Disini vs Sandiganbayan
Disini seeking and obtaining for Burns and Roe and
DECISION
BERSAMIN, J.:
The Sandiganbayan has exclusive original jurisdiction over
the criminal action involving petitioner notwithstanding
that he is a private individual considering that his criminal
prosecution is intimately related to the recovery of ill-
gotten wealth of the Marcoses, their immediate family,
subordinates and close associates.
The Case
Petitioner Herminio T. Disini assails via petition for
certiorari there solutions promulgated by the
Sandiganbayan in Criminal Case No. 28001and Criminal
Case No. 28002, both entitled People v. Herminio T. Disini,
on January 17, 2005 (denying his motion to quash the
informations)1 and August 10, 2005 (denying his motion for
reconsideration of the denial of his motion to
quash),2 alleging that the Sandiganbayan (First Division)
thereby committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
Antecedents
The Office of the Ombudsman filed two informations dated
June 30,2004 charging Disini in the Sandiganbayan with
corruption of public officials, penalized under Article 212 in
relation to Article 210 of the Revised Penal Code (Criminal
Case No. 28001), and with a violation of Section 4(a) of
Republic Act 3019 (R.A. No. 3019), also known as the Anti-
Graft and Corrupt Practices Act (Criminal Case No. 28002).
The accusatory portions of the informations read as follows:
Criminal Case No. 28001
That during the period from 1974 to February 1986, in
Manila, Philippines, and within the jurisdiction of this
Honorable Court, accused HERMINIO T. DISINI,
conspiring together and confederating with the then
President of the Philippines Ferdinand E. Marcos, did then
and there, willfully, unlawfully and feloniously offer,
promise and give gifts and presents to said Ferdinand E.
Marcos, consisting of accused DISINI’s ownership of two
billion and five hundred (2.5 billion) shares of stock in
Vulcan Industrial and Mining Corporation and four billion
(4 billion)shares of stock in The Energy Corporation, with
both shares of stock having then a book value of ₱100.00
per share of stock, and subcontracts, to Engineering and
Construction Company of Asia, owned and controlled by
said Ferdinand E. Marcos, on the mechanical and electrical
construction work on the Philippine Nuclear Power Plant
Project("Project") of the National Power Corporation at
Morong, Bataan, all for and in consideration of accused
Westinghouse Electrical Corporation (Westinghouse), the
contracts to do the engineering and architectural design
and to construct, respectively, the Project, as in fact said
Ferdinand E. Marcos, taking undue advantage of his
position and committing the offense in relation to his office
and in consideration of the aforesaid gifts and presents, did
award or cause to be awarded to said Burns and Roe and
Westinghouse, the contracts to do the engineering and
architectural design and to construct the Project,
respectively, which acts constitute the crime of corruption
of public officials.
CONTRARY TO LAW.3
Criminal Case No. 28002
That during the period 1974 to February 1986, in Manila,
Philippines, and within the jurisdiction of the Honorable
Court, accused HERMINIO T. DISINI, conspiring together
and confederating with the then President of the
Philippines, Ferdinand E. Marcos, being then the close
personal friend and golfing partner of said Ferdinand E.
Marcos, and being further the husband of Paciencia
Escolin-Disini who was the first cousin of then First Lady
Imelda Romualdez-Marcos and family physicianof the
Marcos family, taking advantage of such close personal
relation, intimacy and free access, did then and there,
willfully, unlawfully and criminally, in connection with the
Philippine Nuclear Power Plant (PNPP)Project
("PROJECT") of the National Power Corporation (NPC) at
Morong, Bataan, request and receive from Burns and Roe, a
foreign consultant, the total amount of One Million U.S.
Dollars ($1,000,000.00),more or less, and also from
Westinghouse Electric Corporation(WESTINGHOUSE), the
total amount of Seventeen Million U.S.
Dollars($17,000,000.00), more or less, both of which entities
were then having business, transaction, and application
with the Government of the Republic of the Philippines, all
for and in consideration of accused DISINI securing and
obtaining, as accused Disini did secure and obtain, the
contract for the said Burns and Roe and Westinghouse to
do the engineering and architectural design, and construct,
respectively, the said PROJECT, and subsequently, request
and receive subcontracts for Power Contractors, Inc. owned
by accused DISINI, and Engineering and Construction
Company of Asia (ECCO-Asia), owned and controlled by
said Ferdinand E. Marcos, which stated amounts and
subcontracts constituted kickbacks, commissions and gifts
as material or pecuniary advantages, for securing and
obtaining, as accused DISINI did secure and obtain,
through the direct intervention of said Ferdinand E.
Marcos, for Burns and Roe the engineering and
architectural contract, and for Westinghouse the
construction contract, for the PROJECT.
CONTRARY TO LAW.4
KMC - Criminal Procedure; Atty. Macababbad| 1
On August 2, 2004, Disini filed a motion to quash, 5 alleging 2. THE RESPONDENT COURT
that the criminal actions had been extinguished by GRAVELY ERRED INDETERMINING
prescription, and that the informations did not conform to THE COMMENCEMENT OF
the prescribed form. The Prosecution opposed the motion THEPRESCRIPTIVE PERIOD.
to quash.6
3. THE RESPONDENT COURT
On September 16, 2004, Disini voluntarily submitted GRAVELY ERRED INDETERMINING
himself for arraignment to obtain the Sandiganbayan’s THE POINT OF INTERRUPTION OF
favorable action on his motion for permission to travel THEPRESCRIPTIVE PERIOD.
abroad.7 He then entered a plea of not guilty to both
informations. C. BY MERELY ASSUMING THE PRESENCE OF
GLARINGLYABSENT ELEMENTS IN THE
As stated, on January 17, 2005, the Sandiganbayan (First OFFENSES CHARGED TOUPHOLD THE
Division) promulgated its first assailed resolution denying ‘SUFFICIENCY’ OF THE INFORMATIONS
the motion to quash.8 INCRIMINAL CASE NOS. 28001 AND 28002, THE
RESPONDENTCOURT DEMONSTRATED ITS
Disini moved for the reconsideration of the resolution PREJUDGMENT OVER THE SUBJECT CASES
dated January 17, 2005,9 but the Sandiganbayan (First AND ACTED WITH GRAVE ABUSE OF
Division) denied his motion on August 10, 2005 through the ITSDISCRETION.
second assailed resolution.10
D. THE RESPONDENT COURT ACTED WITH
Issues GRAVE ABUSE OFDISCRETION IN REFUSING
TO QUASH THE INFORMATIONSDESPITE
THEIR UTTER FAILURE TO COMPLY WITH
Undaunted, Disini commenced this special civil action for
THEPRESCRIBED FORM, THUS EFFECTIVELY
certiorari, alleging that:
DENYING THEACCUSED HIS
CONSTITUTIONAL AND STATUTORY
A. THE RESPONDENT COURT HAS NO RIGHTTO BE INFORMED OF THE NATURE
JURISDICTION OVER THEOFFENSES AND CAUSE OF THEACCUSATION AGAINST
CHARGED. HIM.11

1. THE RESPONDENT COURT Ruling

GRAVELY ERRED WHEN ITRULED
THAT SECTION 4, PARAGRAPHS (A)
The petition for certiorari has no merit.
AND (B) OFREPUBLIC ACT NO. 8249
DO NOT APPLY SINCE
THEINFORMATIONS WERE "FILED 1.Preliminary Considerations
PURSUANT TO E.O. NOS. 1,2, 14 AND
14-A". To properly resolve this case, reference is made to the
ruling of the Court in G.R. No. 175730 entitled Herminio
2. THE RESPONDENT COURT Disini v. Sandiganbayan,12 which involved the civil action
GRAVELY ERRED WHEN ITASSUMED for reconveyance, reversion, accounting, restitution, and
JURISDICTION WITHOUT HAVING damages (Civil Case No. 0013 entitled Republic v.
MET THEREQUISITE UNDER SECTION HerminioT. Disini, et al.) filed by the Presidential
4 OF R.A. 8249 THAT THEACCUSED Commission on Good Government(PCGG) against Disini
MUST BE A PUBLIC OFFICER. and others.13 The amended complaint in Civil Case No.
0013 alleged that Disini had acted in unlawful concert with
his co-defendants in acquiring and accumulating ill-gotten
B. THE RESPONDENT COURT ACTED WITH
wealth through them is appropriation of public funds,
SUCH GRAVEABUSE OF DISCRETION WHEN IT
plunder of the nation’s wealth, extortion, embezzlement,
EFFECTIVELY IGNORED, DISREGARDED, AND
and other acts of corruption,14 as follows:
DENIED PETITIONER’SCONSTITUTIONAL
AND STATUTORY RIGHT TOPRESCRIPTION.
4. Defendant HERMINIO T. DISINI is a close associate of
defendant Ferdinand E. Marcos and the husband of the first
1. THE RESPONDENT COURT
cousin of Defendant Imelda R. Marcos. By reason of this
GRAVELY ERRED INDETERMINING
relationship xxx defendant Herminio Disini obtained
THE APPLICABLE PRESCRIPTIVE
staggering commissions from the Westinghouse in
PERIOD.

KMC - Criminal Procedure; Atty. Macababbad| 2

exchange for securing the nuclear power plant contract
from the Philippine government.
13. Defendants Herminio T. Disini and Rodolfo Jacob, by
themselves and/or in unlawful concert, active collaboration
and willing participation of defendants Ferdinand E.
Marcos and Imelda R. Marcos, and taking undue advantage
of their association and influence with the latter defendant
spouses in order to prevent disclosure and recovery of ill-
gotten assets, engaged in devices, schemes, and stratagems
such as:
(c) unlawfully utilizing the Herdis Group of Companies
and Asia Industries, Inc. as conduits through which
defendants received, kept, and/or invested improper
payments such as unconscionably large commissions from
foreign corporations like the Westinghouse Corporation;
(d) secured special concessions, privileges and/or benefits
from defendants Ferdinand E. Marcos and Imelda R.
Marcos, such as a contract awarded to Westinghouse
Corporation which built an inoperable nuclear facility in
the country for a scandalously exorbitant amount that
included defendant’s staggering commissions – defendant
Rodolfo Jacob executed for HGI the contract for the
aforesaid nuclear plant;15
Through its letter dated April 8, 1991, 16 the PCGG
transmitted the records of Criminal Case No. 28001 and
Criminal Case No. 28002 to then Ombudsman Conrado M.
Vasquez for appropriate action, to wit:
In line with the decision of the Supreme Court in the case of
EduardoM. Cojuangco, Jr. versus the PCGG (G.R. Nos.
92319–92320) dated October 2, 1990, we are hereby
transmitting to your Office for appropriate action the
records of the attached criminal case which we believe is
similar to the said Cojuangco case in certain aspects, such
as: (i) some parts or elements are also parts of the causes of
action in the civil complaints[-]filed with the
Sandiganbayan; (ii) some properties or assets of the
respondents have been sequestered; (iii) some of the
respondents are also party defendants in the civil cases.
Although the authority of the PCGG has been upheld by
the Supreme Court, we are constrained to refer to you for
proper action the herein-attached case in view of the
suspicion that the PCGG cannot conduct an impartial
investigation in cases similar to that of the Cojuangco case.
xxx
Ostensibly, the PCGG’s letter of transmittal was adverting
to the ruling in Cojuangco, Jr. v. Presidential Commission
on Good Government (Cojuangco, Jr.),17 viz:
x x x The PCGG and the Solicitor General finding a prima
facie basis filed a civil complaint against petitioner and
intervenors alleging substantially the same illegal or
criminal acts subject of the subsequent criminal complaints
the Solicitor General filed with the PCGG for preliminary
investigation. x x x.
Moreover, when the PCGG issued the sequestration and
freeze orders against petitioner’s properties, it was on the
basis of a prima facie finding that the same were ill-gotten
and/or were acquired in relation to the illegal disposition
of coconut levy funds. Thus, the Court finds that the PCGG
cannot possibly conduct the preliminary investigation of
said criminal complaints with the "cold neutrality of an
impartial judge," as it has prejudged the matter. x x x18
The Court finds that under the circumstances of the case,
the PCGG cannot inspire belief that it could be impartial in
the conduct of the preliminary investigation of the
aforesaid complaints against petitioner and intervenors. It
cannot possibly preside in the said preliminary
investigation with an even hand.
The Court holds that a just and fair administration of justice
can be promoted if the PCGG would be prohibited from
conducting the preliminary investigation of the complaints
subject of this petition and the petition for intervention and
that the records of the same should be forwarded to the
Ombudsman, who as an independent constitutional officer
has primary jurisdiction over cases of this nature, to
conduct such preliminary investigation and take
appropriate action.19 (Bold emphasis supplied)
It appears that the resolutions of the Office of the
Ombudsman, following its conduct of the preliminary
investigation on the criminal complaints thus transmitted
by the PCGG, were reversed and set aside by the Court in
Presidential Commission on Good Government v.
Desierto,20
with the Court requiring the Office of the Ombudsman to
file the informations that became the subject of Disini’s
motion to quash in Criminal Case No.28001 and Criminal
Case No. 28002.
2.
Sandiganbayan has exclusive and
original jurisdiction over the offenses charged
Disini challenges the jurisdiction of the Sandiganbayan
over the offenses charged in Criminal Case No. 28001 and
Criminal Case No. 28002.He contends that: (1) the
informations did not allege that the charges were being
filed pursuant to and in connection with Executive Order
(E.O.) Nos.1, 2, 14 and 14-A; (2) the offenses charged were
not of the nature contemplated by E.O. Nos. 1, 2, 14 and 14-
A because the allegations in the informations neither
pertained to the recovery of ill-gotten wealth, nor involved
sequestration cases; (3) the cases were filed by the Office of
KMC - Criminal Procedure; Atty. Macababbad| 3
the Ombudsman instead of by the PCGG; and (4) being a
private individual not charged as a co-principal, accomplice
or accessory of a public officer, he should be prosecuted in
the regular courts instead of in the Sandiganbayan.
The Office of the Solicitor General (OSG) counters that the
Sandiganbayan has jurisdiction over the offenses charged
because Criminal Case No. 28001 and Criminal Case No.
28002 were filed within the purview of Section 4 (c) of R.A.
No. 8249; and that both cases stemmed from the criminal
complaints initially filed by the PCGG pursuant to its
mandate under E.O. Nos. 1, 2, 14 and 14-A to investigate
and file the appropriate civil or criminal cases to recover ill-
gotten wealth not only of the Marcoses and their
immediately family but also of their relatives, subordinates
and close associates.
We hold that the Sandiganbayan has jurisdiction over
Criminal Case No. 28001 and Criminal Case No. 28002.
Presidential Decree (P.D.) No. 1606 was the law that
established the Sandiganbayan and defined its jurisdiction.
The law was amended by R.A. No. 7975 and R.A. No. 8249.
Under Section 4 of R.A. No. 8249, the Sandiganbayan was
vested with original and exclusive jurisdiction over all
cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act No.1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following
positions in the government whether in a permanent, acting
or interim capacity, at the time of the commission of the
offense:
b. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees mentioned in subsection (a) of this section in
relation to their office.
c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986. (Bold emphasis supplied)
In cases where none of the accused are occupying positions
corresponding to salary grade ‘27’ or higher, as prescribed
in the said Republic Act No. 6758, or military or PNP
officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court and
municipal circuit trial court, as the case may be, pursuant to
their respective jurisdiction as provided in Batas Pambansa
Blg. 129, as amended.
In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction over them.
It is underscored that it was the PCGG that had initially
filed the criminal complaints in the Sandiganbayan, with
the Office of the Ombudsman taking over the investigation
of Disini only after the Court issued in Cojuangco, Jr. the
directive to the PCGG to refer the criminal cases to the
Office of the Ombudsman on the ground that the PCGG
would not be an impartial office following its finding of a
prima facie case being established against Disini to sustain
the institution of Civil Case No. 0013.
Also underscored is that the complaint in Civil Case No.
0013 and the informations in Criminal Case No. 28001 and
Criminal Case No. 28002involved the same transaction,
specifically the contracts awarded through the intervention
of Disini and President Marcos in favor of Burns & Roe to
do the engineering and architectural design, and
Westinghouse to do the construction of the Philippine
Nuclear Power Plant Project (PNPPP). Given their
sameness in subject matter, to still expressly aver in
Criminal Case No.28001 and Criminal Case No. 28002 that
the charges involved the recovery of ill-gotten wealth was
no longer necessary.21 With Criminal Case No.28001 and
Criminal Case No. 28002 being intertwined with Civil Case
No.0013, the PCGG had the authority to institute the
criminal prosecutions against Disini pursuant to E.O. Nos.
1, 2, 14 and 14-A.
That Disini was a private individual did not remove the
offenses charged from the jurisdiction of the
Sandiganbayan. Section 2 of E.O. No.1, which tasked the
PCGG with assisting the President in "the recovery of all ill-
gotten wealth accumulated by former President Ferdinand
E. Marcos, his immediate family, relatives, subordinates
and close associates, whether located in the Philippines or
abroad, including the takeover or sequestration of all
business enterprises and entities owned or controlled by
them, during his administration, directly or through
nominees, by taking undue advantage of their public office
and/or using their powers, authority, influence,
connections or relationship," expressly granted the
authority of the PCGG to recover ill-gotten wealth covered
President Marcos’ immediate family, relatives,
subordinates and close associates, without distinction as to
their private or public status.
Contrary to Disini’s argument, too, the qualifying clause
found in Section 4 of R.A. No. 824922
applied only to the cases listed in Subsection 4aand
Subsection 4b of R.A. No. 8249, the full text of which
follows:
KMC - Criminal Procedure; Atty. Macababbad| 4
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act No.1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following
positions in the government whether in a permanent, acting
or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade ‘27’ and higher, of the
Compensation and Position Classification Act of
1989(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan and provincial treasurers,
assessors, engineers and other provincial department
heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors engineers and other
city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval captains,
and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman
and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as
Grade‘27’ and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade
‘27’and higher under the Compensation and Position
Classification Act of 1989. b. Other offenses or felonies
whether simple or complexed with other crimes committed
by the public officials and employees mentioned in
subsection a of this section in relation to their office. (bold
emphasis supplied)
Unquestionably, public officials occupying positions
classified as Grade 27 or higher are mentioned only in
Subsection 4a and Subsection 4b,signifying the plain
legislative intent of limiting the qualifying clause to such
public officials. To include within the ambit of the
qualifying clause the persons covered by Subsection 4c
would contravene the exclusive mandate of the PCGG to
bring the civil and criminal cases pursuant to and in
connection with E.O. Nos. 1, 2, 14 and 14-A. In view of this,
the Sandiganbayan properly took cognizance of Criminal
Case No. 28001 and Criminal Case No. 28002 despite
Disini’s being a private individual, and despite the lack of
any allegation of his being the co-principal, accomplice or
accessory of a public official in the commission of the
offenses charged.
3.
The offenses charged in the
informations have not yet prescribed
In resolving the issue of prescription, the following must be
considered, namely: (1) the period of prescription for the
offense charged;(2) the time when the period of
prescription starts to run; and (3) the time when the
prescriptive period is interrupted.23
The information in Criminal Case No. 28001 alleged that
Disini had offered, promised and given gifts and presents
to Ferdinand E. Marcos; that said gifts were in
consideration of Disini obtaining for Burns & Roe and
Westinghouse Electrical Corporation (Westinghouse) the
contracts, respectively, to do the engineering and
architectural design of and to construct the PNPPP; and
that President Marcos did award or cause to be awarded
the respective contracts to Burns & Roe and Westinghouse,
which acts constituted the crime of corruption of public
officials.24
The crime of corruption of public officials charged in
Criminal Case No. 28001 is punished by Article 212 of the
Revised Penal Code with the" same penalties imposed
upon the officer corrupted."25 Under the second paragraph
of Article 210 of the Revised Penal Code (direct bribery), 26 if
the gift was accepted by the officer in consideration of the
execution of an act that does not constitute a crime, and the
officer executes the act, he shall suffer the penalty of prision
mayor in its medium and minimum periods and a fine of
not less than three times the value of the gift. Conformably
with Article 90 of the Revised Penal Code, 27 the period of
prescription for this specie of corruption of public officials
charged against Disini is 15 years.
As for Criminal Case No. 28002, Disini was charged with a
violation of Section 4(a) of R.A. No. 3019. By express
KMC - Criminal Procedure; Atty. Macababbad| 5
provision of Section 11 of R.A. No. 3019, as amended by
Batas Pambansa Blg. 195, the offenses committed under
R.A. No. 3019 shall prescribe in 15 years. Prior to the
amendment, the prescriptive period was only 10 years. It
became settled in People v. Pacificador, 28 however, that the
longer prescriptive period of 15years would not apply to
crimes committed prior to the effectivity of Batas Pambansa
Blg. 195, which was approved on March 16, 1982, because
the longer period could not be given retroactive effect for
not being favorable to the accused. With the information
alleging the period from 1974 to February1986 as the time
of the commission of the crime charged, the applicable
prescriptive period is 10 years in order to accord with
People v. Pacificador .
For crimes punishable by the Revised Penal Code, Article
91 thereof provides that prescription starts to run from the
day on which the crime is discovered by the offended
party, the authorities, or their agents. As to offenses
punishable by R.A. No. 3019, Section 2 of R.A. No.
332629 states:
Section 2. Prescription shall begin to run from the day of
the commission of the violation of the law, and if the same
be not known at the time, from the discovery thereof and
the institution of judicial proceedings for its investigation
and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not
constituting double jeopardy.
The ruling on the issue of prescription in Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v.
Desierto30 is also enlightening, viz:
Generally, the prescriptive period shall commence to run
on the day the crime is committed. That an aggrieved
person "entitled to an action has no knowledge of his right
to sue or of the facts out of which his right arises," does not
prevent the running of the prescriptive period. An
exception to this rule is the "blameless ignorance" doctrine,
incorporated in Section 2 of Act No. 3326. Under this
doctrine, "the statute of limitations runs only upon
discovery of the fact of the invasion of a right which will
support a cause of action. In other words, the courts would
decline to apply the statute of limitations where the
plaintiff does not know or has no reasonable means of
knowing the existence of a cause of action." It was in this
accord that the Court confronted the question on the
running of the prescriptive period in People v. Duque
which became the cornerstone of our 1999 Decision in
Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto (G.R. No. 130149), and the subsequent
cases which Ombudsman Desierto dismissed, emphatically,
on the ground of prescription too. Thus, we held in a catena
of cases, that if the violation of the special law was not
known at the time of its commission, the prescription
begins to run only from the discovery thereof, i.e.,
discovery of the unlawful nature of the constitutive act or
acts.
Corollary, it is safe to conclude that the prescriptive period
for the crime which is the subject herein, commenced from
the date of its discovery in 1992 after the Committee made
an exhaustive investigation. When the complaint was filed
in 1997, only five years have elapsed, and, hence,
prescription has not yet set in. The rationale for this was
succinctly discussed in the 1999 Presidential Ad Hoc Fact-
Finding Committee on Behest Loans, that "it was well-high
impossible for the State, the aggrieved party, to have
known these crimes committed prior to the 1986EDSA
Revolution, because of the alleged connivance and
conspiracy among involved public officials and the
beneficiaries of the loans." In yet another pronouncement,
in the 2001 Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto (G.R. No. 130817), the Court held
that during the Marcos regime, no person would have
dared to question the legality of these transactions.
(Citations omitted)31
Accordingly, we are not persuaded to hold here that the
prescriptive period began to run from 1974, the time when
the contracts for the PNPP Project were awarded to Burns
& Roe and Westinghouse. Although the criminal cases were
the offshoot of the sequestration case to recover ill-gotten
wealth instead of behest loans like in Presidential Ad Hoc
Fact-Finding Committee on Behest Loans v. Desierto, the
connivance and conspiracy among the public officials
involved and the beneficiaries of the favors illegally
extended rendered it similarly well-nigh impossible for the
State, as the aggrieved party, to have known of the
commission of the crimes charged prior to the EDSA
Revolution in 1986. Notwithstanding the highly publicized
and widely-known nature of the PNPPP, the unlawful acts
or transactions in relation to it were discovered only
through the PCGG’s exhaustive investigation, resulting in
the establishment of a prima facie case sufficient for the
PCGG to institute Civil Case No. 0013 against Disini. Before
the discovery, the PNPPP contracts, which partook of a
public character, enjoyed the presumption of their
execution having been regularly done in the course of
official functions.32
Considering further that during the Marcos regime, no
person would have dared to assail the legality of the
transactions, it would be unreasonable to expect that the
discovery of the unlawful transactions was possible prior to
1986.
We note, too, that the criminal complaints were filed and
their records transmitted by the PCGG to the Office of the
Ombudsman on April 8, 1991for the conduct the
preliminary investigation.33 In accordance with Article 91 of
the
KMC - Criminal Procedure; Atty. Macababbad| 6
Revised Penal Code34 and the ruling in Panaguiton, Jr. v.
Department of Justice,35 the filing of the criminal complaints
in the Office of the Ombudsman effectively interrupted the
running of the period of prescription. According to
Panaguiton:36
In Ingco v. Sandiganbayan and Sanrio Company Limited v.
Lim, which involved violations of the Anti-Graft and
Corrupt Practices Act(R.A. No. 3019) and the Intellectual
Property Code (R.A. No. 8293),which are both special laws,
the Court ruled that the prescriptive period is interrupted
by the institution of proceedings for preliminary
investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport
Resources Corporation, the Court ruled that the nature and
purpose of the investigation conducted by the Securities
and Exchange Commission on violations of the Revised
Securities Act, another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal
cases, and thus effectively interrupts the prescriptive
period.
The following disquisition in the Interport Resources case is
instructive, thus:
While it may be observed that the term "judicial
proceedings" in Sec. 2 of Act No. 3326 appears before"
investigation and punishment" in the old law, with the
subsequent change in set-up whereby the investigation of
the charge for purposes of prosecution has become the
exclusive function of the executive branch, the term
"proceedings" should now be understood either executive
or judicial in character: executive when it involves the
investigation phase and judicial when it refers to the trial
and judgment stage. With this clarification, any kind of
investigative proceeding instituted against the guilty
person which may ultimately lead to his prosecution
should be sufficient to toll prescription.
Indeed, to rule otherwise would deprive the injured party
the right to obtain vindication on account of delays that are
not under his control.
The prevailing rule is, therefore, that irrespective of
whether the offense charged is punishable by the Revised
Penal Code or by a special law, it is the filing of the
complaint or information in the office of the public
prosecutor for purposes of the preliminary investigation
that interrupts the period of prescription. Consequently,
prescription did not yet set in because only five years
elapsed from 1986, the time of the discovery of the offenses
charged, up to April 1991, the time of the filing of the
criminal complaints in the Office of the Ombudsman.
The informations were sufficient in form and substance
It is axiomatic that a complaint or information must state
every single fact necessary to constitute the offense
charged; otherwise, a motion to dismiss or to quash on the
ground that the complaint or information charges no
offense may be properly sustained. The fundamental test in
determining whether a motion to quash may be sustained
based on this ground is whether the facts alleged, if
hypothetically admitted, will establish the essential
elements of the offense as defined in the law. 37 Extrinsic
matters or evidence aliunde are not considered.38
The test does not require absolute certainty as to the
presence of the elements of the offense; otherwise, there
would no longer be any need for the Prosecution to proceed
to trial.
The informations in Criminal Case No. 28001 (corruption of
public officials) and Criminal Case No. 28002 (violation of
Section 4(a) of RA No.3019) have sufficiently complied with
the requirements of Section 6, Rule110 of the Rules of
Court, viz:
Section 6. Sufficiency of complaint or information. — A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the
approximate date of the commission of the offense; and the
place where the offense was committed.
When the offense is committed by more than one person,
all of them shall be included in the complaint or
information.
The information in Criminal Case No. 28001 alleging
corruption of public officers specifically put forth that
Disini, in the period from 1974 to February 1986 in Manila,
Philippines, conspiring and confederating with then
President Marcos, willfully, unlawfully and feloniously
offered, promised and gave gifts and presents to President
Marcos, who, by taking undue advantage of his position as
President, committed the offense in relation to his office,
and in consideration of the gifts and presents offered,
promised and given by Disini, President Marcos caused to
be awarded to Burns & Roe and Westinghouse the
respective contracts to do the engineering and architectural
design of and to construct the PNPPP. The felonious act
consisted of causing the contracts for the PNPPP to be
awarded to Burns & Roe and Westinghouse by reason of
the gifts and promises offered by Disini to President
Marcos.
The elements of corruption of public officials under Article
212 of the Revised Penal Code are:
1. That the offender makes offers or promises, or
gives gifts or presents to a public officer; and
KMC - Criminal Procedure; Atty. Macababbad| 7
 2. That the offers or promises are made or the gifts
or presents are given to a public officer under
circumstances that will make the public officer
liable for direct bribery or indirect bribery.
The allegations in the information for corruption of public
officials, if hypothetically admitted, would establish the
essential elements of the crime. The information stated that:
(1) Disini made an offer and promise, and gave gifts to
President Marcos, a public officer; and (2) in consideration
of the offers, promises and gifts, President Marcos, in
causing the award of the contracts to Burns & Roe and
Westinghouse by taking advantage of his position and in
committing said act in relation to his office, was placed
under circumstances that would make him liable for direct
bribery.39
The second element of corruption of public officers simply
required the public officer to be placed under
circumstances, not absolute certainty, that would make him
liable for direct or indirect bribery. Thus, even without
alleging that President Marcos received or accepted Disini’s
offers, promises and gifts – an essential element in direct
bribery – the allegation that President Marcos caused the
award of the contracts to Burns & Roe and Westinghouse
sufficed to place him under circumstances of being liable
for direct bribery.
The sufficiency of the allegations in the information
charging the violation of Section 4(a) of R.A. No. 3019 is
similarly upheld. The elements of the offense under Section
4(a) of R.A. No. 3019 are:
1. That the offender has family or close personal
relation with a public official;
2. That he capitalizes or exploits or takes
advantage of such family or close personal relation
by directly or indirectly requesting or receiving
any present, gift, material or pecuniary advantage
from any person having some business,
transaction, application, request or contract with
the government;
3. That the public official with whom the offender
has family or close personal relation has to
intervene in the business transaction, application,
request, or contract with the government.
The allegations in the information charging the violation of
Section 4(a) of R.A. No. 3019, if hypothetically admitted,
would establish the elements of the offense, considering
that: (1) Disini, being the husband of Paciencia Escolin-
Disini, the first cousin of First Lady Imelda Romualdez-
Marcos, and at the same time the family physician of the
Marcoses, had close personal relations and intimacy with
and free access to President Marcos, a public official; (2)
Disini, taking advantage of such family and close personal
relations, requested and received $1,000,000.00 from Burns
& Roe and $17,000,000.00 from Westinghouse, the entities
then having business, transaction, and application with the
Government in connection with the PNPPP; (3) President
Marcos, the public officer with whom Disini had family or
close personal relations, intervened to secure and obtain for
Burns & Roe the engineering and architectural contract, and
for Westinghouse the construction of the PNPPP.
WHEREFORE, the Court DISMISSES the petition for
certiorari; AFFIRMS the resolutions promulgated on
January 17, 2005 and August 10, 2005 by the
Sandiganbayan (First Division) in Criminal Case No. 28001
and Criminal Case No. 28002; and DIRECTS petitioner to
pay the costs of suit.
SO ORDERED.
Section 5
[OCA IPI No. 04-1625-MTJ. July 4, 2005]
RE: CRISOSTOMO vs. SINGH
SECOND DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of
this Court dated JUL 4 2005.
OCA IPI No. 04-1625-MTJ (Re: Estrella V. Crisostomo vs.
Presiding Judge Maria Filomena Singh-Paulite of the
Metropolitan Trial Court, Branch 31, Quezon City.)
A Complaint-Affidavit dated 13 September 2004, was filed
by Estrella V. Crisostomo charging Presiding Judge Maria
Filomena Singh-Paulite with knowingly rendering an
unjust judgment, gross inefficiency and gross ignorance of
the law relative to Criminal Case No. 108982 entitled
"People of the Philippines v. Armi Candelaria" for violation
of Presidential Decree No. 651 (requiring registration of
facts concerning the civil status of persons).
Complainant Crisostomo alleged that she discovered her
husband Alexander C. Crisostomo has an illegitimate child
with Armi Candelaria whose birth was registered with the
Office of the Civil Registrar of Quezon City. She avers that
the birth certificate of the child contained a false declaration
that Armi Candelaria was married to her husband on 07
July 2000 in Cotabato City. Based on this purported false
declaration, she filed a case for violation of P.D. No. 651
against Candelaria in the Metropolitan Trial Court of
Manila, docketed as Criminal Case No. 108982.
Eventually, and after several postponements, all upon the
instance of the prosecution, the decision dated 17 August
KMC - Criminal Procedure; Atty. Macababbad| 8
2004 of the respondent was promulgated on 07 September
2004 which acquitted Armi Candelaria and dismissed the
Case for insufficiency of evidence.
Before this Court, complainant alleges that the dismissal is
against the evidence on record. She further avers that the
promulgation of the assailed decision was postponed
several times and that prior to the actual promulgation, the
Branch Clerk of Court, presumably upon orders of the
respondent judge, served "advance copies" of the said
decision to the parties.
On 25 November 2004, Judge Paulite filed a verified
comment asserting that:
a.  the instant administrative complaint is not proper
remedy to review or reverse the judgment of acquittal in
Criminal Case No. 108982 citing Flores vs. Abesamis (275
SCRA 302);
b.  the complainant has neither alleged nor submitted any
evidence of malice, bad faith, ignorance or inexcusable
negligence; and, the presumption that the respondent judge
has regularly performed her duties prevails;
c.  as a settled principle, a judge may not be
administratively charged for mere errors of judgment,
absent any showing of bad faith, malice, corrupt purpose or
a deliberate intent to do an injustice; and
d.  the respondent's decision to acquit the accused was
proper, considering the absence of proof beyond reasonable
doubt.
Judge Paulite asserted that the prosecution failed to prove
beyond reasonable doubt that accused made the false entry
in the birth certificate or that the false entry was already
there when the accused signed the same. She added that the
State must rely on the strength of its own evidence and not
on the weakness of the defense.
On the allegation that "advance copies" of the decision were
dubiously released on 02 September 2004 or five (5) days
prior to the actual promulgation, respondent judge
contends that the release was made precisely to assure the
parties that the promulgation was not being deliberately
delayed, notwithstanding the several postponements, and
that the case was in fact already resolved. She said copies of
the decision were simultaneously released to and received
by all the parties as shown in the acknowledgement receipt.
After study and evaluation, the Office of the Court
Administrator (OCA) recommended the dismissal of the
complaint, ratiocinating as follows:
The first issue in this administrative action dwells on an
issue evidently judicial in nature since it involves the
appreciation of evidence by the respondent judge. It bears
stressing that a trial judge's impression on the testimony of
witnesses and his appreciation of evidence presented
before him are binding on the Court in the absence of a
clear showing of grave abuse of discretion or an obvious
misapprehension of facts. The fact that the respondent's
appreciation of the evidence differed from that of the
complainant's - which could be biased - does not warrant
the conclusion that the said judge has rendered an unjust
judgment nor that she is ignorant of the law.
In order to hold a judge administratively liable for
knowingly rendering an unjust judgment, it must be shown
indubitably that the judgment was made with a conscious
and deliberate intent to do an injustice. For liability to
attach, the assailed order, decision or actuation of the judge
in the performance of official duties must not only be found
to be erroneous but, most importantly, also be established
that he was moved by bad faith, dishonesty, hatred or some
other like motive (De Guzman vs. Dy, A.M. No. RTJ-03-
1755, 3 July 2003, 405 SCRA311).
...
The second issue relates to the release of the copies of the
Decision dated 17 August 2004 to the parties (the private
prosecutor, the private complainant, the counsel for the
accused and the accused) before the promulgation of the
same. Respondent Judge Paulite submits the following
explanation:
"[T]he Decision had been prepared and signed as early
as 17 August 2004, the original scheduled date of the
promulgation of judgment. The Decision was in fact
dated 17 August 2004, as confirmed by the copy of the
Decision attached as Annex "G" of the Complaint-Affidavit.
Though the Decision was ready, the promulgation in open
court was delayed for reasons outside the control of the
respondent, to wit, the absence of the public prosecutor
on 17 August 2004 and 2 September 2004 and the
hospitalization of respondent's son on 24 August 2004.
Considering that the delays were not attributable to
respondent's negligence, respondent cannot be charged
with gross inefficiency."
.
"The only reason respondent released copies of the Decision
to all the parties on 2 September 2004 was precisely to
assure them that the promulgation was not being
deliberately delayed and that the case had in fact been
resolve by respondent. More importantly, copies of the
Decision were simultaneously released to, and receive by,
all the parties, as shown by the acknowledgement receipt
on page 6 of the court copy of the Decision. The release of
the copies of the Decision was neither intended to favor any
of the parties nor intended to extort some consideration
from either of the parties. Respondent thus acted in good
KMC - Criminal Procedure; Atty. Macababbad| 9
faith when she instructed the Branch Clerk of Court to
release copies of the Decision to all parties on 2 September
2004, for which respondent should not be administratively
charged. Indeed, in the instances where this Honorable
Court punished judges for advance release of decisions, the
release was to only one party."
This explanation responds to the issues regarding the delay
in the promulgation of the Decision dated 17 August 2004.
Respondent Judge Paulite states that she "had the final
version of the subject Decision printed in the morning of 17
August 2004, and she immediately signed it" (cf. Annex C,
Affidavit of Clerk of Court Edilaida Alcantara). As of 17
August 2004, therefore, the case had been resolved.
However, the scheduled promulgation of judgment on 17
August 2004 had to be postponed twice for reasons beyond
the control of the respondent Judge. In Annex A of
respondent Judge Paulite's Comment, Assistant City
Prosecutor Joel Atanacio, the Public Prosecutor assigned to
respondent Judge's court, stated under oath that he failed to
attend the scheduled hearings on 17 August 2004 and 2
September 2004. This caused the cancellation of all hearings
calendared on the material dates, including the
promulgation of judgment in Criminal Case No. 108982.
Was such absence of the Public Prosecutor a valid reason
for the deferment of promulgation? We find that it served
as sufficient ground for the respondent Judge to reset the
promulgation and, hence, the eventual promulgation of the
judgment on September 7, 2004, or 20 days after the
original date set for its promulgation, was not characteristic
of gross inefficiency on the part of respondent Judge
Paulite.
It should be noted that nowhere under Rule 120 of the 2000
Revised Rules of Criminal Procedure is there any mention
of the presence or absence of the prosecution. In fact,
Section 6 of Rule 120 clearly lays down the rule for
promulgation of the judgment in absentia, when the same
may proceed even in the absence of either or both the
accused and the accused's counsel, without any word
regarding the presence or absence of the prosecution.
Jurisprudence abounds on the issue of absence of the
accused and/or accused's counsel during promulgation of
judgment (cf Pascua vs. Court of Appeals, G.R. no. 140243,
14 December 2000, 348 SCRA 197, and related cases), but
none directly deals with the question of the necessity of the
Public Prosecutor's participation in such promulgation.
In the absence of a specific rule on the matter, therefore,
reference must be made to the general rule found in Section
5 of Rule 110 which requires that "(A) 11 criminal actions
commenced by complaint or information shall be
prosecuted under the direction and control of the
prosecutor." In the case of People of the Philippines vs.
Beriales (G.R. No. L-39962, 17 April 1976, 70 SCRA 361), the
Supreme Court defined this role of the Trial Fiscal, thus: "In
the trial of criminal cases, it is the duty of the public
prosecutor to appear for the government. As stated by this
Court, 'once a public prosecutor has been entrusted with
the investigation of a case and has acted thereon by filing
the necessary information in court, he is by law duty
bound to take charge thereof until its final termination,
for under the law he assumes full responsibility for his
failure or success since he is the one more adequately
prepared to pursue it to its termination.' (Salcedo vs.
Liwag, L-21068, November 29, 1963, 9 SCRA 609)." There
can be no doubt that the "final termination" of a criminal
prosecution referred to is the promulgation of judgment in
the case. The presence of the Public Prosecutor during
promulgation of judgment is therefore indispensable. This
supports the common practice and the policy of trial courts
of promulgating their judgments in criminal cases always
in the presence of the assigned Public Prosecutor. The
soundness of the rule is anchored on the equal opportunity
that must be afforded to the State, which has an immutable
interest in the prosecution of criminal actions, specially in a
case such as Criminal Case No. 108982 which involved a
supposed false entry in the Civil Registry. Public interest
must at all times be safeguarded in the same manner that
the rights of the accused are studiously protected.
Indeed, in this instance, the resetting was apparently at the
instance of Assistant City Prosecutor Atanacio who
admitted in his supporting Affidavit that on both 17
August 2004 and 2 September 2004, he informed the
respondent court that he would be unable to attend the
scheduled hearings (Annex A, Comment of Respondent
Judge). Given that the Public Prosecutor controls the
conduct of the prosecution, the private complainant in
Criminal Case No. 108982, who is the complainant in this
administrative charge, cannot object if proceedings are reset
at the request of the Public Prosecutor himself due to the
latter's unavailability. At any rate, the record does not
disclose that the private complainant objected to such
resettings of the promulgation of judgment.
Lastly, we cannot but emphasize that the delay here, if any,
was too insubstantial to qualify as "inefficiency," let alone
"gross inefficiency," for inefficiency "implies negligence,
incompetence, ignorance and carelessness. A judge would
be inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of
any public service" (Suroza vs. Hernando, 110 SCRA 388
[1981]). There is no showing that respondent Judge is even
remotely guilty of any of the foregoing. The fact that
respondent Judge was ready with the judgment within the
30-day period required under the applicable rule negates
such charge, because formal promulgation was delayed
only for reasons beyond the control of respondent Judge
and which are just under the circumstances, as found
hereinabove.
Just as significant is the fact that where the Supreme Court
has penalized judges for gross inefficiency, the delay was
KMC - Criminal Procedure; Atty. Macababbad| 10
for periods much longer that the 20-day delay here. In
Cueva vs. Villanueva (305 SCRA 459 [1999]), it was one
hundred days; in Reyes Garmsen vs. Bello (A.M. no. RTJ-
04-1877, 21 December 2004), eleven months; one year and
six months in Bank of the Philippine Islands vs. Generoso
(249 SCRA 477 [1995]); seven months in Gallego vs.
Doronilla (334 SCRA 339[2000]); and, one year and seven
months in Asinas, Jr. vs. Trinidad (242 SCRA 716[1995]).
Specifically, in Santos v.s Lorenzo )387 SCRA 416 [2002]), a
seven month delay was involved, yet the charge was
nevertheless dismissed by the Supreme Court which ruled
as "well-taken" this Office's recommendation that the
charge be dismissed "considering the heavy case load of the
courts within the National Capital Judicial Region. More so,
there is nothing on record that will show the delay was
done maliciously or was caused with deliberate intent to
inflict damage."
As for the supposed release of the advance copies of the
decision, respondent Judge Paulite sufficiently established
that such release on 2 September 2004 was not of "advance"
copies of the Decision as the same was, by 17 August 2004,
already signed and in the hands of the Clerk of Court, and
the release was made simultaneously to all parties, not to
one party alone, as evidence (sic) by the record, in
particular, the acknowledgement receipt signed by all
parties on page 6 of the original copy of the Decision.
Under the circumstances, therefore, the respondent Judge
cannot be held liable for gross inefficiency by reason of any
delay in the promulgation of the judgment in Criminal
Case no. 108982.
As to the premature release of copies of the decision, same
should not have been done by respondent judge. The fact
that all the parties were furnished copies thereof is not the
issue. What is in issue is the release of the copies of the
decision prior to its promulgation. Rendition of the
judgment in trial courts refers to the filing of the signed
decision with the clerk of court. [1]cralaw Prior thereto, said
judgment may still be amended or changed by the judge.
[2]
cralaw Inasmuch as said judgment can still be amended
or changed, it is only proper for respondent judge to have
waited for its promulgation before sending out copies
thereof in order to avoid any anomalous consequences that
may arise on account of its early release. In one case,
[3]
cralaw the Supreme Court admonished a judge who
prematurely released a decision prior to its promulgation.
We agree in the findings of the Office of the Court
Administrator, save the premature release of the subject
decision for which this Court ADMONISHES Judge Maria
Filomena Singh-Paulite.
SO ORDERED.
PEOPLE of the PHILIPPINES, plaintiff-appellee,
vs.
ELMER YPARRAGUIRE y SEPE, accused-appellant.
YNARES-SANTIAGO, J.:
After his indictment1 and trial, accused-appellant appeals
from his conviction for the crime of rape of a mental
retardate. 2 Pursuant to Republic Act No. 8353, the Anti-
Rape Law of 1997, rape is a crime against person which
may be prosecuted de oficio. However, considering that the
alleged rape was committed in 1994, which was prior to the
effectivity of R.A. 8353, we apply the old law and treat rape
as a private crime.
The facts as narrated by the trial court are:
"On March 24, 1994, at about 11:00 o’clock in the evening,
while complainant Charmelita D. Ruina, an invalid and
mentally retarded, was on her bed at the store of her
mother at the Public Market at Carrascal, Surigao del Sur,
where she and her mother lived, accused Elmer
Yparraguirre alias "Lalo" entered her room, the door of
which was not locked because her mother went to the store
of her elder sister. Upon getting inside, he undressed
himself and approached the Complainant who was
apparently awake. He caressed her and sucked her breasts.
She shouted for help but nobody came to rescue her,
perhaps because it was late already in the evening and her
voice was not loud enough to be heard at the distance as, in
fact, it could be heard at only about three to five meters
away x x x. Accused told her to keep quiet and when she
put up some limpy resistance, he boxed her. He then
removed her panty went on top of her and inserted his
manhood into her most private part. She felt pain. After
raping her, he left her room. Soon her mother, Sanselas
Leongas Ruina, arrived. She reported to her the incident.
The following morning, accused went back to the store and
apologized for what he did and promised not to do it again.
But his plea would not mollify Sanselas. She took the
complainant to the Madrid (Surigao del Sur) District
Hospital for physical examination. Dr. Carlo P. Altrecha
recorded the following findings in the Medical Certificate
that he issued on March 26, 1994:
POLIO MYELITIS-MENTALLY RETARDED
PPE:
n ABRASION, AT THE LEVEL OF THE MID-
CLAVICULAR AREA, BOTH, LEFT AND RIGHT.
n CONTUSION, BOTH BREAST, LEFT AND RIGHT.
n CONTUSION, AT THE LEVEL OF THE 8TH THORACIC
RIB, ME-AXILLARY LINE, RIGHT.
GENITALIA:
KMC - Criminal Procedure; Atty. Macababbad| 11
n LABIA MAJORA: NO CONGESTION, NO
HEMATOMA.
n LABIA MINORA: CONGESTED, SLIGHT SWOLLEN.
n VAGINAL ORIPICE: CONGESTED, SLIGHT SWOLLEN
HYMEN NOT INTACT.
n VAGINAL SMEAR FOR THE PRESENCE OF
SPERMATOZOA: NO SPERMATOZOA SEEN."3
Appellant did not testify in court but instead relied on the
lone testimony of his father, who alleged that the complaint
for rape was filed as a result of a "misunderstanding"
between appellant and the mother of the victim.
In this appeal, the basic issue raised by appellant is that the
trial court never acquired jurisdiction over the case because
the complaint was signed and filed by the chief of police
and not by the complainant.
Appellant’s contention has no merit. Section 5, Rule 110 of
the Rules on Criminal Procedure provides in part:
"The offense of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
has been expressly pardoned by the above-named persons,
as the case may be. In case the offended party dies or
becomes incapacitated before she could file the complaint
and has no known parents, grandparents or guardian, the
State shall initiate the criminal action in her behalf.
The offended party, even if she were a minor, has the right
to initiate the prosecution for the above offenses,
independently of her parents, grandparents or guardian,
unless she is incompetent or incapable of doing so upon
grounds other than her minority. Where the offended party
who is a minor fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to
file the action granted to the parents, grandparents or
guardian shall be exclusive of all other persons and shall be
exercised successively in the order herein provided, except
as stated in the immediately preceding paragraph."
Pursuant to the afore-quoted provision, the offended party
can initiate a prosecution for rape even if she is a minor,
unless she is incompetent or incapable of doing so upon
grounds other than her minority. Although the victim in
this case is no longer a minor, it is undisputed that she is a
mental retardate and suffering from physical deformity. No
woman would come out in the open, inform the authorities
of the injustice done to her, make a statement of what had
happened unless her purpose is to redress the wrong done
against her honor. Once the violation of the law becomes
known through a direct original participation initiated by
the victim, the requirements of Article 344 of the Revised
Penal Code (RPC), to the effect that the offense of rape
"shall not be prosecuted except upon a complaint filed by
the offended party or her parents," are satisfied. Said
provision is not determinative of the jurisdiction of courts
over the private offenses because the same is governed by
the Judiciary law, not the Revised Penal Code which deals
with the definition of felonies and their punishment. Stated
differently, the complaint required in Article 344 is but a
condition precedent to the exercise by the proper
authorities of the power to prosecute the guilty parties.
Such condition was imposed out of consideration for the
offended woman and her family who might prefer to suffer
the outrage in silence rather than go through with the
scandal of a public trial.4 The complaint simply starts the
prosecutory proceeding but does not confer jurisdiction on
the court to try the case5 because the overriding
consideration in determining whether the condition
precedent in Article 344 has been complied with is the
intent of the aggrieved party to seek judicial redress for the
affront committed.6
Article 344 was not enacted for the specific purpose of
benefitting the accused. When it is said that the
requirement in Article 344 (that there should be a complaint
of the offended party or her relatives) is jurisdictional, what
is meant is that it is the complaint that starts the
prosecutory proceeding. It is not the complaint which
confers jurisdiction in the court to try the case. The court’s
jurisdiction is vested in it by the Judiciary Law.7
Going now to the merits of the case, the gravamen of the
crime of rape is the sexual congress of a woman by force
and without consent.8 These elements have been proven
beyond reasonable doubt to concur in this case. The
evidence shows that appellant boxed the victim in the neck
and slapped her on the face while she was alone and lying
in bed on that fateful night. When she shouted for help,
appellant told her to keep quiet. Appellant then began
sucking her breasts and her vagina. Then he removed her
panty and forcibly had sexual intercourse with the mentally
retarded victim causing pain in her private part. Her
testimony in the oral deposition confirms the statements
she made in the vernacular in her affidavit earlier executed.
Thus,
P – Unsa may imong guibuhat paghikita nimo niadtong
tawo nga miduol kanimo.
T – Misinggit ako.
P – Unsay guibuhat niadtong tawo sa imong pagsinggit?
T – Iyang guitampa ang akong baba, dayon mipatong siya
kanako.
P– Unsay sunod nga guibuhat niadtong tawo sa dihang
mipatong na siya kanimo?
KMC - Criminal Procedure; Atty. Macababbad| 12
T– Iyang guidun-an ang akong tiyan, apan kay mikisikisi
man ako iyang guisumbag ang akong kilid dayon guihubo
ang akong baro ug guisunod usab dayon ang akong pante.
P – Unsay sunod nga guibuhat niadtong tawo kanimo sa
tapos niya paghubo sa imong baro ug imong pante?
T – Iya akong gui-iyot senyor.
P – Unsay imong guibuhat sa dihang guiiyot sa tawo?
T – Misinggit ako senyor apan guipagngan ang akong baba busa
mikisikisi ako apan guisumbag na usab ug maoy nakapalipong
kanako.9 (Italics supplied).
The victim’s narrations are corroborated by the medical
findings of the physician who examined her and found that
her labia minora was "congested, slight swollen", and her
hymen no longer intact. She also suffered abrasions and
contusions on both breasts and near her right armpit, which
may have been caused by the blows.
In rape, it is not essential that the force employed in
accomplishing the crime be so great or of such character or
could not be resisted.10 Force in rape is relative, depending
on the age, size and strength of the parties. In the same
manner, intimidation must be viewed in the light of the
victim’s perception and judgment at the time of the
commission of the crime and not by any hard and fast
rule.11 The victim was a mental retardate and suffering from
physical disability when appellant employed force by
boxing and slapping her. And when she shouted for help
he intimidated her to keep her quiet. The fact that the
victim did not offer a tenacious resistance is immaterial
considering her physical nature – she is an invalid and
unable to rise from the bed unassisted. Physical resistance
need not be established in rape when intimidation is
exercised upon the victim and the latter submits herself,
against her will, to the rapist’s advances because of fear for
her life and personal safety. 12 Although the victim shouted
for help, her voice could be heard only as far as three to five
meters away.13 This negates the contention of the father of
appellant that the rape could not have been committed
because the locus criminis of the crime was only about
fifteen meters away from the passengers’ terminal where
there were people passing. In any case, it has been
consistently ruled that rape can be committed even in
places where people congregate, in parks along the
roadsides, in a house where there are other occupants, 14 in
the same room where other members of the family are
sleeping,15 and even in places which to many would appear
unlikely and high risk venues for its commission. 16 For rape
to be committed, it is not necessary for the place to be ideal,
or the weather to be fine for rapists bear no respect for
locale and time when they carry out their evil
deed.17 1âwphi1
On the alleged misunderstanding that appellant had with
the victim’s mother which allegedly prompted the mother
to file the rape case against him, suffice it to say that no
mother would expose her own daughter to embarrassment
and humiliation as well as to the trouble, inconvenience,
ridicule and scandal concomitant with a public trial if such
was not the truth and had not her intention been to bring
the culprit to the folds of justice. No mother, virtuous or
not, will voluntarily and without compelling reasons put
her own daughter to shame and humiliation 18 if she were
not motivated by an honest desire to have her daughter’s
transgressor punished accordingly.19 Besides, it is unnatural
for a parent to use her offspring as an engine of malice,
especially if it will subject a daughter to embarrassment. 20
In an apparent attempt to free himself from liability,
appellant on the very same night after the assault, asked
forgiveness from the victim’s mother and promised that the
same will never be repeated. Yet, no mother can just let
pass an indignity committed against one of her own blood.
It is easy to forgive, but justice for her would be no less
than punishment. Moreover, a plea for forgiveness may be
considered analogous to an attempt to compromise, which
offer of compromise by the appellant may be received in
evidence as an implied admission of guilt pursuant to
Section 27, Rule 130 of the Rules on Evidence.21
With respect to the monetary awards, the P50,000.00
"damages" granted by the trial court should be properly
denominated as moral damages, which is allowed even if
there was no proof during the trial as basis therefor. 22 The
mental and physical suffering of the victims’ injury is
inherently concomitant with and necessarily resulting from
the odious crime which per se warrants the award of moral
damages.23 In addition thereto, the complainant is also
entitled to a civil indemnity of P50,000.00 24 which is
outrightly awarded to rape victims being in the category of
actual or compensatory damages25 and because the rape
herein is not effectively qualified by any circumstance
under which the death penalty is authorized by present
amended law.26
WHEREFORE, the decision of the trial court finding
accused-appellant guilty beyond reasonable doubt of the
crime of Rape is AFFIRMED. Further, appellant is
ORDERED TO PAY the complainant fifty thousand pesos
(P50,000.00) as civil indemnity in ADDITION to the fifty
thousand pesos (P50,000.00) moral damages.
SO ORDERED
HE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO A. SCHNECKENBURGER, ET
AL., defendants-appellants.
MORAN, J.:
KMC - Criminal Procedure; Atty. Macababbad| 13
On March 16, 1926, the accused Rodolfo A.
Schneckenburger married the compliant Elena Ramirez
Cartagena and after seven years of martial life, they agreed,
for reason of alleged incompatibility of character, to live
separately each other and on May 25, 1935 they executed a
document which in part recites as follows:
Que ambos comparecientes convienen en vivir
separados el uno del otro por el resto de su vida y
se comprometen, y obligan reciprocamente a no
molastarse ni intervenir ni mezclarse bajo ningun
concepto en la vida publica o privada de los
mismos, entre si, quendado cada uno de los
otorgantes en completa libertad de accion en
calquier acto y todos concepto.
On June 15, 1935, the accused Schneckenburger, without
leaving the Philippines, secured a decree of divorce from
the civil court of Juarez, Bravos District, State of
Chihuahua, Mexico. On May 11, 1936, he contracted
another marriage with his co-accused, Julia Medel, in the
justice of the peace court of Malabon, Rizal, and since then
they lived together as husband and wife in the city of
Manila. Because of the nullity of the divorce decreed by the
Mexico Court, complaint herein instituted two actions
against the accused, one for bigamy in the Court of First
Instance of Rizal and the other concubinage in the court of
First Instance of Manila. The first culminated in the
conviction of the accused for which he was sentenced to
penalty of two months and one day of arresto mayor. On the
trial for the offense of concubinage accused interposed the
plea of double jeopardy, and the case was dismissed; but,
upon appeal by the fiscal, this Court held the dismissal
before the trial to be premature this was under the former
procedure and without deciding the question of double
jeopardy, remanded the case to the trial court for trial on
the merits. Accused was convicted of concubinage through
reckless imprudence and sentenced to a penalty of two
months and one day of arresto mayor. Hence this appeal.
As to appellant's plea of double jeopardy, it need only be
observed that the office of bigamy for which he was
convicted and that of concubinage for which he stood trial
in the court below are two distinct offenses in law and in
fact as well as in the mode of their prosecution. The
celebration of the second marriage, with the first still
existing, characterizes the crime of bigamy; on the other
hand, in the present case, mere cohabitation by the husband
with a woman who is not his wife characterizes the crime of
concubinage. The first in an offense against civil status
which may be prosecuted at the instance of the state; the
second, an offense against chastity and may be prosecuted
only at the instance of the offended party. And no rule is
more settled in law than that, on the matter of double
jeopardy, the test is not whether the defendant has already
been tried for the same act, but whether he has been put in
jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422;
People v. Cabrera, 43 Phil., 82)
Upon the other hand, we believe and so hold that the
accused should be acquitted of the crime of concubinage.
The document executed by and between the accused and
the complaint in which they agreed to be "en completa
libertad de accion en cualquier acto y en todos conceptos,"
while illegal for the purpose for which it was executed,
constitutes nevertheless a valid consent to the act of
concubinage within the meaning of section 344 of the
Revised Penal Code. There can be no doubt that by such
agreement, each party clearly intended to forego to illicit
acts of the other.
We said before (People vs. Guinucod, 58 Phil., 621) that the
consent which bars the offended party from instituting a
criminal prosecution in cases of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness is that
which has been given expressly or impliedly after the crime
has been committed. We are now convinced that this is a
narrow view in way warranted by the language, as well as
the manifest policy, of the law. The second paragraph of
article 344 of the Revised Penal Code provides:
The offended party cannot institute criminal
prosecution without including both the guilty
parties, if they are both alive, nor, in any case, if he
shall have consented or pardoned the offenders.
(Emphasis ours.)
As the term "pardon" unquestionably refers to the offense
after its commission, "consent" must have been intended
agreeably with its ordinary usage, to refer to the offense
prior to its commission. No logical difference can indeed be
perceived between prior and subsequent consent, for in
both instances as the offended party has chosen to
compromise with his/her dishonor, he/she becomes
unworthy to come to court and invoke its aid in the
vindication of the wrong. For instance, a husband who
believers his wife another man for adultery, is as unworthy,
if not more, as where, upon acquiring knowledge of the
adultery after its commission, he says or does nothing. We,
therefore, hold that the prior consent is as effective as
subsequent consent to bar the offended party from
prosecuting the offense.
In this arriving at this conclusion we do not with to be
misconstrued as legalizing an agreement to do an illicit act,
in violation of law. Our view must be taken only to mean
that an agreement of the tenor entered into between the
parties herein, operates, within the plain language and
manifest policy of the law, to bar the offended party from
prosecuting the offense. If there is anything morally
condemnatory in a situation of his character, the remedy
lies not with us but with the legislative department of the
government. What the law is, not what it should be, defines
the limits of our authority.
Judgment is reversed and the accused is hereby acquitted,
without costs.
KMC - Criminal Procedure; Atty. Macababbad| 14
Avanceña, C.J., Abad Santos, Diaz and Horilleno, JJ., concur.
Section 6
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
EDGARDO DIMAANO, Appellant.
DECISION
PER CURIAM:
On January 26, 1996, Maricar Dimaano charged her father,
Edgardo Dimaano with two (2) counts of rape and one (1)
count of attempted rape in the complaints which read as
follows:
Criminal Case No. 96-125
That sometime in the year 1993 in the Municipality of
Paraaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, by means of force and intimidation, did then and
there willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant Maricar
Dimaano y Victoria, who is his own daughter, a minor 10
years of age, against her will and consent.
CONTRARY TO LAW.1
Criminal Case No. 96-150
That on or about the 29th day of December 1995, in the
Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously have
carnal knowledge of the undersigned complainant Maricar
Dimaano y Victoria, who is his own daughter, a minor 12
years of age, against her will and consent.
CONTRARY TO LAW.2
Criminal Case No. 96-151
That on or about the 1st day of January 1996, in the
Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, try and attempt to rape one Maricar
Dimaano y Victoria, thus commencing the commission of
the crime of Rape, directly by overt acts, but nevertheless
did not perform all the acts of execution which would
produce it, as a consequence by reason of cause other than
his spontaneous desistance that is due to the timely arrival
of the complainant's mother.
CONTRARY TO LAW.3
Appellant pleaded not guilty to the charges. 4 Thereafter,
trial on the merits ensued.
Complainant was born on August 26, 1983, and was 10
years old when she was first sexually abused in the
morning of September 1993. While inside their house in
Sucat, Paraaque, appellant entered her room and laid down
beside her. He removed her clothes and asked her to lie face
down then inserted his penis into her anus. Complainant
cried and felt so much pain, but she kept the incident to
herself as her father might hurt her.5
A few days later, appellant again ravished her. After
removing his clothes, he asked her to lie on her side facing
him and to place her thigh over his. While in that position,
appellant inserted his penis into her vagina which caused
tremendous pain.6 As in the first incident, complainant kept
the ordeal to herself. It was only in November 1995 that she
confided the sexual abuses to her mother.
On December 29, 1995, appellant again assaulted her
daughter. While leaning on the kitchen sink, he raised her t-
shirt, fondled and kissed her breasts. He then removed
their shorts, fondled her vagina and inserted his penis, but
when her brother Edwin went out of his room, appellant
immediately asked her to dress up.7
The last sexual assault happened in the afternoon of
January 1, 1996. Appellant laid complainant down on the
sofa then placed himself on top of her and made pumping
motion even with their shorts on. Appellant stopped only
when he heard the arrival of his wife.8
On January 3, 1996, complainant and her mother visited a
relative in Cainta, Rizal, who upon learning of the abuses
done by the appellant, advised them to go to Camp Crame
where they filed a complaint. 9 The Medico-Legal Officer at
the PNP Crime Laboratory examined complainant and
found her to have suffered deep healed hymenal
lacerations and was in a non-virgin state.10
Appellant denied the accusations against him. He testified
that he married Maria Loreto V. Dimaano on December 25,
1976 and begot three children with her, namely, Edwin,
Eric, and Maricar. He alleged that he worked in several
companies abroad11 but admitted that he was in the
Philippines in September 1993. He contended though that
he could not have raped complainant because he was
always in the office from 7:00 a.m. until 9:00 p.m. waiting to
be dispatched to another assignment overseas.12
He claimed it was impossible for him to rape his daughter
on December 29, 1995 or January 1, 1996 because there were
other people in the house. He argued that had he raped
complainant, then she would not have accompanied him to
KMC - Criminal Procedure; Atty. Macababbad| 15
the Paraaque Police Station and Barangay Hall of San
Antonio to apply for police clearance and barangay I.D.,
and to Uniwide Shopping Center at Sucat, Paraaque, where
they applied for membership at the Video City Club. 13 He
also maintained that the fact that his daughter was in a
non-virgin state did not conclusively prove that he was
responsible for it because it is also possible that his
daughter had sexual intercourse with another man her
age.14
The trial court found the testimony of complainant to be
spontaneous and credible. She narrated the obscene details
of her harrowing experience which no girl of tender age
would have known unless she herself had experienced it. It
found the delay in reporting the rape understandable due
to the fear complainant had of her father who had moral
ascendancy over her. Also, the quarrel between
complainant's parents was not sufficient motive for the wife
to lodge a serious charge of rape against appellant. It
disregarded the Compromise Agreement and the Salaysay
sa Pag-uurong ng Sumbong since complainant was not
assisted by a lawyer when she signed the same. Besides, she
testified in open court that she was pursuing the case
against her father. The dispositive portion of the decision
reads:
WHEREFORE, the accused Edgardo Dimaano is found
guilty beyond reasonable doubt of the crimes of rape (2
counts) and the crime of attempted rape. For the rape
committed in September 1993, he is sentenced to a penalty
of reclusion perpetua. For the rape on December 29, 1995, he
is imposed the supreme penalty of death. And for the crime
of attempted rape, applying the Indeterminate Sentence
Law (Act No. 4103 as amended), he is sentenced to a
penalty of 4 years and 2 months of prision
correccional medium to 10 years and 1 day to 12 years
of prision mayor maximum. He is ordered to indemnify the
victim the amount of P50,000.00 and to pay exemplary
damages in the amount of P50,000.00.
SO ORDERED.15
The Court of Appeals affirmed with modifications the
decision of the trial court, thus:
WHEREFORE, premises considered, the Decision dated 31
May 2000 of the Regional Trial Court of Paraaque City,
Branch 257 convicting accused-appellant Edgardo Dimaano
of the crime of rape is AFFIRMED with the following
MODIFICATIONS:
In Criminal Case No. 96-125, the accused-appellant
EDGARDO DIMAANO as found guilty of rape under
Article 335 of the Revised Penal Code and sentenced to a
penalty of reclusion perpetua is also ordered to pay the
victim MARICAR DIMAANO Php50,000.00 as civil
indemnity; Php50,000.00 as moral damages and
Php25,0000.00 as exemplary damages.
In Criminal Case No. 96-150, the accused-appellant
EDGARDO DIMAANO, as found guilty of qualified rape
under Article 335 of the Revised Penal Code, as amended
by Section 11 of Republic Act 7659, and sentenced to death
penalty, is also ordered to pay the victim MARICAR
DIMAANO Php75,000.00 as civil indemnity; Php75,000.00
as moral damages and Php25,000.00 as exemplary
damages.
In Criminal Case No. 96-151, the accused-appellant
EDGARDO DIMAANO as found guilty of attempted rape
under Article 335 of the Revised Penal Code, as amended
by Section 11 of Republic Act 7659, is hereby sentenced to
an indeterminate penalty of 4 years, 2 months and 1 day to
6 years of prision correccional as minimum to 8 years and 1
day to 10 years of prision mayor as maximum. Accused-
appellant is also ordered to pay the victim MARICAR
DIMAANO Php30,000.00 as civil indemnity, Php25,000.00
as moral damages, and Php10,000.00 as exemplary
damages.
In accordance with Sec. 13, Rule 124 of the Amended Rules
to Govern Review of Death Penalty Cases (A.M. No. 00-5-
03-SC, effective 15 October 2004), this case is CERTIFIED to
the Supreme Court for review.
Let the entire record of this case be elevated to the Supreme
Court.
SO ORDERED.16
In his Brief, appellant raises the following issues:
I. WHETHER OR NOT THE EVIDENCE ADDUCED BY
THE PROSECUTION HAS OVERCOME THE
PRESUMPTION OF INNOCENCE OF THE ACCUSED.
II. WHETHER OR NOR THE VOLUNTARY AND DUE
EXECUTION OF THE AFFIDAVIT OF DESISTANCE BY
THE PRIVATE COMPLAINANT SHOULD HAVE BEEN
DULY CONSIDERED AS A FACTOR WHICH PUT TO
DOUBT THE REASONS BEHIND THE FILING OF THE
CRIMINAL CHARGES OF RAPE AGAINST HEREIN
ACCUSED.17
Appellant contends that if complainant's accusations were
true, then she could have reported them to the authorities
when she accompanied him to Paraaque Police Station and
the Barangay Hall of San Antonio or to their relatives when
she had the opportunity to do so. He also argues that had
the trial court considered the Compromise Agreement
and Sinumpaang Salaysay ng Pag-uurong ng Sumbong, it
would have known that complainant was only pressured
by her mother into filing the complaint.
We are not persuaded.
KMC - Criminal Procedure; Atty. Macababbad| 16
This credibility given by the trial court to the rape victim is A: He inserted in my anus ' ipinasok niya ang titi niya sa
an important aspect of evidence which appellate courts can puwet ko.
rely on because of its unique opportunity to observe the
witnesses, particularly their demeanor, conduct and Q: Did you tell anybody about what happened to you?
attitude during direct and cross-examination by
counsel.18 Absent any showing that the trial judge
A: No, Maam.
overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of
the case, his assessment of credibility deserves the appellate Q: Why not?
court's highest respect.19
A: Because I was afraid of my father.
It is likewise well established that the testimony of a rape
victim is generally given full weight and credit, more so if Q: Why are you afraid of your father?
she is a minor. The revelation of an innocent child whose
chastity has been abused deserves full credit, as her A: Because he might hurt me.
willingness to undergo the trouble and the humiliation of a
public trial is an eloquent testament to the truth of her Q: After that incident in September 1993, do you recall any
complaint. In so testifying, she could only have been other incident that occurred?
impelled to tell the truth, especially in the absence of proof
of ill motive.20
A: There is, Maam.

In the case at bar, the trial court and the Court of Appeals
Q: When was it?
gave credence to the testimony of the complainant who was
only 12 years old when she narrated to the court the
violations of her person as follows: A: After a few days after the first incident.

For rape committed in September 1993: Q: After he entered your room, what happened next?

ATTY. AMBROSIO: A: He laid beside me and he removed my clothes.

When was the first time that he committed sexual assault Q: What did your father do with the clothes he was
upon you? wearing?

A: September 1993. A: He removed his clothes.

COURT: Q: After removing his clothes, what happened next, if any?

No specific date? A: We were lying in my bed and he asked me to lie on my

side ' pinatagilid niya ako.
A: I cannot remember, Maam.
Q: After he asked you to lie down on your side, what
happened next, if any?
ATTY. AMBROSIO:

A: He asked me to raise my right leg and placed it on his

Can you remember how old were you at that time?
side because he was then lying on his side.

A: 10 years old, Maam.

Q: After he asked you to place your right thigh over his left
thigh, what happened next, if any?
Q: So, after he removed your T-shirt, bra and pan(t)y and
shorts, what happened next, if anything happened?
A: He inserted his penis into my organ.21

A: He asked me to lie face down. Pinadapa po niya ako.

For rape committed on December 29, 1995:

Q: After he asked you to lie face down, what happened

Q: On December 29, 1995, do you remember of any unusual
next?
incident that happened?

RECORD: The witness is crying.

KMC - Criminal Procedure; Atty. Macababbad| 17
A: There was, Maam. Q: After putting down your panty, what happened next, if
any?
Q: What is that incident?
A: He held my organ.
A: I was raped by my father on that day.
ATTY. MALLARES:
Q: Where were you on that day when you said he raped
you? At this juncture, Your Honor, may we request witness to be
more specific with respect to organ.
A: I was then at the kitchen of our house.
ATTY. AMBROSIO:
Q: What were you doing at the kitchen at that time?
When you say organ', what do you mean?
A: I was then sitting at our dining set.
A: Pekpek.
Q: What about your father, what he doing?
COURT: Proceed.
A: He was cooking.
ANSWER:
Q: What happened while sitting at the dining set, if any?
After he held my vagina, he also put down his shorts and
A: He told me to approach him. brief.

Q: After you approached him, what happened next? Q: After putting down his shorts and brief, what happened
next?
A: I was leaning then at the kitchen sink and he asked me to
embrace him. A: He inserted his penis into my vagina.22

Q: What happened after you embraced him? For Attempted rape committed on January 1, 1996:

A: After that, he raised my T-shirt. Q: Do you recall of any incident that happened on Jan 1,
199[6] 3:00 to 4:00 P.M.?
Q: After raising your T-shirt, what happened next?
A: We were in our sala on the sofa.
A: He held my breast.
Q: When you say 'we', who are those you are referring to?
Q: After that, what happened next?
A: Me and my father.
A: He kept kissing my breast.
Q: While you and your father were in the living room and
on the sofa, what happened?
Q: How many times did he kiss your breast?

A: While we were on the sofa, my father was then raising

A: Many times.
my T-shirt and kissing my breast.

Q: What happened next after he kissed you breast?

Q: What were you wearing at that time?

A: He put my shorts down.

A: Shorts, T-shirt, bra and panty.

Q: After putting your shorts down, what happened next, if

Q: What did your father do with your shorts, T-shirt and
any?
bra?

A: He also put down my panty.

A: He raised them.

KMC - Criminal Procedure; Atty. Macababbad| 18

Q: What about your father, how was he dressed at that
time?
A: Shorts and T-shirt.
Q: After raising your bra and T-shirt, what happened next?
A: While he was kissing my breast, we were already lying
on the sofa, then he went on top of me.
Q: After he went on top of you, what happened next, if
any?
A: He was forcing to insert his penis while we were still
wearing shorts.
Q: So, you mean to say, you were still wearing shorts at that
time?
A: Yes, Maam.
Q: What happened next when he was forcing to push his
penis into your vagina?
A: It did not push through because my mother suddenly
arrived.23
The trial court believed the complainant and held that:
The testimony of Maricar of her ignominious experience
contains all the indicia of truth. It is spontaneous, direct and
clear. It is vivid and complete with details. Her testimony is
truthful and convincing. Her credibility is beyond question.
The Court believes that at her tender age, Maricar could not
make public the offense, undergo the troubles and
humiliation of public trial and endure the ordeal of
testifying to all its gory details if she has not in fact been
raped. The Court believes that a girl who is only twelve (12)
years old would not ordinarily file a rape complaint against
anybody, much less her own father, if it is not true.24
We have painstakingly reviewed the evidence on record
and found no cogent reason to disturb the findings of the
trial court and the appellate court.
Contrary to appellant's assertion, complainant's credibility
was not diminished by her failure to report the sexual
abuses to the authorities and her relatives despite
opportunities to do so. Delay in reporting the rape
incidents, especially in the face of threats of physical
violence, cannot be taken against the victim, more so when
the lecherous attacker is her own father. Strong
apprehensions brought about by fear, stress, or anxiety can
easily put the offended party to doubt or even distrust what
should otherwise be a positive attitude of bringing the
culprit to justice. The Court has thus considered justified
the filing of complaints for rape months, even years, after
the commission of the offense.25
In the case at bar, the delay of more than two years is not an
indication that the charges were fabricated for
complainant's reactions were consistent with reason. Her
complete obedience to appellant, her lack of struggle and
the studied silence she kept about her ordeal were all
brought about by genuine fear posed by her own father
against her.
Appellant's reliance on complainant's affidavit of
desistance deserves scant consideration. A survey of our
jurisprudence reveals that the court attaches no persuasive
value to a desistance, especially when executed as an
afterthought. The unreliable character of this document is
shown by the fact that it is quite incredible that a victim,
after going through the trouble of having the appellant
arrested by the police, positively identifying him as the
person who raped her, enduring the humiliation of a
physical examination of her private parts, repeating her
accusations in open court and recounting her anguish in
detail, will suddenly turn around and declare that she is no
longer interested in pursuing the case.26
Too, complainant repudiated the affidavit of desistance in
open court by stating that no lawyer assisted her when she
affixed her signature27 and had shown her resolve to
continue with the prosecution of the cases.28 Besides, the
trial court is not bound to dismiss the cases, as it is still
within its discretion whether or not to proceed with the
prosecution,29 considering that the compromise agreement
and the affidavit of desistance were executed long after the
cases have been filed in court.
Moreover, a criminal offense is an outrage to the sovereign
State and to the State belongs the power to prosecute and
punish crimes.30 By itself, an affidavit of desistance is not a
ground for the dismissal of an action, once it has been
instituted in court. A private complainant loses the right or
absolute privilege to decide whether the rape charge should
proceed, because the case was already filed and must
therefore continue to be heard by the trial court. 31
In addition, a careful scrutiny of the affidavit of desistance
reveals that complainant never retracted her allegation that
she was raped by her father. Neither did she give any
exculpatory fact that would raise doubts about the rape. All
she stated in the affidavit was that she had decided to
withdraw the complaints after the appellant agreed not to
disturb the complainant; to consent to annul his marriage;
allow his wife to solely manage the conjugal properties;
and entrust the custody of his children to his wife. Rather
than contradict, this affidavit reinforces complainant's
testimony that appellant raped her on several occasions.
KMC - Criminal Procedure; Atty. Macababbad| 19
The gravamen of the offense of rape is sexual congress with
a woman by force and without consent.1âwphi1 If the
woman is under 12 years of age, proof of force and consent
becomes immaterial not only because force is not an
element of statutory rape, but the absence of a free consent
is presumed. Conviction will therefore lie, provided sexual
intercourse is proven. But if the woman is 12 years of age or
over at the time she was violated, sexual intercourse must
be proven and also that it was done through force, violence,
intimidation or threat.32
We have ruled that in incestuous rape of a minor, actual
force or intimidation need not even be employed where the
overpowering moral influence of appellant, who is private
complainant's father, would suffice. The moral and physical
dominion of the father is sufficient to cow the victim into
submission to his beastly desires. 33 The instant case is no
exception. Appellant took advantage of his moral and
physical ascendancy to unleash his lechery upon his
daughter.
Hence, under the above circumstances, we affirm the trial
court's conviction in Criminal Case Nos. 96-125 and 96-150
for the crimes of rape committed in September 1993 and on
December 29, 1995. However, we acquit appellant in
Criminal Case No. 96-151 for the crime of attempted rape
for failure to allege in the complaint the specific acts
constitutive of attempted rape.
The complaint for attempted rape in Criminal Case No. 96-
151 is again quoted as follows:
That on or about the 1st day of January 1996, in the
Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, try and attempt to rape one Maricar
Dimaano y Victoria, thus commencing the commission of
the crime of Rape, directly by overt acts, but nevertheless
did not perform all the acts of execution which would
produce it, as a consequence by reason of cause other than
his spontaneous desistance that is due to the timely arrival
of the complainant's mother.
CONTRARY TO LAW.34
For complaint or information to be sufficient, it must state
the name of the accused; the designation of the offense
given by the statute; the acts or omissions complained of
as constituting the offense; the name of the offended party;
the approximate time of the commission of the offense, and
the place wherein the offense was committed. 35 What is
controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or
part thereof allegedly violated, these being mere
conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts
therein recited.36 The acts or omissions complained of must
be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended
to be charged, and enable the court to pronounce proper
judgment. No information for a crime will be sufficient if it
does not accurately and clearly allege the elements of the
crime charged. Every element of the offense must be stated
in the information. What facts and circumstances are
necessary to be included therein must be determined by
reference to the definitions and essentials of the specified
crimes. The requirement of alleging the elements of a crime
in the information is to inform the accused of the nature of
the accusation against him so as to enable him to suitably
prepare his defense. The presumption is that the accused
has no independent knowledge of the facts that constitute
the offense.37
Notably, the above-cited complaint upon which the
appellant was arraigned does not allege specific acts or
omission constituting the elements of the crime of rape.
Neither does it constitute sufficient allegation of elements
for crimes other than rape, i.e., Acts of Lasciviousness. The
allegation therein that the appellant 'tr[ied] and attempt[ed] to
rape the complainant does not satisfy the test of sufficiency
of a complaint or information, but is merely a conclusion of
law by the one who drafted the complaint. This
insufficiency therefore prevents this Court from rendering a
judgment of conviction; otherwise we would be violating
the right of the appellant to be informed of the nature of the
accusation against him.
The trial court correctly imposed the penalty of reclusion
perpetua in Criminal Case No. 96-125 as the rape was
committed in September 1993 prior to the effectivity of R.A.
No. 7659, otherwise known as the Death Penalty Law, on
December 31, 1993. Prior to R.A. No. 7659, Article 335 of the
Revised Penal Code imposes the penalty of reclusion
perpetua for the the crime of rape, when committed against
a woman who is under 12 years old or is demented. Anent
the rape in Criminal Case No. 96-150 which was committed
on December 29, 1995, Article 335, as amended by R.A. No.
7659, thus applies. It provides:
ART. 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
KMC - Criminal Procedure; Atty. Macababbad| 20
The death penalty shall also be imposed if the crime of
rape is committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim.
In Criminal Case No. 96-150, appellant was correctly
sentenced to death as the special qualifying circumstances
of minority and relationship were properly alleged in the
information and proved during trial by the testimonies of
the complainant, her mother and the appellant himself;
they were also supported by the photocopy of the marriage
certificate and birth certificate, respectively.
In the case of People v. Cayabyab,38 this Court, in affirming
the death penalty, held that a photocopy of the birth
certificate is admissible to prove the age of the victim, as
the original thereof is a public record in the custody of a
public officer. The admission of this secondary evidence is
one of the exceptions to the 'best evidence rule under
Section 3, Rule 130 of the Revised Rules on Evidence.
Further, we held that production of the original may be
dispensed with, in the trial court's discretion, whenever the
opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by
requiring its production.
Indubitably, the marriage and birth certificates are public
records in the custody of the local civil registrar who is a
public officer. The presentation, therefore of their
photocopies is admissible as secondary evidence to prove
their contents. It is also well to note that appellant did not
dispute their contents when offered as evidence to prove
relationship and minority. Having failed to raise a valid
and timely objection against the presentation of this
secondary evidence the same became a primary evidence,
and deemed admitted and the other party is bound
thereby.39
Anent the awards of damages, the Court of Appeals
correctly modified the awards of civil indemnity and
exemplary damages, which the trial court lumped together
for all the crimes committed, by separately awarding the
sums of P50,000.0040 and P75,000.0041 as civil indemnity in
Criminal Case Nos. 96-125 and 96-150, respectively, and
P25,000.0042 as exemplary damages, for each count of rape,
in line with the prevailing jurisprudence.
The award of civil indemnity, which is in the nature of
actual or compensatory damages, is mandatory upon a
conviction for rape.43 On the other hand, exemplary
damages is awarded when the commission of the offense is
attended by an aggravating circumstance, whether
ordinary or qualifying.44
Finally, the awards of P50,000.00 45 and P75,000.0046 as moral
damages in Criminal Case Nos. 96-125 and 96-150,
respectively, by the Court of Appeals are also sustained in
line with the prevailing jurisprudence. The award of moral
damages is automatically granted in rape cases without
need of further proof other than the commission of the
crime because it is assumed that a rape victim has actually
suffered moral injuries entitling her to such award. 47
WHEREFORE , the decision of the Court of Appeals in CA-
G.R. CR No.00263 affirming the decision of the Regional
Trial Court of Paraaque City, Branch 257, in Criminal Cases
Nos. 96-125 and 96-150, finding appellant Edgardo
Dimaano GUILTY beyond reasonable doubt of the crime of
rape committed against his own daughter, Maricar
Dimaano, and sentencing him to reclusion
perpetua and DEATH, respectively; and ordering him to
pay the complainant in Criminal Case No. 96-125 the
amounts of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as exemplary damages, and
in Criminal Case No. 96-150 the amounts of 75,000.00 as
civil indemnity, P75,000.00 as moral damages, and
P25,000.00 as exemplary damages, is AFFIRMED.
Appellant is however ACQUITTED for the crime of
attempted rape in Criminal Case No. 96-151 for failure of
the complaint to allege the specific acts or omissions
constituting the offense.
SO ORDERED.
Section 7
People vs Padica
REGALADO, J.:
Accused-appellant Leon Marajas, Jr. y Ramos appeals from
the judgment of the Regional Trial Court of Pasay City,
Branch CXVI, dated January 8, 1990, finding him guilty
beyond reasonable doubt of the crime of Kidnapping for
ransom with murder upon an amended information dated
November 16, 1984 and reading as follows:
"That on or about the 8th day of February, 1978, in the
Municipality of Parañaque, Metro Manila, Philippines,
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together with
John Doe @ Boy Taga, Peter Doe @ Eddie Boy Marajas,
Richard Doe @ Tito and Edward Doe @ Elmer whose true
names, identities and whereabouts are still unknown and
mutually helping and aiding one another, with the use of
three (3) firearms with the different caliber (sic) by means of
craft, violence against and intimidation of person, did then
and there kidnap Francis Banaga, detain and deprive him
of his liberty for a period of three (3) days and demanded
(sic) five hundred thousand pesos (P500,000.00) for his
release and while thus illegally detaining the latter, said
accused, pursuant to said conspiracy did then and there
wilfully, unlawfully and feloniously, with intent to kill and
KMC - Criminal Procedure; Atty. Macababbad| 21
with treachery shoot Francis Banaga, thereby inflicting on
him gunshot wounds on the head and other parts of his
body which caused his instantaneous death as a
consequences." 1 P100.00 for the purpose. Upon receiving the amount,
The records show that Leon Marajas, Jr., Romeo Padica,
Leslie Gans, Florentino Fabrigas, Romeo Pradez, Leonardo
Marajas and Leopoldo Marajas were originally charged in
the latter part of 1978 with kidnapping for ransom with
murder and illegal possession of firearms before Military
Commission No. 27 in Criminal Case No 27-163 thereof.
However, on January 11, 1979, counsel for accused Leon
Marajas, Jr. prayed for the transfer of the case to the civil
courts. 2 "Thereafter, with Padica still driving the car, they
On August 17, 1981, the Office of the Provincial Fiscal of
Rizal filed an information for kidnapping for ransom with
murder, docketed as Criminal Case No. Pq-81-1596-P,
before Branch III of the then Court of First Instance of Pasay
City against the aforementioned accused, but with the
exception of herein appellant whose name was
inadvertently not included therein. 3 A separate charge for
illegal possession of firearms was lodged before Branch 146
of the Makati Regional Trial Court but the case was later
placed in the archives some time in 1985. 4
Accused Romeo Padica and herein appellant were both
arraigned on January 15, 1982 and, with the assistance of
their respective counsel, both pleaded not guilty. 5 It
appears, however, that appellant entered his plea during
the arraignment under the name of "Leonardo Marajas." 6
Trial thereafter ensued but, subsequently, the case was
reraffled to Branch CXVI, Pasay City, of the Regional Trial
Court where it remained until the conclusion of the trial in
1990.
Earlier thereto, however, upon discovery of the omission of
herein appellant’s name in the original information, the
prosecution filed a motion on November 16, 1984 for the
admission of an amended information including
appellant’s name as one of the accused. 7 On May 30, 1985,
the trial court issued an order admitting the amended
information. 8 Thereafter, or on July 17, 1985, appellant,
duly assisted by counsel, entered a plea of guilty upon
being arraigned on the amended information. 9 On the
other hand, in an order dated August 27, 1985, 10 accused
Padica was discharged from the information to be utilized
as a state witness.
The People’s brief, drawing principally from the factual
findings of the court a quo based on the evidence adduced
in this case, with supplemental data and documentation of
the testimonial evidence as borne out by the transcripts,
which we find to be correct, presented the prosecution’s
case in this wise:
"On or about 9:00 o clock in the morning of February 8,
1978, appellant and his brother, Leopoldo Marajas, using a
car driven by Leopoldo, visited Romeo Padica in his house
in Muntinlupa, Metro Manila. Leopoldo requested Padica,
his compadre, to drive for Eddie Boy Marajas, a brother of
Leopoldo and appellant, and his classmates, giving Padica
Padica, pursuant to the instructions of Leopoldo, drove the
car, with Leopoldo and appellant on board, and proceeded
to Samson Tech in Pasay City, arriving there at about 10:00
A.M. Leopoldo left the vehicle and, upon coming back after
a while, he told Padica that they were going to Sukat,
Parañaque. In Sukat, the three stopped at a restaurant when
(sic) they ordered something to eat (TSN, November 17,
1988, pp. 6-10).
proceeded to the Superville Subdivision, also in Sukat,
where they arrived at about 11:30 A.M. of the same date.
Eddie Boy Marajas and Francis Banaga, both fourteen (14)
years of age, more or less, were in said subdivision.
Leopoldo alighted from the car and talked to them.
Subsequently, Leopoldo together with Francis and Eddie
Boy, boarded the car. All of them proceeded to Calamba,
Laguna, with Padica still driving the vehicle. Seated beside
Padica was Leopoldo Marajas, while appellant and Eddie
Boy occupied the back seat, with Francis Banaga between
them (Ibid, pp.-10-13).
"Upon reaching Calamba at about 12:00 noon of the same
date, Leopoldo Marajas told Padica, to drive the car into the
sugarcane plantation at the side of the road. Once inside the
plantation, Padica stopped the car when told to do so by
Leopoldo, who then alighted from the vehicle and told
Francis Banaga to alight. However, Francis refused to get
down from the car. Notwithstanding his resistance, he was
forced out of the car by Leopoldo Marajas, Eddie Boy and
appellant, who pulled him out of the vehicle. Thereafter,
the three brought Francis Banaga to a place inside the
sugarcane plantation, more or less ten (10) meters away
from the car, while Padica remained in the vehicle.
Leopoldo Marajas then delivered several stabbing blows at
Banaga after which appellant shot Banaga with a handgun.
Banaga fell on the ground. Leopoldo, Eddie Boy and
appellant returned to the car. Leopoldo took the wheel
from Padica and drove the car to Muntinlupa, where
Padica alighted and was left behind with Leopoldo
warning Padica, ‘Pare, steady ka lang, isang bala ka lang.’
(Ibid., pp. 10-19).
"On or about 5:00 P.M. of the same day, while in his house
at Gatchalian Subdivision in Parañaque, Tomas Banaga,
father of Francis, became alarmed when his son failed to
come home. A few minutes after 6:00 P.M. of (the) same
date, someone called up by phone, telling Tomas not to
look for his son as he was in good condition, and
demanding P500,000.00 for his (Francis’) release. Tomas
reported the incident to the Philippine Constabulary
authorities in Camp Crame, Quezon City. Sgt. Rodolfo
Bucao, Sgt. Villanueva and Sgt. Cierlito were dispatched to
the Banaga residence (TSN, January 15, 1982, pp. 4-6).
KMC - Criminal Procedure; Atty. Macababbad| 22
"On February 9, 1978, Tomas received a second phone call
in the course of which the caller reduced the amount
demanded to P200,000.00. On February 10, 1978, there was
another phone call with (the) caller lowering the amount to
P23,000.00 and giving instructions that the money be
wrapped in a newspaper, placed in a paper bag, and
delivered by a girl wearing a T-shirt to Luneta, in front of
the National Library, under a true with red flowers, at 8:30
P.M. of February 10, 1978 (Ibid., pp. 6-10).
"Norma Camello, sister-in-law of Tomas Banaga,
volunteered to deliver the money as the maid of (the)
Banaga family who was supposed to do it was scared.
Between 7:00 and 7:30 P.M. of February 10, 1978, Camello
was brought by Sgt. Bucao and CIC Ocampo in front of
Bayview Hotel at Roxas Blvd., Manila. At about 8:00 P.M.
of the same date, she went to the National Library at
Luneta and positioned herself under a tree with red
flowers, pursuant to the instructions of the caller. A few
minutes later, a taxicab arrived. Appellant alighted from
the vehicle, approached Camello and got the money from
her which was in a paper bag, saying: ‘Hihintayin na lang
ninyo ang bata mamaya sa bahay.’ (TSN, Sept. 19, 1985, pp.
6-12). When appellant returned to the waiting taxicab and
was about to board it, Sgt. Simplicio Dulay, one of those
sent to Luneta to entrap the person who would receive the
ransom money, apprehended and arrested appellant (TSN,
March 11, 1986, pp. 2-5).
"(At) or about 2:00 P.M. of February 11, 1978, pursuant to
the information given by appellant during the
investigation, a Philippine Constabulary team led by Lt.
Napoleon Cachuela, accompanied by appellant, went to
Calamba, Laguna search for the body of Francis Banaga.
Appellant led the team to the place where the cadaver was
dumped, which was inside a sugarcane plantation about 75
meters away from the road. The team recovered the body of
Francis Banaga and brought it to the Municipal Health
Officer of Calamba for autopsy (TSN, October 2, 1986, pp.
10-17).
"According to the necropsy report of Dr. Eusebio
Panganiban of the Calamba Municipal Health Office,
Francis Banaga sustained two (2) entry gunshot wounds,
one on the head and the other on the chest, with two (2) exit
gunshot wounds and several lacerated wounds. The death
of Francis was caused by ‘intra-thoracic brain hemorrhage
due to gunshot wounds.’ (TSN, July 25, 1986, pp. 17-69).
"After three (3) years in hiding out of fear for his life,
Romeo Padica finally revealed to Lt. Cruz (sic) of Regional
Security Unit Intelligence Division, Lucena City that he
(Padica) witnessed the killing of Francis Banaga. Padica
had met Lt. Cruz (sic) near the Lucena City Market and
after making the disclosure, surrendered to the authorities
(TSN, December 12, 1988, p. 6)." 11
Appellant predictably presented a different narration of the
events that led to his arrest. He insists that he was the
victim of an elaborate frame-up by the military authorities
assigned to investigate the case. Appellant claims that on
February 8, 1978, the day that the victim disappeared, he
was in Batangas province, where he was a resident. In the
early morning of February 10, 1978, he decided to go to
Manila, with Sto. Tomas, Batangas as his point of
departure, in order to thresh out some financial matters in
connection with his business of buy and sell.
He arrived in Manila at around 9:00 A.M. and proceeded to
the office of Mrs. Aquilina Marquez-Marajas, his sister-in-
law, at Mabini Street in Malate to talk to his brother,
Leonardo. Not finding Leonardo there, he then went to the
house of his sister, Nelly Marajas, a neighbor of the Banaga
family, at Gatchalian Subdivision in Parañaque. He was
about to board a tricycle at the main gate of the subdivision
at around 9:30 A.M. when he was suddenly accosted by
two Metrocom officers in civilian clothes who forcibly took
him to a car. Appellant was later brought at about 12:00
noon to the Siesta Court Hotel, also in Malate, where he
was repeatedly beaten and subjected to torture by his
abductors who tried in vain to extract information about
the disappearance of Francis Banaga.
In the evening of the same day, he was taken out of the
hotel and was taken by the men to an unspecified safehouse
where, once again, his ordeal at their hands was resumed.
Unable to bear the maltreatment any further, appellant then
tried to fool them by admitting that the missing Francis
Banaga could be found in Paete, Laguna. He then led a
group of his captors to the said place but they found no
trace of the missing boy. Incensed at the deception, the men
took him back to the safehouse.
Later, appellant was again taken out of the safehouse and,
together with another captive whom he identified only as
"Florentino," he was brought to an isolated sugarcane
plantation. There Florentino led the military team to the
cadaver of Francis Banaga. 15 Appellant and Florentino
were later brought back to the safehouse. The former claims
that he was kept there for about two months, during which
time he helped in the maintenance and care of the
safehouse and its surroundings. He also met at the
safehouse Leslie Gans, one of the accused, but he had no
occasion to discuss their predicament with him. After
appellant’s confinement, he was turned over to the prison
authorities of Bicutan Rehabilitation Center where he
remained until the start of the trial. 16
After more than eight years of trial, which for one reason or
another was punctuated by numerous and needless
postponements, the trial court rendered its assailed
decision pronouncing the guilt of appellant for the crime of
kidnapping for ransom with murder and sentencing him to
suffer the penalty of reclusion perpetua and to pay Tomas
Banaga, father of Francis Banaga, the sum of P30,000.00 as
indemnity for the death of the child, without
pronouncement a to costs. 17
KMC - Criminal Procedure; Atty. Macababbad| 23

Appellant is now before us insisting on the reversal of the
judgment of conviction by theorizing that the court below
erred: (a) in ruling that the guilt of appellant was proven
beyond reasonable doubt; (b) in giving full credence to the
testimony of state witness Romeo Padica; (c) in laying
emphasis on the weakness of the defense interposed by
appellant; and (d) in disregarding the inconsistencies raised
by the defense as minor and insubstantial. 18
After a careful and exhaustive review of the records, the
testimonial and documentary evidence, and the arguments
of the prosecution and the defense, we are satisfactorily
persuaded that the prosecution has duly discharged its
onus probandi insofar as the culpability of appellant is
concerned, but we do not adopt as correct the nature or
categorization of the offense for which he must do penance.
1. At the outset, from the evidence on record, we are not
convinced that the crime of kidnapping for ransom was
committed as charged in both the original and amended
informations. Rather the crime committed was murder,
attended by the qualifying circumstances of treachery
and/or abuse of superior strength, and not the complex
crime of kidnapping for ransom with murder as found by
the trial court without objection by either the prosecution or
defense. The essential element in the crime of kidnapping
that the victim must have been restrained or deprived of his
liberty, 19 or that he was transported away against his will
with the primary or original intent to effect that restraint, is
absent in this case. The malefactors evidently had only
murder in their hearts when they invited the trusting
Francis Banaga to go with them to Laguna, and not to
confine or detain him for any length of time or for any other
purpose.
We have consistently held that where the taking of the
victim was incidental to the basic purpose to kill, the crime
is only murder, 20 and this is true even if, before the killing
but for purposes thereof, the victim was taken from one
place to another. 21 Thus, where the evident purpose of
taking the victims was to kill them, and from the acts of the
accused it cannot be inferred that the latter’s purpose was
actually to detain or deprive the victims of their liberty, the
subsequent killing of the victims constitute the crime of
murder, 22 hence the crime of kidnapping does not exist
and cannot be considered as a component felony to
produce a complex crime of kidnapping with murder. In
fact, as we held in the aforecited case of Masilang, Et Al.,
although the accused had planned to kidnap the victim for
ransom but they first killed him and it was only later that
they demanded and obtained the money, such demand for
ransom did not convert the crime into kidnapping since no
detention or deprivation of liberty was involved, hence the
crime committed was only murder. 23
That from the beginning of their criminal venture appellant
and his brothers intended to kill the victim can readily be
deduced from the manner by which they swiftly and cold-
bloodedly snuffed out his life once they reached the
isolated sugarcane plantation in Calamba, Laguna.
Furthermore, there was no evidence whatsoever to show or
from which it can be inferred that from the outset the killers
of the victim intended to exchange his freedom for ransom
money. On the contrary, the demand for ransom appears to
have arisen and was consequently made as an afterthought,
as it was relayed to the victim’s family very much later that
afternoon after a sufficient interval for consultation and
deliberation among the felons who had killed the victim
around five hours earlier.
It will be observed that under Article 267 of the Revised
Penal Code, the circumstance that the kidnapping is
perpetrated for the purpose of ransom raises the imposable
penalty to death. 24 It is essential, however, that the
element of deprivation or restraint of liberty of the victim
be present. The fact alone that ransom money is demanded
would not per se qualify the act of preventing the liberty of
movement of the victim into the crime of kidnapping,
unless the victim is actually restrained or deprived of his
liberty for some appreciable period of time or that such
restraint was the basic intent of the accused. Absent such
determinant intent and duration of restraint, the mere
curtailment of freedom of movement would at most
constitute coercion.
In addition, Francis Banaga, then already fourteen years of
age and a fourth year high school student, was neither
forced nor coerced unlawfully into going along with his
killers. He voluntarily boarded the car and went with the
Marajas brothers to Laguna. The victim had every reason to
trust them as they were his neighbors in Gatchalian
Subdivision. In fact, one of the brothers, Accused Leonardo
Marajas alias "Eddie Boy," was his schoolmate and a
playmate.25cralaw:red
There was treachery since, under the aforestated
circumstances, the victim was lured by his killers into going
with them to Laguna without the slightest inkling of their
nefarious design, coupled with the sudden and unexpected
assault by the malefactors on the hapless victim in the
isolated sugarcane plantation in Calamba, which thereby
divested him of an opportunity either to effectively resist or
to escape. 26 Abuse of superior strength was likewise
present, for the accused deliberately resorted to their
collective strength for the purpose of overpowering
whatever feeble defense the poor Francis Banaga could
offer. 27 They thus insured the commission of the crime
with practically no risk at all to themselves.
Under the factual features present in the commission of the
crime, however, we are inclined to grant that the
circumstance of superior strength should not be
appreciated distinctly but should be considered as being
absorbed in and by treachery, 28 and the same is true with
regard to the allegation of craft. Hence, abuse of superior
strength may not be taken into account separately in this
KMC - Criminal Procedure; Atty. Macababbad| 24
case, either as a qualifying or as an aggravating
circumstance. On the other hand, although the trial court
and both parties herein have again passed sub silentio
thereon, it is evident that the aggravating circumstance of
uninhabited place was present since appellant and his co-
accused obviously and deliberately chose the desolation
and isolation of the sugarcane plantation to perpetrate the
crime far from the gaze of potential eye-witnesses. 29 This
circumstance is underscored by the fact that they
committed the crime at about 12:00 noon, a time of day
when any passersby or assistance could hardly be expected
in the vicinity of the locus criminis. 30 This aggravating
circumstance of despoblado should, therefore, be
considered against appellant even if it was not alleged in
the informations since it was duly proved.
Appellant’s defense that he was in another place at the time
of Francis Banaga’s disappearance and killing must
necessarily fail. Indeed, trite as our innumerable
reiterations have already made this statement of rejection,
we must perforce again reprobate appellant’s alibi as an
inherently weak defense decidedly easy of concoction.
Apart from that, it is considered as clearly negative in
nature. Hence, when arrayed against the positive
declarations of the witnesses for the prosecution, the same
would all the more be given little consideration. 32
For it to prosper, it must be shown that not only was the
accused at some other place at the time of the commission
of the offense, but that it was also physically impossible for
him to have been there when it happened. 33 Indeed, as
correctly pointed out by the trial court in its decision,
appellant was not even sure as to his whereabouts on
February 8, 1978. He simply offered as an explanation
therefor that he was "more or less" in Batangas, which
allegation was completely uncorroborated. 34
In light of the foregoing, appellant’s further denial that he
was entrapped on the night of February 10, 1978 by the
authorities after receiving ransom money from Norma
Camello must likewise be rejected. Both Norma Camello
and Sgt. Simplicio Dulay, one of the police operatives,
positively and without hesitation identified appellant as the
person who was collared at Luneta Park. 35 Moreover, the
police report clearly and definitely bears out the fact that
appellant was arrested by the investigating police officers
on that night pursuant to the dragnet plan that was
prepared for the purpose, 36 the veracity of which record
further enjoys the presumption of regularity in the
performance of official duties which appellant failed to
rebut.
2. Appellant asserts that the trial court should not have
given credence to the testimony of Romeo Padica as it is
incredible and inconsistent with the other evidence on
record. He affects surprise as to why the Marajas brothers
would go to the extent of hiring Padica to drive for them
when, in fact, Padica himself knew that Leopoldo Marajas
was a skilled driver. Moreover, he expresses disbelief that
Romeo Padica never conversed with the group while they
were on the road and that, although the latter claims to be a
close friend of Leopoldo, he never even knew what was
Leopoldo’s profession and what was the surname of their
common "compadre." He likewise characterizes as
incredible the circumstance that he and his cohorts
supposedly carried out the crime in broad daylight and that
thereafter they simply dismissed Padica with a casual
threat of "Pare, steady ka lang, isang bala ka lang."
There is no merit in all the foregoing submissions and
pretensions of appellant. It is true that the testimony of a
particeps criminis is to be invariably viewed with much
caution, coming as it does from a polluted source. 37
However, in the case at bar and after a careful evaluation,
we find no plausible reason to depart from the favorable
appreciation by the trial court of Padica’s testimony which
the said court characterized as reasonable and probable,
given in a clear, straightforward and convincing manner
thereby leaving no doubt in the mind of said court that he
was telling the truth.
Jurisprudentially embedded is the rule that the stamp of
approval given by the trial court on the testimony of a
particular witness as a consequence of its factual findings is
normally accorded finality by appellate courts, the court
below having had the opportunity to observe closely the
manner by which such witness testified. 39 Furthermore,
not a single shred of evidence was introduced by the
defense to show any ill motive on the part of Padica to
impute such a serious crime on appellant and his brothers,
thus entitling to considerable credit his testimony regarding
the circumstances surrounding Francis Banaga’s death.
These conclusions we confirm, not by mere reliance on
dicta, but from our own review and calibration of the
evidence.
There is certainly nothing strange in the matter of the
Marajas brothers requesting Padica to drive for them. As
testified to by the latter, he was then a close friend of one of
the brothers, Leopoldo, who was the one who requested
him to drive, and the latter presumably had full confidence
in him as he was at the time a professional driver of
taxicabs. Romeo Padica, likewise, can not be discredited
just because of his silence on the road and for not knowing
Leopoldo’s profession and the surname of a common
"compadre." It is of common knowledge that there are
persons who are taciturn and not as inquisitive as others, or
who disdain prying into the affairs even of their close
friends.
Be that as it may, this witness did testify to and narrate in
his sworn statement some personal matters regarding the
Marajas siblings, such as the fact that Leopoldo was staying
at a house adjacent to that of the Banagas in Tionguiao
Street at Gatchalian Subdivision together with his wife,
children and Eddie Boy Marajas; that said house was
owned by a sister of the brothers; and that Francis Banaga,
whose picture he positively identified in court, was a
KMC - Criminal Procedure; Atty. Macababbad| 25
playmate and schoolmate of Eddie Boy Marajas, thus
lending credence to his claim of close and fraternal ties with
Leopoldo Marajas.
The fact that appellant and his co-accused carried out the
murder of Francis Banaga in broad daylight is hardly
surprising. As pointedly noted by the Solicitor General, "it
is not difficult to believe that appellant and his co-accused
committed the crime in broad daylight because there were
no other persons at the scene of the incident," as the same
was inside a desolate sugarcane plantation in the outskirts
of Calamba, Laguna and the crime was perpetrated at noon
of that day, as we have earlier explained.
Having demonstrated to Padica the brutal and merciless
manner in which they disposed of Francis Banaga,
appellant and his brothers were undoubtedly secure in the
thought that Padica would have been sufficiently terrorized
thereby and would thereafter keep his silence, and so, just
for good measure, they uttered the threat on the latter’s life
simply as a reminder of what they had in store for him
should he waver and ignore that injunctive warning.
It is further contended by appellant that the trial court
should not have granted the motion to discharge Romeo
Padica from the information, as one of the conditions for its
grant has not been met, namely, that the prosecution has
not shown that Padica did not appear to be the most guilty.
Incidentally, appellant slurs over the fact that this order of
the trial court was sustained by the Court of Appeals in
CA-G.R. No. 16302 which denied appellant’s petition
for certiorari and prohibition assailing said order, the
judgment therein having become final and executory on
January 20, 1989.
Appellant has also clearly lost sight of the rule that the
discharge of an accused to be a state witness, lies within the
sound discretion of the court before whom it is sought and
in the exercise of that discretion, it is not required that the
court be absolutely certain that all the requirements for the
proper discharge of a co-accused be present. 42 In the case
under consideration, the prosecution presented enough
evidence to support its motion for the discharge of Padica.
The trial court’s reliance thereon and its consequent finding
on the basis thereof that Padica did not appear to be the
most guilty must be respected as it was in better position to
evaluate such evidence.
Appellant likewise points to portions in the testimony of
Padica which are allegedly not substantiated by the
evidence on record. Thus, appellant argues that while
Padica claimed that the victim was stabbed by Leopoldo
Marajas and then shot at four times by appellant, yet the
necropsy report of the medico-legal officer, Dr. Eusebio P.
Panganiban, showed no stab wounds but only lacerated
wounds and two gunshot wounds. Further, Padica’s
testimony that the victim was dragged inside the plantation
and instantly stabbed and shot to death is supposedly
belied by the findings in the necropsy report that Francis
Banaga’s body had several hematomas and contusions. 43
We nonetheless agree with and give due credit to the
following explanation of the court below regarding these
seeming conflicting aspects:
"The defense counsel also capitalized on the supposed
inconsistency between the allegation of Padica that Leon
Marajas, Jr. shot Banaga four (4) times and the autopsy
report stating that the victim sustained two (2) entry
gunshot wounds. Padica testified that Leon Marajas, Jr.
shot Francis Banaga four (4) times without stating that the
victim was hit also four (4) times. The fact that he suffered
two (2) entry gunshot wounds clearly indicates that Francis
was shot, supporting the version of Padica that the child
was fired upon by Leon Marajas, Jr.
"Also pointed out as a basis for not believing the testimony
of Padica is the supposed conflict between his assertion that
Leopoldo Marajas stabbed Banaga with a knife and the
finding of Dr. Panganiban that the victim, aside from the
gunshot wounds, sustained only lacerated wounds and
contusions. The defense implied that Banaga was not
stabbed by Leopoldo Marajas as there is no finding that he
sustained stab wounds. A logical analysis of this point
shows that there is no inconsistency. Padica stated that he
saw the accused Leopoldo Marajas stab the victim but he
did not say that Banaga was hit by the stabbing blows
delivered by the said accused. It could also be that one of
the blows hit the boy but without piercing his body,
causing only lacerations thereon."
As for the several hematomas and contusions that were
discovered on the body of Francis Banaga, it is entirely
possible that the same were inflicted when the victim put
up a furious struggle for his life against his assailants.
According to Padica, the Marajas brothers forcefully pulled
out Banaga from the car when they stopped by the
roadside. They continued to inflict physical harm on the
boy while prodding him to proceed inside the sugarcane
plantation until they reached a clearing where, after
Leopoldo Marajas delivered stabbing blows on the victim
which may not have inflicted knife wounds but contusions
from the assailant’s clenched fists, Leon Marajas, Jr. then
fired away with the fatal shots. All the while and just before
he was shot to death, Padica narrated that the victim
desperately exerted all efforts to ward off the assault on his
person.
Appellant also raises as an issue the questionable manner in
which Padica surrendered, after nearly three years of
hiding, to Lt. Cesar Perez of the Lucena PC Regional
Security Unit whom he met only for the first time at the
Lucena City marketplace.
But, as Padica candidly revealed, and we find his
explanation satisfactory and credible, he had desired all
along to surrender as he had grown tired of constantly
fearing for his life and of his difficult plight as a fugitive
KMC - Criminal Procedure; Atty. Macababbad| 26
from justice. He was obviously always on the lookout for
persons in authority whom he could trust during his stay of
two to three months in Lucena City where he had in the
meantime found work as a porter in the public market. In
the course of his stay there, he had heard about the "kind-
hearted" Lt. Perez, a ranking officer of the local
constabulary. 46 His subsequent meeting and surrender to
Lt. Perez at the marketplace was no strange coincidence as
it is obviously a place where all kinds of people go to and
cross paths.
That it may have taken Padica over two years to finally give
himself up to the authorities is understandable. He had
witnessed a heinous crime perpetrated on a defenseless
fourteen-year old boy by his killers, and the latter had
threatened him with bodily harm should he reveal what
they had done. In view thereof, it was but natural that
Padica would hide, away from the possible clutches of the
Marajas brothers, and keep unto himself the dark secret lest
he suffer the same grim fate that befell Francis Banaga.
3. Appellant finally contends that the failure of the
prosecution to charge him as an accused in the original
information is a fatal defect. Again, we find no merit in this
fatuous assertion.
The rule is that the complaint or information should
sufficiently allege the name of the accused, failing which
the complaint or information would be rendered invalid.
The test of sufficiency is laid down in Section 7, Rule 110 of
the Rules of Court, which states:jgc:chanrobles.com.ph
"Sec. 7. Name of the accused. — A complaint or information
must state the name and surname of the accused or any
appellation or nickname by which he has been or is known,
or if his name cannot be discovered he must be described
under a fictitious name with a statement that his true name
is unknown.
If in the course of the proceeding the true name of the
accused is disclosed by him, or appears in some other
manner to the court, the true name of the accused shall be
inserted in the complaint or information and record.
In the case at bar, there is no dispute that appellant was
arraigned under the original information and that he
entered thereto a plea of not guilty under the name of
"Leonardo Marajas." At that juncture, appellant should
have raised the error as to his identity by filing a motion to
quash on the ground of lack of jurisdiction over his person,
in line with the doctrine explained in People v. Narvaes 47
laid down as early as 1934.
But, as aforestated, appellant did not do so but instead
voluntarily appeared at the arraignment and pleaded not
guilty thereat, albeit under a different name. Consequently,
the trial court acquired jurisdiction over his person and it
could have rendered a valid judgment of conviction based
on the original information even without need of an
amendatory information to correct appellant’s name. What
we stated in Narvaes is worth repeating:
". . . (w)hen the appellant was arraigned under the name of
Pedro Narvaes, which is the name appearing in the
information, he merely entered his plea of ‘not guilty’
under the said name. It was on that occasion that he should
have for the first time raised the question of his identity, by
filing a demurrer based on the court’s lack of jurisdiction
over his person, inasmuch as he was then considered as
Pedro Narvaes, not Primo Narvaes. Not having filed the
said demurrer, it must necessarily be understood that he
renounced it and therefore he is now estopped from
raising, or insisting to raise, the same question, not only in
this appeal but even at the trial . .
The subsequent amendment to insert in the information
Leon Marajas, Jr.’s real name involved merely a matter of
form as it did not, in any way, deprive appellant of a fair
opportunity to present his defense. 48 Moreover, the
amendment neither affected nor altered the nature of the
offense charged since the basic theory of the prosecution
was not changed nor did it introduce new and material
facts. 49 Such an amendment is explicitly allowed under the
second paragraph of Section 7, in relation to Section 14,
Rule 110 of the Rules of Court, the pertinent portion of
which provides that" (t)he information or complaint may be
amended, in substance or form, without leave of court, at
any time before the accused pleads; and thereafter and
during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without
prejudice to the rights of the accused." At any rate,
whatever irregularity may have attended the inclusion of
appellant’s name as an accused in the amended information
has been waived by his subsequent appearance and entry
of plea at his arraignment under said amendatory
information.
WHEREFORE, the assailed judgment of the trial court is
hereby SET ASIDE and another one is rendered
CONVICTING accused-appellant Leon Marajas, Jr. y
Ramos of the crime of murder and IMPOSING upon him
the penalty of reclusion perpetua. Accused-appellant is
further ORDERED to pay the heirs of the late Francis
Banaga the sum of P50,000.00 as death indemnity, in line
with current jurisprudential policy, and likewise to pay the
costs.
SO ORDERED.
Section 8
Malto vs People
CORONA, J.:
Whereas, mankind owes to the child the best it has to give.
(Final preambular clause of the Declaration of the Rights of
the Child)
KMC - Criminal Procedure; Atty. Macababbad| 27
This is a petition for review1 of the decision2 dated July 30,
2004 of the Court of Appeals (CA) in CA-G.R. CR No. 25925
affirming with modification the decision 3 of Branch 109 of
the Regional Trial Court of Pasay City in Criminal Case No.
00-0691 which found petitioner Michael John Z. Malto
guilty for violation of paragraph 3, Section 5(a), Article III
of RA 7610,4 as amended.
Petitioner was originally charged in an information which
read:
The undersigned Assistant City Prosecutor accuses
MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION
5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the month of
November 1997 up to 1998, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, Michael John. Z. Malto, a
professor, did then and there willfully, unlawfully and
feloniously induce and/or seduce his student at
Assumption College, complainant, AAA, a minor of 17
years old, to indulge in sexual intercourse for several times
with him as in fact said accused had carnal knowledge.
Contrary to law.5
This was subsequently amended as follows:
The undersigned Assistant City Prosecutor accuses
MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION
5(a), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the month of
November 1997 up to 1998, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, Michael John. Z. Malto, a
professor, did then and there willfully, unlawfully and
feloniously take advantage and exert influence, relationship
and moral ascendancy and induce and/or seduce his
student at Assumption College, complainant, AAA, a
minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said
accused has carnal knowledge.
Contrary to law.6
Petitioner did not make a plea when arraigned; hence, the
trial court entered for him a plea of "not guilty." After the
mandatory pre-trial, trial on the merits proceeded.
The prosecution established the following:
At the time of the incident, private complainant AAA was
17 years old.7 She was a college student at the Assumption
College in San Lorenzo Village, Makati City. Petitioner,
then 28, was her professor in her Philosophy II class in the
first semester of the school year 1997 to 1998.
On July 18, 1997, AAA was having lunch with her friends
when petitioner joined their group. He told them to address
him simply as "Mike." He handed them his organizer and
asked them to list down their names and contact numbers.
On October 3, 1997, while AAA and her friends were
discussing the movie Kama Sutra, petitioner butted in and
bragged that it was nothing compared to his collection of
xxx-rated films. To the shock of AAA’s group, he lectured
on and demonstrated sexual acts he had already
experienced. He then invited the group to view his
collection.
On October 10, 1997, petitioner reiterated his invitation to
AAA and her friends to watch his collection of
pornographic films. Afraid of offending petitioner, AAA
and two of her friends went with him. They rode in his car
and he brought them to the Anito Lodge on Harrison St. in
Pasay City. They checked in at a "calesa room." Petitioner
was disappointed when he found out there was neither a
video cassette player (on which he could play his video
tapes) nor an x-rated show on the closed-circuit television.
He suggested that they just cuddle up together. AAA and
her friends ignored him but he pulled each of them towards
him to lie with him in bed. They resisted until he relented.
AAA and her friends regretted having accepted petitioner’s
invitation. For fear of embarrassment in case their
classmates got wind of what happened, they agreed to keep
things a secret. Meanwhile, petitioner apologized for his
actuations.
Thereafter, petitioner started to show AAA amorous
attention. He called her on the phone and paged 8 her
romantic messages at least thrice a day. When semestral
break came, his calls and messages became more frequent.
Their conversation always started innocently but he had a
way of veering the subject to sex. Young, naive and coming
from a broken family, AAA was soon overwhelmed by
petitioner’s persistence and slowly got attracted to him. He
was the first person to court her. Soon, they had a "mutual
understanding" and became sweethearts.
When AAA secured her class card in Philosophy II at the
start of the second semester, petitioner told her that he gave
her a final grade of "3." She protested, stating that her mid-
term grade was "1.2." He gave her a grade of "1.5" when she
promised not to disclose his intimate messages to her to
anyone. He also cautioned her not to tell anyone about their
affair as it could jeopardize his job.
On November 19, 1997, at around 11:00 a.m., AAA agreed
to have lunch with petitioner outside the premises of the
college. Since she was not feeling well at that time, he asked
KMC - Criminal Procedure; Atty. Macababbad| 28
her to lie down in the backseat of his car. She was surprised
when he brought her to Queensland Lodge 9 on Harrison St.
in Pasay City. Once inside the motel room, he kissed her at
the back and neck, touched her breasts and placed his hand
inside her blouse. She resisted his advances but he was too
strong for her. He stopped only when she got angry at him.
On November 26, 1997, petitioner asked AAA to come with
him so that they could talk in private. He again brought her
to Queensland Lodge. As soon as they were inside the
room, he took off his shirt, lay down in bed and told her,
"halika na, dito na tayo mag-usap." She refused but he dragged
her towards the bed, kissed her lips, neck and breasts and
unsnapped her brassiere. She struggled to stop him but he
overpowered her. He went on top of her, lowered her pants
and touched her private part. He tried to penetrate her but
she pushed him away forcefully and she sat up in bed. He
hugged her tightly saying, "Sige na, AAA, pumayag ka na, I
won’t hurt you." She refused and said, "Mike, ayoko." He
angrily stood up saying, "Fine, hindi na tayo mag-uusap.
Don’t come to the faculty room anymore. You know I need
this and if you will not give in or give it to me, let us end
this." She replied, "Mike, hindi pa ako ready and it was you
who said it will be after my debut" on December 3, 1997. He
insisted that there was no difference between having sex
then and after her debut. He told her, "kung hindi ko
makukuha ngayon, tapusin na natin ngayon." Pressured and
afraid of his threat to end their relationship, she hesitantly
replied "Fine." On hearing this, he quickly undressed while
commenting "ibibigay mo rin pala, pinahirapan mo pa ako" and
laughed. They had sexual intercourse.
In July 1999, AAA ended her relationship with petitioner.
She learned that he was either intimately involved with or
was sexually harassing his students in Assumption College
and in other colleges where he taught. In particular, he was
dismissed from the De La Salle University-Aguinaldo for
having sexual relations with a student and sexually
harassing three other students. His employment was also
terminated by Assumption College for sexually harassing
two of his students. It was then that AAA realized that she
was actually abused by petitioner. Depressed and
distressed, she confided all that happened between her and
petitioner to her mother, BBB.
On learning what her daughter underwent in the hands of
petitioner, BBB filed an administrative complaint in
Assumption College against him. She also lodged a
complaint in the Office of the City Prosecutor of Pasay City
which led to the filing of Criminal Case No. 00-0691.
In his defense, petitioner proffered denial and alibi. He
claimed that the alleged incidents on October 3, 1997 and
October 10, 1997 did not happen. He spent October 3, 1997
with his colleagues Joseph Hipolito and AJ Lagaso while he
was busy checking papers and computing grades on
October 10, 1997. The last time he saw AAA during the first
semester was when she submitted her final paper on
October 18, 1997.
On November 19, 1997, between 10:30 a.m. and 1:00 p.m.,
he sorted out conflicts of class schedules for the second
semester at the Assumption College. On November 26,
1997, he was at St. Scholastica’s College (where he was also
teaching) preparing a faculty concert slated on December
12, 1997. At lunch time, he attended the birthday treat of a
colleague, Evelyn Bancoro.
On November 29, 1997, he attended AAA’s 18th birthday
party. That was the last time he saw her.
According to petitioner, AAA became his sweetheart when
she was already 19 years old and after he was dismissed
from Assumption College. On December 27 and 28, 1998,
they spent time together, shared their worries, problems
and dreams and kissed each other. On January 3, 1999, he
brought her to Queensland Lodge where they had sexual
intercourse for the first time. It was repeated for at least 20
times from January 1999 until they broke up in July 1999,
some of which were done at either his or her house when
no one was around.
The trial court found the evidence for the prosecution
sufficient to sustain petitioner’s conviction. On March 7,
2001, it rendered a decision finding petitioner guilty. 10 The
dispositive portion read:
In view of the foregoing, the Court finds the accused
Michael John Malto y Zarsadias guilty beyond reasonable
doubt for violation of Article III, Section 5(a)[,] paragraph 3
of RA 7610[,] as amended and hereby sentences him
to reclusion temporal in its medium period or an
imprisonment of seventeen (17) years, four (4) months and
one (1) day to twenty (20) years and to pay civil indemnity
in the amount of Php 75,000.00 and moral and exemplary
damages of Php 50,000.00 to minor complainant with
subsidiary imprisonment in case of insolvency.11
Petitioner questioned the trial court’s decision in the CA. In
a decision dated July 30, 2004,12 the appellate court affirmed
his conviction even if it found that his acts were not
covered by paragraph (a) but by paragraph (b) of Section 5,
Article III of RA 7610. It further observed that the trial court
failed to fix the minimum term of indeterminate sentence
imposed on him. It also ruled that the trial court erred in
awarding ₱75,000 civil indemnity in favor of AAA as it was
proper only in a conviction for rape committed under the
circumstances under which the death penalty was
authorized by law.13 Hence, the CA modified the decision
of the trial court as follows:
WHEREFORE, the appealed Decision of conviction
is AFFIRMED, with the MODIFICATION that (1)
appellant MICHAEL JOHN MALTO y ZARSADIAS is
hereby sentenced to an indeterminate penalty of Eight (8)
KMC - Criminal Procedure; Atty. Macababbad| 29
Years and One (1) Day of prision mayor as minimum, to
Seventeen (17) Years, Four (4) Months and One (1) Day
of reclusion temporal as maximum; and (2) the sum of
₱75,000.00 as civil indemnity is DELETED.14
Hence, this petition.
Petitioner contends that the CA erred in sustaining his
conviction although it found that he did not rape AAA. For
him, he should have been acquitted since there was no
rape. He also claims that he and AAA were sweethearts
and their sexual intercourse was consensual.
Petitioner is wrong.
The Offense Stated in the Information Was Wrongly
Designated
In all criminal prosecutions, the accused is entitled to be
informed of the nature and cause of the accusation against
him.15 Pursuant thereto, the complaint or information
against him should be sufficient in form and substance. A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense by the statute;
the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate
date of the commission of the offense and the place where
the offense was committed.16
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.17 If there is no designation of
the offense, reference shall be made to the section or
subsection of the statute punishing it. 18 The acts or
omissions constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used
in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. 19
The designation of the offense in the information against
petitioner was changed from "violation of Section 5(b),
Article III" of RA 7610 to "violation of Section 5(a), Article
III" thereof. Paragraphs (a) and (b) of Section 5, Article III of
RA 7610 provide:
Section 5. Child Prostitution and Other Sexual Abuse. -
Children, whether male or female, who, for money, profit,
or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to
be children exploited in prostitution and other sexual
abuse.
The penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce
child prostitution which include, but are not limited to, the
following:
1. Acting as a procurer of a child prostitute;
2. Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
3. Taking advantage of influence or
relationship to procure a child as a
prostitute;
4. Threatening or using violence towards a
child to engage him as a prostitute; or
5. Giving monetary consideration, goods
or other pecuniary benefit to a child with
intent to engage such child in prostitution.
(b) Those who commit the act of sexual
intercourse or lascivious conduct with a
child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the
victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may
be: Provided, that the penalty for lascivious conduct
when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period;
and
(emphasis supplied)
The elements of paragraph (a) are:
1. the accused engages in, promotes, facilitates or induces
child prostitution;
2. the act is done through, but not limited to, the following
means:
a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
c. taking advantage of influence or relationship to procure a
child as a prostitute;
KMC - Criminal Procedure; Atty. Macababbad| 30
d. threatening or using violence towards a child to engage
him as a prostitute or
e. giving monetary consideration, goods or other pecuniary
benefit to a child with intent to engage such child in
prostitution;
3. the child is exploited or intended to be exploited in
prostitution and
4. the child, whether male or female, is below 18
years of age.
On the other hand, the elements of paragraph (b) are:
1. the accused commits the act of sexual
intercourse or lascivious conduct;
2. the act is performed with a child exploited in
prostitution or subjected to other sexual abuse and
3. the child, whether male or female, is below 18
years of age.
Paragraph (a) essentially punishes acts pertaining to or
connected with child prostitution. It contemplates sexual
abuse of a child exploited in prostitution. In other words,
under paragraph (a), the child is abused primarily for
profit.
On the other hand, paragraph (b) punishes sexual
intercourse or lascivious conduct not only with a child
exploited in prostitution but also with a child subjected to
other sexual abuse. It covers not only a situation where a
child is abused for profit but also one in which a child,
through coercion, intimidation or influence, engages in
sexual intercourse or lascivious conduct. 20
The information against petitioner did not allege anything
pertaining to or connected with child prostitution. It did
not aver that AAA was abused for profit. What it charged
was that petitioner had carnal knowledge or committed
sexual intercourse and lascivious conduct with AAA; AAA
was induced and/or seduced by petitioner who was her
professor to indulge in sexual intercourse and lascivious
conduct and AAA was a 17-year old minor. These
allegations support a charge for violation of paragraph (b),
not paragraph (a), of Section 5, Article III, RA 7610.
The Real Nature of the Offense is Determined by Facts
Alleged in the Information, Not By the Designation
The designation in the information of the specific statute
violated is imperative to avoid surprise on the accused and
to afford him the opportunity to prepare his defense
accordingly. However, the failure to designate the offense
by statute,21 or to mention the specific provision penalizing
the act,22 or an erroneous specification of the law
violated23 does not vitiate the information if the facts
alleged clearly recite the facts constituting the crime
charged.24 What controls is not the title of the information
or the designation of the offense but the actual facts recited
in the information.25 In other words, it is the recital of facts
of the commission of the offense, not the nomenclature of
the offense, that determines the crime being charged in the
information.26
The facts stated in the amended information against
petitioner correctly made out a charge for violation of
Section 5(b), Article III, RA 7610. Thus, even if the trial and
appellate courts followed the wrong designation of the
offense, petitioner could be convicted of the offense on the
basis of the facts recited in the information and duly proven
during trial.
Petitioner violated Section 5(b), Article III of RA 7610, as
amended
The first element of Section 5(b), Article III of RA 7610
pertains to the act or acts committed by the accused. The
second element refers to the state or condition of the
offended party. The third element corresponds to the
minority or age of the offended party.
The first element was present in this case. Petitioner
committed lascivious conduct against and had sexual
intercourse with AAA in the following instances: (1) on
November 19, 1997, when he kissed her at the back and
neck, touched her breasts and placed his hand inside her
blouse to gratify his lust; (2) on November 26, 1997, when,
with lewd designs, he dragged her towards the bed of the
motel room and forcibly kissed her on the lips, neck and
breasts and (3) when he exerted moral influence on her and
pressured her until she surrendered herself to him on
November 26, 1997. His acts were covered by the
definitions of sexual abuse and lascivious conduct under
Section 2(g) and (h) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases
promulgated to implement the provisions of RA 7610,
particularly on child abuse:
(g) "Sexual abuse" includes the employment,
use, persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children;
(h) "Lascivious conduct" means the intentional touching,
either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality,
KMC - Criminal Procedure; Atty. Macababbad| 31
masturbation, lascivious exhibition of the genitals or public
area of a person. (emphasis supplied)
The second element was likewise present here. The
following pronouncement in People v. Larin27 is significant:
A child is deemed exploited in prostitution or subjected to
other sexual abuse, when the child indulges in sexual
intercourse or lascivious conduct (a) for money, profit, or
any other consideration; or (b) under the coercion
or influence of any adult, syndicate or group. (emphasis
supplied)
On November 19, 1997, due to the influence of petitioner,
AAA indulged in lascivious acts with or allowed him to
commit lascivious acts on her. This was repeated on
November 26, 1997 on which date AAA also indulged in
sexual intercourse with petitioner as a result of the latter’s
influence and moral ascendancy. Thus, she was deemed to
be a "child subjected to other sexual abuse" as the concept is
defined in the opening paragraph of Section 5, Article III of
RA 7610 and in Larin.
The third element of the offense was also satisfied. Section 3
(a), Article I of RA 7610 provides:
SECTION 3. Definition of Terms. –
(a) "Children" refers [to] persons below eighteen (18)
years of age or those over but are unable to fully take care
of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical
or mental disability or condition; (emphasis supplied)
On November 19, 2007 and November 26, 2007, AAA was a
child as she was below 18 years of age. She was therefore
within the protective mantle of the law.
Since all three elements of the crime were present, the
conviction of petitioner was proper.
Violation of Section 5(b), Article III of RA 7610 and Rape
are Separate and Distinct Crimes
Petitioner was charged and convicted for violation of
Section 5(b), Article III of RA 7610, not rape. The offense for
which he was convicted is punished by a special law while
rape is a felony under the Revised Penal Code. 28 They have
different elements.29 The two are separate and distinct
crimes. Thus, petitioner can be held liable for violation of
Section 5(b), Article III of RA 7610 despite a finding that he
did not commit rape.
Consent of the Child is Immaterial in Criminal Cases
Involving Violation of Section 5, Article III of RA 7610
Petitioner claims that AAA welcomed his kisses and
touches and consented to have sexual intercourse with him.
They engaged in these acts out of mutual love and
affection. But may the "sweetheart theory" be invoked in
cases of child prostitution and other sexual abuse
prosecuted under Section 5, Article III of RA 7610? No.
The sweetheart theory applies in acts of lasciviousness and
rape, felonies committed against or without the consent of
the victim. It operates on the theory that the sexual act was
consensual. It requires proof that the accused and the
victim were lovers and that she consented to the sexual
relations.30
For purposes of sexual intercourse and lascivious conduct
in child abuse cases under RA 7610, the sweetheart defense
is unacceptable. A child exploited in prostitution or subjected to
other sexual abuse cannot validly give consent to sexual
intercourse with another person.
The language of the law is clear: it seeks to punish
[t]hose who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse.
Unlike rape, therefore, consent is immaterial in cases involving
violation of Section 5, Article III of RA 7610. The mere act of
having sexual intercourse or committing lascivious conduct
with a child who is exploited in prostitution or subjected to
sexual abuse constitutes the offense. It is a malum
prohibitum, an evil that is proscribed.
A child cannot give consent to a contract under our civil
laws.31 This is on the rationale that she can easily be the
victim of fraud as she is not capable of fully understanding
or knowing the nature or import of her actions. The State,
as parens patriae, is under the obligation to minimize the risk
of harm to those who, because of their minority, are as yet
unable to take care of themselves fully. 32 Those of tender
years deserve its protection.33
The harm which results from a child’s bad decision in a
sexual encounter may be infinitely more damaging to her
than a bad business deal. Thus, the law should protect her
from the harmful consequences34 of her attempts at adult
sexual behavior.35 For this reason, a child should not be
deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special
protection against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will be
justified, or even unwittingly tempted by the law, to view
her as fair game and vulnerable prey.) In other words, a
child is presumed by law to be incapable of giving rational
consent to any lascivious act or sexual intercourse. 361âwphi1
KMC - Criminal Procedure; Atty. Macababbad| 32
This must be so if we are to be true to the constitutionally
enshrined State policy to promote the physical, moral,
spiritual, intellectual and social well-being of the
youth.37 This is consistent with the declared policy of the
State
[T]o provide special protection to children from all forms
of abuse, neglect, cruelty, exploitation and
discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and
carry out a program for prevention and deterrence of and
crisis intervention in situations of child abuse, exploitation,
and discrimination.38 (emphasis supplied)
as well as to
intervene on behalf of the child when the parents,
guardian, teacher or person having care or custody of the
child fails or is unable to protect the child against abuse,
exploitation, and discrimination or when such acts against
the child are committed by the said parent,
guardian, teacher or person having care and custody of the
same.39 (emphasis supplied)
This is also in harmony with the foremost consideration of
the child’s best interests in all actions concerning him or
her.
The best interest of children shall be the paramount
consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative
bodies, consistent with the principles of First Call for
Children as enunciated in the United Nations Convention
on the Rights of the Child. Every effort shall be exerted to
promote the welfare of children and enhance their
opportunities for a useful and happy life. 40 (emphasis
supplied)
Petitioner May Enjoy the Benefits of the Indeterminate
Sentence Law
The penalty prescribed for violation of the provisions of
Section 5, Article III of RA 7610 is reclusion temporal in its
medium period to reclusion perpetua. In the absence of any
mitigating or aggravating circumstance, the proper
imposable penalty is reclusion temporal in its maximum
period, the medium of the penalty prescribed by the
law.41 Notwithstanding that RA 7610 is a special law,
petitioner may enjoy the benefits of the Indeterminate
Sentence Law.42 Since the penalty provided in RA 7610 is
taken from the range of penalties in the Revised Penal
Code, it is covered by the first clause of Section 1 of the
Indeterminate Sentence Law.43 Thus, he is entitled to a
maximum term which should be within the range of the
proper imposable penalty of reclusion temporal in its
maximum period (ranging from 17 years, 4 months and 1
day to 20 years) and a minimum term to be taken within
the range of the penalty next lower to that prescribed by the
law: prision mayor in its medium period to reclusion
temporal in its minimum period (ranging from 8 years and 1
day to 14 years and 8 months).
The Award of Damages Should Be Modified
The trial court awarded AAA ₱75,000 as civil indemnity,
₱50,000 as moral and exemplary damages. The CA deleted
the award for civil indemnity. It correctly reasoned that the
award was proper only in a conviction for rape committed
under the circumstances under which the death penalty is
authorized by law. Consistent, however, with the objective
of RA 7610 to afford children special protection against
abuse, exploitation and discrimination and with the
principle that every person who contrary to law, willfully
or negligently causes damage to another shall indemnify
the latter for the same,44 civil indemnity to the child is
proper in a case involving violation of Section 5(b), Article
III of RA 7610. Every person criminally liable is civilly
liable.45 The rule is that, in crimes and quasi-delicts, the
defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission
complained of.46 Thus, ₱50,000 civil indemnity ex
delicto shall be awarded in cases of violation of Section 5(b),
Article III of RA 7610.47
Moreover, the CA erred in affirming the grant of ₱50,000 as
"moral and exemplary damages." The rule is that, in every
case, trial courts must specify the award of each item of
damages and make a finding thereon in the body of the
decision.48 Thus, moral damages and exemplary damages
should be separate items of award.
AAA testified that she was "emotionally devastated" and
"lost touch of her inner self" as a result of what petitioner
did to her. Because of the mental anxiety and wounded
feelings caused by petitioner to her, she had several
sessions with the dean for student affairs 49 and the
guidance counselor of Assumption College as well as with
a psychiatrist. This was corroborated by her mother and the
dean of student affairs of Assumption College. Thus, she is
entitled to moral damages of ₱50,000. However, in the
absence of an aggravating circumstance, the grant of
exemplary damages is unwarranted.50
Accordingly, the petition is hereby DENIED. Petitioner
Michael John Z. Malto is hereby found guilty of violating
Section 5(b), Article III of RA 7610, as amended, for which
he is sentenced to 14 years and 8 months of reclusion
temporal as minimum to 20 years of reclusion temporal as
maximum. He is further ordered to pay AAA ₱50,000 as
civil indemnity and ₱50,000 for moral damages.
Costs against petitioner.
SO ORDERED.
KMC - Criminal Procedure; Atty. Macababbad| 33
Section 11
US vs Dichao
MORELAND, J.:
This is an appeal from an order of the Court of First
Instance of the Fourteen Judicial District sustaining a
demurrer to a information and dismissing the case.
The information is as follows:
The undersigned accuses one Antonio Javier Dichao of the
crime of rape, committed as follows:
On or about and during the interval between October, 1910,
to August, 1912, in the municipality of Davao, District of
Davao, Moro Province, P.I., the aforesaid accused did then
and there, willfully, maliciously, and feloniously have
sexual intercourse with, and did lie with, and carnally
know a woman, Isabel de la Cruz, under 12 years of age, in
the following manner, to wit: the aforesaid accused is the
stepfather of the aforesaid Isabel de la Cruz and during the
aforesaid period was the legal guardian of the said Isabel
de la Cruz; that by threats and corporal punishment upon
said Isabel de la Cruz, the aforesaid accused, Antonio Javier
Dichao, had sexual intercourse with and did lie with and
carnally know said Isabel de la Cruz; as a result whereof
the said Isabel de la Cruz gave birth on August 5, 1912, to a
child. All contrary to law.
The demurrer alleged:
That the facts therein set forth and contained do not
constitute a public offense.
That the said criminal complaint does not conform
substantially to the prescribed form.
That said complaint is vague and ambiguous.
We are of the opinion that the order appealed from must be
affirmed. The allegations of an information should, if
possible, be sufficiently explicit and certain as to time to
inform the defendant of the date on which the criminal act
is alleged to have been committed. Unless the accused is
informed of the day, or about the day, he may be, to an
extent, deprived of the opportunity to defend himself.
While section 7 of the Code of Civil Procedure provides
that "except when time is a material ingredient of an
offense, the precise time of commission need not be stated
in a complaint or information, but the cat may be alleged to
have been committed at any time before the filing thereof,"
this does not mean that the prosecuting officer may be
careless about fixing the date of the alleged crime, or that
he may omit the date altogether, or that he may make the
allegation so indefinite as to amount to the same thing.
Where the exact date cannot fixed, or where the
prosecuting officer is not thoroughly satisfied that he can
prove a precise date, he should allege in the information
that the crime was committed on or about a date named.
Under such allegation he is not required to prove any
precise date but may prove any date which is not so remote
as to surprise and prejudice the defendant. In case of
surprise the court may allow an amendment of information
as to time and an adjournment to the accused, if necessary,
to meet the amendment.
In the case of United States vs. De Castro (2 Phil. Rep., 616),
the information demurred to was as follows:
The undersigned provincial fiscal accuses the defendant of
the crime of bribery, committed as follows:
That as municipal president of the town, in consideration of
gifts of money, he permitted opium joints and gambling
houses. This contrary to the law.
Among the many defects of this information the court
pointed out the following:
The complaint is also defective in not stating the time at
which the offense occurred. While it is not necessary, unless
time is a material ingredient of the offense, that the precise
time of the commission of the offense should be stated, still
the act should be alleged to have been committed at some
time before the filing of the complaint.
The decisions in the case of United States vs. Enriquez (1
Phil. Rep., 179), and United States vs. Cardona (1 Phil. Rep.,
381), are not in conflict with the doctrine herein laid down,
nor with the case of United States vs. De Castro from which
the above quotation is made. In the first case the
information alleged that the estafa complained of was
committed on the 20th of November 1897. A demurrer was
filed to the information on statutory grounds. It was
overruled and the defendant put upon trial. He was
convicted and appealed to this court, bringing up on the
appeal the questions arising on the order overruling the
demurrer as well as on the merits. It is clear that the
demurrer did not raise, so far as the information is
concerned, the question of time, as in the case at bar, as the
precise date upon which the crime was alleged to have
been committed was set out in the information. The
questions presented to the Supreme Court was, therefore,
not whether the information alleged the time with
sufficiently certainty. The question in the case was whether
the allegations of the complaint sufficiently notified the
defendant "of the transaction from which it is claimed the
crime results, so that he can prepare his defense." The
discussion in that case turned on whether the defendant,
after reading the complaint, was able to tell "to what acts of
his done in the past the complaint refers." In determining
the question the court discussed, among other things, the
KMC - Criminal Procedure; Atty. Macababbad| 34
allegation with reference to the time when the estafa was
committed. In the connection it was said:
In this complaint the estafa is alleged to have been
committed on November 20, 1897. Time, however, was not
a material ingredient in the offense of estafa here charged,
and under the provisions of article 7 of General Orders, No.
58, that date need not have been alleged.
After discussing the various elements of an information
charging estafa necessary to identify the acts which
constitutes the crime, thereby notifying the defendant of the
precise act of his complained of, the court concluded: "It is
plain that the complaint did not restrict the Government to
proof of any defined specific transaction, and consequently
that the defendant had no notice of the transaction which
was to be investigated."
In the Cardona case the theft of a carabao was alleged in the
information to have taken place on the 25th of March of a
certain year. The evidence introduced showed that the
crime was committed on the 5th day or 6th of March of the
same year. The defendant in his brief claimed that the
evidence introduced should have been restricted to the date
mentioned in the information, or the 25th of March.
The court in response to this contention said: "The
testimony as to the whereabouts of the defendant on March
25 was unimportant, as the evidence shows that the
robbery was committed about the 5th or 6th of March. The
defendant in his briefs claimed that the evidence should be
restricted to the date mentioned in the complaint, which
was the 25th of March. In this case, however, the date was
not a material ingredient of the offense, and under the
provisions of section 7 of General Orders, No. 58, the
Government was not limited in its proof to the date stated
therein."
In these two cases, therefore, different questions are
presented from those found in the case before us. In the
first case the question of time is alleged in the information
was discussed in an accidental way for the sole purpose of
determining whether it of itself, or in connection with the
other allegations, sufficiently identified the transaction
which it was claimed constituted the estafa, so as to notify
the defendant of the transaction referred to. the other
allegations of the information not being sufficient of
themselves to do so. In the Cardona case the question was
raised by demurrer. The allegation in the information as to
the time when the crime was committed was definite and
certain. The only question raised on the appeal related to
the alleged variance between the date of the crime as
alleged in the information and that proved on the trial. In
that case, as we have seen, the court said that, the time
alleged not being, under section 7, a material ingredient of
the offense, it did not have to proved as laid. It did not hold
that, if it had appeared to the trial court, on the trial, that
the variance between the allegation of the information and
the proof on the trial had been such as to surprise the
defendant and prejudice him in his defense, the court
would not have been authorized to amend the information
and to grant an adjournment, if necessary, to give the
defendant an opportunity to meet the charge as amended.
The same remarks apply to the case of United
States vs. Arcos (11 Phil. Rep., 555), where the information
alleged "that between the 2d and the 15th of August, 1906,"
the accused committed the crime described therein; and the
case of United States vs. Smith (3 Phil. Rep., 20), in which
the information charged "that the accused, in the month of
December last," committed the crime therein set forth.
The question whether the allegations of the information are
sufficiently definite as to time and question which arises on
a variance between the allegations and the proof are
different in nature and legal effect, and are decided on
different principles.
In the case before us the statement of the time when the
crime is alleged to have been committed is so indefinite and
uncertain that it does not give the accused the information
required by law. To allege in an information that the
accused committed rape on a certain girl between October,
1910, and August, 1912, is too indefinite to give the accused
an opportunity to prepare his defense, and that
indefiniteness is not curd by setting out the date when a
child was born as a result of such crime. Section 7 of the
Code of Criminal Procedure does not warrant such
pleading. Its purpose is to permit the allegation of a date of
the commission of the crime as near to the actual date as the
information of the prosecuting officer will permit, and
when that has been done by any date may be prove which
does not surprise and substantially prejudice the defense. It
does not authorize the total omission of a date of such an
indefinite allegation with reference thereto as amounts to
the same thing.
As before intimated, we are not to be understood as saying
that a variance between the date of the commission of the
crime as alleged in the information and that as proved on
the trial warrants necessarily the acquittal of the accused.
The result of what we intend to say is that, if such a
variance occurs and it is shown to the trial court that the
defendant is surprised thereby, and that, by reason of that
surprise, he is unable to defend himself properly, the court
may, in the excercise of sound discretion based n all the
circumstances, order the information amended so as to set
forth the correct date and may grant an adjournment for
such length of time as will enable the defendant to prepare
himself to meet the variance in the date which was the
cause of surprise.
The judgment appealed from is affirmed.
KMC - Criminal Procedure; Atty. Macababbad| 35