspector Ricardo Dandan and SPO4 Tito Tuanggang, acting on an anonymous tip, rushed to the vicinity of No. 1303 Paz Street, Paco, Manila, the office of the MSC Freight Service, to conduct surveillance operations. Later in the afternoon, they saw appellant Bisda emerging from a small house about fifty meters from the office of the MSC Freight Service;

6. At about 3:40 p.m. on September 8, 1998, appellant Bisda emerged from the house at No. 1258 Paz Street, and went to the small store near the house. Chief Inspector Dandan and Tito Tuanggang were about two meters from the store and saw appellant Bisda enter the same, lift the telephone and talk to someone over the telephone;

7. At about the same time, William received a telephone call from a woman demanding where the money was and when William replied that he was ready with P25,000, the woman replied: Hindi ko masasagot iyan, dadalhin na lang namin ang Bata sa aking boss." When William intimated that he could raise P50,000 but pleaded for more time to produce the amount, the woman retorted: "Hindi ko masasagot iyan." William's testimony reads:

Pros. Junio:

On September 8, 1998, at about 3:40 in the afternoon, what happened if any?

Witness:

At around 3:40 in the afternoon of September 8, a lady caller called again. I answered the telephone.

Pros. Junio:

Who was this lady caller?

Witness:

I would say, my perception is it was the same lady caller who called the first time I answered the telephone.

Pros. Junio:

And what did she tell you?

Witness:

And she told me where is the money.

Pros. Junio:

And what did you tell her?

Witness:

And I also told her if its okey with you, my twenty-five is ready.

Pros. Junio:

Then what did she say?

Witness:

She said "HINDI KO MASASAGOT IYAN, DADALIN NA LANG NAMIN ANG BATA SA AKING BOSS."

Pros. Junio:

What happened next after that?

Witness:

I would like to plead that I will make it fifty thousand, just give me ample time.

Pros. Junio:

How did she react to your suggestion?

Witness:

"HINDI KO MASASAGOT IYAN." Then she hanged (sic) the phone.101

8. After making the telephone call, appellant Bisda left the store and returned to the house at No. 1258 Paz Street, Paco, Manila;

9. The operatives from the PAOCTF followed appellant Bisda and confronted her before she could enter the house. The operatives then barged into the premises of No. 1258 Paz Street where they saw Angela in the room;

10. When William arrived at the PAOCTF office, with Angela that day, he inquired from appellant Bisda why she kidnapped Angela and what she would do with the P5,000,000 ransom she was demanding, and the appellant replied: "Kuya, wag (sic) kang nang maghusga, pareho lang tayong biktima." When William asked Alma: "Biktima, saan?" The appellant replied: "Ang anak ko, kinidnap din nila."

In light of the foregoing facts, there can be no other conclusion than that appellant Bisda demanded a ransom of P5,000,000 from William Soriano; hence, she is GUILTY of kidnapping for ransom. Being a conspirator, appellant Basilan is also guilty of the said crime. The penalty for kidnapping for ransom is death, a single and indivisible penalty. The aggravating circumstance of use of a motor vehicle under Article 14, paragraph 20 of the Revised Penal Code was attendant in the commission of the crime.102 However, said circumstance, as well as the voluntary surrender of appellant Basilan, are inconsequential in the penalties to be imposed on the said appellants, conformably to Article 63 of the Revised Penal Code.103

CIVIL LIABILITIES OF THE APPELLANTS

The trial court awarded P100,000 moral damages to the spouses William and Marymae Soriano, the parents of the victim. The trial court did not award any moral and exemplary damages to the victim. The decision of the trial court has to be modified. Under Article 2219, paragraph 7, of the New Civil Code, moral damages may be awarded to a victim of illegal arrest and detention. In this case, the appellants poked a knife on the victim as they took her from the school. The appellants also tied her hands, and placed scotch tape on her mouth. The hapless victim was so shocked when operatives of the PAOCTF barged into the office of appellant Bisda, and took custody of the victim that she cried profusely. The victim suffered trauma, mental, physical and psychological ordeal. There is, thus, sufficient basis for an award of moral damages in the amount of P300,000.104 Since there were demands for ransom, not to mention the use by the appellants of a vehicle to transport the victim from the school to the Jollibee Restaurant and to the office of appellant Bisda, the victim is entitled to exemplary damages in the amount of P100,000.105 Although the victim claims that the appellants took her earrings, the prosecution failed to prove the value of the same.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Marikina City, Branch 272, is AFFIRMED WITH MODIFICATION. The appellants, Alma Bisda and Generosa "Jenny Rose" Basilan, are found guilty beyond reasonable doubt of kidnapping for ransom under paragraph 4 and the last paragraph of Article 267, of the Revised Penal Code, and are sentenced to suffer the penalty of death by lethal injection. The appellants are hereby directed to pay jointly and severally to the victim Angela Michelle Soriano the amount of P300,000 by way of moral damages and P100,000 by way of exemplary damages. Costs against the appellants.

Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional, and that the death penalty can be lawfully imposed in the case at bar.

In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the records of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for possible exercise of the pardoning power. Costs against the appellants.

SO ORDERED.

Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.


Footnotes

1 Penned by Judge Reuben P. De La Cruz.

2 Records, p. 1 (Folder 1).

3 Id. at 24.

4 The prosecution presented SPO4 Tito Tuanggang, PAOCTF civilian agent George Chavez Torrente, SPO2 Joseph Bagsao, Chief Inspector Ricardo de Guzman Dandan, Angela Michelle Soriano, and William Soriano as witnesses.

5 TSN, 21 June 1999, pp. 104–105 (William Soriano); TSN, 7 June 1999, p. 17 (George Chavez Torrente).

6 Exhibit "C; TSN, 21 June 1999, pp. 27–29 (Angela Soriano).

7 TSN, 21 June 1999, pp. 84–96.

8 Id. at 97–98.

9 TSN, 21 June 1999, pp. 104–105 (William Soriano); TSN, 7 June 1990, p. 33 (George Chavez Torrente).

10 TSN, 7 June 1999, p. 20 (George Chavez Torrente); TSN, 21 June 1999, p. 103 (William Soriano).

11 TSN 21 June 1999, pp. 99–102 (William Soriano).

12 Id. at 105–110.

13 Id. at 111–113.

14 TSN, 2 June 1999, p. 84 (Tito Tuanggang).

15 Exhibit "C."

16 TSN, 21 June 1999, pp. 147–148 (William Soriano).

17 Exhibit "C," Records, p. 101 (Folder 1).

18 Exhibit "D," Id. at 5 (Folder 2).

19 Exhibit "E," Id. at 7.

20 Exhibit" 1," Records, pp. 17–19 (Folder 2).

21 TSN, 7 July 1999.

22 Exhibit "1," Records, p. 8 (Folder 2).

23 TSN, 7 July 1999, pp. 25–33.

24 Records, pp. 188–189 (Folder 1).

25 The appellant Basilan is represented in this case by the Public Attorney's Office while Bisda is represented by the Free Legal Assistance Group (Anti-Death Penalty Task Force).

26 Exhibit "F."

27 Supra.

28 People v. Salimbago, 314 SCRA 282 (1999).

29 People v. Pagalasan, G.R. No. 131926 and 138991, June 18, 2003.

30 People v. Borromeo, 323 SCRA 547 (2000).

31 People v. Soberano, 281 SCRA 438 (1997).

The word kidnap has a technical meaning at common law. It is defined as the forcible abduction or stealing away of a man, woman or child. The derivation of the word "kidnapping" is kid (child) and nap (to seize, to grasp) [Gooch v. United States, 82 F. 2d. 534 (1936)].

32 People v. La Marca, 144 N.E. 2d. 420 (1957).

33 Chatwin v. United States, 90 L. ed. 198 (1945).

34 Such an age is ipso facto proof of mental incapacity. Chatwin v. United States, supra; City Commonwealth v. Nickerson, 87 Mass. 518 (1862).

35 11 S.E. 518 (1890).

36 812 F. 2d. 1660 (1987).

37 G.R. Nos. 128106-07, January 24, 2003.

38 In his commentary on the Spanish Penal Code, Eugenio Cuello Calon says:

Son elementos de este delito. 1. El hecho de privar a una persona de su libertad. El texto legal preve dos modalidades de privation de libertad, el encierro y la detencion. Encerrar significa recluir a una persona en un lugar de donde no puede salir, detener a una persona equivale a impedirle or restringirle la libertad de movimiento. Se encierra al que se recluye en una habitation como al que se deja en un foso de donde no puede salir; sufre encierro el que trasladandose a un punto en automovil no puede apearse en el de su destino por no parar or atenuar la velocidad el conductor. Sufre detencion quien hallandose aun en sitio no cerrado no puede moverse, v. gr., por estar atado a un arbol, o con los pies ligados, tambien el privado de movimiento por haber sido narcotizado, embriagado o hipnotizado. (Cuello Calon Derecho Penal, Tomo II [Parte Especial], Undecima edicion, p. 645).

39 People v. Baldogo, supra.

40 G.R. Nos. 131926 & 138991, June 18, 2003.

41 People v. Quilaton, 324 SCRA 670 (2000).

42 McDonald v. United States, 89 F.2d. 128 (1937).

43 People v. Elijorde, 306 SCRA 188 (1999).

44 People v. Del Rosario, 305 SCRA 740 (1999).

45 15A C.J.S. § Conspiracy, p. 828.

46 Ibid.

47 Ingram v. United States, 259 F. 2d. 886 (1958).

48 Pring v. Court of Appeals, 138 SCRA 185 (1985).

49 142 F. 2d. 503 (1944).

50 TSN, 7 July 1999, p. 21.

51 When Angela testified, the Rule on Examination of a Child Witness was not yet in effect. Under Section 7 of the said Rule, before testifying, a child shall take an oath or affirmation to tell the truth. The Rule took effect on December 1, 2000.

52 Supra.

53 2 Buv. Law Dictionary 248.

54 Tice v. Mandel, 76 N.W.2d 124 (1956).

55 Lee v. Missouri, Pac. Ry. Co. 73 P. 110 (1903).

56 State v. Langford, 14 So. 181 (1893).

57 State v. Lu Sing, 85 P. 521 (1906).

58 Lee v. Missouri, Pac. Ry. Co., supra.

59 Voir dire is a French phrase meaning "To speak the truth." It may refer to a preliminary examination to ascertain whether he possesses the required qualifications, being sworn to make true answers (State v. Fox, 149 S.E. 735 [1929]).

60 25 Phil. 530.

61 349 SCRA 451 (2001).

62 Supra.

63 Birmingham RY., Light & Power Co. v. Jung, 49 So. 434 (1909).

64 People v. McAdoo, 77 N.E. 260 (1906).

65 Supra.

66 Section 6, of the Rule on Examination of a Child Witness reads:

SEC. 6. Competency. — Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth.

(a) Proof of necessity. — A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination.

(b) Burden of proof. — To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination. — Only the following are allowed to attend a competency examination:

(1) The judge and necessary court personnel;

(2) The counsel for the parties;

(3) The guardian ad litem;

(4) One or more support persons for the child; and

(5) The defendant, unless the court determines that competence can be fully evaluated in his absence.

(d) Conduct of examination. — Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions. — The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.

(f) Continuing duty to assess competence. — The court has the duty of continuously assessing the competence of the child throughout his testimony.

67 Dulla v. Court of Appeals, 326 SCRA 32 (2000).

68 People v. Gonzales, 311 SCRA 547 (1999).

69 337 SCRA 418 (2000).

70 Supra.

71 People v. Emocling, 297 SCRA 214 (1998).

72 People v. Molas, 286 SCRA 684 (1998).

73 305 SCRA 811 (1999).

74 276 SCRA 352 (1997).

75 TSN, 21 June 1999, pp. 56–57.

76 Exhibit "7."

77 TSN, 21 June 1999, pp. 48–50.

78 Id. at 50–51.

79 Id. at 18–19.

80 Id., at 31–32.

81 Id. at 10–11.

82 Id. at 40–42.

83 Id. at 69–70.

84 Id. at 15–17.

85 Id. at 61–64.

86 Sumalpong v. Court of Appeals, 268 SCRA 764 (1997).

87 TSN, 22 June 1999, pp. 8–10.

88 Supra.

89 TSN, 21 June 1999, pp. 10–11.

90 Id. at 40–42.

91 Id., at 69–70.

92 TSN, 21 June 1999, pp. 13–17.

93 Id., at 61–64.

94 People v. Pagalasan, supra.

95 People v. Salimbago, supra.

96 Cited in People v. Akiran, 18 SCRA 239 (1966).

97 United States v. Cleveland, 56 Supp. 890 (1944).

98 People v. Quitorio, 285 SCRA 196 (1998).

99 People v. Cesario, 306 SCRA 464 (1999).

100 TSN, 21 June 1999, pp. 99–100.

101 TSN, 21 June 1999, pp. 111–113.

102 20. That the crime be committed with the aid of persons under fifteen years of age, or by means of motor vehicles, airships, or other similar means.

103 Art. 63. Rules for the application of indivisible penalties. — In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.

104 People v. Catubig, G.R. No. 137842, August 23, 2001.

105 People v. Deang, 338 SCRA 675 (2000).

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 131805 September 7, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GREGORIO HERMOSA and GABRIEL ABELINDE, accused-appellants.

PUNO, J.:

Accused GREGORIO HERMOSA and GABRIEL ABELINDE were meted the death penalty for the crime of murder. The crime was allegedly committed as follows:1

"That sometime on January 11, 1995, at about 1:00 o'clock in (the) morning more or less, at Barangay Gahit, Municipality of Caitingan, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring and confederating and mutually helping one another, with evident premeditation, use of superior strength and nocturnity (sic) as cover, treachery, did then and there willfully, unlawfully and feloniously, with the use of sharp and pointed bolo, assault, attack, hack and stab a woman named ELEONOR (sic) CONDE MALIPOT thereby hitting the latter at the different parts of her body which was the direct and logical (cause) of her instantaneous death.

CONTRARY TO LAW."

Upon arraignment, both accused pled "not guilty" to the offense charged.2 Trial ensued.

The prosecution presented the testimonies of Macuibelle Malipot, her siblings Marither and Elizalde, and Municipal Health Officer Allen Ching. For its part, the defense presented Bienvenido Habanez, policeman Raymundo Meliton and the accused, Gregorio Hermosa and Gabriel Abelinde.

The records show that in the early morning of January 11, 1995, the residents of Sitio Mayabas found the lifeless body of Eleanor Conde Malipot3 near a creek, a few meters behind her house in Sitio Mayabas, Cataingan, Masbate. She was 43 years old. A widow, the deceased was survived by four (4) children, namely: Elizalde, 15 years old, Marither, 12 years old, Macuibelle, 8 years old, and Dexter (Nonoy),4 years old.

The Medico-Legal Report 4 of Municipal Health Officer Allen Ching revealed that the victim sustained the following wounds:

"1. Hacking wound, neck up to the cervical vertebra multiple.

2. Hacking wound, mouth.

3. Hacking wound, forehead, left superficial.

4. Hacking wound, maxilla left.

5. 5 cm. Lacerated wound, anterior arm right.

6. 6 cm. Lacerated wound, anterior hand around the base of the first finger left."

The victim died due to cardio-respiratory arrest, hypovolemia and multiple hack wounds on the neck. The doctor explained that the multiple hack wounds on the neck had cut the bone and one of the major arteries of the victim. With the said injuries, the victim had no chance of survival and had probably lived for about five (5) minutes.5

The victim's 8-year old daughter, Macuibelle, partially witnessed the tragic incident. She testified that at about 1 o'clock in the morning of January 11, 1995, she was roused by the victim's scream. She peeped through a hole in the wall of their room and saw the victim at the main door of their house, near the stairs.6 The victim had a lamp in one hand, and a bolo in the other. The victim was shouting, "Zaldy help!," referring to her eldest son, Elizalde. At that time, however, Elizalde and Marither had slept in the house of their respective friends.7

Macuibelle also saw the two accused: Gregorio Hermosa was standing in front of the victim while Gabriel Abelinde was at the front yard, clubbing the victim's carabao that was tied some four (4) meters away from the house. 8 Suddenly, Hermosa stabbed the victim. Thereafter, Hermosa and Abelinde forcibly took the victim from the house and dragged her towards the nearby creek. Macuibelle shouted for help. No one responded. Her only companion then was her 4-year old brother, Dexter. Afraid, she went back to sleep.9

The night before, there was a celebration in the house of the victim's neighbor, Bienvenido Habanez.10 It was his son's birthday and a dance was being held in his place. The victim and her 12-year old daughter, Marither, set up a makeshift store in front of Habanez's house selling assorted merchandise such as cigarettes and liquor.11

Hermosa and Abelinde attended the party. They drank tuba near the makeshift store of the victim. Abelinde approached the victim and asked, on behalf of Hermosa, if the latter could buy liquor on credit. The victim refused as Hermosa still owed her money. Abelinde went back to Hermosa and they continued drinking the tuba. Slighted, Hermosa gave a dagger look at the victim.12

At around midnight, the victim and Marither packed up their things. The victim kept the unsold goods and the proceeds of the sale and headed for home. Marither was left behind to fetch Dexter as he had fallen asleep in the house of Habanez. Marither carried her brother on her way home. Her friend, Glenda, walked with her. As they approached the place where the two accused were located, Hermosa tapped Abelinde and commented that the victim was on her way home. Hermosa stared at the victim until she disappeared behind the mango tree.13

When Marither reached their house, she put her brother in their room. At that time, Macuibelle was still awake. With the victim's permission, Marither walked her friend home and spent the night in her uncle's house. The victim and Macuibelle were praying when Marither left.14

Marither woke up at 5:00 a.m. on June 11, 1995. Moments later, she saw her aunt Elsie and uncle Payo running towards their house. A certain Rowena Lonido told her that the victim was killed and that their carabao had been stolen. Marither rushed to the crime scene and found the lifeless body of the victim beside the creek, about seven (7) meters from their house. She embraced the victim and cried.15

Elizalde corroborated the testimony of Marither that the accused tried to get liquor from the victim on credit, but the victim refused.

The two accused were arrested on the day the body of the victim was discovered. Policeman Raymundo Meliton investigated the incident. He proceeded to the house of the victim and talked to Macuibelle and Dexter. They did not immediately reveal the names of the accused as suspects. He then interviewed the people in the neighborhood and those in the house of Habanez. When policeman Meliton returned to the house of the victim a few hours later, Macuibelle revealed to him that the accused were the assailants. He learned that the accused got mad at the victim when she refused to sell liquor to them on credit. Policeman Meliton picked up the accused for investigation. They denied any participation in the killing,16 Nonetheless, he prepared the affidavits of the prosecution witnesses and charged the accused.17

The defense proffered was denial and alibi.

Gabriel Abelinde testified that he attended the birthday party of Habanez's son. His companions were his son, his father, and spouses Eulalio and Clementina Pagunsan. At 9:30 p.m., Hermosa joined his group. They engaged in a drinking spree. They consumed four (4) jars of tuba until 10:30 p.m.

Abelinde claimed that the victim participated in the dancing and in the drinking spree. Allegedly, the victim approached him and told him to look out for one Ludy Gonzales because the latter owed her money. Strangely, however, Abelinde insisted that the dance took place on the 11th, not on the 10th, day of January. The next day, January 12, he learned through his wife that the victim had been killed.

Abelinde averred that he went home at about 1:00 a.m. after the party. He slept in his house which is approximately 300 meters away from the victim's house. He was with his son, his wife and his father. Hermosa spent the night with him because Hermosa's house was more distant.

Abelinde denied any participation in the killing of the victim. He said he had no quarrel with her prior to the tragic incident. She was also a relative of his father.

Gregorio Hermosa also denied any participation in the crime. He claimed that after they left the house of Habanez, he passed the night in Abelinde's house. He woke up the next day at 7:00 a.m. and learned of the death of the victim. He went home to inform his mother of the incident. At 9:00 a.m., the policemen arrested him.

After the trial, the court a quo found the accused guilty of murder. The dispositive portion of the trial court's decision provides:18

"ACCORDINGLY, the court finds the accused Gregorio Hermosa and Gabriel Abelinde guilty beyond reasonable doubt of the crime of MURDER and hereby imposes upon them the supreme penalty of DEATH, and shall indemnify the legal heirs (of the victim) the amount of P50,000.00 in solidum for the death of Eleanor Malipot and P20,000.00 as moral damages.

With costs de oficio."

The records of the case were forwarded to this Court for automatic review.

It appears that the appellants were not imprisoned in the New Bilibid Prisons.19 Appellants escaped from Matipuron Provincial Jail, Milagros, Masbate, on June 14, 1998.20 They remain at large.

Pursuant to this Court's directive, the Public Attorney's Office and the Office of the Solicitor General filed their Briefs for the appellants and the appellee, respectively.

Appellants' counsel de officio contends that:

"I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF PROSECUTION WITNESS MACUIBELLE MALIPOT.

II. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANTS HAD MOTIVE TO KILL THE VICTIM, ELEONOR C. (sic) MALIPOT, AFTER SHE REFUSED TO ALLOW THEM TO PURCHASE LIQUOR ON CREDIT.

III. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF MURDER AND IN IMPOSING UPON THEM THE DEATH PENALTY."

We restate the rule that this Court is not precluded from reviewing the death sentence of an accused who is at large.21 In line with the rule, we now determine the criminal and civil liabilities of the appellants.

We modify the judgment and hold that the appellants are liable for homicide, not murder.

The oft repeated rule is that the trial court's evaluation of the testimony of a witness is accorded the highest respect because of its direct opportunity to observe the witnesses on the stand and to determine if they are telling the truth or not.22 This opportunity enables the trial judge to detect better that thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court.23 Thus, the trial judge's evaluation of the competence and credibility of a witness will not be disturbed on review, unless it is clear from the records that his judgment is erroneous.24

We have scrutinized the testimony of the lone eyewitness, Macuibelle Malipot. She candidly recounted the events surrounding the killing of the victim as follows:25

"ATTY. NICOMEDES ROMAGOS ON CROSS-EXAMINATION:

Q: Macuibelle Malipot, you have testified that you were only awaken(ed) by the shout of your mother, Eleanor Malipot, asking assistance from your brother Zaldy, am I correct?

A: Yes, sir.

Q: At what precise moment that you were awaken(ed)

A: Nearing 1:00 o'clock.

Q: Why were you awaken(ed)?

A: Because my mother was shouting.

Q: And because of that you stated that you also stood up and peeped at the hole of your house, am I correct, Macuibelle Malipot?

A: Yes, sir.

Q: And you have also testified at the time you saw your mother, she was already in (sic) the main door. Why is it Macuibelle Malipot that you peeped when your mother is on (sic) the main door?

PROSECUTOR:

The witness testified that she was at (sic) the room.

xxx xxx xxx

WITNESS:

A: The door is located at (sic) a stair.

ATTY. ROMAGOS:

Q: You mean to tell this Honorable Court Macuibelle, your door could not be seen when you are in the room?

WITNESS:

A: It could be seen.

xxx xxx xxx

(ATTY. ROMAGOS):

Q: You said that your mother was carrying a lamp, may we know from you how big is its wick?

INTERPRETER:

Witness demonstrating a small lamp with a height of 6 inches.

COURT:

Q: How did your mother handle the lamp?

A: She was carrying it with her left hand and she was holding a bolo.

Q: Do you know why your mother was holding a bolo?

A: I do not know.

xxx xxx xxx

ATTY. ROMAGOS:

Q: You did not know why your mother was carrying a bolo on that particular night. But how long was that bolo she was carrying on (sic) that moment?

INTERPRETER:

Witness demonstrates the length of the bolo which is about twenty (20) inches.

xxx xxx xxx

ATTY. ROMAGOS:

Q: When your mother got that bolo Macuibelle, you said you were not still (sic) awaken(ed) but only when your mother shouted for help, do I get you right?

A: Yes, sir.

COURT:

Q: How far is the creek from your house?

INTERPRETER:

Witness pointing from her seat to the door with a distance of about twenty (20) meters.

COURT:

Q: Now from the creek you mentioned, where did you see accused Gregorio Hermosa stab your mother?

A: Gregorio Hermosa stabbed my mother near the door of our house.

Q: Do you know why the body of your mother was there at the creek near your house?

A: Because she was dragged by Gregorio Hermosa and Gabriel Abelinde.

COURT:

Proceed.

ATTY. ROMAGOS:

Q: You stated she was dragged but it was a very dark night, Macuibelle?

A: But my mother has a lamp.

Q: You mean to tell this Honorable Court that at the time she was dragged she was still holding the lamp?

A: Yes, sir

Q: And you remained on that place where you were peeping inspite (sic) the fact that your mother was dragged?

A Yes, sir

Q: Did you not scream for help Macuibelle when your mother was dragged?

A: I shouted but no one came up.

Q: But on that particular moment, were you not frightened, Macuibelle?

A: I was afraid.

Q: Do you have a very close neighbor?

A: We have neighbors but far." (emphases ours)

We give full faith and credit to her testimony. She was young and unschooled, but her narration of the incident was honest and sincere. It cannot be suspected as a concocted story, impressed upon her by other people.

We should not take Macuibelle's testimony lightly simply because she was a mere child when she witnessed the incident and when she gave her testimony in court. There is no showing that her mental maturity rendered her incapable of testifying and of relating the incident truthfully. Indeed, the time when we degrade a child witness testimony is now passé. In the new Child Witness Rule,26 every child is presumed qualified to be a witness. To rebut this presumption, the burden of proof lies on the party challenging the child's competence. Only when substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court will the court, motu proprio or on motion of a party, conduct a competency examination of a child.27

Nonetheless, the appellants impugn the testimony of Macuibelle on the ground that she did not immediately tag them as the culprits when the investigating officer arrived at the scene. They also contend that it was improbable for the eyewitness to see the assailants of the victim because they would have put off the lamp she was carrying to avoid recognition.

We are not convinced. The alleged delay in identifying the appellants is more apparent than real. It is clear from the records that the appellants were identified by Macuibelle as the persons responsible for the death of the victim. She failed to mention their names when the police first arrived at the scene, but a few hours later, she told the police that the appellants were the assailants. In fact, the appellants were immediately arrested shortly after the discovery of the crime.28

Failure to immediately reveal the identity of the perpetrator of a felony will not necessarily impair the credibility of a witness.29 Even adult witnesses sometimes would not reveal at once the killers of their loved ones for one reason or another.30 Fear of the criminal is one such reason.31

We stress that the identity of the appellants was well established. Macuibelle positively identified them. The victim was then at the main door of their house when the appellants forcibly dragged her. She saw them from a distance of about six (6) meters. The lamp held by the victim provided the light that gave Macuibelle the chance to recognize the appellants.32 She was also familiar with them because they were neighbors. The possibility that she was mistaken as to their identity is nil.

We note, too, that appellant Abelinde claimed that his father and the victim were relatives. If that were true, then it is more unlikely for Macuibelle and her siblings to impute a grievous offense against him unless they are certain as to his involvement in the crime. Even appellant Hermosa could not think of any reason why Macuibelle pointed to him as one of the perpetrators of the crime.33 Her lack of ill motive bolsters her credibility.

The appellants also discredit Macuibelle because she went back to sleep after witnessing the stabbing of her mother. For the appellants, such behavior meant she did not witness the incident.

Again, we disagree. Macuibelle was only eight (8) years old when she witnessed the shocking incident. Despite her plea, no one came to help them when the appellants attacked the victim and dragged her from their house. She was helpless and afraid. She knew her brother Zaldy and sister Marither were not around to protect her. After the traumatic incident, it is difficult to fault her when he chose to go back to sleep and wait for her siblings to arrive the next day. Her behavior is not irrational.34

The appellants further insist that Macuibelle is not a credible witness because, contrary to her claim that the victim was stabbed on the chest, the medical report of Dr. Ching showed that the wounds of the victim were mostly located on the neck. Moreover, appellants suggest that the stabbing incident must have transpired first before the victim shouted for help, thus, when Macuibelle woke up later, she did not really see what happened to the victim.

The argument does not impress. The exact location of the victim's wounds does not destroy Macuibelle's testimony that appellant Hermosa was the one who stabbed the victim and, with Abelinde's help, dragged her to the nearby creek where they finally finished her off. The misdescription of where appellant Hermosa stabbed the victim does not mean the witness perjured herself. The violent incident happened fast. Macuibelle just woke up and witnessed the bloody assault. It was a traumatic experience for the eight-year old girl. She cannot be expected to have a perfect memory of an event she may even want to forget.

The appellants' defense of denial and alibi cannot prevail over their positive identification. Alibi is the weakest defense as it is easy to concoct. For alibi to prosper an accused must not only prove that he was absent at the crime scene at the time of its commission, but also, that it was physically impossible for him to be so situated at said distance.35

In the case at bar, it was established that, at the time of the incident, appellant Abelinde was residing in San Pedro, a barangay adjacent to barangay Gahit (the locus criminis). The distance of his house from the victim's house was about three hundred (300) meters.36 Appellant Hermosa himself admitted that, from the said distance, it would only take him five (5) minutes to reach the victim's place on foot.37 Thus, even assuming that the appellants went to Abelinde's house after the dance, it was not impossible for them to go to the house of the victim and commit the crime.

Appellants' reliance on the alleged absence of bloodstains on the clothes they allegedly wore the night before the killing will not exculpate them. There is a proof that the clothes they wore at the dance were the same clothes they wore when they went to the victim's house to kill her.

Appellants cannot also capitalize on the testimony of policeman Meliton that he had another suspect. Meliton himself admitted that he had insufficient evidence against the third suspect.

Moreover, the conduct of appellant Abelinde on the day the slaying of the victim was discovered is inconsistent with his alleged innocence. Appellant Abelinde claimed that the victim was a relative, yet he was nonchalant when he learned her violent death. He went to plow the field and plant his crops as if nothing unusual had happened.

We sustain the trial court's finding of conspiracy. Conspiracy does not acquire an agreement for an appreciable period prior to the commission of the crime. It exists when, at the time of the commission of the offense, the malefactors had the same purpose and were united in its execution.38 Macuibelle testified that appellant Abelinde clubbed the victim's carabao. Thereafter, he joined appellant Hermosa who was then at the main door of the victim's house. They acted in unison in dragging the victim from her house to the creek where they finally finished her off. Their conduct clearly showed their mutual intent to kill the victim.

We now determine whether or not the qualifying and aggravating circumstances alleged in the information, to wit: evident premeditation, treachery, taking advantage of superior strength and nighttime, were established.

The trial court ruled as follows:39

"The killing was qualified and characterized:

1) with evident premeditation because the killing was pre-planned (upon the victim's refusal to give liquor on credit at about ten o'clock in the evening, the accused roused with anger or showed signs of wrath followed by cool utterance or intention to follow the victim home, and finally after the lapse of about three hours or at one o'clock early dawn, they killed her — the accused had sufficient time to reflect dispassionately upon the consequences of their contemplated act); 2) with treachery because the malefactors took the defenseless victim at the main door of the house while on her way down and one of them thrust her with a knife and dragged (her) to the dark (sic) creek to finish her (off); 3) with abuse of superior strength because the victim (a woman) was attacked with a deadly weapon; and 4) by nocturnity because the accused took advantage of the darkness."

We hold that the trial court erred in appreciating the qualifying circumstance of evident premeditation. There is evident premeditation when the following requirements are proved: (a) the time when the appellant decided to commit the crime; (b) an overt act showing that the appellant clung to his determination to commit the crime; and (c) the lapse of sufficient period of time between the decision and the execution of the crime, to allow the appellant to reflect upon the consequences of the act. Evident premeditation must, like the crime itself, be proved beyond reasonable doubt.40

In the case at bar, the evidence shows that appellant Hermosa was slighted by the refusal of the victim to extend credit in his favor. He gave her a dagger look. However, such behavior by itself is insufficient to prove that the appellants had determined, at that time, to kill the victim.41 At most, it only proved the motive for the killing.

We also rule that treachery was not established. The essence of treachery is that the attack is deliberate and without warning — done in a swift and unexpected manner, affording the hapless and unsuspecting victim no chance to resist or escape.42 The prosecution did not prove the deliberateness of the attack. The evidence shows that Macuibelle peeped through the hole on the wall only after she heard the victim made an outcry. Appellant Hermosa was already at the main door and was then in the act of assaulting the victim. Macuibelle could not give the particulars on how the killing of the victim began and developed. Absent any particulars on how the aggression commenced or how the act which resulted in the victim's death unfolded, treachery cannot be appreciated.43 We note, further, that the victim was aware of the danger on her life. She was holding a bolo when she was attacked. She was also able to shout for help. In light of these circumstances, treachery cannot be appreciated.

We also hold that the circumstance of nighttime did not aggravate the crime. There is no proof that the appellants purposely sought nighttime to facilitate the commission of the crime. The mere fact that the crime was committed at nighttime does not automatically make nocturnity an aggravating circumstance.44

Nor can we agree that the crime was committed with abuse of superior strength. This circumstance should be appreciated whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor, selected or taken advantage of by him in the commission of the crime.45 Mere superiority in number is not enough to constitute superior strength. There must be clear proof of deliberate intent to take advantage of the same. The prosecution did not adduce evidence on these actual issues.46 It is unclear whether the appellants deliberately took advantage of their combined strength to facilitate the commission of the crime. What Macuibelle saw was just the onset of the attack.

In the absence of any circumstance that would qualify the killing to murder, the appellants should only be held liable for homicide. Article 249 of the Revised Penal Code provides:

"Article 249. Homicide. — Any person who, not falling within the provisions of Article 246 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and punished by reclusion temporal."

Reclusion temporal has a range of 12 years and 1 day to 20 years of imprisonment. Applying the Indeterminate Sentence Law, there being no mitigating or aggravating circumstance, the maximum term of the penalty shall be imposed in the medium period47 of reclusion temporal, ranging from 14 years, 8 months and 1 day to 17 years and 4 months. The minimum term of the penalty shall be taken from the penalty next lower in degree or prision mayor, in any of its periods, ranging from six (6) years and one (1) day to twelve (12) years.

As regards the civil indemnity, each of the appellants should be held liable to indemnify the heirs of the victim in the amount of P50,000.00.

IN VIEW WHEREOF, the decision appealed from is MODIFIED. Appellants GREGORIO HERMOSA and GABRIEL ABELINDE are declared guilty beyond reasonable doubt of Homicide for the death of ELEANOR CONDE MALIPOT and sentenced to suffer an indeterminate sentence of twelve (12) years prision mayor as minimum, and seventeen (17) years and four (4) months of reclusion temporal medium as maximum, and to pay P50,000 each for civil indemnity. No special pronouncement as to costs.

SO ORDERED.

Davide, Jr., C. J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.


Footnotes

1 Information, Original Records, p. 1.

2 Original Records, p. 32.

3 Referred to as Eleanor Malipot in the Medico-Legal Report (Exhibit "A") and Certificate of Death (Exhibit "B").

4 Exhibit "A", Original Records, p. 8.

5 TSN, Dr. Allen Ching, January 17, 1996, pp. 3-5.

6 The hut was elevated from the ground by about 2 ½ feet.

7 TSN, Macuibelle Malipot, March 20, 1997, p. 5.

8 TSN, Macuibelle Malipot, March 11, 1997, p. 11.

9 Id., March 20, 1996, pp. 13-14, 16, 17.

10 His house is about 150 meters away from the victim's house.

11 TSN, Marither Malipot, March 12, 1997, p. 5-6; TSN, Elizalde Malipot, May 7, 1997, pp. 5-6.

12 Id., pp. 6-8.

13 Id., p. 10.

14 Id., pp. 10-11, 21-22.

15 Id., pp. 11-13.

16 TSN, Raymundo Meliton, September 9, 1997, pp. 3-5.

17 Id., pp. 6-7, 10, 12.

18 Original Records, pp. 176-193.

19 Rollo, pp. 34-36.

20 Id., pp. 112-118.

21 People vs. Esparas, 260 SCRA 539 (1996); People vs. Prades, 293 SCRA 411 (1998); People vs. Cornelio, 39 SCRA 435 (1971); People vs. Daban, et al., 43 SCRA 185 (1972); People vs. Saliling, 69 SCRA 427 (1976); People vs. Buynay, et al., 128 SCRA 31 (1984).

22 People vs. Virtucio, Jr., 326 SCRA 198 (2000).

23 People vs. Cruz, G.R. Nos. 128346-48, August 14, 2000.

24 Dulla vs. Court of Appeals, 326 SCRA 32 (2000).

25 TSN, Macuibelle Malipot, March 20, 1996, pp. 11-14.

26 The rule took effect on December 15, 2000.

27 Section 6 and 6 (a), Rule on Examination of a Child Witness.

28 TSN Raymundo Meliton, September 9, 1997, pp. 11-12.

29 People vs. Manegdeg, 316 SCRA 689 (1999).

30 People vs. Zuniega, G.R. No. 126117, February 21, 2001; People vs. Hilot, et al., G.R. No. 129532, October 5, 2000.

31 Id.

32 TSN, Macuibelle Malipot, March 20, 1996, pp. 5-6.

33 TSN, Gregorio Hermosa, July 9, 1997. p. 10.

34 People vs. Mumar, 333 SCRA 221, 232 (2000).

35 People vs. Toyco, Sr., G.R. No. 138609, January 17, 2001.

36 TSN, Gabriel Abelinde, July 8, 1997, pp. 4-5.

37 TSN, Gregorio Hermosa, July 9, 1997, p. 9.

38 People vs. Martinez, et al., G.R. No. 128083, March 16, 2001; People vs. Mumar, supra at 34, p. 221; People vs. Pirame, 327 SCRA 552 (2000).

39 Decision, October 21, 1997, pp. 15-16.

40 People vs. Virtucio, Jr., supra at 32.

41 People vs. Timblor, 285 SCRA 64, 78 (1998); People vs. Penones, 200 SCRA 624 (1991).

42 People vs. Costelo, 316 SCRA 895, 915 (1999).

43 People vs. Albacin, G.R. No. 133918, September 13, 2000.

44 People vs. Lomerio, 326 SCRA 530 (2000).

45 People vs. Tambis, 311 SCRA 430 (1999).

46 People vs. Galapin, 293 SCRA 474 (1998).

47 Article 64, par. 1, Revised Penal Code.

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

A.M. No. RTJ-03-1753 February 5, 2004

CAPISTRANO OBEDENCIO, JR., complainant
vs.
JUDGE JOAQUIN M. MURILLO, PRESIDING JUDGE, RTC, BRANCH 26, MEDINA, MISAMIS ORIENTAL, respondent.

R E S O L U T I O N

QUISUMBING, J.:

In a letter-complaint,1 complainant Capistrano Obedencio, Jr., charged respondent Judge Joaquin M. Murillo, Presiding Judge of the Regional Trial Court of Medina, Misamis Oriental, Branch 26, of unjustly dismissing Criminal Case No. 1401-M (2000) for rape, entitled "People v. Dexter Z. Acenas."

Complainant averred that on May 3, 2000, he and his wife assisted their 14-year-old daughter, Licel Acenas Obedencio, in filing with the Office of the Provincial Prosecutor, Hall of Justice in Cagayan de Oro City, a criminal complaint for rape allegedly committed upon her when she was 11 years old by her uncle, Dexter Z. Acenas. After the preliminary investigation, which the accused did not attend, the case was filed in respondent judge’s sala.2

On May 25, 2001, following Licel’s abduction from their house,3 complainant sought to secure from the court a copy of the warrant of arrest issued against the accused. To his great surprise, respondent judge told him that the case had been dismissed three days earlier on May 22, 2001.4 According to respondent judge, Licel Obedencio had come to court, accompanied by her maternal grandparents and Asst. Provincial Prosecutor Emmanuel Hallazgo. There she was presented to affirm her affidavit of desistance.5

Complainant claims that the dismissal was marred by serious irregularities. He specifically lamented the absence of any subpoena or notice of hearing from the court to him, his wife, or their counsel. He believes that since Prosecutor Hallazgo, Licel’s maternal grandparents, and the accused are relatives, this fact contributed to the unjust dismissal of the case.6

In his comment,7 respondent judge stated that he heard Criminal Case No. 1401-M (2000) on May 22, 2001, upon the request of Prosecutor Hallazgo who was prosecuting the case. During the hearing, Prosecutor Hallazgo presented an affidavit of desistance executed by Licel. Then, Licel took the witness stand and was asked on matters contained in her affidavit. She recanted the allegations in her affidavit-complaint and denied having been molested by her uncle, Dexter. She explained that her mother forced her to file the rape charge because of family inheritance problems. Respondent judge asserts that, with the filing of the affidavit of desistance, the court had no other recourse but to dismiss the case.8

The Office of the Court Administrator (OCA), through Deputy Court Administrator Christopher O. Lock, found respondent judge liable for ignorance of the law for unjustly dismissing Criminal Case No. 1401-M (2000). OCA recommended that respondent judge be reprimanded with warning that a repetition of the same or similar offense would be dealt with more severely.9

This Court agrees with the findings of the OCA, but not with the recommended penalty.

Article 220(6)10 of the Family Code gives to complainant and his wife the right and duty to represent Licel in all matters affecting her interest. Thus, they were entitled to be notified and to attend every hearing on the case. As a judge, respondent is duty-bound to acquaint himself with the cases pending before him.11 He should have known that Licel filed the criminal complaint with the assistance of her parents, who are her natural guardians.12 It was incumbent upon respondent judge to inquire into the reason behind their nonappearance before the court instead of simply relying on the bare explanation of the defense counsel that he and his client could not find Licel’s parents.13 Respondent judge ought to remember that the accused, Dexter Acenas, is the maternal uncle of the victim. That Licel came to court with her maternal grandparents, and not her parents, on the day she was examined to affirm her affidavit of desistance, should have alerted respondent judge to be more circumspect. Being still a minor, Licel cannot fully comprehend for herself the impact and legal consequence of the affidavit of desistance. Given her tender age, the probability is that Licel succumbed to illicit influence and undue pressure on her to desist from pursuing her complaint.

Licel was only 14 years old, definitely a minor, on May 22, 2001, when she was presented before respondent’s sala to affirm the execution of her affidavit of desistance. This being the case, said affidavit should have been executed with the concurrence of her parents. Licel could not validly give consent to an affidavit of desistance, for a minor is incompetent to execute such an instrument. Yet, notwithstanding the absence of her parents’ conformity to the affidavit of desistance and lack of notice to them or their lawyer of the scheduled hearing, respondent judge dismissed the criminal case. Truly, he should have exercised more prudence and caution instead of perfunctorily dismissing the case, considering the nature and gravity of the offense charged.

At the very least, herein respondent should have appointed a guardian ad litem for Licel, to protect her welfare and interest, instead of hastily dismissing the rape case. The Rule on Examination of a Child Witness,14 which took effect on December 15, 2000, governs the examination of child witnesses who are victims of, accused of, or witnesses to a crime. In the absence or incapacity of the parents to be the guardian, Section 5 (a)15 of said rule provides that the court may appoint a guardian ad litem to promote the best interests of the child. This rule was already in effect when respondent judge dismissed the rape case on May 22, 2001.

Respondent is reminded that a judge is the visible representation of the law and, more important, of justice.16 A judge owes it to the public to be knowledgeable, for ignorance of the law is the mainspring of injustice.17 A judge must know the laws and apply them properly in all good faith.18 Rule 3.01, Canon 3 of the Code of Judicial Conduct requires a judge to be faithful to the law and to maintain professional competence. He should conduct the functions and perform the duties of his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law.19 Where the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.20

For respondent judge’s infraction, the penalty of reprimand, recommended by the OCA, is inapplicable. It is too light and incommensurate to the gravity of the administrative offense charged and proved. Instead, the penalty of fine is proper in this case, following Sandoval v. Garin,21 in the amount of P10,000.00.

WHEREFORE, the respondent Judge Joaquin M. Murillo, Presiding Judge of the Regional Trial Court of Medina, Misamis Oriental, Branch 26, is found LIABLE for gross ignorance of the law in connection with the unjust dismissal of Criminal Case No. 1401-M (2000). He is ORDERED to pay the fine of Ten Thousand Pesos (P10,000) and ADMONISHED to be more circumspect in the performance of his judicial duties and functions. He is further warned sternly that a repetition of the same or similar offense would be dealt with more severely.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.


Footnote

1 Rollo, pp. 6-7.

2 Id. at 6.

3 Id. at 8.

4 Id. at 1.

5 Id. at 12-13.

6 Supra, note 2.

7 Rollo, p. 4.

8 Ibid.

9 Id. at 1-3.

10 ART. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties:

. . .

6) To represent them in all matters affecting their interests.

11 Madredijo v. Loyao, Jr., 375 Phil. 1, 23 (1999).

12 THE FAMILY CODE, Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children….

13 TSN, 22 May 2001, p. 6.

14 A.M. No. 004-07-SC.

15 SEC. 5. Guardian ad litem. –

a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified....

16 Arban v. Judge Borja, 227 Phil. 597, 605 (1986).

17 Spouses Bio v. Judge Valera, 327 Phil. 249, 254 (1996).

18 Miaque v. Pamonag, A.M. No. MTJ-02-1412, 28 March 2003, p. 5.

19 Enriquez v. Judge Vallarta, A.M. No. MTJ-02-1398, 27 February 2002, 378 SCRA 12, 18.

20 Borja-Manzano v. Sanchez, A.M. No. MTJ-00-1329, 8 March 2001, 354 SCRA 1, 6-7.

21 385 Phil. 939, 948 (2000). But see Rule 140 of the Rules of Court, amended September 11, 2001.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 172322 September 8, 2006

PEOPLE OF THE PHILIPPINES, appellee,
vs.
RENE SANTOS, appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

For allegedly sexually assaulting 5-year-old AAA, Rene Santos was charged with Rape in an Information1 alleging –

That on or about in the afternoon of between 17th and 23rd of July 1999 in the [B]arangay of xxx, [M]unicipality of xxx, [P]rovince of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, RENE SANTOS, with lewd designs and by means of deceit, force and intimidation, did then and there willfully, unlawfully and feloniously succeeded in having carnal knowledge with AAA, 5 years of age, against her will.

Contrary to law.

Upon arraignment, appellant pleaded not guilty to the charge.2 Trial thereafter ensued, after which the Regional Trial Court of Macabebe, Pampanga, Branch 55, rendered judgment3 imposing the death penalty thus:

WHEREFORE, on the basis of all the foregoing, the Court finds the accused guilty beyond reasonable doubt of the crime of Rape penalized under Article 335 of the Revised Penal Code, and as a consequence of which, this Court hereby sentences him to suffer the mandatory penalty of death and to indemnify the offended party in the amount of P75,000.00 and to pay the costs of the proceedings.

SO ORDERED.4

Owing to the imposition of the death penalty, the case was elevated to the Court for automatic review. Pursuant, however, to the ruling in People v. Mateo,5 the case was referred to the Court of Appeals for evaluation in a Resolution dated September 7, 2004.6

In his appeal, appellant alleged that –

1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE OF THE ACCUSED THAT WOULD EXCULPATE HIM FROM THE CRIME OF RAPE.

2. THE TRIAL COURT ERRED WHEN IT IMPOSED UPON THE ACCUSED THE MAXIMUM PENALTY OF DEATH.

In its Decision7 dated October 19, 2005, the appellate court affirmed the judgment of conviction and, in addition to the P75,000.00 civil indemnity imposed, ordered appellant to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages.

The prosecution's version of the incident narrates that sometime between July 17 and 23, 1999, AAA was playing at the northern portion of xxx Bridge, xxx, Pampanga, when she was taken by appellant and brought to his house, which is about one kilometer away from AAA's residence. While inside the house, appellant took off the clothes of AAA and had sexual intercourse with her.8 The victim felt pain and her vagina bled.9

After a complaint was lodged with the barangay and the police authorities, AAA was brought to the Jose B. Lingad Memorial Regional Hospital in San Fernando, Pampanga, where she was examined.10 The Medico Legal O.B. Gyne Report indicated multiple superficial healed lacerations.11 The victim, who was already six years old when she testified in court,12 positively identified the appellant during the trial and testified on the affidavit she executed before the police officers of xxx, Pampanga.13

Appellant's version of the incident is one of denial and alibi. He testified that he was the driver of BBB who lived in Barangay xxx, xxx, Pampanga which is a kilometer away from his place in Sulipan.14 Appellant usually leaves his house at 7:00 a.m. and stays at his workplace up to 7:30 p.m. or sometimes even up to 10:00 p.m. when necessary.15

His job was to drive his employer whenever the latter had appointments in Manila.16 When BBB had no appointments, he drove a passenger jeepney plying San Fernando, Pampanga and Malolos, Bulacan, a route which passed Sulipan.17 On July 17, 1999, appellant drove his employer to the Wheels Motor Shop at E. Rodriguez Avenue, Quezon City leaving Apalit at 9:00 a.m. and returning at 8:30 p.m. On July 18, 1999, appellant left his house at 6:00 a.m. arriving at his workplace at 7:30 a.m. and from there he delivered surplus bumpers to Malinta, Manila.18 On July 19, 20, 21 and 22, 1999, appellant plied the San Fernando-Malolos route on board his passenger jeepney.19 On July 23, 1999, appellant went to Makati leaving xxx at 10:00 a.m., returning only at 10:00 p.m.20

On July 30, 1999, between 6:30 to 7:30 a.m.,21 he was sweeping the ground in front of his house when a white car pulled over.22 The vehicle's occupants introduced themselves as police officers and asked him if he was Rene Santos.23 Thereafter, he was taken to the police headquarters for questioning. Once they arrived at the headquarters, he was detained and remained in detention up to the time of his trial.24

We have examined the evidence on record and find no cogent reason to disturb the findings of the trial court and the Court of Appeals. We accord great respect on the findings of the trial court on the credibility of witnesses and their testimonies, for the trial judge observes the behavior and demeanor of the witnesses in court. His evaluation or assessment of the credibility of witnesses and of testimony acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the victim's testimony."25

This credibility given by the trial court to the rape victim is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct and attitude during the direct and cross-examination by counsel.26 It is likewise well established that the testimony of a rape victim is generally given full weight and credit, more so, if she is a 5-year-old child as in this case. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive.27

The trial court and the Court of Appeals gave credence to the testimony of AAA who was only six years old when she narrated the sordid details of her ravishment, viz:

FISCAL PINEDA

Questioning

If Rene Santos is inside this courtroom, can you point at him?

WITNESS

Answering

Yes, sir.

Q Please point at him?

A There he is, sir.

INTERPRETER

Witness pointed to a person inside the courtroom who [when] asked gave his name as Rene Santos.

Q Between the period of July 17 to 23, 1999, do you remember where were you?

A Yes, sir.

Q Where were you then?

A . . .

Q You said you know this Rene Santos, why do you know him?

A Because he raped me, sir.

Q Can you remember when was that?

A Yes, sir.

Q When?

WITNESS

Answering

I do not know when, sir.

FISCAL PINEDA

Questioning

Do you recall where?

A In their house, sir.

Q And where is that house?

A In Sulipan, sir.

Q In Apalit, Pampanga?

A Yes, sir.

Q You said that this Rene Santos raped you, what particular actuations did he do?

A He inserted his penis, sir.

Q Where?

A Here, sir, in my vagina.

INTERPRETER

Witness pointing to her private organ.

Q Where did that happen?

A In their house, sir.

Q In what portion of his house?

A Inside their house, sir.

Q You said that Rene Santos inserted his penis into your vagina, what did you feel?

A I felt pain, sir.

Q When he inserted his penis into your vagina did he have any clothings (sic)?

A . . .

ATTY. VIOLA

Leading, Your Honor.

COURT

Reform the question.

FISCAL PINEDA

Questioning

When he inserted his penis into your vagina, what was his appearance?

WITNESS

Answering

It was hard, sir.

Q What was hard?

A His penis, sir.

COURT

Questioning

Is this Rene Santos inside this courtroom?

WITNESS

Answering

Yes, sir.

Q Point to him?

A There he is, sir.

INTERPRETER

Witness pointed to a person inside the courtroom who when asked gave his name as Rene Santos.28 (Emphasis and italics supplied)

Counsel for the defense attempted, albeit futilely, to impeach the credibility of the victim.29 We have held time and again that testimonies of rape victims who are young and immature, as in this case, deserve full credence considering that no young woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial if she was not motivated solely by the desire to obtain justice for the wrong committed against her. It is highly improbable for an innocent girl of tender years like the victim, who is very naive to the things of this world, to fabricate a charge so humiliating not only to herself but also to her family. Stated succinctly, it is beyond the mind-set of a six-year old child, like the offended party herein, to fabricate a malicious accusation against appellant if the crime did not truly transpire.30 Verily, when a guileless girl of six credibly declares that she has been raped, she has said all that is necessary to prove the ravishment of her honor.31

Appellant's reliance on the corroboration by his wife of his alibi cannot overturn the clear and categorical declarations of the victim identifying him as the perpetrator of the crime. The corroboration should, furthermore, be received with caution coming as it does from appellant's spouse whose emotional ties and interest in his acquittal cannot be gainsaid. Indeed, it has even been held that some wives are overwhelmed by emotional attachment to their husbands such that they knowingly or otherwise suppress the truth and act as a medium for injustice to preponderate.32

In addition to his defense of alibi, appellant further faults the trial court with "acting as the prosecutor and the judge at the same time"33 for allegedly initiating and propounding "the questions, short of supplying the desired answer from the witness."34

The argument is tenuous. As has been pointed out in People v. Guambor:35

The trial judge is accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability and willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. (Emphasis supplied)

The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness.36 Under Sections 19 to 21 of the Rules on Examination of a Child Witness,37 child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice.38 It must be borne in mind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. Indeed –

Studies show that children, particularly very young children, make the "perfect victims." They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The child's age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary…. With her limited comprehension, the child could not have a perfect way of relating that she had been sexually abused.39 (Emphasis and italics supplied)

The record discloses that the questions propounded by the judge were intended to elicit the truth from the child witness. This perceived undue inquisitiveness of the judge did not unduly harm the substantial rights of the appellant. In fact, it is only to be expected from the judge who, with full consciousness of his responsibilities could not, and should not, easily be satisfied with incompleteness and obscurities in the testimonies of the witness.40

While judges should as much as possible refrain from showing partiality to one party and hostility to another, it does not mean that a trial judge should keep mum throughout the trial and allow parties to ask questions that they desire, on issues which they think are important, when the former are improper and the latter immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel to submit evidence on the facts in dispute by asking clarifying questions, and by showing an interest in a fast and fair trial. Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to points at issue that are overlooked, directing them to ask the question that would elicit the facts on the issues involved, and clarifying ambiguous remarks by witnesses. Unless they take an active part in trials in the above form and manner, and allow counsel to ask questions whether pertinent or impertinent, material or immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot be attained.41

Appellant also invites the Court's attention to what he perceives as uncharacteristic behavior of the victim who, according to him, should be traumatized after undergoing "the onslaught of sexual molestation."42 He insists that it is unnatural for the 6-year old victim to go to school the day following her supposedly shocking experience. He also points out that "she was answering not as seriously as one who has been sexually molested."43

The contention is neither novel nor persuasive. There is no standard form of behavior that can be expected of rape victims after they have been defiled because people react differently to emotional stress.44 Nobody can tell how a victim of sexual aggression is supposed to act or behave after her ordeal.45 Certainly, it is difficult to predict in every instance how a person – especially a 6-year old child, as in this case – would react to a traumatic experience.46 It is not proper to judge the actions of rape victims, especially children, who have undergone the harrowing experience of being ravished against their will by the norms of behavior expected under such circumstances from mature persons.47 Indeed, the range of emotions shown by rape victims is yet to be captured even by calculus.48 It is thus unrealistic to expect uniform reactions from them.49 In fact, the Court has not laid down any rule on how a rape victim should behave immediately after her ravishment.50

In his attempt to extricate himself from criminal liability, appellant further insinuates that his sons may be the possible perpetrators of the felony saying that "it could have been Rene Santos, Jr. or Michael Santos who could have raped the victim" considering that AAA and her sister CCC allegedly complained earlier that they were raped by the two brothers.51

If at all, the foregoing suggestion that his sons may have been the malefactors who sexually assaulted the victim and her sister only succeeds in underscoring his moral depravity and his capacity to commit the crime. Only one whose degree of wickedness plumbs the deepest depths of criminal perversity would have no qualms of laying the onus of his guilt even on his own offspring and, worse, blacken the memory of one of them who is already dead in his endeavor to exculpate himself from the consequences of his felonious acts.

Much less convincing is appellant's proposition that ill feelings and ill motives of the victim's mother impelled the filing of the charges against him. Ill-motives become inconsequential where there are affirmative or categorical declarations establishing appellant's accountability for the felony.52 We have, furthermore, observed not a few persons convicted of rape have attributed the charges against them to family feuds, resentment or revenge.53 However, as borne out by a plethora of cases, family resentment, revenge or feuds have never swayed us from giving full credence to the testimony of a complainant for rape, especially a minor who remained steadfast and unyielding throughout the direct and cross-examination that she was sexually abused.54 It would take a certain degree of perversity on the part of a parent, especially a mother, to concoct a false charge of rape and then use her daughter as an instrument to settle her grudge.55

Given the foregoing factual, legal and jurisprudential scenario, we agree with both the trial and appellate courts that the appellant is guilty as charged. He was, likewise, correctly meted the penalty of death because rape committed against a "child below seven (7) years old" is a dastardly and repulsive crime which merits no less than the imposition of capital punishment under Article 266-B of the Revised Penal Code.56 That AAA was only five years old when she was ravished is clear from her birth certificate.57

However, with the passage of Republic Act No. 9346 entitled "An Act Prohibiting The Imposition Of The Death Penalty In The Philippines," the penalty that should be meted is reclusion perpetua, thus:

SEC. 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Pursuant to the same law, appellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law.

In line with prevailing jurisprudence, the Court affirms the award of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages; and increases the Court of Appeals' award of moral damages from P50,000.00 to P75,000.00.58

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. H.C. No. 01424 finding appellant Rene Santos guilty beyond reasonable doubt of the crime of rape and odering him to indemnify the victim the amounts of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages, is AFFIRMED with the MODIFICATION that the award of moral damages is increased to P75,000.00 and that in lieu of the death penalty, appellant Rene Santos is hereby sentenced to suffer the penalty of reclusion perpetua without possibility of parole.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., J.J., concur.


Footnotes

1 Records, p. 1.

2 Id. at 17-18.

3 Id. at 160-165.

4 Id. at 164-165.

5 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640, 656.

6 Rollo, p. 116. Penned by Associate Justice Vicente S.E. Veloso and concurred in by Associate Justices Amelita G. Tolentino and Lucas P. Bersamin.

7 Id. at 118-132.

8 TSN, December 7, 1999, pp. 5, 10; Salaysay, Exhibit "A," records, p. 28.

9 Id. at 5, 8.

10 Id. at 15-16.

11 TSN, February 22, 2000, p. 6.

12 TSN, December 7, 1999, p. 3.

13 TSN, December 7, 1999, pp. 4, 6, 7.

14 TSN, October 10, 2000, p. 2-3.

15 Id. at 3.

16 Id.

17 Id. at 3-4.

18 Id. at 4.

19 Id. at 6.

20 Id. at 5.

21 TSN, August 23, 2000, p. 9.

22 Id. at 7.

23 Id. at 8.

24 Id. at 9-10.

25 People v. Macapal, G.R. No. 155335, July 14, 2005, 463 SCRA, 387, 400.

26 People v. Cayabyab, G.R. No. 167147, August 3, 2005, 465 SCRA 681, 686.

27 People v. Dimaano, G.R. No. 168168, September 14, 2005, 469 SCRA 647, 658.

28 TSN, December 7, 1999, pp. 4-6.

29 Id. at 9-13.

30 People v. Villafuerte, G.R. No. 154917, May 18, 2004, 428 SCRA 427, 433.

31 People v. Cachapero, G.R. No. 153008, May 20, 2004, 428 SCRA 744, 757.

32 People v. Fontanilla, G.R. Nos. 147662-63, August 15, 2003, 409 SCRA 216, 228.

33 Appellant's Reply Brief, rollo, p. 110.

34 Id.

35 G.R. No. 152183, January 22, 2004, 420 SCRA 677, 684.

36 People v. Escultor, G.R. Nos. 149366-67, May 27, 2004, 429 SCRA 651, 664-665.

37 A.M. No. 004-07-SC which took effect 15 December 2000:

SEC. 19. Modes of questioning. – The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that the questions are stated in a form appropriate to the development level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time.

SEC. 20. Leading questions. – The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.

SEC. 21. Objection to questions. – Objections to questions should be couched in a manner so as not to mislead, confuse, frighten or intimidate the child.

38 People v. Cañete, 448 Phil. 127, 141-142 (2003).

39 People v. Gaudia, G.R. No. 146111, February 23, 2004, 423 SCRA 520, 531.

40 People v. Angcap, 150 Phil. 500, 507 (1972).

41 Ventura v. Yatco, 105 Phil. 287, 294 (1959).

42 Reply Brief, rollo, p. 111.

43 Id. at 112.

44 People v. Francisco, 448 Phil. 805, 820 (2003).

45 People v. Umayam, 450 Phil. 543, 562 (2003).

46 People v. Manahan, 455 Phil. 658, 670 (2003).

47 People v. Tonyacao, G.R. Nos. 134531-32, July 7, 2004, 433 SCRA 513, 529.

48 People v. Negosa, 456 Phil. 861, 873 (2003).

49 People v. Capareda, G.R. No. 128363, May 27, 2004, 429 SCRA 301, 313.

50 People v. Montes, G.R. Nos. 148743-45, November 18, 2003, 416 SCRA 103, 111-112.

51 Memorandum of Appellant, rollo, pp. 49-50.

52 People v. Guambor, G.R. No. 152183, January 22, 2004, 420 SCRA 677, 684.

53 People v. Cariñaga, 456 Phil. 944, 968 (2003).

54 People v. Glodo, G.R No. 136085, July 7, 2004, 433 SCRA 535, 546.

55 People v. Tolentino, G.R. No. 139351, February 23, 2004, 423 SCRA 448, 458.

56 People v. Cayabyab, G.R. No. 167147, August 3, 2005, 465 SCRA 681, 689.

57 Exhibit "C," records, p. 30.

58 People v. Salome, G.R. No. 169077, August 31, 2006.

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 181633

Plaintiff-Appellee,

Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,

- versus - TINGA,

VELASCO, JR., and

BRION, JJ.

Promulgated:

ROGER UGOS,

Accused-Appellant. September 12, 2008

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

D E C I S I O N

VELASCO, JR., J.:

Before us is an appeal from the October 25, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00310-MIN entitled People of the Philippines v. Roger Ugos y Lanzo alias "Dodong." The CA affirmed the February 8, 2000 Decision of the Regional Trial Court (RTC), Branch 15 in Davao City in Criminal Case No. 39413-97, finding accused-appellant Roger Ugos guilty of raping his stepdaughter and sentencing him to reclusion perpetua.

The Facts

On August 11, 1997, accused-appellant was charged with rape under an Information which reads:

That on or about August 7, 1997, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with x x x [AAA], who is only seven (7) years of age.1

On arraignment, accused-appellant entered a not guilty plea.

The prosecution presented the following facts:

On the evening of August 7, 1997, accused-appellant, while drunk and looking for a bolo,2 asked his stepdaughter, AAA, then seven years old, to look for her mother at her grandmother’s place. But as her mother was not at her grandmother’s residence, AAA went to look for her at a neighbor’s house accompanied by accused-appellant. Her mother was not there, either. Accused-appellant thereupon held AAA and brought her to a nearby creek. Once there, he undressed her and then proceeded to insert his finger into her vagina four times.3 Thereafter, accused-appellant bit AAA’s face and inserted his penis into her vagina. Not content, he held her by the neck and boxed her in the face and stomach.4 He then threatened to kill her if she told her mother about the incident.5

When asked upon reaching home about the lumps on her face, AAA told her mother that she fell at the waiting shed.6 The next morning, however, AAA revealed the truth about her injuries, relating how accused-appellant, while holding her neck, bit and punched her on the cheek "causing a swelling and black right eye and bruises on the neck."7 Mother and daughter then reported the incident to, only to be ignored by, the barangay captain. They then repaired to the police station in Toril to file a rape complaint before Police Station Child and Youth Officer Leonilo Jickain,8 after which they proceeded to Barrio Catigan, the scene of the crime. Mother and daughter pointed to accused-appellant as the rapist.9 After a short chase, he was apprehended and charged.10

Dr. Danilo Ledesma testified having examined AAA on August 11, 1997.11 His findings: AAA had sustained contusions on her left eye and on her cheek. She also had a hemorrhage on both eyeballs. He also found that there was a complete hymenal laceration at the 5 and 9 o’clock positions, showing recent genital trauma.12

Accused-appellant, the lone witness for the defense, on the other hand, presented the following story, as summarized in the RTC decision:

x x x [O]n August 7, 1997 from 7 A.M. to 7 P.M. he was in his employer’s house because it was their barrio’s fiesta, that on reaching home at about 7 P.M. only [his] step[children] AAA, 7 years old, Reggie 3 years old and [his] 10 year [old] niece were around. x x x his wife was not there so he went to their grandmother’s house alone to get her, that his wife was not there, that he returned home at about 8 P.M. but she was not there in their house so he went to his ninang [godmother] and his neighbors looking for his wife, that he told the victim to go with him to the barrio which was about one kilometer from their house to look for his wife, that he told the victim to look for her mother while he waited in a shed, that the victim fell because the road was dark and slippery, that his wife was already home when they returned, that his wife smelled of liquor that night, that he and his wife quarreled and he hit his wife, that he did not rape and hit the victim, that he does not know why he is charged with rape.13

The RTC found accused-appellant guilty as charged. The dispositive portion of the RTC decision reads:

WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable doubt, ROGER UGOS is hereby sentenced to Reclusion perpetua and to indemnify [AAA] the sum of Fifty Thousand Pesos (P50,000.00).

The preventive imprisonment shall be credited to the sentence of the accused if he voluntarily abides in writing to follow the rules under Article 29 of the Revised Penal Code.

SO ORDERED.14

Accused-appellant thus appealed the RTC Decision with this Court.

On December 13, 2004, this Court, in accordance with People v. Mateo,15 ordered the transfer of the case to the CA for intermediate review.

By a Decision dated October 25, 2007, the CA affirmed that of the RTC with a modification on the award of damages, disposing as follows:

WHEREFORE, the lower court’s Decision dated 8 February 2000 finding appellant guilty beyond reasonable doubt of the crime of Rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED, WITH THE MODIFICATION that appellant is ordered to pay P50,000.00, representing moral damages, in addition to the civil indemnity of P50,000.00 he had been adjudged to pay by the trial court.

SO ORDERED.16

On November 22, 2007, accused-appellant filed his Notice of Appeal of the CA Decision.

Accused-appellant presents a lone issue before the Court:

Whether the trial court erred in finding him guilty of the crime of rape instead of acts of lasciviousness

Accused-appellant claims that the testimonies of AAA and her mother reveal only the commission of acts of lasciviousness. There was no sexual intercourse, according to him, as he only inserted his finger into her sex organ, adding that this was what AAA originally told her mother. He surmises that AAA, being underage, might have been confused with what the word "rape" meant. Accused-appellant further states that AAA only testified that he inserted his penis into her vagina when probed by the prosecutor through leading questions.

Our Ruling

We affirm the appellate court’s decision.

AAA, as found by both the trial and appellate courts, was unequivocal in her testimony that she was raped by accused-appellant. While her mother may have contradicted AAA’s testimony by stating that AAA reportedly told her she was merely "fingered" by accused-appellant, it is AAA’s clear and credible testimony that should determine accused-appellant’s guilt. She detailed both in direct and cross-examinations how accused-appellant violated her; she minced no words about what accused-appellant did to her on August 7, 1997.

Accused-appellant does not dispute AAA’s testimony, arguing that she might have been coached in her answers. He likewise states that what AAA and her mother reported to the police was an attempt to rape AAA. It was only when the prosecutor asked her leading questions that she testified that accused-appellant inserted his penis into her vagina.

The Court is not persuaded by his contentions for the following reasons: First, the testimony of Police Officer Jickain, who related that AAA’s mother approached him on August 7, 1997 while he was on duty as Police Station Child and Youth Officer, has documentary support. He stated that AAA’s mother reported that accused-appellant raped her daughter.17 Second,accused-appellant’s contention is at odds with what are contained in the records, which show that during cross-examination the trial court asked AAA what accused-appellant did to her, as follows:

COURT:

Q You said it is painful, is it because the finger was inserted or the penis?

A Because he inserted his finger into my vagina.

Q He did not insert his penis?

A He inserted.18

The prosecutor, on the other hand, examined AAA in this wise:

Q Who mounted you?

A Ondongan.

Q This Ondongan is in court could you point him?

A (Witness pointing to a person seated on a chair with white t-shirt printed navy when asked he said he is Roger Ugos).

Q What did Ondongan or your stepfather do?

A He placed his hand on my vagina.

Q Were you still dressed?

A Yes, Sir.

Q What did he do to your dress?

A He inserted his finger [in] my vagina 4 times.

Q When he did that to you were you still dressed or were you already naked?19

x x x x

Q What else?

A After that the accused stood up on a coco trunk [and] inserted his finger in my vagina four times.

Q What else did he do, did you see his penis?

A He inserted inside my vagina.

Q What did you feel when he inserted his penis in your vagina?

A I was angry, because he mounted me and it was very painful.20

The line of leading questions objected to by accused-appellant was warranted given the circumstances. A child of tender years may be asked leading questions under Section 10(c), Rule 132 of the Rules of Court. Sec. 20 of the 2000 Rule on Examination of a Child Witness also provides, "The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice."

The afore-cited rule was formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to testify in legal proceedings, and facilitate the ascertainment of truth.21

We find that the alleged coaching used in the course of examining AAA merely aided her in testifying with more detail and did not suggest to her the answers integral to the actual commission of rape.

What is more, AAA’s charge of rape finds support in the medical report on her physical injuries. The medico-legal witness, Dr. Ledesma, testified that he examined AAA four days after the rape incident and found fresh bruises on her face and lacerations in her vagina.22

Accused-appellant’s denial of the crime cannot prevail over the positive testimony of the victim. As held in People v. Suarez,a rape victim’s straightforward and candid account,corroborated by the medical findings of the examining physician, is sufficient to convict the accused.23 This conclusion becomes all the more firm where, as in this case, the child-victim takes the witness stand. Previous decisions involving rape cases have shown us the high improbability that a girl of tender years would impute to any man a crime so serious as rape if what she claims is not true.24 Also, as correctly pointed out by the CA, corroboration of a child’s testimony is not even required under Sec. 22 of the Rule on Examination of a Child Witness, thus:

Corroboration shall not be required of a testimony of a child. [The child’s] testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases.

Accused-appellant’s suggestion that the charge against him could have been fabricated, an offshoot of the argument he had with AAA’s mother, has nothing to support itself. There is likewise nothing in the records indicating that the prosecution witnesses testified against accused-appellant out of malice.

A rape victim’s testimony as to who abused her is credible where she has absolutely no motive to incriminate and testify against the accused.25 Categorical and positive identification of an accused, without any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over denial and alibi, which are negative and self-serving.26 We thus affirm the trial court’s appreciation of the testimonial evidence adduced. It is basic that the trial court’s evaluation of the testimonies of witnesses should be accorded the highest respect as it has the best opportunity to observe directly the demeanor of witnesses on the stand and to establish whether they are telling the truth.27

As to the award of damages, the RTC was correct in awarding civil indemnity in the amount of PhP 50,000. Civil indemnity needs no proof other than the fact of the commission of the offense.28 The award is proper even if the minority of AAA was alleged. There was no allegation in the Information that accused-appellant was the victim’s stepfather, precluding a charge for qualified rape which would have increased the award to PhP 75,000.

The CA was also correct in additionally awarding moral damages of PhP 50,000. This is separate and distinct from civil indemnity. It does not require proof of mental and physical suffering.29

As a final note, we reject accused-appellant’s argument that had he been found to have merely fingered AAA’s sexual organ, he would only be convicted of acts of lasciviousness. As held in De Castro v. Fernandez, Jr., the new law on rape now includes sexual assault.30 Although the amendment to the law on rape was made after accused-appellant was charged, it is well to point out that with its expanded definition, rape can now be committed through sexual assault by inserting "any instrument or object, into the genital or anal orifice of another person."31

WHEREFORE, the appeal of accused-appellant is DISMISSED. The Decision dated October 25, 2007 of the CA in CA-G.R. CR-H.C. No. 00310-MIN finding him guilty of the crime of rape is AFFIRMED IN TOTO.

No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 142930 March 28, 2003

THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
KAKINGCIO CAÑETE, appellant.

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision1 of the Regional Trial Court of Leyte, Branch 36, in Criminal Case No. 2523, convicting appellant of rape, imposing on him the death penalty and ordering him to pay damages to the victim in the amount of P50,000.

Evidence of the Prosecution

The spouses Paquito Cañete and Sedaria Cañete had three children, one of whom was Alma, who was born on March 24, 1983. In 1986, the spouses decided to live separately. Sedaria resided in Pook West, Cubala, Biliran, with some of her children by Paquito. The latter decided to live in Basey, Samar, and brought Alma with him. Thereafter, Paquito decided to live with his older brother, Kakingcio Cañete, and the latter’s common-law wife, Alejandra Cañete, whom Alma called Yaya Alejandra, and their two children, five and four years old, respectively, in Barangay Gayad, Capoocan, Leyte. After some years, Paquito and Alma decided to return to and live in Basey, Samar. In the meantime, Paquito became blind and a paralytic. In January 1996, Kakingcio had Paquito and Alma fetched from Basey, Samar, and brought to Barangay Gayad, Capoocan, Leyte, to live with him and his family. By then, Alma was already twelve years old. She noticed that her uncle Kakingcio was nice and amiable to her.

On February 1, 1996, Alejandra visited her daughter in Montebello, Kananga, Leyte, leaving behind Kakingcio and their two young children and Paquito and Alma. At about 8:00 p.m., Alma was already asleep. Paquito was sleeping near her feet. The house was dark. Momentarily, Alma was awakened when she felt someone caressing her. When she opened her eyes, she saw her uncle Kakingcio who was wearing a pair of short pants but naked from waist up. He was beside her with his left palm touching her forehead, down to her face, hand and feet. She could smell liquor from his breath. He poked an 8-inch long knife on her neck and whispered to her: "Ma, don’t tell your yaya because I will do something to you." Kakingcio then removed his short pants, lifted her skirt and pulled down her panties. He threatened to kill her if she made a sound. Alma was terrified. Kakingcio then inserted his private organ into Alma’s vagina and made a push and pull movement of his body. Alma felt pain in her private part and could do nothing but cry as Kakingcio ravished her. In the process, Alma lost consciousness. When she regained consciousness, it was already 6:00 in the morning of February 2, 1996. She was weak and could hardly stand up. She noticed blood in her vagina. By then, Kakingcio had already left the house. Alma could do nothing but cry.

Kakingcio arrived back home after lunch time. Alma hid from her uncle.

On February 3, 1996, at 8:00 in the evening, Alma was asleep in the sala of their house. She was awakened when she felt her pants being pulled down. She was aghast when she saw Kakingcio beside her pulling down her pants. She resisted and ran out of the house to escape from Kakingcio. She rushed to the house of a neighbor Ka Caring to whom Alma revealed that her uncle raped her and that he was about to rape her again. Caring adviced Alma not to return to their house. Alma slept in the house of Caring. Alma returned to their house the next day, February 4, 1996. By then, Kakingcio was no longer in the house.

On February 5, 1996, Alejandra went up the hill to gather camote tops. She was then armed with a bolo. Alma followed Alejandra to the hills and revealed to her that Kakingcio raped her on February 1, 1996. Alejandra was livid with rage. She rushed back to the house and confronted Kakingcio with the charge of Alma. Alejandra and Kakingcio quarreled. She berated him for having taken advantage of his own flesh and blood. She told him to leave the house. Kakingcio agreed on the condition that he would bring his personal belongings with him. After Kakingcio left, Alejandra accompanied Alma to the barangay captain and complained against Kakingcio. The Barangay Captain wrote a letter to the local police authorities requesting assistance to Alejandra and Alma. On February 9, 1996, Dra. Bibiana A. Cardente, the Municipal Health Officer of Capoocan, Leyte, examined Alma. The doctor prepared and signed a medico-legal certificate on her examination of Alma which contains her findings:

"Physical Examination Findings:

Breast: normal, no abrasions, no lacerations, no hematoma

Abdomen: normal

Extremities: normal

Pelvic Examination: scanty pubic hair noted

External Genitalia: grossly normal

Internal & Speculum Examination Findings:

Introitus: non-parous, admits 2 fingers with slight difficulty

Cervix: pinkish, soft hymenal healed old lacerations at 6 o’clock and 9 o’clock

Discharges: scanty brownish discharges

Uterus: small

Adnexa: negative for masses and tenderness"2

Alma was entrusted to the Lingap Center in Pawing Palo, Leyte.

On April 26, 1996, an Information was filed with the Regional Trial Court of Leyte, Branch 36, charging Kakingcio with rape, thus:

"That on or about the 1st day of February, 1996, in the municipality of Capoocan, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and with lewd designs and by use of force and intimidation then armed with the short bladed weapon, did then and there wilfully, unlawfully and feloniously have carnal knowledge with ALMA CAÑETE, a minor (12 years old) against her will to her damage and prejudice.

CONTRARY TO LAW.3

When arraigned on September 18, 1996, Kakingcio, assisted by counsel, pleaded not guilty to the crime charged.

When he testified, Kakingcio denied having sexually assaulted Alma. He interposed the defense of alibi. He claimed that he was a farmer. He planted root crops such as banana. On February 1, 1996, he went to the house of Romulo Lukaba located at Barangay Gayad, Capoocan, Leyte, about three kilometers from his house, for the purpose of accompanying and helping Rolly Lukaba, the son of Romulo, gather coconuts in the coconut plantation of Romulo in the mountains. It took Kakingcio thirty minutes to reach the place. At about 9:00 in the evening, Kakingcio, Rolly and Romulo drank tuba. By 10:00 in the evening, Rolly and Kakingcio went to sleep. Romulo, however, left the two. The next day, Rolly and Kakingcio went back to the mountains and gathered coconuts.

Kakingcio returned to their house on February 7, 1996.

Kakingcio testified that he was not aware of any reason why his wife and Alma would charge him with rape.

On February 4, 2000, the trial court rendered a decision finding Kakingcio guilty beyond reasonable doubt of rape and imposing on him the penalty of death in view of the presence of the special qualifying circumstance of the minority of private complainant Alma and her relationship to Kakingcio and the special aggravating circumstance of use of a deadly weapon and without any mitigating circumstance in the commission of the crime.

In his appellant’s brief, appellant Kakingcio assails the decision of the trial court contending that:

I

THE TRIAL COURT ERRED IN PARTICIPATING DIRECTLY AND ACTIVELY IN THE PRESENTATION AND RECEPTION OF THE PROSECUTION’S EVIDENCE THEREBY FAILING TO UPHOLD THE "COLD NEUTRALITY OF AN IMPARTIAL JUDGE."

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE DESPITE WANT OF CLEAR, POSITIVE AND CONVINCTING IDENTIFICATION.

III

THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE TO THE INCREDIBLE TESTIMONY OF THE PRIVATE COMPLAINANT AND IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.

IV

ON THE ASSUMPTION HOWEVER THAT THE ACCUSED-APPELLANT IS GUILTY OF RAPE, THE TRIAL COURT ERRED IN IMPOSING UPON HIM THE PENALTY OF CAPITAL PUNISHMENT DESPITE THE FACT THAT THE QUALIFYING CIRCUMSTANCE OF RELATIONSHIP WAS NOT ALLEGED IN THE INFORMATION, HENCE, THE APPROPRIATE PENALTY SHOULD ONLY BE RECLUSION PERPETUA.4

On the first three assignments of errors, the appellant avers that the prosecution had a difficulty proving that the appellant raped the private complainant in light of her testimony that when the appellant mounted her, he still had his short pants on. When the prosecution tried to elicit from the offended party how appellant’s penis could have been inserted into her vagina with his pants still on and the appellant’s counsel objected to the question, the presiding judge himself took the cudgels for the prosecution and propounded questions on the private complainant. Worse, the presiding judge posed leading questions to the private complainant. The presiding judge was biased and partial to the prosecution. To buttress his contention, the appellant’s counsel cited a portion of the transcript of the stenographic notes taken during the trial on September 17, 1997:

PROS. PERIDA:

Q So, after he laid himself over you with his trouser what else happened?

A His penis was inserted into my vagina, sir.

Q Where did he let his penis exit considering that he is then wearing a short pants?

ATTY. DILOY:

Objection your Honor! It is leading.

COURT:

Q How did he manage to have his penis inserted to your vagina?

A No, sir, because when he placed himself on top of me he pulled down his shorts and thereafter he inserted his penis into my vagina.

Q At that time what was your apparel going up from your vagina?

A I was wearing then a t-shirt and skirt, sir.

Q About your skirt?

A He pulled up my skirt, sir.

Q What about your t-shirt?

A He did not do anything about my t-shirt.

Q After placing his penis on your vagina, what else transpired?

A He keeps on kissing me sir.

Q At that time he keeps on kissing you, where was his penis in relation to your vagina?

A It was inside my vagina sir.5

The appellant further stresses that when Alma was raped it was nighttime and the place where she was molested was dark. She could not have recognized and identified the appellant as her rapist. Furthermore, Alma failed to report the rape immediately to the police authorities.

The Court does not agree with the appellant’s submission. In People v. Ancheta,6 this Court emphasized that a presiding judge enjoys a great deal of latitude in examining witnesses within the course of evidentiary rules. The presiding judge should see to it that a testimony should not be incomplete or obscure. After all, the judge is the arbiter and he must be in a position to satisfy himself as to the respective claims of the parties in the criminal proceedings. In People v. Zheng Bai Hui,7 this Court reiterated that:

In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party.

In this case, the relevant direct-examination questions posed by the public prosecutor of the private complainant and her corresponding answers, the objections thereto by the appellant’s counsel and the questions propounded by the trial court were as follows:

Q After taking off your panty or underware (sic) what else transpired?

A He placed himself on top of me sir.

Q Please describe to us your uncle at that moment when he placed himself over your body!

A He placed himself on top of me in a prone position.

Q What was he wearing at that time when he was carressing (sic) your face down to your arm?

A He was just wearing a short pants sir.

Q What about the upper portion of his body?

A None sir.

Q At the time he put himself over you on a prone position, what about his short pants, was it still there?

ATTY. DILOY:

We request Your Honor that the question not be made in a leading manner!

COURT:

Place of record the comment!

PROS. PERIDA:

I withdraw that Your Honor!

Q Where was the short pants which your uncle originally wearing that time?

ATTY. DILOY:

He was wearing it Your Honor as described by the witness!

PROS. PERIDA:

At this moment now, when he was already on top of the victim!

ATTY. DILOY:

It was answered by the witness! According to the witness, accused was wearing short pants but the upper part of his body the accused had nothing worn!

PROS. PERIDA:

That is agreed Your Honor. Now my question is, at the time Kakingcio Cañete was already on top of Alma where was this short pants!

ATTY. DILOY:

It was being worn by the accused!

PROS. PERIDA:

Let the witness answer that Your Honor!

ATTY. DILOY:

We submit Your Honor!

COURT:

Q What were your uncle, when your uncle placed himself on top of your body as you said, in a prone position, was he wearing clothes or none?

A He was still wearing Your Honor.

Q What clothes?

A Short pants Your Honor.

Proceed Fiscal!

PROS. PERIDA:

Q So, after he laid himself over you with his trouser, what else happened?

A His penis was inserted into my vagina sir.

Q Where did he let his penis exit considering that he is then wearing a short pants?

ATTY. DILOY:

Objection Your Honor! It is leading!

COURT:

Q How did he manage to have his penis inserted to your vagina?

A No sir, because when he placed himself on top of me he pulled down his shorts and thereafter he inserted his penis into my vagina.

Q At that time what was your apparel going up from your vagina?

A I was wearing then a T-shirt and skirt sir.

Q About your skirt?

A He pulled up my skirt sir.

Q What about your t-shirt?

A He did not do anything about my t-shirt.

Q After placing his penis on your vagina, what else transpired?

A He keeps on kissing me sir.

Q At that time he keeps on kissing you, where was his penis in relation to your vagina?

A It was inside my vagina sir.

Q While his penis was inside your vagina and the accused keeps on kissing you what else transpired?

A (witness weeping in tears as been directly examined by the Public Prosecutor).

COURT:

Place it of record that the child witness is crying in the witness stand!

PROS. PERIDA:

May we ask for suspension Your Honor! I move for suspension considering the condition of the victim witness Your Honor! He’s already crying!

COURT:

We can come back tomorrow.8

The Court finds nothing improper in the questions posed by the trial court. Neither are the questions prejudicial to the appellant or suggestive of any partiality of the trial court. It bears stressing that from the testimony of the private complainant, the appellant was wearing his short pants before he mounted her and even when he was already on top of her and managed to penetrate her sexual organ with his penis. The public prosecutor wanted the private complainant to explain to the court how the appellant could have inserted his penis into her vagina considering that he was still wearing his short pants. Although crudely and ungrammatically phrased, the question of the public prosecutor "where did he let his penis exit considering that he is then wearing a short pants" was not leading. The trial court should have overruled the objection and allowed the private complainant to answer the question. However, the trial court was not precluded from asking questions to avoid further wrangling between the public prosecutor and the appellant’s counsel which may frightened or unnerved the private complainant, a minor and who was unused to judicial proceedings. After all, the trial court was mandated to discover the truth. As it turned out, the private complainant cried profusely as she testified impelling the trial court to order a continuance. Even the counsel of the appellant agreed to a continuance.

Parenthetically, under Sections 19 to 21 of the Rule on Examination of a Child Witness which took effect on December 15, 2000, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child:

Sec. 19. Mode of questioning. – The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.9

While it may be true that it was dark when the appellant ravished the private complainant in his house, it cannot, however, be gainsaid that the private complainant could have sufficiently identified the appellant as the culprit. The appellant was the uncle of the private complainant. She and her father Paquito had been living with the appellant and his family off and on for years before she and her father were brought back with appellant in January 1996 to Capoocan, Leyte, to live anew with the appellant and his family. The private complainant was thus familiar not only with the physical build of the appellant but also with his voice and peculiar smell. A person may be identified by these factors. Once a person has gained familiarity with another, identification is quite an easy task.10 In this case, the appellant poked a knife on her neck and whispered to the private complainant before she raped her: "Ma, ayaw pagsumat kan imo yaya kay may-ada ako ha imo bubuhaton" (Ma, don’t tell to your yaya because I will do something to you." "Ma" was the nickname of Alma, the private complainant. "Yaya" was Alejandra Cañete, the common-law wife of the appellant.11 Moreover, as testified to by the private complainant, the only persons left in the house in the evening of February 1, 1997 were the appellant and his two young children, Paquito, who was blind and an invalid, and the private complainant:

PROS. PERIDA:

Q You stated that on February 1, there was no light at the place where you were raped. How did you recognize with certainty that it was Kakingcio Cañete who raped you?

ATTY. DILOY:

I object to that Your Honor. It should have been taken during the direct examination.

PROS. PERIDA:

No, Your Honor. We are already talking about lights Your Honor.

COURT:

Well, at least for purposes or in the interest of the trial, let the witness answer!

WITNESS:

A Because we were the only one staying in the house, and besides I can detect his smell.

PROS. PERIDA:

Q Why? What was his smell?

WITNESS:

A Smells like a smoker.12

When Alejandra Cañete confronted the appellant on February 5, 1997, with the claim of the private complainant that he raped the latter and demanded that the appellant leave the house, the appellant did not deny the charge and even agreed to leave the house on condition that he be allowed to take his personal belongings with him:

PROS. PERIDA:

Q On the following day, that was Monday, February 5, 1996, what did you do if any?

WITNESS:

A That morning – Monday, my auntie Yaya Alejandra went up the hill and I followed them and I told them about my ordeal that I was raped by my Yayo Kaking.

PROS. PERIDA:

Q Who was the companion of your Yaya Alejandra who went up the hill?

WITNESS:

A Her daughter Ate Belen.

PROS. PERIDA:

Q What is her real name?

WITNESS:

A Belen Pepito.

PROS. PERIDA:

Q Was he already married?

WITNESS:

A That her family name is the surname of her mother.

PROS. PERIDA:

Q When you told your Yaya Alejandra, how did she react to your information?

WITNESS:

A Upon learning about the rape incident she was very angry and she reacted angrily and carried with her the camote tops and went down proceeding towards their house bringing with her a long bolo, in our dialect it is used for farming and cutting grass and a long pointed bolo, a sharp instrument, and upon reaching their house they have a quarrel with my uncle.

PROS. PERIDA:

Q How about you, did you follow your Yaya in going home?

WITNESS:

A Yes, sir.

PROS. PERIDA:

Q After they quarrel, what transpired?

WITNESS:

A My auntie, Yaya Alejandra told my uncle Yayo Kaking to leave the house because he ate his own blood, and Yayo Kaking answered in the affirmative, saying Yes, I will leave the house so long I will bring with me all my belongings.13

The credibility of the private complainant was not degraded by her and Alejandra Cañete’s reporting the sexual assault to the police authorities only on February 5, 1996. The evidence shows that the private complainant was only twelve years old when she was raped by the appellant. She and her father, who was completely blind and a paralytic, were living in the house of the appellant. The latter threatened to kill her if she revealed what he did to her. It was thus easy for the appellant to fulfill the threat if she divulged the violation of her honor.14 The private complainant could do nothing but cry. When the appellant tried in the evening of February 3, 1996 to violate her again, she ran to a neighbor, Ka Caring, divulged to her that the appellant tried to rape her anew and sought her help. In fact, the private complainant slept in the house of Ka Caring that evening and went back home only the next morning on February 4, 1996. On February 5, 1996, the private complainant revealed to her Yaya Alejandra, the wife of the appellant, that the latter had raped her. In People v. Bea,15 this Court held that it is not uncommon for a young girl at the tender age of sixteen years to be intimidated into silence and conceal the sexual assault on her by the appellant.16

When cross-examined by the public prosecutor, the appellant unabashedly admitted that he did not know any improper or ill-motive on the part of the private complainant for charging him with rape, and on the part of his wife Alejandra Cañete for reporting the sexual assault on the private complainant by the appellant to the police authorities:

Q The complainant here testified in Court that she was raped by you at 9:00 o’clock in the evening of February 1, 1996. Are you aware of that?

A No, sir.

Q In fact the victim here testified that it was your very own wife who accompanied her to report this matter to the barangay (sic) Chairman of Barangay Gayad, and likewise reported this matter to the PNP of Capoocan. Are you aware of that?

A No, sir.

Q Do you know of any reason or reasons why your own wife would report this rape incident against your person?

A I don’t know sir what is her reason.

Q And you don’t know likewise of any reason or reasons why your own niece, a twelve (12) year old child would accuse you of rape, right?

A I don’t know also, sir.17

The records show that the private complainant lived in a rural area, unaffected by the worldly ways of urban life. It is thus incredible that the private complainant would weave a story of defloration and undergo a medical examination of her private parts and charge the appellant with rape for which, if convicted, he could be meted the penalty of either reclusion perpetua or death. As this Court held:

Accused failed to attribute any ill motive on the part of the victim to testify falsely and impute against him the commission of a grave offense such as rape. To the contrary, the trial court observed that the victim lived in place "more rural than most rural villages" in the country, and was still "unaffected by the wordly ways of urban life." "It is highly inconceivable for a young barrio lass, inexperienced with the ways of the world, to fabricate a charge of defloration, undergo a medical examination of her private parts, subject herself to public trial, and tarnish her family’s honor and reputation unless she was motivated by a potent desire to seek justice for the wrong committed against her."18

In contrast to the positive and straightforward testimony of the private complainant, the appellant’s denial of the charge, which is merely a negative self-serving evidence, cannot prevail. Equally undeserving of merit is his defense of alibi. Appellant failed to prove with clear and convincing evidence that it was physically impossible for him to have been in his house at the time when the private complainant was raped.19 The only evidence adduced by the appellant to prove alibi was his own testimony. By his own admission, the appellant’s house was barely a thirty-minute walk to the house of Romulo Lukaba. It was thus not physically impossible for the appellant to have been in his house at 8:00 in the evening of February 1, 1996, when the private complainant was raped.

Proper Penalty on Appellant

The trial court imposed the death penalty on the appellant on its finding that the appellant used a knife when committing the crime and that the private complainant was under eighteen years of age and the niece of the appellant and, hence, a relative of the private complainant within the third civil degree.

This Court agrees with the trial court that the appellant used a knife in committing the crime charged and that he is the uncle of the private complainant and, hence, her relative within the third civil degree. However, as to the latter, there is no allegation in the Information that the appellant is the uncle of the private complainant as required by Section 8 of Rule 110 of the Revised Rules of Criminal Procedure.20 In People v. Bernaldez,21 this Court held that the minority of the private complainant and her relationship to the appellant must be alleged in the Information because these circumstances are special qualifying circumstances for rape to warrant the imposition of the death penalty. Although this rule took effect on December 1, 2000, or before the crime charged in the Information was committed, the Court has consistently applied the rule retroactively. Thus, since the relationship of the private complainant and the appellant was not alleged in the Information, the appellant cannot be convicted of qualified rape, otherwise he would be deprived of his right to be informed of the nature of the charge against him. The appellant may only be convicted of simple rape with the special aggravating circumstance of use of a deadly weapon in the commission of the crime. Rape with use of a deadly weapon is punishable by reclusion perpetua to death under the third paragraph of Article 335 of the Revised Penal Code, as amended. Since the prosecution failed to prove any aggravating circumstance in the commission of the crime, the appellant may be meted only the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code.

Civil Liability of Appellant

The trial court ordered the appellant to pay P50,000 as civil indemnity but failed to award moral damages and exemplary damages considering the tender age of the private complainant and of the uncle-niece relationship of the appellant and the private complainant.22 In light of recent case law, the Court must order the appellant to pay the private complainant the amounts of P50,000 as moral damages23 and P25,000 as exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Leyte, Branch 36, in Criminal Case No. 2523, is hereby AFFIRMED WITH MODIFICATION. The appellant KAKINGCIO CAÑETE is found guilty beyond reasonable doubt, as principal, of simple rape under Article 335 of the Revised Penal Code, as amended, and is meted the penalty of reclusion perpetua, and ordered to pay to private complainant Alma Cañete the amounts of P50,000 as civil indemnity, P50,000 as moral damages and P25,000 as exemplary damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
Ynares-Santiago, J., on leave.


Footnotes

1 Penned by Judge Francisco C. Gedorio.

2 Exhibit "A."

3 Records, p. 1.

4 Rollo, pp. 44-45.

5 Rollo, pp. 48-49.

6 64 SCRA 90 (1975).

7 338 SCRA 420 (2000).

8 TSN, Alma Cañete, September 17, 1997, pp. 4-7.

9 Supra.

10 People v. Reyes, 309 SCRA 622 (1999).

11 TSN, Alma Cañete, September 7, 1997, p. 4.

12 TSN, Alma Cañete, September 18, 1997, p. 22.

13 Id. at 10-12.

14 People v. Abalde, 329 SCRA 418 (2000).

15 306 SCRA 653 (1990).

16 See note 15.

17 TSN, Kakingcio Cañete, January 12, 1999, pp. 7-8.

18 See note 15.

19 People v. Tejero, 308 SCRA 660 (1999).

20 SEC. 8. Designation of the offense. – The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

21 322 SCRA 462 (2000).

22 People v. Villanueva, Jr., G.R. No. 146106, December 16, 2001.

23 People v. Bernaldez, supra.

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