Crimes Against Chastity 1. Acts of Lascviousness **People v. Famularcano, 43 OG 1721 2. Qualified seduction G.R. No.

L-25354 June 28, 1968 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARIANO FONTANILLA, defendant-appellant. CASTRO, J.: The appellant Mariano Fontanilla was prosecuted in the justice of the peace court (now municipal court) of San Fernando, La Union for qualified seduction. The criminal complaint, signed by the offended woman Fe Castro and filed on February 28, 1961, charged. That on or about the month of September, 1960, and for sometime subsequent thereto, in the Municipality of San Juan, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously, with grave abuse of confidence and authority, seduce and have sexual intercourse with the offended party Fe Castro, a domestic in the house of the said accused, located at Allangigan, San Juan, La Union, the offended party being then a virgin over 12 years but under 18 years of age. After trial, the court, on November 27, 1962, found that "the guilt of the accused has been proved beyond reasonable doubt," and accordingly sentenced him to "an indeterminate prison term from four (4) months of arresto mayor as maximum to two (2) years and four (4) months of prison correccional and to pay the costs." The accused was further ordered "to pay the sum of Five Hundred Pesos (P500.00) as moral damages to the offended party or to her parents." Fontanilla forthwith appealed to the Court of Appeals which subsequently certified the case to us in a resolution dated September 25, 1965, on the ground that the jurisdiction of the court a quo, inter alia, is in issue. The following, in paraphrase, are the assigned errors: 1. The justice of the peace court of San Fernando, La Union had no jurisdiction to try and decide this case because the alleged offense was committed outside its territorial jurisdiction and at the same time does not fall within the compass of its original jurisdiction; 2. The lower court erred in finding that the accused had sexual intercourse with Fe Castro repeatedly and that he had told her a number of times that he will separate from his wife Magdalena Copio and will marry her, which was the reason why Fe Castro consented to the sexual intercourse; 3. The lower court erred in relying heavily on the testimony of Fe Castro, considering that her testimony is hazy and selfcontradictory; 4. The lower court erred in totally disregarding the evidence adduced by the appellant; 5. The lower court erred in failing to consider in favor of the accused the delay in the filing of the complaint, which delay is not convincingly explained and which renders the accusation suspicious; and 6. The lower court erred in ordering the appellant to pay the sum of P500 in moral damages to the offended party or to her parents. The evidence for the prosecution discloses that in September, 1960 Fe Castro, a fifteen-year old virgin, was brought by her mother to the house of the appellant and his second wife, Magdalena Copio, a sister of the complaining witness' mother, to serve as a helper. The Fontanilla spouses had been married for two years but were childless, although the appellant had grown-up children by his first marriage who were domiciled elsewhere.

Fe Castro testified that during her stay in the house of Fontanilla for about three months from September to shortly before Christmas of December, 1960, the accused succeeded in having carnal knowledge of her repeatedly, the total number of times she could not recall. She was certain, however, that the accused consummated the first sexual intercourse with her one night in September, about a week after her arrival, when the accused intruded into her bedroom, placed himself on top of her and fondled her nipples. She added that he was able to gain access to her room because the wooden bar used to lock the door did not prevent the said door from being opened when pushed from the outside. She also declared that prior to this incident, the accused had made amorous overtures and advances toward her. Aside from giving her money, the accused repeatedly promised to abandon his wife to live with her. Q. You told us that Mariano Fontanilla had been giving you money. Are there other circumstances that led you to the sexual intercourse? A. He told me, "Come now let us play. I am going to separate your aunt because I love you more than my wife." Q. For how many times had Mariano Fontanilla been promising you this? A. He was telling me all the time. Fe Castro further testified that she subsequently repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation. The accused made love to her during the day when his wife was away and at night when the latter was already asleep. Their intimacies lasted for almost three months until her aunt, the wife of the accused, caught them in flagrante on the kitchen floor. The following day she returned to her parents, and revealed everything to her mother two days later. Mariano Fontanilla, testifying in his defense, admitted that Fe Castro actually lived in his house from September to December, 1960, not as a helper, however, but in consideration of her being a niece of his wife, and was treated as their own child. He vehemently denied having had carnal knowledge of her, as there was never an occasion during which he could have taken advantage of the chastity of his ward, because at night her room was locked and during the day he was out in the farm. Q. When the offended party testified before the Court she stated that the first time you had sexual intercourse with her was a certain night in September and you said to her, "You are very beautiful. Come let us play." What do you say to this allegation? A. I did not do that, sir. Q. How is it possible or will circumstances afford you of getting inside her room and take advantage of her being a woman? A. No, sir. It cannot be. Q. Why could it not be that you could enter the room and take advantage of her womanhood? A. Because the room is locked. xxx xxx xxx

Q. The offended party further testified in Court that you did the sexual intercourse daily, one in the day time and one in the nighttime. Will you mention before this Honorable Court if you can commit sexual intercourse in the day time? A. That cannot be, sir. Q. Why could you not possibly do the sexual intercourse in the day time? A. Because I am in the farm, sir.

Q. Sometimes when you are in the farm, during lunch time Fe Castro would bring your food in the farm? A. No, sir. Q. And when you go home to your house in the day time for example you take your lunch. So it is possible for you to have sexual intercourse with the offended party? A. No, sir. It is not possible during day time. Q. Who are your companions in your house in the day time? A. My wife and also our neighbor who used to come. Fontanilla declared that another reason why it was not possible for him to seduce Fe Castro was that his sexual capabilities had waned considerably because of old age, as he was already 52 years old at the time of the supposed commission of the crime charged. He admitted that despite the fact that he had been married for only two years to his second wife, he made love to her only once a week. Under these circumstances, it was impossible for him to have indulged in sexual intercourse with Fe Castro twice daily. The accused advances the theory that the instant case was filed against him upon the malevolent instigation of one Avelino Gapasin, an uncle of Fe Castro, who wielded strong influence over her, adding that the complainant herself was envious of his (Fontanilla's) children of the first marriage who received some salary from their employment. This allegation was indirectly corroborated by a witness for the defense, Mayor Antonio Aquino of San Juan, La Union, who testified that he endeavored to settle the case by proposing that the accused pay P50 which was due to Fe Castro as her share in the cultivation of tobacco, but the complaining witness through Avelino Gapasin refused the offer and the latter then insinuated that the amount of P2,000 should be paid, which sum he believed would be sufficient reparation for "the honor destroyed." Magdalena Copio 51-year old wife of the accuse, corroborated her husband's statement that they indulged in sexual intercourse only once a week. She also stated that during the three months that Fe Castro stayed with them, there was no unusual incident or sexual relation between her husband and her niece. She denied having caught the accused in a compromising situation with the offended party. She also testified that she slept regularly from 7:00 p.m. to 12:00 midnight, after which she seldom could go back to sleep, and that she was easily awakened by the slightest noise. She categorically declared that her husband slept with her in the same bed every night. For the first time on appeal, Fontanilla challenges the jurisdiction of the court a quo the justice of the peace court of San Fernando, the capital of La Union - alleging that it had no jurisdiction to try and decide this case, for two reasons: (1) the crime charged according to the indictment was committed in San Juan, a municipality outside the territorial jurisdiction of the court a quo; and (2) original jurisdiction over the crime of qualified seduction belongs exclusively to the court of first instance, and not to the justice of the peace court of the provincial capital. The appellant's theory finds no basis in the then governing provisions of the Judiciary Act when the instant action was commenced on February 28, 1961. It is a settled rule that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action.1 The pertinent statutory provision then in force was section 87(c), paragraph 3, of Republic Act 296, as amended by Republic Act 2613, which unequivocably provided that "Justices of the peace in the capitals of provinces and Judges of Municipal Courts shall have like jurisdiction as the Court of First Instance to try parties charged with an offense committed within the province in which the penalty provided by law do not exceed prision correccional or imprisonment for not more than six years or fine not exceeding three thousand pesos or both ..." (Emphasis supplied.) It is therefore beyond dispute that under the then existing law all offenses committed within the province, provided that the penalty prescribed did not exceed prision correccional or a fine not exceeding P3,000 or both, were triable by the justice of the peace courts of provincial capitals. Since the penalty prescribed for qualified seduction under article 337 of the Revised Penal Code is prision correccional

in its minimum and medium periods, the instant case was clearly within the periphery of the concurrent jurisdiction of the court a quo. It was only on June 22, 1963, more than two years after the institution of the case at bar, that the above-cited provision of the Judiciary Act was amended by Republic Act 3828. The pertinent provision is now section 87(c), paragraph 4, which, as amended, reads: Municipal judges in the capitals of provinces and subprovinces and judges of city courts shall have like jurisdiction as the Court of First Instance to try parties charged with an offense committed within their respective jurisdictions, in which the penalty provided by law does not exceed prision correcional or imprisonment for not more than six years or fine not exceeding six thousand pesos or both.... Republic Act 3828 introduced two significant changes: (1) the concurrent jurisdiction of municipal courts in the capitals of provinces and sub-provinces and of city courts with the courts of first instance has been territorially localized and limited to the proper offenses committed "within their respective jurisdictions," while previously said courts could take cognizance of the proper offense committed "within the province;" and (2) the proper offenses cognizable include those where the pecuniary penalty (fine) does not exceed P6,000, an increase over the previous P3,000 limit. The first of the above-mentioned changes unmasks the fallacy of the appellant's theory that even under the then existing provision, the concurrent jurisdiction of the justice of the peace courts of provincial capitals with the courts of first instance was already confined to their respective territorial limits. If this were true, then Congress would have had no reason to enact the foregoing amendment which eliminated the phrase "within the province" and in its place substituted the delimiting phrase "within their respective jurisdictions." The foregoing notwithstanding, the appellant insists that justice of the peace courts of provincial capitals, like the court a quo, have no jurisdiction over the crime of qualified seduction because of the provisions of article 345 of the Revised Penal Code by virtue of which the court must, in addition to the imposition of a prison term ( prision correccional minimum to medium in case of qualified seduction) which the accused must suffer, require him to indemnify the offended woman, to acknowledge the offspring unless the law should prevent him from so doing, and in every case to support the offspring. The theory of the appellant is that the imposition of the enumerated civil liabilities increases the punishment, thereby divesting the justice of the peace courts of the capitals of provinces of jurisdiction and consequently confining original and exclusive jurisdiction over the offense to courts of first instance. This contention is obviously untenable because section 37(c), paragraph 3 [now sec. 87(c), paragraph 4] of the Judiciary Act grants the justice of the peace courts (now municipal courts) of provincial capitals concurrent jurisdiction with courts of first instance over offenses for which the penalty provided by law does not exceed prision correccional or imprisonment for not more than six years or fine not exceeding P3,000 (now P6,000). This concurrence of jurisdiction is based upon the duration of the imprisonment and/or the amount of the fine imposable, irrespective of the civil incidents or obligations which may attach to the offense charged. So that any civil liability attaching to the offense concurrently cognizable by the courts of first instance and the justice of the peace courts of provincial capitals can also be imposed by the latter because these have been conferred jurisdictional parity. The appellant cites as authority for his theory the case of U.S. vs. Bernardo,2 a seduction case in which this Court, with a slim majority of four justices (three justices dissented), said: These obligations imposed upon the culprit ordinarily exceed the amount of the penalty fixed by the law as being within the jurisdiction of the justice of the peace court and compromise, moreover, by virtue of the forced recognition imposed by article 135 of the Civil Code, the special determination of offspring which resulted from the crime, consequently, although the said crime of seduction is only punished by the penalty of arresto mayor, a judgement of conviction cannot be pronounced by a justice of the peace, on account of his lack of jurisdiction..

But disregarding the amount of the indemnity, whatever it be, according to the conditions and circumstances of the offended party and of the one obliged to furnish the same, which amount might be greater than that fixed by law as within the jurisdiction of justice of the peace courts, the acknowledgement of the resulting offspring, one of the findings which the sentence must contain, establishes by force of law the civil status of the child whose acknowledgment is necessarily upon the guilty party; so with much less reason could the crime fall within the jurisdiction of the justice of the peace court, inasmuch as, in accordance with specific legal provisions, only the judge of the Court of First Instance can make such pronouncements. As correctly contended by the Solicitor General, however, "there is a big difference between the case of U.S. vs. Bernardo, supra, and the present case, in that while the Bernardo case involved the original exclusive jurisdiction of the justice of the peace courts, the present case touches a concurrent jurisdiction of the justice of the peace courts in the capitals of the provinces and Courts of First Instance." Furthermore, "It would be going a long way to say that an indemnification or a restitution or a reparation is a fine or an imprisonment under any definition found in the criminal law of any country. The jurisdiction of the court is determined by the amount of the fine and imprisonment. An indemnification or a reparation or a restitution is merely an incident of the crime. The jurisdiction of the court is not fixed by the incident but by the nature of the crime itself. Legally speaking, the nature of the crime is determined by the punishment imposed... The jurisdiction of courts of justice of the peace over crimes being determined exclusively by the amount of the fine and imprisonment imposed by law, that is by the legal nature of the crime, and in no manner and to no extent whatever by the civil incidents which accrue to the person injured by the commission of said crime, such courts have jurisdiction of the crime presented in the case at bar, the punishment prescribed by law for such crime being (then) simply arresto mayor."3 We now proceed to the merits of the case. The atmosphere of secrecy and privacy which pervades the commission of crimes against chastity, coupled with the consequent dearth or even absence of witnesses, constrains the courts to rely in no small measure upon the uncorroborated testimony of the complaining woman whose testimonial and personal credibility assumes pivotal importance. It is against this situational backdrop that we proceed to discuss the issues of fact posed by the appellant. Fontanilla contends, among others, that the court a quo erred in finding there that there is evidence to show that he had sexual intercourse many times with the complainant Fe Castro. We disagree. After a thorough study of the record, we find that the complainant's testimony, in direct as well as in cross-examination, is entitled to essential credence. She declared that Fontanilla had carnal knowledge of her one night in September, 1960 in the house of the former where she was staying as a maid, and that since then up to December of the same year, Fontanilla had sexual intercourse with her repeatedly, sometimes at night. sometimes in the daytime, but always when his wife was asleep or away. Significantly, convincing proof of the first sexual intercourse would suffice to affirm the conviction of the appellant without necessity of proving the subsequent instances of carnal liaison. The following frank and revealing testimony of the offended woman appears on record: Q. When you were with the Fontanillas, do you know if there was anything unusual that took place? A. He fooled me. Q. Who fooled you? A. Mariano Fontanilla. Q. What do you mean by fooled you? A. He had sexual intercourse with me. xxx xxx xxx

Q. When did Mariano Fontanilla start having sexual intercourse with you?

A. One week after my arrival in their house. Q. For how many times did Mariano Fontanilla have sexual intercourse with you? A. Very often when I was in their house. xxx xxx xxx

Q. For how many times after September? A. I could not count anymore, sir. xxx xxx xxx

Q. Do you mean to tell us that he had been having sexual intercourse with you during the three (3) months you stayed with them? A. Always. COURT: Q. Now, usually what time did you have that sexual intercourse? A. Day and night. Q. And where did you do sexual intercourse during the day time? A. When I iron their clothes in their house. Q. Was there no other person in that house during the day when you have been ironing clothes? A. The wife is not there. Q. Do they have any children? A. They have no children. xxx xxx xxx

Q. When you left the house of Mariano Fontanilla and returned to your house in barrio Allangigan, was it with the consent of Mr. and Mrs. Mariano Fontanilla? A. They allowed me to go home. Q. Why did you go home? A. I left sir, because the wife of Mariano Fontanilla discovered what we have been doing. When asked upon cross-examination to narrate the circumstances surrounding the first intercourse, Fe Castro testified thus: Q. Now, what were you doing in your room when Mariano Fontanilla first came in? A. I was already sleeping. Q. And how were you awakened from your sleep?

A. When I woke up, he was on top of me holding my nipples. xxx xxx xxx

Q. Can you remember the date of the week when Mariano Fontanilla consummated his first sexual intercourse with you? A. I don't remember the date. Q. Do you remember what time? In the morning or afternoon? A. Night time. Q. Do you remember what were the actual words of Mariano Fontanilla when he consummated his first sexual intercourse with you? A. "How beautiful you are, my daughter! I wish I could marry one as beautiful as you. Come let us play. Q. After he uttered those words, what did he do to you? A. He was placing his private parts in mine. Q. Do you mean to say he did not remove your panties first? A. He removed it. Q. Did you offer any objection when he made those acts to you? A. He told that "If you are going to move, I am going to club you." Q. And you never uttered a word of what he is doing? A. I did not complain anymore because I was afraid." xxx xxx xxx

Q. Now, it was in the evening of that day when he started caressing you in the kitchen when he had that first sexual intercourse with you, is that right? A. Yes, sir, the same night he came to the room. xxx xxx xxx

Q. This room where you had your intercourse with the accused was there a lock in the door? A. There is a piece of wood that is used as a bar but if you push it, it will be opened. The foregoing testimony of the aggrieved woman belies the contention of Fontanilla that there is no evidence showing that he had carnal knowledge of Fe Castro. Of course no other witness was presented by the prosecution to corroborate the testimony of the victim with respect to the actual act of seduction, nor to the amorous overtures of the accused before the first sexual intercourse, nor to their subsequent carnal acts. But this is quite understandable because aside from Fontanilla and Fe Castro, there was only one other person in the house of the accused his wife, who was either asleep or away when the two indulged in their illicit love-making. As previously intimated, the final verdict would principally hinge on the testimonial and personal credibility of the complaining witness.

Assailing the credibility of the complainant, Fontanilla contends that Fe Castro has malevolent and ulterior motives for filing this case against him. He alleged that Fe Castro was envious of his children by his first marriage who had some income. In our view, this is a flimsy rationalization which the accused, significantly, did not even attempt to substantiate. Fontanilla also argues that Fe Castro was induced and pressured by her uncle Avelino Gapasin to file the criminal complaint. Testifying on this point, Mayor Antonio Aquino of San Juan, La Union, stated that he tried to settle the case by proposing that the accused pay the complainant P50 as the latter's alleged share in the tobacco harvest; and that this proposal was refused, however, by Fe Castro, thru Gapasin, on the ground that the amount offered would not even be sufficient to defray the expenses for the delivery of the child which the victim mistakenly thought she was conceiving as a result of Fontanilla's carnal knowledge of her. Aquino also claimed that Gapasin insinuated that any compromise amount must be equal to the "honor destroyed" and he, Gapasin, suggested P2,000. The foregoing testimony was presented by the defense to prove its allegation that Fe Castro was pressured into filing the case at bar. Standing alone, Gapasin's objection to the proposed compromise does not prove that he induced the victim to denounce Fontanilla in court. On the contrary, from the actuations of Gapasin it can be inferred that he was just trying to protect the interest of his niece who was offered so meager an amount as settlement for an offense which caused the latter the irredeemable loss of her virginity. Furthermore, it is on record that prior to the overtures at settlement, the complaining witness had already gone to the office of the provincial fiscal of La Union to file charges against Fontanilla. Aquino himself admitted upon cross-examination that he had requested Fiscal Crisogono Bautista to postpone the filing of the complaint to enable him to settle the case, and that the proposed compromise was his idea and made upon his own initiative. This admission shows that the filing of the instant case preceded, and was not due to, the failure of the alleged proposed compromise. The appellant further contends that the complainant's testimony does not merit credence because it is hazy and selfcontradictory. He argues that if it is true that he repeatedly promised to marry Fe Castro in order to deceive her into submitting to his carnal designs, why did the latter allegedly consent to the continuance of their illicit liaison even after it was evident that he would not fulfill his promise to marry her? A situation like this, says the appellant, borders on the incredible and suggests that there was actually no promise of marriage and consequently there was no resultant carnal relation between him and the complaining woman. This "unthinkable" situation pointed out by the appellant was quite reasonably explained by the complainant in a frank, albeit embarrassing, reply contained in her sworn statement (exh. A-1) taken in the office of the provincial fiscal of La Union on January 31, 1961. Upon interrogation, Fe Castro declared: Q. Despite his many promises which he never fulfilled, why did you still continue to have relationship with him? A. Because I was beginning to like him and enjoy this sexual intercourse. Underscoring the above statement of Fe Castro, Fontanilla claims that it exposes in fact the fabricated nature of the case against him, because for a woman to continue having sexual relations with a man even after a patent breach of the latter's promise of marriage, is unthinkable and alien to human experience. We believe, on the contrary, however, that the said statement of the aggrieved woman does not make her testimony incredible for it evinces basic honesty and sincerity on her part, even to the extent of admitting something which could conceivably put her to shame and ridicule. Anent the said marital promise, Fontanilla also claims that there is no evidence on record supporting its veracity. Granting this to be correct, it is nevertheless settled that deceit, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by abuse of confidence. When the offender is a public officer, a priest or minister, a servant, domestic, tutor, teacher, or under any title is in charge of the education or keeping of the offended woman, as in the present case, the act is punishable although fraud or deceit may not have been used or, if employed, has not been proved.4 The seduction of a virgin over twelve and under eighteen years of age, committed by any of the persons enumerated in art. 337 "is constitutive of the crime of qualified seduction ... even though no deceit intervenes or even when such carnal knowledge were voluntary on the part of the virgin, because in such a case, the law takes for granted the existence of the

deceit as an integral element of the said crime and punishes it with greater severity than it does the simple seduction ... taking into account the abuse of confidence on the part of the agent (culprit), an abuse of confidence which implies deceit or fraud."5 It is likewise contended for the appellant that the testimony of the complainant is unbelievable because while she denounced the perverse and criminal conduct of the accused, in the same breath she described the relation between the accused and his wife as harmonious and cordial. The alleged inconsistency in this regard is more apparent than real. A man could hide his evil motives and immoral conduct behind a deceptive facade. And it stands to reason that a husband who has illicit relations with a woman who resides in the same house where he dwells with his wife would even be over-solicitous with the latter to camouflage his infidelity. Fontanilla also challenges the credibility of Fe Castro's account regarding his having been discovered by his wife in the act of sexual intercourse with the complainant on the kitchen floor. He argues that had such a discovery actually been made, the natural reaction of his wife would have been to lay hands on both of them (Fe Castro and himself), with the complainant taking the most punishment since women are inherently possessive and are merciless upon those who attempt to take away their loved ones. Fe Castro did not testify on such a hostile reaction. We are inclined to believe, however, that women are bound to react differently to the same or similar situations. There is no sufficient reason to discredit Fe Castro's testimony that when they were discovered in flagrante by Magdalena Copio, the appellant's wife and her aunt, the latter verbally chastised Fontanilla for having "fool(ed) this little girl." The appellant's wife, then 51 years old and twice married, most probably knew that it was her 52-year old second husband, the herein appellant, who was at fault and thus spared her 15-year old niece from any punishment. It is conceded that the testimony of Fe Castro suffers from some inconsistencies; these, however, could be attributed to her minority (she was barely 16 years old at the time of the trial), lack of education (she had reached only grade III), perceptibly low intelligence, and to the understandable partiality of a litigant to her cause. On the whole, we find that the complainant's testimony is credible and convincing. Furthermore, we believe that no other reason impelled Fe Castro in instituting this case against her very kin, and exposing thereby her sordid experience to public scrutiny and suffering as a consequence the travail of trial, than to seek justice for herself. The appellant further claims that the court a quo erred in failing to consider the unexplained delay in the filing of the complaint, which delay renders the accusation suspicious. It is relevant to note that the accused did not raise this issue before the court a quo. Anent the alleged delay, the Solicitor General states that it can easily be explained "by the fact that the complainant was not accusing a person who was a total stranger to her but the husband of her mother's sister. The attempt of the older people to thresh out their differences and to settle the case amicably had brought about the said delay." It appears on record that Fe Castro left the house of Fontanilla on December 18, 1960, and two days thereafter she informed her parents of what Fontanilla had done. Forthwith she and her parents decided to bring the case to court, and on January 13, 1961 Fe Castro had herself examined in the La Union Provincial Hospital, with the name of Fiscal Bautista appearing in the medical certificate as the requesting officer, which means that prior to January 13, 1961 Fe Castro had already gone to the office of the provincial fiscal presumably to complain against Fontanilla. The criminal complaint was filed only on February 28, 1961 because as previously stated, Mayor Aquino had requested Fiscal Bautista to postpone the filing of the indictment to give the former sufficient time to attempt at an amicable settlement of the case. We now come to the basic defense set up by Fontanilla, which is a denial of his having had carnal knowledge of Fe Castro whom he admits was once his ward. His denial is anchored on two grounds: (1) there was no occasion during which he could have violated the chastity of the complainant because during the night the room of the latter was locked and during the day he was always out in the fields; and (2) at the age of 52, his sexual potency had considerably waned as proved by the fact that he had sexual intercourse with his own wife only once a week. The court a quo did not accord credence to this defense, and we are of the view that in this regard the court did not err.

The complainant testified that the wooden bar which she used to lock the door of her room did not prevent the said door from being opened when pushed from the outside. Thus, Fontanilla had easy access at night to Fe Castro's sleeping quarters. Considering the general make-up of residential houses in the barrios, we believe that the complainant's statement is essentially true. With respect to the appellant's argument that during the day he had no opportunity of being alone with the complainant, he himself admitted upon cross-examination that there were times when he would be home earlier than his wife and would ask Fe Castro to serve him food. As there was no other person in the house during such occasions Fe Castro and Fontanilla naturally would be alone together. The appellant also admitted that whenever his wife went to market she would be away for two or three hours. He hastened to add, however, that each time his wife left for the market she advised Fe Castro to stay with their neighbor. Granting that Fe Castro would really go to their neighbor's place which was only five meters away from their house, it is not improbable that Fontanilla would call her back once his wife had left. Thus, the very record of the case belies the defense of the appellant that there was no occasion when he could have violated the chastity of his ward. The appellant also contends that it was impossible for him to have indulged in sexual intercourse with the complainant twice a day, because even with his wife he made love only once a week. Fontanilla attributed his diminished virility to old age as he was already 52 years old at the time of the commission of the alleged crime. This declaration was corroborated by his wife, Magdalena Copio who went to the extent of vouching that two years after their marriage they did not indulge anymore in sexual relations. We believe, nonetheless, that the appellant's claim is untenable. In the first place, the complainant did not say that Fontanilla had her twice a day during the three months that she stayed with him and his wife. When asked what time they indulged in sexual intercourse, she replied "Day and night." (t.s.n., p. 6) This answer of the complainant cannot be interpreted to mean that they had sexual intercourse twice daily (one in the daytime and another at night), for said statement was in reply to a question with respect to the time when they engaged in carnal intercourse and not the frequency of their illicit love making. In the second place, there is a presumption that an adult male has normal powers of virility and the burden of proving the contrary rests on the party asserting it.6 We believe that the declarations of Fontanilla and his wife on the former's alleged weakening potency are not sufficient to rebut this presumption. Alfred W. Herzog has cautioned that "one must be very careful not to express the opinion that a man on account of his age is either sterile or impotent."7 Hence, a party who claims loss of virility, or waning potency for that matter, must bolster his assertion clinically with the aid of a competent and expert witness. On the other hand, the prosecution presented Dr. Magno K. Guerrero, the physician at the La Union Provincial Hospital who examined the victim. Dr. Guerrero testified that the hymen of Fe Castro showed "incomplete healed lacerations at 9 & 3 o'clock positions on the face of a watch, edges of which are sharp and easily coaptable." He explained that healed lacerations would suggest that the injury happened six months, more or less, prior to the date of examination. In the case at bar, since per medical findings the hymen of the complainant showed "incomplete healed lacerations," then this fact would indicate that the injury occurred less than six months before February 12, 1961, the date of the medical examination of Fe Castro. Significantly, said period corresponds to the time when Fe Castro stayed as a helper in the house of the Fontanilla spouses. Upon crossexamination, Dr. Guerrero testified: Q. Dr. Guerrero, you stated that it (the laceration) should last less than six (6) months counting from? A. From the time I examined. xxx xxx xxx

Q. Disregarding the history of the patient, from your observation of the patient, how many sexual intercourses could have caused the lacerations taking into consideration the condition of the hymen? A. Several intercourse because of the laxity of the vaginal canal and it admits three (3), fingers. Q. How many intercourses could have caused that?

A. Several. More than ten (10) times. xxx xxx xxx

Q. And those lacerations could be caused ten (10) times or more? A. Ten times or more. Q. How many more? A. Another ten (10) times more. It is clear from the above testimony that Fe Castro had experienced numerous distinct acts of sexual intercourse, a fact which affirms her claim that the appellant had carnal knowledge of her repeatedly during her three-month stay in his house. There is no evidence on record that Fe Castro, then a 15-year old single girl, was unchaste prior to her living with the Fontanilla spouses. Such being the case, her virginity before she was seduced by the appellant must be presumed. Presumption of a woman's virginity arises whenever it is shown that she is single, and continues until overthrown by proof to the contrary. 8 This is in accord with the presumption of innocence which "includes, also, that of morality and decency, and, as a consequence, of chastity." 9 We are of the considered opinion that the findings of fact reached by the court a quo are substantially correct. This, apart from the rule that "as far as credibility and veracity of witnesses are concerned, the conclusions of the lower court command great weight and respect, on the ground that the trustworthiness of witnesses and the merit of the defenses by the accused, are in the peculiar domain of the trial court."10 In the case at bar, we see no reason for departing from this doctrine, there being no showing that "some fact or circumstance of great importance to the case has been overlooked in the records or misapplied or its significance misunderstood by the lower court."11 The appellant finally contends that the lower court erred in ordering him to pay P500 in moral damages to the offended party or to her parents. Ironically, this contention is correct in two respects. The first is that the award of P500 in moral damages is inadequate. We have heretofore stated that the complainant was a virgin, there being no proof to the contrary, and that she was deflowered by the appellant. The loss of her virginity, at the hands of the appellant, together with the attendant shame and scandal, entitles her, in the view of this Court, to the sum of P2,500 in moral damages. Her future as a woman is definitely impaired, and the resultant prejudice against her engendered in the male population of the barrio where she resides cannot be blinked away. The second error of the lower court is in making the award payable to the offended party or to her parents, which award is, by the very wording of the judgment, in the alternative. Article 2219 of the New Civil Code provides that moral damages are recoverable by the offended party in the cases of "seduction, abduction, rape, or other lascivious acts" and that the "parents of the female seduced, abducted, raped, or abused ... may also recover moral damages." (Emphasis supplied). The conviction of the accused suffices as a basis to adjudge him, in the same action, liable for an award of moral damages, without independent proof thereof, to the victim and her parents, because the law presumes that not only the woman who was seduced, abducted, raped or abused, but as well her parents, naturally suffer besmirched reputation, social humiliation, mental anguish, and wounded feelings. In the case at bar, moral damages must be awarded to the offended woman and her parents, not to either of them, as ordered by the court a quo. ACCORDINGLY, the judgment appealed from is affirmed, with the modification that the appellant is ordered to pay the sum of P2,500 in moral damages to the offended party and her parents. Costs against the appellant. G.R. No. L-32895 February 28, 1983 EUSEBIO BABANTO, petitioner, vs. HONORABLE MARIANO A. ZOSA, Presiding Judge, Branch III, Court of First Instance of Misamis Occidental, et al., respondents. GUTIERREZ, JR., J.: The petitioner who had been charged with the offense of rape punishable under Art. 335 of the Revised Penal Code questions the decision of the Court of First Instance of Misamis Occidental convicting him of the lesser offense of qualified seduction.

The complaint states: The undersigned complainant after being duly sworn to in accordance with law, accused Eusebio Babanto of the crime of Rape, committed as follows: That on or about the 24th day of October, 1969, in the town of Oroquieta, province of Misamis Occidental, Philippines and within the jurisdiction of this Honorable Court, the said accused abusing his position as a policeman of Oroquieta and taking advantage of the night time and of the feeble minded (sic) condition of the complainant who is of tender age of 13, with the use of his service firearm and by means of violence and intimidation, did then and there willfully, (sic) unlawfully and feloniously have carnal knowledge of the undersigned complainant Leonida Dagohoy, against her will inside the ABC Hall which happen to be dark. (sic) Contrary to Art. 335 of the Revised Penal Code as amended by Republic Act No. 4111, with the aggravating circumstances of (a) night time and (b) abuse of public position. " (Original Records, p. 1). The trial court did not find the accused guilty of the rape charged. Instead, it found him guilty of the lesser offense of qualified seduction. The trial court opined that considering the evidence on record, accused Babanto actually had sexual intercourse with complainant Leonida Dagohoy but that such sexual intercourse was not committed through the use of any violence or intimidation. The dispositive portion of the decision reads: ... the Court finding the accused guilty beyond reasonable doubt of the crime of Qualified Seduction, he is hereby punished to suffer imprisonment of from SIX (6) MONTHS and ONE (1) DAY to FOUR (4) YEARS and TWO (2) MONTHS of Prision correccional in its minimum and medium periods; to indemnify the offended girl in the amount of P3,000.00; to recognize the offspring which may be born out of the crime committed, there being no positive proof that he was castrated, and if castrated the castration was successful, his uncorroborated statement was not enough; to suffer the other accessory penalties provided for by law; and to pay the costs. His dismissal from the service is strongly recommended. (Original Records, p. 94). A motion for reconsideration filed by the accused-petitioner was denied by the trial court. Hence, this petition. The Solicitor General in a manifestation filed on February 6, 1971 before this Court shares the petitioner's view that under the complaint, quoted earlier, the petitioner could not be legally convicted of the lesser offense of qualified seduction. We agree with this statement of Justice Felix Q. Antonio, the then Solicitor General. Under Article 337 of the Revised Penal Code, the elements of qualified seduction are: (1) the offended party is a virgin; (2) she must be over 12 and under 18 years of age; (3) the offender has sexual intercourse with her; and (4) the offender is a person in public authority, priest, house servant, domestic, guardian, teacher, one entrusted with the education or custody of the offended party, or a brother or ascendant of the latter. The complaint alleged that the accused abused his position as a policeman, that Leonida Dagohoy was of the tender age of 13, and that the accused had carnal knowledge of the complainant. However, there is no allegation that the complainant was a "virgin". It is true that virginity is presumed if the girl is over 12 and under 18 years of age, is unmarried and of good reputation. The presumption notwithstanding, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. A conviction for the crime of qualified seduction without the allegation of virginity would violate the petitioner's right to be informed of the nature and cause of the accusation against him. (Sec. 1 (c), Rule 115, Rules of Court; Sec. 1(17), Art. III, 1935 Constitution; Section 1 (19), Art. IV, Constitution; People v. Castro, 58 SCRA 473; People v. Ramirez, 69 SCRA 144). In the same manifestation, the Solicitor General however recommends " ... that the merits of the case be certified to the proper appellate court for review as the evidence may sustain a finding of guilt of the crime of RAPE." As a matter of correct procedure, this case should have been raised to the Court of Appeals in a regular appeal, instead of the accused coming to the Supreme Court directly.

As pointed out by the Solicitor General in the manifestation filed on February 6, 1971, "after all, by this Petition for Review, petitioner in effect is appealing from the judgment of conviction." The then Solicitor General, Justice Felix Q. Antonio quoted the court's impressions of the testimonies of witnesses as follows: (a) Antonia Simbajon Dagohoy ... On further investigation, she was able to pry from her that she was sexually abused by a man, a certain policeman by the name of Eusebio Babanto. (b) Sida Ranudo Sometime after January 15, 1970, Eusebio Babanto passed by her house and dropped in and asked her what the girl (Leonida told her. She told Babanto that Leonida said that he brought her to the ABC Hall and had her sit while he (Babanto) placed his gun on the second tier of the grandstand; spread papers on the cement floor and let her lie on the paper, while he (Eusebio Babanto) took off his trousers. When the penis of Babanto stood errect, Babanto mounted her and she exclaimed ouch! ouch! Babanto admitted this narration to be true. In fact she told Babanto if it is true; why did he not surrender and confess. Babanto in turn told her that he will not. It would be shameful as he is a police officer, (c) Leonida Dagohoy (victim) At dawn of October 24, 1969 she was in the market of Oroquieta sitting leisurely. While thus sitting, Eusebio Babanto, a policeman, came and held her by the right hand at the same time saying: I will bring you to the municipal building. 'She accompanied and went along with him because she was being held. But they did not reach the municipal building because Eusebio Babanto brought her to the ABC Hall. The hall was empty and there was nobody in. It was dark. In the ABC Hall, Eusebio Babanto made her lie down face upward. Then he lifted her dress and pulled down her pantie. She felt pain in her vagina when his penis penetrated her sexual organ. She cried. He completed the act, stood up and left her; told her that if she tells her parents, he will shoot her. Eusebio Babanto was in uniform and with a side arm. She did not shout because he held her mouth. After Babanto left her, she put on her pantie back and felt her vagina was bleeding. She was then wearing a blue dress. When morning came, she took a bath and washed her pantie. When Babanto left her that dawn in the ABC Hall, she went to the seashore. She did not report to her parents because she was afraid of Eusebio Babanto when he said that he will kill her if she tells her parents. But eventually her parents came to know of what happened to her that she was abused because they investigated her. Ultimately, she confessed to them. So, they brought her to the hospital and had her examined by a doctor. When the accused filed his brief on April 2, 1971, he ignored the factual considerations raised by the Solicitor General and insisted on an acquittal based on the error in his conviction for qualified seduction. Considering that the penalty for rape is reclusion perpetua which is within our appellate jurisdiction and that no useful purpose would be served by referring this case to the Court of Appeals only to have it return to us from that court, we decided to fully review the entire records, which we ordered transmitted from the trial court, and to go into all aspects of the case. On June 4, 1971, the Solicitor General repeated his earlier stand that the petitioner cannot be convicted for the crime of qualified seduction under the information filed against him, however under the circumstances of the case, he can be convicted of rape. The Solicitor General recommended "that the merits of the criminal case be certified for review by the proper appellate court and petitioner-accused be not discharged and instead be made to pursue his Petition for Review in the form of an ordinary appeal. " On June 22, 1971, we issued a Resolution informing the petitioner that "he may file a reply to the said memoranda (of the Solicitor General) within 10 days from notice hereof, if he so desires. " The petitioner opted to be silent. The records show that complainant Leonida Dagohoy was a thirteen year old girl at the time of the commission of the alleged rape. Leonida was not a normal 13 year old girl because, while she was able to reach Grade One, she was of considerably low

mentality. She also had a peculiar trait of going out during nighttime without her parents' consent. As a child, her mother said that "she used to go out during night just to pick up some fruits falling from our neighbors. When she is already matured she used to go with me to the public market alleging that she will help me watch my store. (TSN, March 10, 1970, p. 4) She would escape from their house from 2:00 o'clock AM until dawn. (TSN, March 10, 1970, p. 5) Because of this peculiarity, her mother built a cage for Leonida to prevent her from going out. (TSN, March 10, 1970, p. 5.) Leonida narrated the incident of October 24, 1969 wherein accused petitioner allegedly raped her as follows: At dawn of October 24, 1969, she was seated in the market located at Oroquieta City, when the accused petitioner Babanto, a policeman approached her and held her right hand. Babanto told her that they will go to the municipal building and she went with him because he held her. However, she was not brought to the municipal hall. Instead Babanto brought her to the ABC Hall. There was no one in the ABC Hall and it was dark. When they arrived at the ABC Hall, Babanto made her lie down with her face upward. While she was in this position, Babanto lifted up her dress and took away her panty. While Babanto was lifting her dress and removing her panty, she kicked him but he held her down. Then Babanto exposed his penis, laid down on top of her and commenced the sexual act. She felt pain in her vagina as his penis penetrated. She could not shout when she was being abuse because Babanto covered her mouth, Leonida then cried. After the sexual act Babanto told her that if she was going to tell her parents he was going to shoot her. Thereafter, Babanto left her. While putting back her panty, she noticed her vagina "bloodbleeding. " The following morning she took a bath and washed her panty smeared with blood. She did not report the incident to her parents because of the threat on her life by Babanto. At the time of the incident, Babanto was in uniform with a sidearm. Leonida knew him well. She said that Babanto's daughter was her friend. (TSN, April 1, 1970, pp. 63-70). Leonida's mother who, after observing her to be weak and quite feverish while in the cage where she was placed, asked her "if she was not abused by any man." According to her mother, she had to ask her for the second time before Leonida admitted that she was abused sexually by a man whom she identified as a certain policeman, Eusebio Babanto. (TSN, March 1970, pp. 5-6) Leonida's mother then informed her husband about Leonida's story. They decided to have Leonida medically examined. Leonida was examined on October 27, 1969 by Dr. German Garcia, Chief of the Provincial Hospital who issued a medical certificate, (Exh. "B ") with the following findings: old healed lacerations of Hymen at nine and three o'clock. Vaginal opening easily admit one finger but admit two fingers with ease. The accused-petitioner denied the rape charge. His own version of the incident of March 24, 1969 is as follows: On the night of March 24, 1969, he together with Patrolman Apos was assigned to patrol Washington Street from 12:00 to 6:00." While on patrol, at about 1:00 o'clock a.m., he and Apos noticed a girl and a boy going to the public market coming from the Filipino bakery. They followed the said boy and girl to find out those persons were. They reached up to the police station where they saw the girl sitting there alone without the boy. The girl turned out to be Leonida Dagohoy, the complainant. They investigated the girl asked her name and her address. The girl however, did not answer but instead she lowered her hand. They decided to bring Leonida to the municipal building because she is only roaming and in order that she can be protected. While they were walking side by side, Babanto asked her again as regards her name, residence name of her parents, but she did not answer and instead she would only lower her hand. At this time they were within the premises of the Southern Capital Colleges with Patrolman Apos behind them, about "five fathoms (sic) from them." While walking towards the municipal building, they met a patrol car. In the patrol car were Patrolman Tabamo and Sgt. Bongabong of the police force of Oroquieta City. The patrol car stopped in front of Patrolman Tabamo (sic) and they "were conversing and I who was a bit ahead stopped with the intention to listen to what they were conversing." Leonida proceeded to walk and he followed her. At this time Babanto was four fathoms more or less behind Leonida. Leonida proceeded to the ABC Hall. Since the accused was not able to overtake her, he proceeded to the municipal building. Upon reaching the municipal building Babanto verified from the guard, a certain Saniel if a girl passed by there. Saniel told him there was none. Patrolman Apos who arrived later asked also about the girl. He then, recorded the event in the police blotter, after which he together with Apos went back on patrol. They never saw Leonida during, the duration of their assignment. Babanto said that before this incident he never knew complainant Leonida (TSN, April 27, 1970, pp. 96-102). Babanto's foregoing testimony was corroborated by Patrolman Apos. Patrolman Saniel, the guard at that time in the municipal building and Ricardo Sambo, a detained prisoner at the municipal building confirmed that at about 1:00 o'clock dawn of October 24, 1969, Babanto, arrived at the municipal building and reported about a girl (Leonida) whom he arrested in the public market with Patrolman Apos but who was able to run away. Given the two versions of the incident, the trial court gave credence to the prosecution's version. The trial court held:

From the declaration of the girl the Court can not conceive of any probability that the intercourse took place with violence or intimidation although the Court believes that the accused had sexual relation with the complaining witness at the ABC Hall of Oroquieta, Misamis Occidental. The testimony of the girl herself who declared on the abuse is very clear that the accused at the public market on the pretext to protect her ordered her to come along with him to the municipal building but instead to the ABC Hall near the municipal building, By the way, the ABC Hall is an annex to the municipal building. In the ABC Hall the accused had sexual intercourse with her. The only intimidation that can be gathered from the declaration of the complaining witness is what the accused hurled at her that he will kill her if she tells her parents after the act. It was very well said by Pacheco 'that rape is not to be presumed, Consent, not force, is the common origin of the act between man and woman. Strong evidence must be produced to prove rape' In this instant case, the elements of rape were not proved although as stated above, the Court is positive that the accused had sexual intercourse with Leonida Dagohoy, a 13 year-old, feeble minded, illiterate girt as cooperative and willing, who submitted herself to the desires of the accused as a police officer. The Court does not give any credit whatsoever to the claim of the accussed that he did not touch the girl, much less raped her. The fact is fully established that the accused brought the girl to the municipal building, or was on their way to the municipal building as testified to by Apos, a co- policeman, and witnessed by Sergeant Bongabong and Patrolman Tabamo. This collaborates in fact the claim of the complaining girl that she was ordered to come along to the municipal building but they turned to the ABC Hall where the accused consummated sexual intercourse with her. Considering the circumstances of the case as adduced by the evidence of the prosecution and defense, the Court is of the opinion and so holds that the accused had sexual intercourse with the comlaining girl although there was no violence nor intimidation which preceded the sexual intercourse. The Court, however, takes into consideration the observation it made on the complaining witness that she was 13 years old, a moron, who answers questions in monosyllables as truly reflected in the manifestation of the private prosecutor: Before we proceed. with the examination of the complaining witness, we beg the kind indulgence of this Honorable Court to be patient and understanding in her demeanor. In her, we find her sometimes difficult to communicate. While she answers intelligently, she uses one, two or three words and she does not look at the examiner. If she is advised to speak louder, she will just continue which could tax the patience of the examining counsel. oftentimes she does not answer questions at all and we have no way of knowing whether she understands the question at all. According to the mother this is the usual behavior of the complainant in their house. In this connection, we pray that in some instance we be permitted to ask leading questions to this witness as she sometimes answer only by yes or no. Although the complaining witness was, at the time of the alleged rape of the mentality she was then, that is moron and deeply unintelligent, the Court can not consider this as an element to define the act committed by the accused on the complaining witness within the purview of rape. At most, the accused is guilty, as the Court finds him, beyond reasonable doubt of the crime of Qualified Seduction punished under Article 337 which provides that the seduction of a virgin over 12. years and under 18 years of age, committed by any person in public authority, etc. etc., and the accused taking advantage of and having the girl in his custody, succeeded in having sexual commerce with her; ... (Original Records, pp. 92-94) We agree with the trial court's findings that sexual intercourse took place between the accused-petitioner and complainant Leonida Dagohoy in the manner that Leonida narrated in court. It is inconceivable that a 13 year old mentally deficient girl could create such a story and implicate the accused- petitioner who at that time was a police officer and the father of a friend. There is no evidence on record which could show evil motive on her part that she could, despite her mental incapacity, accuse the petitioner of such a heinous crime as rape. The record shows that the two of them, were really together just about the time the incident happened and that the ABC Hall, where the crime was committed was an annex of the municipal building. Hence, accused-petitioner could have easily gone to the municipal building after the incident, earlier than Patrolman Apos, who admittedly was behind Leonida and the accused-petitioner on their way to the municipal building. Except for Babanto's holding down the girl when she kicked him and covering her mouth when she was in pain there was no violence which accompanied the sexual intercourse. However, we find as erroneous the trial court's conclusion that under the circumstances, where no physical intimidation preceded the sexual intercourse an essential element which could qualify

accused-petitioner's crime to rape is missing. In the case of People v. Franco, (114 SCRA 737) we interpreted intimidation for purposes of the crime of rape as follows: ... And, at this juncture it is well to remember that a father exercises such strong moral and physical influence and control over his daughter that the force or violence, threat or intimidation upon her need not be of such nature and degree as would be required in other cases (People vs. Rinion, CA 61 OG 4422, cited in Revised Edition, Reyes, The Revised Penal Code). It is not necessary that there be sins from Leonora that she put up a resistence, for a sexual act between. father and daughter is so revolting that it would have submitted thereto if her will to resist had not been overpowered (People vs. Alienea, C.A. 45 OG Sept. 5, 1950). The force or violence necessary in rape is naturally a relative term, depending on the age, size and strength of the parties and their relation to each other (People v. Savellano supra.) xxx xxx xxx It is a doctrine well settled by the courts that in order to consider the existence of the rape it is not necessary that the force and/or intimidation employed in accomplishing it to be so great or of such character; it is only necessary that the force and intimidation used by the culprit be sufficient to consummate the purpose which he had in mind. ... In the instant case, considering the age, mental abnormality, and deficiency of the complainant plus the fact that the accusedpetitioner was at the time of the incident in uniform and with a side arm, there was sufficient intimidation to convict for rape. The fact that the complainant kicked the accused- petitioner while the latter was lifting her dress and removing her panty and that she cried afterwards negate any consent on her part to the sexual intercourse. Thus, we ruled in People v. Burgos (115 SCRA 767) a case involving the rape of a deafmute and demented girl: Because of the physical and mental condition of Dolores, she could not have given rational consent to the carnal intercourse - as correctly ruled by the trial court. It would have required a great deal of effort for a 13-year old deafmute to resist the sexual assault of the 5'8" market vendor especially so since the same was unexpected considering the place and time of its perpetration. And only a mind fully aware of the moral and social consequences of the consummation of such sexual assault could have given intelligent consent to gather the courage to put up the resistance necessary to repel such aggression. A rational consent to an act could only be given by one who has the ability to discern the consequences of said act. And Dolores certainly did not have such mental ability not only because of lack of formal education, but also because of her physical and mental deficiencies. (Emphasis supplied) The evidence also shows that as a result of the sexual intercourse, complainant Leonida became pregnant as can be shown by a medical certificate (Exh. "C", Original Record, p. 112) issued by Dr. German Garcia. It should be noted that complainant Leonida had her first menstruation period on September 29, 1969, barely a month before the incident. In a last ditch effort to save himself, accused-petitioner testified that he was "caponized" or "castrated" sometime in 1958 at the clinic of Dr. Gedeon Quijano. According to Babanto, Dr. Quijano was then in Canada so he tried to secure a medical certificate attesting to the surgical operation from the doctor's clinic but he was refused ... because according to them it is already quite a long time and the records could not be found." (TSN, June 3, 1970, p. 118) He further testified that during the operation he was attended to by a certain Mrs. Berenguel who told him that she could remember that I was being operated but that I could not remember the year." (TSN, June 3, 1970, p. 118) As a result of this operation Babanto said he never begot any child by his wife up to the present. We do not give credence to the accused-petitioner's testimony as regards his surgical operation. There was no positive proof that he was castrated and if so, that the castration was successful other than his uncorroborated statement. IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. Petitioner is found guilty beyond reasonable doubt of the crime of rape as defined in Article 335 (1) as amended, of the Revised Penal Code and (1) is sentenced to suffer the penalty of reclusion perpetua; (2) to recognize the child which may have been born to Leonida Dagohoy as a result of the crime; (3) to indemnify Leonida in the sum of P12,000.00 as moral damages, and (4) to pay the costs. G.R. No. L-80838 November 29, 1988 ELEUTERIO C. PEREZ, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. CORTES, J.:

Petitioner Eleuterio Perez raises both procedural and substantive issues in this petition to review the decision of respondent Court of Appeals in CA-G.R. CR No. 04789 dated October 8, 1987 and its resolution of November 12, 1987 denying his motion for reconsideration. The facts of this case are undisputed. On October 21, 1974 Yolanda Mendoza filed a criminal complaint against Eleuterio Perez for Consented Abduction docketed as Criminal Case No. 618 of the Court of First Instance of Pampanga, Branch VI. The accused pleaded not guilty and trial on the merits ensued. On June 28, 1980 a judgment of conviction was rendered against Perez. On appeal, the Court of Appeals reversed, and acquitted Perez of the crime of Consented Abduction. In said decision, promulgated on October 29, 1982, the Court of Appeals made the following statement: xxx xxx xxx This is not to say that the appellant did nothing wrong. With promises of marriage, appellant succeeded in having sexual intercourse with her, twice, that night before they returned. She was seduced by appellant, as it turned out that he made those promises just to accomplish his lewd designs That was "seduction and not abduction," as explained by Justice Ramon Aquino. (Rollo, p. 40.) xxx xxx xxx Subsequent to petitioner's acquittal complainant Yolanda Mendoza filed another criminal complaint against Perez on July 22, 1983, this time for Qualified Seduction, docketed as Criminal Case No. 83-8228 of the Municipal Trial Court of Pampanga, Branch VI. * Petitioner Perez filed a motion to quash invoking double jeopardy and waiver and/or estoppel on the part of the complainant. However, this motion and petitioner's motion for reconsideration were denied. Whereupon, petitioner Perez filed a petition for certiorari and prohibition with the Supreme Court docketed as G.R. No. 68122 questioning the denial of his motions to quash and for reconsideration filed with the Municipal Trial Court in Criminal Case No. 83-8228. In a resolution of the Second Division dated August 8, 1984, the Court referred the case to the Intermediate Appellate Court. On December 16, 1985 the Intermediate Appellate Court dismissed the petition, without prejudice to its refiling in the proper Regional Trial Court. Said the Intermediate Appellate Court: As the order sought to be annulled is that of an inferior court, the petition in this case should have been filed with the appropriate Regional Trial Court in accordance with Rule 65, Sec. 4. We have already ruled in several cases that BP 129, See. 9, in giving this court jurisdiction over applications for writs of certiorari and prohibition "whether or not in aid of its appellate jurisdiction," was never meant to authorize the filing of petitions which, conformably to Rule 65, Sec. 4, should be filed with the Regional Trial Courts because they relate to acts of inferior courts. The purpose of BP 129 is to enable this Court to take cognizance of petitions which, because of the limitation imposed by the requirement that the petition must be "in aid of its appellate jurisdiction" could or only be filed before with the Supreme Court (Diocese of Cabanatuan v. Delizo, AC-G.R. SP No. 06410, Oct. 28, 1985; Uy v. Antonio, AC G.R R. SP No. 05568, March 7, 1985; De Guzman v. Andres, AC-G.R. SP No. 04494, Oct. 25, 1984). [Rollo p. 70.] Complying with this, Perez filed a petition for certiorari and prohibition with the Regional Trial Court of Pampanga docketed as Special Civil Case No. 7623. Upon evaluation of the case, the court dismissed this petition and Perez' motion for reconsideration. Petitioner Perez thereafter filed a petition for review with the Court of Appeals. In a decision dated October 8, 1987 this petition was denied, being inappropriate, aside from the fact that the decision sought to be reviewed had become final and executory. As explained by the Court of Appeals: xxx xxx xxx ... it is to be observed that what petitioner filed in the Regional Trial Court was an original petition for certiorari and prohibition which was dismissed by the Regional Trial Court of San Fernando, Pampanga. The appropriate remedy for such dismissal is an

appeal from said decision (by filing a notice of appeal with the RTC concerned), and not a petition for review. Under the 1983 Interim Rules of Court, all appeals, except in habeas corpus cases and in the cases where a record on appeal is required, must be taken within fifteen (15) days from notice of the judgment, order, resolution or award appealed from. (par. 19).<re||an1w> An appeal from the Regional Trial Courts to the Court of Appeals in actions or proceedings originally filed in the former shall be taken by filing a notice of appeal with the court that rendered the judgment or order appealed from (par. 20, 1983 Interim Rules of Court) ... For not having filed a notice of appeal with the Regional Trial Court of San Fernando, Pampanga, the decision of said court in the petition for certiorari and prohibition ... has become final and executory (CIR v. Visayan Electric Co., 19 SCRA 696, 698) on July 12, 1987, fifteen (15) days after receipt by petitioner of the decision of said court on May 18, 1987, deducting the period during which his motion for reconsideration of said decision was pending resolution before said court. ... Petitioner might plead liberality in the interpretation of the rules of procedure, but this plea cannot be conceded because it involves the appellate jurisdiction of this Court. It has been repeatedly held that compliance with the manner and period for perfecting an appeal is mandatory and jurisdictional Garganta vs. Cabangon, 109 Phil. 150 [1960]; Bilbao vs. Republic, 80 SCRA, 177 [1977]; Volkschen Labor Union vs. National Labor Relations Commission, 98 SCRA 314, 322 [1980]) [Rollo, pp. 93-94.] Petitioner's motion for reconsideration was denied. Hence, this petition for review. I. Petitioner claims that what he filed with the Regional Trial Court was not an original petition for certiorari and prohibition but an appeal from the resolutions of the Municipal Trial Court in Criminal Case No. 83-8228 denying his motions to quash and for reconsideration. Hence, when the Regional Trial Court dismissed his certiorari and prohibition case, he invoked the proper remedy which is a petition for review. There is no merit in petitioner's claim. Well-established is the rule that appeal is not the proper remedy from a denial of a motion to quash [People v. Macandog, G.R. Nos. 18601-2, January 31, 1963, 7 SCRA 195; Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. 63559, May 30, 1986,142 SCRA 171; Milo v. Salanga, G.R. No. 37007, July 20, 1987, 152 SCRA 113.] This is so because an order denying a motion to quash is an interlocutory order and does not finally dispose of a case. Under the Rules on Criminal Procedure prior to its amendment in 1985, ** after the denial of defendant's motion to quash, he should immediately enter his plea and go to trial and, if convicted, raise on appeal the same question covered by his motion to quash [See Sec. 1 of Rule 117 of the Rules of Court and Chuatoco v. Aragon, G.R. No. 20316, January 30, 1 968, 22 SCRA 346.] Further, the record shows that what petitioner actually filed was a special civil action for certiorari and prohibition as evidenced by his prayer for (1) the annulment and setting aside of the municipal trial judge's resolutions of April 11, 1984 and June 11, 1984 denying his motions to quash and for reconsideration, respectively, and, (2) the prohibition of the same judge from further taking cognizance of the criminal case for Qualified Seduction [Annexes "K" and "L".] A special civil action for certiorari is an original or independent action and not a continuation or a part of the trial resulting in the rendition of the judgment complained of [Palomares v. Jimenez, 90 Phil. 773, 776 (1952).] The same holds true in case of a special civil action for prohibition. These writs may be issued by the Supreme Court, the Court of Appeals and the Regional Trial Court [Art. X, Sec. 5 (1) of the 1987 Constitution and Secs. 9 (1) and 21 (1) of Batas Pambansa Blg. 129.] In a special civil action for certiorari, the petitioner seeks to annul or modify the proceedings of any tribunal, board, or officer exercising judicial functions that has acted without or in excess of jurisdiction, or with grave abuse of discretion [Rule 65, sec. 1.] On the other hand, in a petition for prohibition directed against any tribunal, corporation, board, or person whether exercising judicial or ministerial functions who has acted without or in excess of jurisdiction or with grave abuse of discretion, the petitioner prays that judgment be rendered commanding the respondent to desist from further proceeding in the action or matter specified in the petition [Rule 65, Sec. 2] From a denial of a petition for certiorari and prohibition by the trial court, as in this case, the losing party's remedy is an ordinary appeal to the Court of Appeals by filing a notice of appeal with the court that rendered the judgment or order appealed from [Sec. 20, Interim Rules of Court.] Failure to appeal within fifteen (15) days from rendition of judgment renders the appealed decision final and executory.

A petition for review of a judgment of the regional trial court is proper only when the judgment sought to be reviewed is an appeal from the final judgment or order of a municipal, metropolitan or municipal circuit trial court [Sec. 22 (b), Interim Rules of Court]. Petitioner likewise faults the respondent Court of Appeals for dismissing his petition for certiorari which "gave rise to the confusion caused by the case being tossed around from one court to another ending in its dismissal on mere technicality, thereby depriving [him] of his right to constitutional due process" [Rollo, p. 133.] Petitioner's assertion that he was consequently denied due process in unfounded. Respondent court did not foreclose his right to seek his remedy elsewhere as it is clear from its decision that "the petition for certiorari and prohibition is DISMISSED, without prejudice to its refiling in the proper Regional Trial Court" [Rollo. p. 70.] Thus, petitioner was never denied recourse to the appropriate court. On the contrary, the Intermediate Appellate Court pointed the direction for petitioner to take. II. Petitioner invokes double jeopardy to question the filing against him of an information for Qualified Seduction after he was acquitted for Consented Abduction. The rule on double jeopardy is that, "No person shall be twice put in jeopardy of punishment for the same offense" [Article IV, Sec. 22 of the 1973 Constitution, Article III, Sec 21 of the 1987 Constitution.] The term "same offense" means Identical offense or any attempt to commit the same or frustration thereof or any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. The rule on double jeopardy under the Rules of Court is explicit: Sec. 7. Former conviction or acquittal; double jeopardy.When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. [Sec. 9, Rule 117 of the Rules of Court Procedure, now Sec. 7, Rule 117 of the 1985 Rules on Criminal Procedure.] xxx xxx xxx There is no question that petitioner was validly charged with the crime of Consented Abduction before a court of competent jurisdiction. That he had been arraigned and had pleaded not guilty to the charge for which he was subsequently acquitted is likewise undisputed. In the case at bar, the only issue posed by petitioner relates to the Identity of the two offenses of Consented Abduction and Qualified Seduction. In support of his argument that the filing of the subsequent information for Qualified Seduction is barred by his acquittal in the case for Consented Abduction, petitioner maintains that since the same evidence would support charges for both offenses a trial and conviction for one, after he was acquitted for the other, would constitute double jeopardy. Stated otherwise, petitioner would rely on the "same evidence" test in support of his claim of double jeopardy. It is true that the two offenses for which petitioner was charged arose from the same facts. This, however, does not preclude the filing of another information against him if from those facts, two distinct offenses, each requiring different elements, arose. As this Court stated: xxx xxx xxx A single act may be an offense against two statutes and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and conviction under the other. [U.S. v. Capurro, 7 Phil. 24, 34 (9106) citing In re Hans Neilsen (131 U.S. 176); Emphasis supplied.] xxx xxx xxx The plea of double jeopardy cannot therefore be accorded merit, as the two indictments are perfectly distinct in point of law howsoever closely they may appear to be connected in fact. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or Identical offense. A single act may offend against two (or more) entirely distinct and

unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other. [People v. Doriquez, G.R. Nos. 24444-45, July 29, 1968, 24 SCRA 163, 171-172; Emphasis supplied.] xxx xxx xxx An examination of the elements of these two crimes would show that although they may have arisen from the same set of facts, they are not Identical offenses as would make applicable the rule on double jeopardy. There are similar elements between Consented Abduction and Qualified Seduction, namely: (1) that the offended party is a virgin, and, (2) that she must be over twelve (12) and under eighteen (18) years of age. However, two elements differentiate the two crimes. Consented Abduction, in addition to the two common elements, requires that: (1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and, (2) the taking away of the offended party must be with lewd designs. On the other hand, an information for Qualified Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or relationship, and, (2) the offender has sexual intercourse with the woman. Moreover, the very nature of these two offenses would negate any Identity between them. As this Court has stated: xxx xxx xxx ... the gravamen of the offense of the abduction of a woman with her own consent, who is still under the control of her parents or guardians is "the alarm and perturbance to the parents and family" of the abducted person, and the infringement of the rights of the parent or guardian. But-in cases of seduction, the gravamen of the offense is the wrong done the young woman who is seduced. ... [U.S. v. Jayme, 24 Phil. 90, 94 (1913).] xxx xxx xxx III. Finally, petitioner avers that the complaint for Qualified Seduction is barred by waiver and/or estoppel on the part of Yolanda Mendoza, the latter having opted to consider the case as Consented Abduction. He also alleges that her delay of more than nine (9) years before filing the second case against him is tantamount to pardon by the offended party. Petitioner's stance is unmeritorious. The complainant's filing of a subsequent case against him belies his allegation that she has waived or is estopped from filing the second charge against petitioner. Neither could she be deemed to have pardoned him, for the rules require that in cases of seduction, abduction, rape and acts of lasciviousness, pardon by the offended party, to be effective, must be expressly given [Rule 110, Sec. 4 of the Rules of Court, Ruled 110, Sec. 5 of the 1985 Rules on Criminal Procedure.] Moreover the length of time it took her to file the second case is of no moment considering that she filed it within the ten (10)-year prescriptive period provided by Article 90 par. 3 of the Revised Penal Code for crimes punishable by a correctional penalty such as Qualified Seduction [See Article 24 of the Revised Penal Code.] WHEREFORE, the petition is DENIED and the decision of the Court of Appeals is hereby AFFIRMED. 3. Abduction; forcible abduction with rape G.R. No. L-42665 June 30, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG, defendants-appellants. CORTES, J.: Defendants appeal from the judgment of the Court of First Instance of Bulacan convicting them of the complex crime of forcible abduction with rape. The appeal was elevated by the Court of Appeals to this Tribunal in view of the penalty of life imprisonment imposed by the trial court.

Juanita Angeles is the complainant in this complex crime of forcible abduction with rape. At the time the alleged crime was committed she was 43 years of age, single, a registered pharmacist by profession and a rice merchant doing business in Hagonoy, Bulacan. In her complaint she pointed to the three accused-appellants together with one Benjamin Gabriel as the perpetrators of the crime. On March 4, 1965 an information was filed by the Provincial Fiscal accusing the four men of the complex crime of forcible abduction with rape committed as follows: That on or about the 23rd day of October, 1964, in the municipality of Guiguinto province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Silvestre Sunpongco, Benjamin Gabriel, Herminigildo Sunpongco and Arsenio Calayag, conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, by means of violence, force, intimidation and trickery and with lewd designs, abduct the complaining witness Juanita F. Angeles, single, by then and there taking and carrying her out of a jeep while she was in Guiguinto and then forcibly loaded in an automobile and thereafter brought to the Hill Top Hotel in Tagaytay City against her will, and once there by means of violence, threats and intimidation, the said accused Silvestre Sunpongco have carnal knowledge of the said Juanita F. Angeles against her will. That in the commission of this crime the following aggravating circumstances were present, to wit: conspiracy, use of motor vehicle and superior strength. [Records, pp. 61-621. On June 9, 1965, the accused were arraigned and without the assistance of counsel, they all pleaded not guilty. Subsequently, on joint motion of the fiscal and the private prosecutors and over the objection of the defense, accused Benjamin Gabriel was discharged by the court to become a state witness. The prosecution's version of what transpired on the date when said crime was committed is summarized by the trial court, to wit: ... that on October 23, 1964, at around 9:00 o'clock in the morning, Juanita Angeles, the offended party, left her residence at Hagonoy, Bulacan to get rice from the RCA warehouse of Dr. Lansan at Guiguinto Bulacan. She was with one Benita Fabian and they rode a passenger jeep driven by Virgilio Gan. As they reached the south approach of Tabang Bridge, Guiguinto Bulacan, a car overtook them and stopped right in front of their jeep, thus forcing them to stop. The car was being driven by accused Arsenio Calayag, and the passengers were the accused Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel. Thereafter, the three passengers just mentioned . ..., alighted from the car and boarded the jeep, after which Silvestre Sunpongco co ordered its driver to proceed to the old road. Silvestre Sunpongco sat at the back of Juanita Angeles, Benjamin Gabriel sat behind the driver, and Herminigildo Sunpongco forced himself at the left side of the driver, while Arsenio Calayag followed in the Car he was driving. Upon reaching an uninhabited place on the old road, Silvestre Sunpongco ordered the jeep to stop and the three accused got out. Silvestre tried to pull the offended party out of the jeep, but she struggled and fought back so he ordered Benjamin Gabriel to help him. Benita Fabian, meanwhile, embraced Juanita on the waist and pleaded with the three accused to leave Juanita alone, but Herminigildo Sunpongco separated them by force. Despite her struggling and resisting, the accused were able to pull the offended party out of the jeep, and although Juanita embraced Benita Fabian and asked the latter not to leave her, Silvestre kept on pulling her as Benjamin Gabriel continued pushing her until they were finally able to force her into the car with the aid of a drawn gun. Then Benita Fabian, who was able to free herself from Herminigildo Sunpongco, ran towards the car but Silvestre closed its doors at once. Then Herminigildo pushed Benita and she fell to the ground, after which the former got into the car and it sped away. They proceeded towards Manila, then to the Hilltop Hotel in Tagaytay City, which is owned by Federico Suntay, a first cousin of accused Silvestre Sunpongco. Upon reaching the hotel, Benjamin Gabriel, Herrninigildo Sunpongco and Arsenio Calayag alighted and went inside, while Silvestre and Juanita were left in the car. Then Silvestre tried to pull her out of the car but she resisted, so he drew out his gun again and told her that while he did not like to do it, that was the only way to bring her out. Finally, Silvestre was able to pull her out of the car. He brought her inside the hotel, with one of his arms around her shoulders and the other arm poking the gun at her side, pushed her into a room and locked the door. Once inside the room, Silvestre Sunpongco pushed Juanita Angeles and she fell on a chair. Then he embraced and kissed her, and continued taking liberties, as she cried and fought back. Afterwards he removed his pants, pushed her and forced her to lie

down on the bed. Although she kicked and rolled on the bed, Silvestre was able to overcome her when he hit her on the stomach, as a result of which she lost consciousness. It was then that Silvestre Sunpongco succeeded in having his first sexual intercourse with her. After that, he went out and locked the room. Due to hunger and physical exhaustion, she must have dozed off, and when she woke up, Silvestre Sunpongco was on top of her again. She struggled and tried to resist him, but to no avail. Silvestre Sunpongco consummated the second sexual intercourse. Then somebody called for Silvestre and he left the room. Suddenly, she heard the voice of her brother calling her name, so she rushed out to him. Dr. Jose Angeles was there with some CIS agents. She was physically examined the next day by Dr. Ramon Pascual, captain in the Medical Corps of the Philippine Constabulary, who submitted his medicolegal report marked Exhibit "A" containing his findings as follows: lacerations in the complainant's vagina at 9 and 11 o'clock positions, which must be due to the insertion of a penis; vaginal smears are positive for spermatozoa; contusions at the posterior cervical and anterolateral aspect middle third of the right hip, all of which are compatible with recent sexual contact. Benita Fabian corroborated the testimony of Juanita Angeles up to when she was left behind at Tabang, after the car carrying all the accused and the offended party sped towards Tagaytay City. [Records, pp. 523-527]. xxx xxx xxx During the time material to this case Silvestre Sunpongco was 34 years old, a widower with six children, and a La Mallorca bus driver whose highest educational attainment is only grade four. The other accused-appellant Arsenio Calayag was then 36 years of age, married and the regular driver of the car borrowed by Silvestre Sunpongco and used by them. Herminigildo Sunpongco, the third accused-appellant, was then 27 years old, married and is a nephew of Silvestre Sunpongco. During the trial of the criminal case, specifically, after the defense had started presenting its evidence but before Silvestre Sunpongco took the witness stand, said accused jumped bail and it was not until six years thereafter that he was arrested and the trial resumed. The principal accused-appellant Silvestre Sunpongco adduced in evidence his own version of the case before the trial court as follows: He started courting the complainant a few weeks after the death of his first wife, and the complainant accepted and they agreed to get married. On October 23, 1964 he went to Malolos, on previous agreement with her, for the express purpose of eloping with her. That morning, he rode the car of his sister driven by Arsenio Calayag. On the way, he gave a lift to Herminigildo Sunpongco and Benjamin Gabriel. Upon arriving at Malolos, Juanita Angeles was not there, but they saw her in a jeep going to Guiguinto So, they followed. At Tabang, he alighted from the car and complainant alighted from the jeep and they talked. Accused Silvestre told her: "If you really love me, You will come with me and we will get married." They agreed to go to Manila to get married, but they later changed their minds and instead proceeded to Cavite. On the way they stopped at the Aristocrat Restaurant to eat, stayed there for more than an hour, then proceeded to Hilltop Hotel at Tagaytay. Later that evening, while in the hotel, Pepito Mangahas, Dr. Jose Angeles and some CIS agents arrived. Pepito asked Silvestre why they were there, and said accused replied that he and complainant had eloped. Then he gave to Pepito the letters which complainant wrote to him. Thereafter, he was brought to Camp Crame. He did not forcibly abduct complainant, he said. Complainant filed this case against him because she was threatened and forced to do so by her brother. He also added that he did not know why Benjamin Gabriel, his boyhood friend, testified for the prosecution. He jumped bail because Dr. Angeles told him: "I am ready to spend even how much just to put you in jail". [Records, pp. 529- 531]. The two other accused-appellants Arsenio Calayag and Herminigildo Sunpongco gave similar testimonies in the trial court as follows: Between 8:00 and 9:00 A.M. on October 23, 1964 Arsenio Calayag was driving the car owned by Nena de Marucot Silvestre Sunpongco's sister, which was borrowed by accused Silvestre, towards Manila. Silvestre had Benjamin Gabriel as companion. On the way, they stopped to give Herminigildo Sunpongco a lift. Thereupon, Silvestre requested Herminigildo to go with them because he was going to elope with Juanita Angeles, to which he consented. After crossing Tabang Bridge, they overtook the jeep on which Juanita Angeles and her companion Benita Fabian were riding and which was being driven by Virgilio Gan, and blocked its way so it had to stop. Thereupon, Silvestre, Herminigildo and Benjamin Gabriel alighted from the car and boarded the

jeep. Silvestre Sunpongco pulled the complainant by the hand to the car as Benjamin Gabriel simultaneously pushed her from the back. At the same time, Benita Fabian was holding on to the complainant and embracing her, so Herminigildo held Benita to prevent her from going into the car as instructed by Silvestre. From Tabang, they proceeded to Hilltop Hotel, Tagaytay City, stopping only once to buy gasoline. Upon reaching the hotel, Silvestre Sunpongco and Benjamin Gabriel led Juanita Angeles inside, while Arsenio Calayag and Herminigildo Sunpongco left for Hagonoy, but were apprehended on the way by CIS agents. [Records, pp. 528-529]. On October 2, 1975, after due trial, the Bulacan Court of First Instance rendered a decision convicting the three accusedappellants, to wit: WHEREFORE, this Court finds the accused SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG guilty beyond reasonable doubt as principals of the complex crime of forcible abduction with rape, as defined and penalized under Articles 335 and 342 in relation to Article 48 of the Revised Penal Code, and hereby sentences each of them to suffer the penalty of LIFE IMPRISONMENT, with the accessory penalties of the law, to indemnify jointly and severally the complainant Juanita Angeles in the slim of Twenty Thousand Pesos (P20,000.00) as moral damages, and to pay their proportionate share of the costs. [Records, p. 539]. They now interpose this present appeal. Silvestre Sunpongco and Arsenio Calayag filed a joint brief and assigned two errors. Herminigildo Sunpongco likewise filed his own appellant's brief and assigned three errors allegedly committed by the trial court. Consolidating the assignments of errors made by herein accused-appellants, they raise the following points: I. THE TRIAL COURT ERRED IN HOLDING THAT IT HAD ACQUIRED JURISDICTION TO TRY THE CASE. II. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE WAS COMMITTED AND THAT THE APPELLANTS ARE GUILTY THEREOF BEYOND REASONABLE DOUBT. III. THAT THE LOWER COURT ERRED IN HOLDING THAT CONSPIRACY AMONG THE ACCUSED HEREIN TO COMMIT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE HAS BEEN ESTABLISHED. I. The alleged lack of jurisdiction of the trial court is assailed by accused-appellants Silvestre Sunpongco and Arsenio Calayag on the ground that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution during the trial of the case. Article 344 of the Revised Penal Code and Rule 110 section 5 (formerly section 4 of the Revised Rules of Court) of the 1985 Rules on Criminal Procedure require that the offenses of abduction and rape and other offenses which cannot be prosecuted de oficio shall not be prosecuted except upon complaint filed by the Offended party. Compliance with this is a jurisdictional and not merely a formal requirement. The Rules of Court further provides that evidence which has not been formally offered shall not be considered by the court. [Rule 132, section 35]. Applying these rules to the case at bar it is admitted that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution, This failure to adhere to the rules however is not fatal and did not oust the court of its jurisdiction to hear and decide the case. Jurisprudence reveals that if the complaint in a case which cannot be prosecuted de oficio is forwarded to the trial court as part of the records of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence for the prosecution [People v. Savellano, G.R. No. L-31227, May 31, 1974, 57 SCRA 320, 324; People v. Tampus G.R. No. L-42608, February 6, 1979, 88 SCRA 217, 221; and People v. Rondina G.R. No. L-47895, April 8, 1987, 149 SCRA 128, 132-133]. The records of this case forwarded to the Court of First Instance include the complaint filed by Juanita Angeles in the municipal court of Guiguinto Bulacan which conducted the preliminary investigation [Records, page 31. Likewise the minutes of the September 3, 1965 hearing shows that the subject complaint was marked as Exhibit "X" by the court as disclosed by the records on page 91.

II. Article 342 of the Revised Penal Code defines and penalizes the crime of forcible abduction. The elements of forcible abduction are (1) that the person abducted is any woman, regardless of her age, civil status, or reputation; (2) that the abduction is against her will and (3) that the abduction is with lewd designs. On the other hand article 335 of the same Code defines the crime of rape and provides for its penalty. The elements of rape pertinent to this case are: (1,) that the offender had carnal knowledge of a woman; and (2) that such act is accomplished by using force or intimidation. Silvestre Sunpongco would insist that he and complainant were sweethearts who agreed to elope on that fateful day in October, This defense however is belied by the manner in which the so-called "elopement" was carried out. Juanita Angeles' version that the abduction was carried out against her will is borne out by the testimonies of witnesses presented by the prosecution as well as by two of the accused-appellants, Arsenio Calayag and Herminigildo Sunpongco. These two admitted during the trial having seen the complainant resisting as she was forced to board the car. On cross-examination, Arsenio Calayag testified thus: ATTY. OCAMPO: Q You said while Juanita Angeles was sitting inside the jeep Silvestre Sunpongco was holding her hands, is it not also a fact he was at the same time pulling Juanita Angeles out of the jeep? A Yes, sir. Q You also stated that when Juanita Angeles was already on the ground ... Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel led her to the car. Will you please tell the Honorable Court how the three of them led her to the car? A They were holding her. Q The three of them? A The two of them. Q Who? A Benjamin Gabriel and Silvestre Sunpongcoxxx xxx xxx Q On what part of the body Silvestre Sunpongco holding Juanita Angeles? A Hands only. Q How about Benjamin Gabriel? A Waist sir. Q While Silvestre Sunpongco was holding Juanita Angeles on the hands and Benjamin Gabriel by the waist they were pushing her to the car? A Yes, sir. xxx xxx xxx Q Silvestre Sunpongco was pulling her by the arm Benjamin Gabriel was pushing her? A Benjamin Gabriel was pushing her. xxx xxx xxx

Q Is it not a fact that while Silvestre Sunpongco was pulling her and Benjamin Gabriel was pushing her Juanita Angeles was struggling? xxx xxx xxx A Yes, sir. [TSN, June 23, 1967, pp. 90-92, 94-951. (Emphasis supplied). Herminigildo Sunpongco likewise admitted having witnessed the vain struggles of Juanita Angeles and at the same time her tears when he stated on cross- examination that: ATTY. OCAMPO: Q Will you please tell the Honorable Court how Silvestre A Sunpongco was leading Juanita Angeles after she alighted from the jeep in that old road? A I noticed that he (sic) was being pulled by the hands of Silvestre Sunpongco while her other hand was holding the jeep. xxx xxx xxx Q And Juanita Angeles was crying at that time? A Yes, sir. Q And she was finally led into the car by Silvestre Sunpongco because Silvestre Sunpongco was pulling her while Benjamin Gabriel was pushing her at the back? A Yes, sir. Q All along Juanita Angeles was crying? A Yes, sir. [TSN, July 21, 1967, pp. 123-1241. (Emphasis supplied). The three accused-appellants would further negate the probability of carrying on the abduction considering the incident took place in broad daylight and the group had to travel from Guiguinto Bulacan to Tagaytay City. They aver that in view of these circumstances complainant could have screamed or raised an outcry to summon assistance. Juanita Angeles' conduct however can be explained by her fear at that time when four men suddenly confronted them and positioned themselves in such a way that resistance would be impossible. Further during their travel to Tagaytay City Juanita Angeles was rendered practically helpless. She was forced to sit between Silvestre Sunpongco and Benjamin Gabriel while Arsenio Calayag and Herminigildo Sunpongco sat in front of the car. The presence of the lewd design is manifested by the subsequent rape that occurred. At this point, it is noteworthy to mention that the crime of rape is difficult both to prove and to disprove considering the very nature of the offense involving as it does in most cases only two persons. Consequently, the final resolution of the trial court would hinge on whose version is more credible, more plausible and more trustworthy considering the circumstances surrounding its commission. The case at bar is no different. To prove that the crime of rape was committed the court has to examine carefully the evidence presented by the parties. In this instance the circumstance of force and intimidation attending the crime of rape is manifested not only by the testimony of the complainant but the medicolegal report filed by Capt. Ramon Pascual as well. His findings are as follows: xxx xxx xxx

Extragenital: xxx xxx xxx Contusion at the posterior cervical region, measuring 6 cm. by 4 cm., at the posterior midline, 143 cm. above the heel. Contusion at the anterolateral aspect middle third of the right leg, measuring 7 cm. by 5 cm., 3 cm. from its anterior midline, 27 cm. above the heel. Genital: There is moderate amount of pubic hair, evenly distributed. The labia majora and minora are in coaptation There is moderate amount of leucorrheal discharge. On separating the lips are revealed abrasions at perineum and at both sides of the vulva. The hymen disclosed lacerations at 9 and 11 o'clock positions. The external vaginal orifice offers moderate resistance upon introduction of the examining index finger and the virgin-sized speculum. The cervix is normal in color and consistency, with an abraded area at its lower lip. The uterus is not enlarged. MICROSCOPIC FINDINGS: Vaginal smears are positive for spermatozoa and negative for gram-negative diplococci. REMARKS: Findings are compatible with recent sexual contact. [Records, pp- 23-24]. As stated by the Supreme Court, "(P)hysical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesse, ..." [People v. Sacabin, G.R. No. L-36638, June 28, 1974, 57 SCRA 707, 713]. Moreover the conduct of the complainant after the incident took place further strengthens her case. After the forcible abduction and the rape took place and her rescue that same night, she lost no time the following day to have herself examined at the Philippine Constabulary Central Laboratory Office at 8:30 in the morning, she went to the Criminal Investigation Service office at Camp Crame to give her testimony, and she filed her complaint before the fiscal's office. Compare this to the conduct of accused-appellants particularly Silvestre Sunpongco who jumped bail in the course of the trial and was not arrested until after six years. It also behooves this Court to look into the possible motive Juanita Angeles could have had in filing the criminal complaint against accused-appellants had she not been wronged, considering her age, status, reputation and educational attainment, for on this point, accused-appellants argue that the complainant was merely threatened and forced by her brother, Dr. Jose Angeles, to file the complaint against them. Considering the evidence presented this Court finds the appellants' stance as implausible. III. Anent the last error assigned by the accused-appellants, they would refute the testimony given by accused-turned state witness Benjamin Gabriel summarized by the trial court, as: Sometime in the second week of October, 1964, between 8:00 and 9:00 P.M., he met the accused Silvestre Sunpongco, Herminigildo Sunpongco and Arsenio Calayag by previous appointment at the "glorietta" in Hagonoy, Bulacan, at which time Silvestre told them to wait for Juanita Angeles on her way to church the next day, a Sunday, and then take her by force, place her inside the car, and bring her to Tagaytay where Silvestre would rape her so that she would be his, because somebody from Pulilan was courting her. They waited for Juanita as planned, but she failed to appear. Saturday night of the succeeding week, they met again and agreed to consummate their plan to abduct Juanita Angeles the day after, also a Sunday, but again she did not appear. Silvestre Sunpongco told them to wait for another occasion. On October 20, 1964 they met again in the same place. This time, Silvestre told them that on Friday, October 23,1964 Juanita Angeles would get rice from the RCA at Guiguinto and they will wait for her at the crossing at Malolos to snatch her and take her to Tagaytay in order that he would rape her. On October 23,1964, between 7:00 and 9:00 A.M., they all met in front of the municipal building of Hagonoy, Bulacan, rode a car belonging to Nena Marucot the sister of Silvestre Sunpongco, which was being driven by Arsenio Calayag, and proceeded to the appointed police at Malolos, where they stopped and waited for Juanita

Angeles. After a while, they saw her coming in a jeep driven by Virgilio Gan. They followed the jeep and on reaching Tabang Bridge, they blocked its way and forced it to stop. The rest of his story is a corroboration of those of the other prosecution witnesses, although he ended it by saying that once Juanita Angeles was placed inside a room at the Hilltop Hotel by Silvestre Sunpongco, the latter ordered this witness to stay on guard outside while he ordered Herminigilo Sunpongco and Arsenio Calayag to return to Hagonoy; that at 5:00 P.M. he entered one of the rooms because he had fever, and that at about 9:00 P.M. a hotel boy woke him up and told him to tell Silvestre Sunpongco that somebody was looking for him. [Records, pp. 523-528]. The accused-appellants in denying the existence of conspiracy would question the discharge of Benjamin Gabriel to become a state witness. Particularly they aver that Benjamin Gabriel's testimony cannot be substantially corroborated in its material points. An indicium of conspiracy is ". ... when the defendants by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. ... (People v. Geronimo, G.R. No. L-35700 October 15, 1973, 53 SCRA 246, 2541. This Court agrees with the prosecution contention that coupled with the testimonies of Juanita Angeles and Benita Fabian, the following are sufficient corroboration of Benjamin Gabriel's testimony on conspiracy: (1) After the jeep where Juanita Angeles and Benita Fabian were riding and forced to stop by a car occupied by appellants, the appellants and Benjamin Gabriel all got off from said car and approached the jeep. (2) Herminigildo Sunpongco, Benjamin Gabriel and Silvestre SunPori9co boarded the jeep used by the complainant and Benita Fabian. Thereafter, Silvestre ordered the driver of the jeep to proceed to an old road. (3) Arsenio Calayag, in the meantime drove the car and followed the jeep that carried complainant and the other appellants. (4) Upon reaching an isolated place, Silvestre Sunpongco ordered the driver of the jeep to stop. The car also stopped. Whereupon, the appellants riding in the jeep alighted. (5) To force Juanita Angeles into the car, Silvestre Sunpongco pulled Juanita by the hand, Benjamin Gabriel pushed her at the back, while Arsenio Calayag positioned himself behind the wheel of the car, ready to drive the moment Juanita was successfully brought into it. As this was going on, Herminigildo Sunpongco was holding Benita to prevent her from giving the complainant a helping hand. (6) From the time the car finally drove off with Juanita Angeles, up to the time it reached Tagaytay City, appellants Herminigildo Sunpongco, Benjamin Gabriel, Silvestre Sunpongco and Arsenio Calayag were inside the vehicle. [Appellee's Brief, pp. 12-131. The discharge of Benjamin Gabriel to become a state witness is likewise questioned by Herminigildo Sunpongco who avers that on the basis of the evidence presented by the prosecution it is he who appears to be the least guilty. On this point suffice it to state that, " .... (A)ll that the law requires, in order to discharge an accused and to use him as a state witness is that the defendant whose exclusion is required does not appear to be the most guilty, not necessarily that he is the least guilty, ... [People v. Court of Appeals, G.R. No. 55533, July 31, 1984, 131 SCRA 107, 112]. Considering the testimonies and evidence presented this Court is of the belief that the trial court did not err in convicting herein appellants of the crime charged. However, the penalty imposed by the trial court is erroneously designated "life imprisonment". The correct term is reclusion perpetua [People v. Abletes G.R. No. L-33304, July 31, 1974, 58 SCRA 241, 248]. WHEREFORE, the decision of the Court of First Instance of Bulacan is hereby AFFIRMED with the modification that the indemnity awarded by the trial court is raised to P30,000.00. SO ORDERED. G.R. No. L-28232 February 6, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y SEVILLA, defendantsappellants. PER CURIAM: The amended complaint filed in this case in the court below, reads as follows: The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as follows: That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction of this Honorable Court, the abovenamed principal accused, conspiring together, confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct the undersigned complainant against her will, and did, then and there take her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the civil code. That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y ENVOLTARIO without taking a direct part in the execution of the offense either by forcing, inducing the principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the offense. That the aforestated offense has been attended by the following aggravating circumstances: 1. Use of a motor vehicle. 2. Night time sought purposely to facilitate the commission of the crime and to make its discovery difficult; 3. Abuse of superior strength; 4. That means were employed or circumstances brought about which added ignominy to the natural effects of the act; and 5. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for the commission. CONTRARY TO LAW. Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until such time as the prosecution shall have concluded presenting all of its evidence to prove the aggravating circumstances listed in the complaint." Upon the other hand, the rest of the defendants went to trial on their respective pleas of not guilty. After the merits, the court below rendered its decision on October 2, 1967, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Caal, Eduardo Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences each of them to the death penalty to be executed at a date to be set and in the manner provided for by law; and each to indemnify the complainant in the amount of ten thousand pesos. On the ground that the prosecution has failed to establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted, and the case dismissed against the aforementioned accused.

Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it from the window of the courtroom and pictures of which were submitted and marked as Exhibits "M" and "M-1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the Revised Penal Code, which requires the confiscation and forfeiture of the proceeds or instruments of the crime, the Court hereby orders its confiscation. This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as regards Rogelio Caal. However, for practical purposes all of them shall hereafter be referred to as appellants. The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and single; she graduated from high school in 1958 at Maryknoll College and finished the secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and television shows, where she was paid P800.00 per month in permanent shows, P300.00 per month in live promotional shows, and from P100.00 to P200.00 per appearance as guest in other shows. So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near her destination when a Pontiac two-door convertible car with four men aboard (later identified as the four appellants) came abreast of her car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to the left, at which moment she was already in front of her house gate; but because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This prompted Miss De la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it and rushed towards her. The girl became so frightened at this turn of events that she tooted the horn of her car continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her car's steering wheel and, together with her maid, started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose motor was all the while running. When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men inside started to assist their friend: one of them held her by the neck, while the two others held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was completely in, appellant Pineda jumped unto the driver's seat and sped away in the direction of Broadway Street. The maid was left behind. The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Caal was seated beside him. Miss De la Riva entreated the appellants to release her; but all she got in response were jeers, abusive and impolite language that the appellants and threats that the appellants would finish her with their Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each side of Miss De la Riva started to get busy with her body: Jose put one arm around the complainant and forced his lips upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She continuously implored her captors to release her, telling them that she was the only breadwinner in the family and that her mother was alone at home and needed her company because her father was already dead. Upon learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was much better than he thought since no one could take revenge against them. By now Miss De la Riva was beginning to realize the futility of her pleas. She made the sign of the cross and started to pray. The appellants became angry and cursed her. Every now and then Aquino would stand up and talk in whispers with Pineda, after which the two would exchange knowing glances with Caal and Jose. The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los Santos Avenue. When the car reached Makati, Aquino took a handkerchief from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to shout or else she would be stabbed or shot with a Thompson. Not long after, the car came to a stop at the Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the rooms on the second floor of the hotel.

Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw Pineda and Aquino standing in front of her, and Jose and Caal sitting beside her, all of them smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other three expressed their approval and ordered Miss De la Riva to disrobe. The complainant ignored the command. One of the appellants suggested putting off the light so that the complainant would not be ashamed. The idea, however, was rejected by the others, who said that it would be more pleasurable for them if the light was on. Miss De la Riva was told to remove her stocking in order, according to them, to make the proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the assigned task that the appellants cursed her and threatened her again with the Thompson and the acid. They started pushing Miss De la Riva around. One of them pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the floor. The complainant was now completely naked before the four men, who were kneeling in front of her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda picked up her clothes and left the room with his other companions. The complainant tried to look for a blanket with which to cover herself, but she could not find one. Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to release her. Instead of answering her, he pushed her backward and pinned her down on the bed. Miss De la Riva and Jose struggled against each other; and because the complainant was putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the body. The complainant crossed her legs tightly, but her attacker was able to force them open. Jose succeeded in having carnal knowledge of the complainant. He then left the room. The other three took their turns. Aquino entered the room next. A struggle ensued between him and Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the others into the room. They poured water on her face and slapped her to revive her. Afterwards, three of the accused left the room, leaving Pineda and the complainant After some struggle during which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the complainant went into a state of shock for the second time, the three other men went into the room again poured water on the complainant's face and slapped her several times. The complainant heard them say that they had to revive her so she would know what was happening. Jose, Aquino and Pineda then left the room. It was now appellant Canal's turn. There was a struggle between him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on different parts of the body and succeeded in forcing his carnal lust on her. Mention must be made of the fact that while each of mention must be made the four appellants was struggling with the complainant, the other three were outside the room, just behind the door, threatening the complainant with acid and telling her to give in because she could not, after all, escape what with their presence. After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes, told her to get dressed and put on her stockings, and to wash her face and comb her hair, to give the impression that nothing had happened to her. They told her to tell her mother that she was mistaken by a group of men for a hostess, and that when the group found out that she was a movie actress, she was released without being harmed. She was warned not to inform the police; for if she did and they were apprehended, they would simply post bail and later hunt her up and disfigure her face with acid. The appellants then blindfolded Miss De la Riva again and led her down from the hotel room. Because she was stumbling, she had to be carried into the car. Inside the car, a appellant Jose held her head down on his lap, and kept it in that position during the trip, to prevent her from being seen by others. Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They finally decided on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did not come from a well-known company. Jose did as requested, letting several taxicabs pass by before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of what had happened to her, appellant Canal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative.

It was 6:30 o'clock or some two hours after the abduction when Miss De la Riva reached home. Her mother, her brother-inlaw Ben Suba, as well as several PC officers, policemen and reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a douche. The older woman also instructed her daughter to douche himself two or three times daily with a strong solution to prevent infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant for external physical injuries. The doctor was not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a mobile patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba requested him to postpone the interrogation until she could be ready for it. At that time, mother and daughter were still undecided on what to do. On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any, should be taken. After some agonizing moments, a decision was reached: the authorities had to be informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the Quezon City Police Department Headquarters, filed a complaint and executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the four men who abused her. In the afternoon of the same day, the complainant submitted herself ito a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer. During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also at the NBI office. There he received a telephone call from the police headquarters to the effect that one of the suspects had been apprehended. That evening, the complainant and Pat. Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as one of the four men he abducted and raped her. She executed another statement (Exh. "B-1") wherein she made a formal identification of Jose and related the role played by him. At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat. Marcos G. Vias. In his statement, which was duly sworn. Jose admitted that he knew about, and was involved in, the June 26 incident. He named the other line appellants as his companions. Jose stated, among other things, that upon the initiative of Pineda, he and the other three waited for Miss De la Riva to come out of the ABS Studio; that his group gave chase to the complainant's car; that it was Pineda who blindfolded her and that only Pineda and Aquino criminally assaulted the complainant. After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement (Exh. "B-3") that the man in the picture was one of her abductors and rapists. The same picture was shown to Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the picture as appellant Aquino. After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and Caal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the evening of July 1, 1967. Miss De la Riva pointed to Pineda and Caal as among the four persons who abducted and raped her. She picked them out from among several person in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la Riva executed a sworn statement (Exh. B2)wherein she made the same identification of the two appellants from among a group of persons in the Office of the Chief of the Detective Bureau, adding that appellant Caal had tattoo marks on his right hip. After the identification, one of the policemen took appellant Caal downstairs and undressed him, and he saw, imprinted on the said appellant's right hip, the words "Bahala na Gang." Appellant Caal and Pineda executed and swore to separate statements on the day of their arrest. In his statement (Exh. "G"), appellant Caal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Caal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her. Pineda executed a statement (Exh. "J") stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on different parts of the complainant's body, as well as of genital injuries. On the witness stand the doctor was shown several photographs of the

complainant taken in his presence and under his supervision. With the aid of the photographs and the medical reports, the doctor explained to the court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right arm index finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la Riva complained of slight tenderness around the neck, on the abdominal wall and at the sites of the extragenital physical injuries, and that on pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries, according to Dr. Brion, could have been caused blows administered by a closed fist or by the palm of the hand, and could have been inflicted on the subject while she was being raped. It was the doctor's opinion that they could have been sustained on or about June 26, 1967. In connection with the genital examination, the doctor declared that he found injuries on the subject's genitalia which could have been produced by sexual intercourse committed on June 26, 1967. He said that he failed to find spermatozoa. He explained, however, that spermatozoa are not usually found in the vagina after the lapse of three days from the last intercourse, not to mention the possibility that the subject might have douched herself. The three appellants who pleaded not guilty (Jose, Aquino and Caal) took the witness stand. We quote hereunder the portions of the decision under review relative to the theory of the defense: Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from 9:30 in the evening of June 25 until closing time, which was about 3:30 in the early morning of the next day. At the cocktail lounge they had listened to the music while enjoying some drinks. Between them they had consumed a whole bottle of whisky, so much so that at least Aquino became drunk, according to his own testimony. They had been joined at their table by a certain Frankie whom they met only that night. Come time to go home, their new acquaintance asked to be dropped at his home in Cubao. The five men piled into the red-bodied, black topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao After dislodging their new friend, Pineda steered the car to Espaa Extension to bring Aquino to his home in Mayon Street. But somewhere in Espaa Extension before the Rotonda a small car whizzed to them almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast of the small car he shouted, "Putang ina mo, kamuntik na kaming mamatay." The woman continued on her way. Now Pineda saying "let us teach her a lesson," sped after her and when she swerved ostensibly to enter a gate, Pineda stopped his car behind being hurriedly got down, striding to the small car, opened the door and started dragging the girl out. Both Jose and Aquino confirm the presence of another woman inside the girl's car, who helped the girl struggle to get free from Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally succeeded in pushing the girl into the red convertible. All the three accused insist they did nothing to aid Pineda: but they also admit that they did nothing to stop him. Now the defense contends that Pineda cruised around and around the area just to scare the girl who was in truth so scared that she begged them to let her be and return her to her home. She turned to Jose in appeal, but this one told her he could net do anything as the "boss" was Pineda. Aquino heard her plead with Jose "do you not have a sister yourself?" but did not bear the other plea 'do you not have a mother?' Then Pineda stopped at the corner of the street where he had forcibly snatched the girl presumably to return her, but then suddenly changing his mind he said, 'why don't you do a strip tease for us. I'll pay you P1,000.00 and the girl taunted, 'are you kidding?': that after a little while she consented to do the performance as long as it would not last too long and provided the spectators were limited to the four of them. Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not before Maggie had borrowed a handkerchief from one of them to cover her face as she went up the Hotel. The three followed, and when they saw the pair enter a room, they quickly caught up. All the three accused testify that as soon as they got into the room, Maggie de la Riva asked the boys to close the windows before she. undressed in front of them. They themselves also removed their clothing. Two of them removed their pants retaining their briefs, while Boy Pineda and Caal stripped to the skin "because it was hot." The three accused declared that they saw Boy Pineda hand P100.00 to Maggie and they heard him promise her that he would pay the balance of P900.00 later. Whereupon, the show which lasted about 10 minutes began with the naked girl walking back and forth the room about 4 to 5 times. This accomplished, all of them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and Rogelio Caal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who were apparently still discussing the mode of payment of the balance. Three minutes later Maggie de la Riva and Boy Pineda joined them. Now, the question of how and where to drop Maggie came up and it is testified to by the accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would appear as if she had just come from her work. Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino testifies how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with which to pay Maggie the balance of her "show" and he was afraid that if he did not pay, Maggie would have her goons after him. He wanted Aquino to go with him to Lipa City where he had relatives and where he could help raise the money. Aquino readily obliged, and to make the company complete they invited

Caal to join them. They used another car of Jaime Jose, different from the one they had used the day before. At Lipa, Aquino detached himself from his compassions and proceeded alone to the barrio allegedly to visit his relatives. In the meantime his two companions had remained in the City and had, according to Canal, gone to live in a house very close to the municipal hall building. They later moved to another house where the PC and Quezon City police posse found and arrested them. Aquino was the last to be apprehended, when having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas. The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and reason, and had utterly to counteract the evidence for the prosecution, particularly the complainant's testimony and Dr. Brion's medical report and testimony. We quote with approval the able dissertion of the trial judge on this point: As main defense in the charge of rape, the three accused advance the proposition that nothing happened in Swanky Hotel except a strip-tease exhibition which the complaint agreed to do for them for fee of P1,000.00, P100.00 down and the balance to be paid "later." The flaw in this connection lies in its utter inverisimilitude. The Court cannot believe that any woman exists, even one habitual engaged in this kind of entertainment (which Maggie de la Riva has not been proven to be) who would consent (and as easily and promptly as defense claims) to do a performance, not even for all money in the worlds after the rough handling she experienced from these wolves in men's clothing who now hungered for a show. There is no fury to match a woman stirred to indignation. A woman's pride is far stronger than her yen for money, and her revenge much more keen. The Court cannot believe that after the rudeness and meanness of these men to her, Maggie would in so short an interval of time forget her indignation and so readily consent to satisfy their immoral curiosity about her. The woman in her would urge her to turn the men's hankering as a weapon of revenge by denying them their pleasure. Besides, the manner of payment offered for the performance is again something beyond even the wildest expectations. Assuming that the woman whom the accused had abducted was in this kind of trade assuming that the price offered was to her satisfaction, whom woman would be willing to perform first and be paid later? It is simply preposterous to believe that Maggie de la Riva should have consent to do a striptease act for a measly down-payment of P100.00 and the balance to be paid God knows when. Since when are exposition of the flesh paid on the installment basis? By the very precautious nature of their pitiful calling, women who sell their attractions are usually very shrewed and it is to be expected that they could demand full payment before curtain call. How was Maggie to collect later when she did not even know who these man were, where they lived, whether they could be trusted with a promise to pay later (!) whether she could ever find them again? If there is anything that had struck the Court about the complaint, it is her courage, her intelligence and her alertness. Only a stupid woman, and a most stupid one that, could have been persuaded to do what the defense want this Court to believe Maggie de la Riva consented to do. Finally, it is odd that not one of these men should have mentioned this circumstances during their interview with anyone, either the press, their police interrogator, the person who negotiated their surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong suspicion that this story is a last ditch, desperate attempt to save the day for the accused. It truly underscores the hopelessness of their stand and projects all the more clearly their guilt. Then there is the incident of the men's stripping themselves. Why was there need for this? The Court realizes that in its desperate need of an explanation for Maggie's positive identification of Caal as the man with the tattoo mark on his right buttock, the defense concocted the sickeningly incident story that the four men removed their underclothing in the presence of a woman simply "because it was hot." What kind of men were these who were so devoid of any sense of decency that they thought nothing of adding insult to injury by not only inducing a woman a strip before them, but for forcing her to perform before a naked audience? And then they have gall to argue that "nothing" happened. For males of cold and phlegmatic blood and disposition it could be credible, but not for men of torrid regions like ours where quick passions and hot tempers are the rule rather than the exception! All of these consideration set aside, notwithstanding, it is quite obvious that the version of the defense has not been able to explain away a very vital piece of evidence of prosecution which, if unexplained, cannot but reduce any defense unavailing. The result of the physical (external and internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29, the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the time that Maggie de la Riva was examined she bore on her body traces of physical and sexual assault. The only attempt to an explanation made by the defense is either one of the following: (1) the insinuation that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the bruises and the sexual attack could have taken place then. But then, the defense itself says that these two persons rejoined the three after three or four minutes! It is physically impossible, in such a

short time, for Boy Pineda to have attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the defense that Maggie de la Riva could have inflicted all of those injuries upon herself just to make out a case against the accused. The examining physician rules out this preposterous proposition, verily it does not take much stretch of the imagination to see how utterly impossible this would be, and for what purpose? Was P900.00 which she had failed to collect worth that much selftorture? And what about all the shame, embarrassment and publicity she would (as she eventually did) expose herself to? If she really had not been raped would she have gone thru all of these tribulation? A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case will reap her, her honor and that of her family, than in the redress she demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-6302, August 25, 1954); (3) it could also be argued that the contusions and bruises could have been inflicted on Maggie during her struggle with Pineda when the latter pulled and pushed her into the red convertible car. The telltale injuries, however, discount this possibility, for the location in which many of the bruises and traumas were located (particularly on the inner portion of her thighs) could not have been cause by any struggle save by those of a woman trying to resists the brutal and bestial attack on her honor. In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony should not be rated any credence at all as against the concerted declaration of the the accused. In the first place, it is not correct to say that Maggie's declaration was uncorroborated she has for corroboration nothing less than the written extra-judicial statements of Jose and Canal. But even assuming that Maggie stood alone in her statements, the cases cited by the accused in their Memorandum notwithstanding which the Court does not consider in point anyway, jurisprudence has confirmed the ruling that numbers is the least vital element in gauging the weight of evidence. What is more important is which of the declarations is the more credible, the more logical, the more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid that in the most detestable crime of rape in which a man is at his worst the testimony of the offended party most often is the only one available to prove directly its commission and that corroboration by other eyewitnesses would in certain cases place a serious doubt as to the probability of its commission, so trial courts of justice are most often placed in a position of having to accept such uncorroborated testimony if the same is in regards conclusive, logical and probable (Landicho, VIII ACR 530). We shall now consider the points raised by the appellants in their briefs. 1. Appellants Jose, Aquino and Caal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged at any taint of criminality by the complainant's subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. This line of defense has evidently leg no to stand on. The evidence is clear and overwhelming that all the appellants participated in the forcible abduction. Miss De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one another in dragging her into the car against her will; that she did not know them personally; that while inside the car, Jose and Aquino, between whom she was seated, toyed with her body, the former forcing his lips on hers, and the latter touching her thighs and raising her skirt; that meaningful and knowing glances were in the meanwhile being exchanged among the four; and that all of them later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2. The commission of rape by each of the appellants has, as held by the court below, likewise been clearly established. Jose, Aquino and Canal contend that the absence of semen in the complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI, who testified as an expert, declared that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within that period. In the present case, the examination was conducted on the fourth day after the incident, and the complainant had douched herself to avoid infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration (People vs Hernandez, 49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and earning as much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing the same with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the insertion of such an instrument in the genital organ would not result in the kind of injuries he found in the mucosa of the cervix.

3. Other evidence and considerations exist which indubitably establish the commission of successive rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the morning of June 26, 1967, she immediately told her mother, " Mommy Mommy, I have been raped. All four of them raped me." This utterance, which is part of the res gestae, commands strong probative value, considering that it was made by the complainant to her mother who, in cases of this nature was the most logical person in whom a daughter would confide the truth. Aquino and Canal would make capital of the fact that Miss De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to the press is understandable. At that time the complainant, who had not yet consulted her family on a matter which concerned her reputation as well as that of her family, and her career, was not then in a position to reveal publicly what had happened to her. This is one reason why the complainant did not immediately inform the authorities of the tragedy that befell her. Another reason is that she was threatened with disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of the complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that Pineda and the complainant were left in the hotel room for only three or four minutes, and that they came out to join them in what they would picture to be a cordial atmosphere, the complainant even allegedly suggesting that she be dropped on a spot where people would reasonably presume her to have come from a studio? Equally important is the complainant's public disclosure of her tragedy, which led to the examination of her private parts and lay her open to risks of future public ridicule and diminution of popularity and earnings as a movie actress. 4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence on the grounds that they were secured from them by force and intimidation, and that the incriminating details therein were supplied by the police investigators. We are not convinced that the statements were involuntarily given, or that the details recited therein were concocted by the authorities. The statements were given in the presence of several people and subscribed and sworn to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete with details which could hardly be known to the police; and although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. While in their statements Jose and Canal admitted having waited together with the two other appellants for Miss De la Riva at the ABS Studio, each of them attempted in the same statements to exculpate himself: appellant Jose stated that only Pineda and Aquino criminally abused the complainant; while appellant Canal would make it appear that the complainant willingly allowed him to have sexual intercourse with her. Had the statements been prepared by the authorities, they would hardly have contained matters which were apparently designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit to inform any of their friends or relatives of the alleged use of force and intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who examined appellant Canal after the latter made his statement, found no trace of injury on any part of the said appellant's body in spite of the claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter. In the circumstances, and considering, further, that the police officers who took down their statements categorically denied on the witness stand that the two appellants were tortured, or that any detail in the statements was supplied by them or by anyone other than the affiants themselves, We see no reason to depart from the trial court's well-considered conclusion that the statements were voluntarily given. However, even disregarding the in-custody statements of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two. The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground that he was not assisted by counsel during the custodial interrogations. He cites the decisions of the Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436). The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by himself and counsel ..." While the said provision is identical to that in the Constitution of the United States, in this jurisdiction the term criminal prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial court from arraignment to rendition of the judgment. Implementing the said constitutional provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant shall be entitled ... (b) to be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the judgment." The only instances where an accused is entitled to counsel before arraignment, if he so requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18). The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only because it has no binding effect here, but also because in interpreting a provision of the Constitution the meaning attached thereto at the time of the adoption thereof should be considered. And even there the said rule is not yet quite

settled, as can be deduced from the absence of unanimity in the voting by the members of the United States Supreme Court in all the three above-cited cases. 5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense and the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. (Cf. People vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did not intend to admit that he committed the offense with the aggravating circumstances" mentioned in the information. We are not in a position to make a similar finding here. The transcript of the proceedings during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his client's plea of guilty with the statement that . I have advised him (Pineda) about the technicalities in plain simple language of the contents of aggravating circumstances and apprised him of the penalty he would get, and we have given said accused time to think. After a while I consulted him for three times and his decision was still the same. Three days after the arraignment, the same counsel stated in court that he had always been averse to Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of the maximum penalty considering the aggravating circumstances," but that he acceded to his client's wish only after the fiscal had stated that he would recommend to the court the imposition of life imprisonment on his client. To be sure, any such recommendation does not bind the Court. The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra. 6. Two of the appellants Jose and Caal bewail the enormous publicity that attended the case from the start of investigation to the trial. In spite of the said publicity, however, it appears that the court a quo was able to give the appellants a fair hearing. For one thing, three of the seven (7) original accused were acquitted. For another thing, Jose himself admits in his brief that the Trial Judge "had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial." We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit the various and the successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding (crimes of the same nature can not legally be considered as still connected with the abduction in other words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as follows: ART. 335. When and how rape 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, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Ca__al, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating circumstances remaining. As a result, appellants should likewise be made to suffer the extreme penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.) In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the appellant shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if only one death penalty were imposed on each of the appellants. We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of Balaba is different from the present case, for while in the former case the accused was found to have committed three distinct offenses, here only one offense is charged, even if complex. As We have explained earlier herein, four crimes were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes of murder, We said that "since it is the settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by

law." In the said case (which was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the legality and practicality of imposing multiple death penalties, thus: The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is impractical and futile because after the service of one capital penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties. The imposition of a penalty and the service of a sentence are two distinct, though related, concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and proved, whereas service of sentence is determined by the severity and character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like the successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law. Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A cursory reading of article 70 will show that there are only two moves of serving two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the nature of said penal sanctions does not only permit but actually necessitates simultaneous service. The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in his behalf. Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence. We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties should be imposed in the premises. Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for reversal of that portion of the judgment of the court below ordering the confiscation of the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez. On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to secure payment of the purchase price of P13,200, which was stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly registered with the Land Transportation Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien was

annotated on the motor registration certificate. On April 17, 1967, for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment was duly registered with the Land Transportation Commission and annotated on the registration certificate. Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of replevin because the car was not in Mrs. Gomez' possession, the same having been used by her son, appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of Miss De la Riva, as a result of which the car was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal case. During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed with the said court a petition for intervention. The said petition was not, however, acted upon. On October 2, 1967, the trial court rendered its judgment in the present case ordering the car's confiscation as an instrument of the crime. Although not notified of the said decision, the intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation; but the same was denied on October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgement, but the same was also denied. On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The judgment became final and executory. Attempts to execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General contends, among others, that the court a quo having found that appellant Jose is the owner of the car, the order of confiscation is correct. Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that the only basis of the court a quo in concluding that the said car belongs to appellant Jose were the latter's statements during the trial of the criminal case to that effect; that the said statement were not, however, intended to be, nor could constitute, a claim of ownership over the car adverse to his mother, but were made simply in answer to questions propounded in court for the sole purpose of establishing the identity of the defendant who furnished the car used by the appellants in the commission of the crime; that the chattel mortgage on the car and its assignment in the favor of the intervenor were made several months before the date of commission of the crimes charged, which circumstance forecloses the possibility of collusion to prevent the State from confiscating the car; that the final judgement in the replevin case can only be executed by delivering the possession of the car to the intervenor for foreclosure of the chattel mortgage; and the Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third person not liable for the offense," it is the sense of this Court that the order of the court below for confiscation of the car in question should be set aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in the replevin case, Civil Case No. 69993. Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants, died in prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay one-fourth (1/4) of the costs.

Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof. G.R. No. 85822 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONILO ALBURO, ZALDY RODRIGUEZ, AND JOHN DOE, accused, RONILO ALBURO, accused-appellant. MELENCIO-HERRERA, J.: We affirm the judgment of the Regional Trial Court of Cebu City, Branch XIX, 1 finding Ronilo Alburo guilty beyond reasonable doubt of the crime of Forcible Abduction with Rape and sentencing him to suffer the penalty of reclusion perpetua with all the accessories of the law; to indemnify Evelyn Cantina in the sum of P10,000.00 as moral damages, without subsidiary imprisonment in case of insolvency; and to pay the costs. On 3 February 1986, Evelyn Cantina filed a complaint for Forcible Abduction with Rape against Ronilo Alburo, Zaldy Rodriguez and John Doe. The complaint reads: That on or about the 27th day of January, 1986 at about 6:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, accused Ronilo Alburo, who was armed with a butcher's knife, conniving and confederating together with Zaldy Rodriguez and John Doe and mutually helping one another, with deliberate intent, by the accused, Zaldy Rodriguez and John Doe holding one Evelyn Cantina and preventing the latter from disembarking from the jeep driven by accused Ronilo Alburo took her to Beverly Hills against her will and once there, said accused Ronilo Alburo, by means of force and intimidation, did then and there have carnal knowledge of said Evelyn Cantina without the consent and against the will of the latter. (p. 1, Original Record) Accused John Doe was subsequently identified as Dionisio Sumalinog. Upon being arraigned, the accused individually entered pleas of not guilty. Towards the end of the presentation of the prosecution evidence, the prosecution moved for the dismissal of the complaint against Zaldy Rodriguez and Dionisio Sumalinog. The motion was granted and trial proceeded against Ronilo Alburo. The prosecution evidence upon which the Trial Court based its finding of guilt beyond reasonable doubt is summarized in the People's Brief as follows: At or about 5:00 o'clock in the afternoon of January 27, 1986, Evelyn Cantina was already dismissed from her classes at the Abellana National High School, located at Jones Avenue, Cebu City. From there, her classmates, Priscilla Atillo and Aniceta Bringuila, accompanied her in walking towards Colon Street, Cebu City, to buy some medicine. Not long after, a passenger jeepney plying the Guadalupe. Carbon market route stopped by the side of the road. The driver, Ronilo Alburo, invited the three girls to board his jeepney. As Colon Street is very near, Evelyn Cantina declined the invitation at first. Alburo was however, insistent in giving the three girls a lift. Finally, the latter accepted the invitation by taking the front seat, with Evelyn sitting right beside the driver. At that time however', Zaldy Rodriguez and Dionisio Sumalinog were already seated at the passengers' area at the back (t.s.n., pp. 18-21, April 24, 1986, Priscilla Atillo). Upon reaching the corner of Jones Avenue and Colon Street, the jeepney driven by Alburo stopped at the red traffic light. At this juncture, Bringuila and Atillo disembarked. Evelyn was also about to alight but she was prevented by Alburo who threatened to raise her skirt if she insists on alighting and following her two companions. Bringuila and Atillo tried to help Evelyn by pulling her out but meanwhile, the green light turned on and the jeepney sped off towards Juan Luna Street (t.s.n., pp. 17-26, April 24, 1986, Priscilla Atillo). Reaching Juan Luna, the jeepney then made a U-turn on its return trip to Guadalupe. Meanwhile, Zaldy Rodriguez transferred to the front seat beside Evelyn (t.s.n., p. 20, August 6, 1986, Evelyn Cantina). Anticipating that the jeepney driven by Alburo would make a return trip to Guadalupe, Atillo and Bringuila posted themselves beside the corner of Colon and Juan Luna Streets near the Cebu City Savings Bank, where vehicles would stop at the red light signal (t.s.n., p. 34, April 24, 1986, Priscilla Atillo).

Indeed, on its way to Guadalupe, the jeepney driven by Alburo stopped at the corner of Colon and Juan Luna Streets when the red light signaled. Evelyn attempted to go down from the jeepney but, she was prevented by Zaldy Rodriguez who placed his leg as barricade. Realizing that Evelyn was being prevented from disembarking, Atillo and Bringuila who stood by the roadside, close to the jeepney, attempted to pull Evelyn from the vehicle. However, they did not succeed. Then the jeepney again sped off and headed towards Jones Avenue when the green light turned on (t.s.n., p. 22, August 6, 1986, Evelyn Cantina). On the way to the Capitol and upon reaching the Fuente Osmea Police Station, the jeepney turned left along B. Rodriguez Street. When it was already near the Southern Medical Center, Zaldy Rodriguez and Dionisio Sumalinog got off from the jeepney, leaving only Alburo and Evelyn on board. Alburo then drove off, turning right at V. Rama Avenue, passing thru Englis, he place where Evelyn resides. The latter then begged Alburo that she be allowed to disembark. Alburo did not heed Evelyn's plea. Instead, he pulled a knife and threatened to slash her side if she would disembark. The jeepney then proceeded to Beverly Hills (t.s.n., pp. 27-30, August 16, 1986, Evelyn Cantina). Thinking that Evelyn might have been dropped by Alburo at her residence in Englis Atillo and Bringuila boarded another jeep. They were hoping that Evelyn was already home and that they could get the notebook which one of them left with her. However, only Evelyn's mother was there. They then realized that Evelyn was really in trouble and so they related to her mother what happened. Alarmed by such information, the latter sought the help of Ester Dakay, a neighbor and close friend (t.s.n., pp. 5-10, May 13, 1986, Priscilla Atillo). The husband of Ester Dakay, a jeepney driver who fully knew Ronilo Alburo and the latter's route from Guadalupe to downtown, Cebu City, called up by phone Evelyn's father, who came home not long after (t.s.n., p. 26, May 13, 1986, Ester Dakay). Together, they then formed search teams to look for Evelyn. Lourdes Cantina and Ester Dakay went as search team No. 1. Riding on a taxi, they searched the reclamation area and made inquiries from the motels. On the other hand, Evelyn's father as well as her uncle, rode on two separate motorcycles, making up search teams 2 and 3, and scoured the streets of the city. However, the search proved futile (t.s.n., pp. 2932, May 13, 1986, Ester Dakay). In an isolated area at barangay OPPRA (Capitol Hills), Alburo stopped the jeepney. Holding the knife, he went down from the jeepney and threateningly came close to Evelyn. He then pointed the knife at her and told her that at something would happen to her if she would shout. Then he pushed Evelyn's head against the steering wheel which rendered the latter unconscious. When Evelyn regained her senses she found herself without her panty anymore. Blood was on her vagina and she felt pain on her stomach. She saw Ronilo Alburo with his face close to hers, getting up from her then raising his pants. She cried and asked Alburo what he had done to her. He did not answer her inquiries. Instead, he made her walk for a while, outside of the jeepney, accordingly, to ease the pain she felt. Then he made her sit back on the front seat with him, still under threat of death (t.s.n., pp. 11-19, August 15, 1986, Evelyn Cantina). It was already dark when Alburo drove back to the City. Still under threat of death, Evelyn remained seated beside him. To make it appear that nothing really happened, Alburo even picked up some passengers along the way (t.s.n., p. 33, August 15, 1986, Evelyn Cantina). At about seven o'clock in the evening, while Lourdes and Ester were standing near Power Foods Restaurant at Jones Avenue, Ester spotted the jeepney coming from the Capitol heading towards downtown. Ester signaled the jeepney to stop. As the jeepney slowed down, she saw Evelyn seated between Alburo and a male passenger (t.s.n., pp. 40-41, May 13, 1986, Ester Dakay). Evelyn who appeared very weak and who was in tears, alighted from the vehicle upon order from her mother Lourdes Cantina. As she was embraced by Ester, she whispered to Ester that Alburo should not be allowed to abscond because he had raped her (t.s.n., pp. 42-43, May 13, 1986, Ester Dakay). A commotion followed as an altercation between Lourdes and Alburo started. The passengers at the back area disembarked. Ester and Evelyn then sat down at the passenger's area with a certain Boyet Junio a Barangay Tanod (t.s.n., p. 48, May 13, 1986, Ester Dakay). During the confrontation, Lourdes demanded that Alburo should bring Evelyn and Ester to the Fuente Osmea Police Station. At first, Alburo refused claiming that nothing wrong had happened between him and Evelyn. When Ester told him he had nothing to be afraid of if he was telling the truth he however, relented and drove the jeepney towards Fuente Osmea (t.s.n., pp. 43-45, August 15, 1986, Evelyn Cantina).

Lourdes did not board the jeepney as she decided to look for her husband in order to inform him that they had already found Evelyn. While the jeepney was proceeding towards Fuente Osmea, Alburo changed his mind. He made a left turn at Visitacion Street on the pretext that he would pick up a friend who could accompany him to the police station. At Visitation Street, Alburo parked the jeepney. He took out the engine key and the cash collections, then left the vehicle. As Alburo had gone, Evelyn narrated to Ester how she was raped by Alburo. She even gave to Ester the knife which was left in the jeepney by Alburo (t.s.n., pp. D-4-57, May 13, 1986, Ester Dakay). After about 15 minutes, Ester realized that Alburo would not return anymore. She then called by phone the jeepney owner who came later and drove them to Fuente Osmena Police Station (t.s.n., p. 60, p. 65, May 13, 1986, Ester Dakay). When Ester and Evelyn arrived at the Fuente Osmea Police Station, Lourdes was already there. The two women then reported to the police the abduction of Evelyn by Rodriguez, Sumalinog and Alburo. Ester also submitted the knife (Exhibit "A") to the police. Thereafter, Lourdes and Ester accompanied Evelyn to the Southern Islands Medical Center for the latter's medical examination. As they could not be accommodated there immediately, they went to the Cebu City Medical Center (t.s.n., pp. 5253, August 15, 1986, Evelyn Cantina). At the Cebu City Medical Center where Evelyn was examined by Dra. Juliet Lastimosa and was found to have fresh lacerations on her vagina with positive presence of spermatozoa (t.s.n., pp. 52-53, August 15, 1986, Evelyn Cantina). The medical certification (Exhibit "B") was issued by Dra. Lastimosa on the following morning. On that same evening, Ester, Lourdes and Evelyn made a second appearance at the police station and the complaint for abduction with rape was formally lodged by Evelyn. Her affidavit was initially taken by the Investigator. The knife. (Exhibit "A") which was submitted earlier that night remained in the possession of the police. As the panty (Exhibit "E") and the skirt (Exhibit "D" were still worn by Evelyn, they were submitted only the following day. The skirt was torn on the right side (Exhibit "D-2") and had some blood stains (Exhibit "D-1"). The panty also had some blood stains (Exhibit "E-1"). (pp. 3-1 1, Brief for the Appellee) Appellant, on the other hand, presented five (5) witnesses and offered several documentary exhibits in his defense. His theory runs thus: Accused Alburo's theory or main line of defense is that he and Evelyn Cantina were sweethearts, thus, if ever there was sexual intercourse between Ronilo and Evelyn on 27 January 1986, it was with the free and voluntary consent of complainant Evelyn Cantina. The defense witnesses testified to the fact that on several occasions they saw Evelyn riding the jeepney driven by Ronilo and the former was seating beside the accused at the front seat of the motor vehicle. One of the witnesses even testified to the effect that she saw Evelyn visiting Ronilo at the latter's rented room for a number of times. In short, the accused tried to convey before the trial court that it is of public knowledge in the neighborhood of Ronilo that the accused and Evelyn were lovers." (pp. 5-6, Brief for the Accused-Appellant) The Trial Court gave no credence to the defense version and, as heretofore stated, sentenced Appellant to reclusion perpetua. Before us now, Appellant maintains: I. The lower court erred in giving credit to the claim of the prosecution that the alleged offended victim Evelyn Cantina was forcibly raped by the accused-appellant Ronilo Alburo. II. The trial court erred in giving credit to the testimony of the offended party which lacks candor or credibility and probability, and in not considering that her testimony was due to fear of her parents that they would castigate and punish her if found that she and Ronilo were lovers. III. The trial court erred in considering that the facts and circumstances presented as evidence by the prosecution militates against a finding of rape. IV. The trial court erred in not believing that the accused-appellant Ronilo Alburo and Evelyn Cantina were sweethearts and lovers, and that the carnal act done by them on 27 January 1986 was motivated by mutual passion and love and therefore voluntary. V. The trial court erred in not believing the testimonies of the appellant Ronilo Alburo and of Dina Lopez, Placido Alegrado Manuel Rama and Corazon Gabato defense witnesses, who declared that on several occasions they saw Evelyn riding the jeepney.

VI. The trial court erred in not acquitting the accused-appellant at least on the ground of reasonable doubt. (pp. 7-8, Ibid.) After evaluation of the evidence in its totality, we are not persuaded by the theory that Appellant and Evelyn were sweethearts. If they were, surely, Evelyn would not have jeopardized their relationship by accusing him of having deflowered her and, on top of it all, filing a criminal charge against him. Evelyn's picture, allegedly given to Appellant as a remembrance of their romantic relationship, was actually given to Ruel Sipi her former boyfriend. She emphatically denies having given Appellant any such token. Neither was Appellant able to present any convincing evidence to substantiate his claim like love letters, notes and other symbols of affection. Moreover, if, in fact, they had been lovers, Evelyn would have boarded Appellant's jeep voluntarily and alone unaccompanied by her two classmates. If the latter had any inkling that Evelyn did want to go with Appellant, they would not have shown so much concern for her welfare and safety like following the passenger jeepney driven by Appellant to the traffic lights, trying to pull Evelyn down from the jeepney, failing in which, they eventually reported the incident to Evelyn's mother. Appellant's argument that Evelyn charged him with the crime out of fear of her parents who did not approve of their relationship is unconvincing because, if it had been so, Evelyn could have easily told her mother after the latter had successfully traced their whereabouts that nothing untoward had happened between her and Appellant. Her normal reaction would have been to cover-up for the man she loved and had a clandestine affair with. But, on the contrary, Evelyn lost no time in denouncing Appellant and exposing to her family and the authorities the disgrace that had befallen her. Appellant's other assigned errors focus on the issue of credibility of witnesses in respect of which it is well settled that Appellate Courts will not generally disturb the factual findings of Trial Courts which are in a better position to weigh the conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial unless it is found that the Trial Courts have plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case (People vs. Cruz, Sr., G.R. No. L-71462, June 30, 1987, 151 SCRA 609, citing other cases). In reviewing the evidence adduced by the prosecution for this crime of Rape, we have likewise been guided by three well-known principles, namely, (1) that an accusation of rape can be made with facility, is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (2) that in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) that the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weaknesses of the evidence for the defense (Reyes, Revised Penal Code, Book II, 1981 ed., p. 850). The factual milieu of this criminal charge before us gives us no reason to depart from these established rules. On the contrary, we find that Appellant had taken Evelyn away against her will, with lewd designs, subsequently forced her to submit to his lust and rendering her unconscious in the process, thereby justifying his conviction for the complex crime of Forcible Abduction with Rape under Article 48 in relation to Articles 335 and 342 of the Revised Penal Code, with which he has herein been charged. WHEREFORE, the judgment appealed from is hereby AFFIRMED, with the modification of the amount of indemnity to be paid the offended party, which is hereby increased to P20,000.00, in line with decisional jurisprudence. Costs against accusedappellant Ronilo Alburo. G.R. No. 93410 May 7, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO GODINES and DANNY MORENO, defendantsappellants. GANCAYCO, J.:p The herein defendants-appellants were convicted of the crime of rape by the Regional Trial Court of Masbate, Masbate and, accordingly, sentenced to suffer the penalty of reclusion perpetua and to pay P20,000.00 moral damages to the offended party. They appealed their case to this Court seeking an acquittal. Under the circumstances obtaining in this case, and considering the evidence on record, their acquittal is well-nigh beyond realization. In an information filed with the trial court on September 28, 1988, the provincial prosecutor of Masbate accused the defendantsappellants Rolando Godines and Danny Moreno of having conspired in the commission of the crime of forcible abduction with

rape as penalized under the Revised Penal Code. 1 Thereafter, the appellants were arraigned accordingly and they pleaded not guilty to the offense charged. In due time, a trial ensued. Esther Ancajas, the private complainant, testified as follows: In the evening of March 17, 1988, she was sleeping in the house of one Alejandro Vilaksi at Sitio Sincamas, Sta. Cruz, San Pascual, Masbate. She was awakened by a commotion emanating from an adjacent room occupied by Vilaksi and his wife Milagros. She lit a kerosone lamp to ascertain what was going on. Thereafter, she saw the defendants-appellants talking to the couple. Godines eventually hacked Milagros. Moreno stood by the window to serve as a lookout person. The couple's son Vicente ran away from the house after seeing Godines hack Milagros. Godines got some money from the couple. Thereafter, the appellants prepared to leave the house. In the meantime, Ancajas tried to escape from the house with her small child. The appellants, however, saw her and grabbed her. The two men dragged Ancajas and the child out of the house and forcibly brought them to a nearby vacant lot with tall grasses, about 600 meters away from the Vilaksi residence. Both men were apparently armed; Godines had a pistol and Moreno had a knife. They threatened to kill Ancajas if she resisted their advances. As they were dragging her to the vacant lot, they fondled her private parts. Upon their arrival at the vacant lot, the appellants took turns in having carnal knowledge of Ancajas. Godines did it first. While one was raping the girl, the other was holding on to the child. All the while, the appellants threatened to kill Ancajas if she put up any resistance. Ancajas tried to resist but the appellants simply overpowered her. After the appellants had finished satisfying their carnal desires, they threatened her anew with death because they suspected that Ancajas recognized them. Ancajas knew who they were but for fear of losing her life, she denied knowing any of them. Thus, the appellants warned her not to report the incident to the authorities if she valued her life. Ancajas took refuge in the house of a neighbor, Elpidio Aballe. She fell unconscious there. She eventually regained her consciousness after which she narrated to Aballe the ordeal she went through. Ancajas later informed her parents and the authorities about the incident. Ancajas submitted herself to a medical examination. Rizaliano Deliarte, the municipal health officer of San Pascual, Masbate prepared the following report (1) Scant pubic hair; (2) Labia Majora partially coaptate, which means that outer lip of sexual organ of the woman is partially opened; (3) Vagina easily admits two fingers, the forefinger and the middle finger; and (4) Physical ExaminationAbrasion multi-linear or lateral aspect of left shoulder joint, which means that the abrasions were located on the lateral aspect and run across the chest, left shoulder joint, and this could have been caused by a hard object hitting the skin of the persons, such as stone, tip of wood, sand and even finger nails. 2 Deliarte later on testified that on account of these manifestations, it is possible that Ancajas had been raped. The defense, however, had a different version of the story. The witness for the defense testified as follows: Sometime in the afternoon of March 17, 1988, the two accused attended a religious service at the local Iglesia Ni Cristo church with a number of friends and relatives. They were together with a certain Felomino Moreno, the wife of Godines, and two children. When the religious service was over, they proceeded to the house of Felomino Moreno. They passed for a certain Generoso Umpad along the way. Before they reached their destination, Godines declared that he was feeling ill. Upon their arrival at the house of Felomino Moreno, everyone in the household attended to Godines. Umpad gathered some medicinal herbs for him. Godines and his wife spent the night in the said house. They went home at 7 o'clock the following morning. Danny Moreno stayed up to 10 o'clock in the evening. He slept in the house of Generoso Umpad from 11 o'clock p.m. The next day, Vicente Vilaksi went to see Godines at the latter's house in order to borrow a hammock. Godines then accompanied Vicente to the Vilaksi residence. There, he saw Ancajas and Elpidio Aballe. Later on in the afternoon of the same day, police authorities arrested the accused. Godines asserted that he could not have committed the crime because he had to stay in the house of Felomino Moreno to recuperate from his illness and that he was able to go home the next day. He also asserted that the house of Felomino Moreno is about two kilometers away from the house of Alejandro Vilaksi where the incident in question took place. Godines likewise intimated that he knew Esther Ancajas since they were small children and that they never had a misunderstanding. For his part, Danny Moreno maintained that the house of Generoso Umpad is about three kilometers away from the house of Vilaksi. He also admitted that, like Danny Moreno, he knew Ancajas and that there was never any unpleasant relationship between them in the past. Both accused related that Ancajas knew the two of them as well.

The trial court did not sustain the version of the defense. The trial court observed that there were serious inconsistencies in the testimonies of the witnesses for the defense and that a distance of a few kilometers from the scene of the crime is not a sufficient basis upon which to conclude that it was impossible for the accused to have committed the crime. Moreover, the trial court invited attention to the fact that alibi is a defense which is easily concocted and that the same cannot prevail against positive identification by credible witnesses. The trial court also found the version of the prosecution credible in that no Filipino woman will publicly admit that she has been raped unless the same is true because her natural disposition is to protect her honor. In addition, the trial court held that the crime of forcible abduction is absorbed in the crime of rape if the main purpose of the accused is to rape the victim. As stated earlier, the trial court found both accused guilty of rape. Both accused filed a motion for reconsideration on March 5, 1990. The trial court denied the motion on March 7, 1990. The case was elevated to this Court by way of this appeal. The appellants raise the following errors allegedly committed by the trial court I. THE TRIAL COURT ERRED IN FINDING THAT THE CRIME OF RAPE WAS COMMITTED ON THE VICTIM. II. THE TRIAL COURT ERRED IN FINDING THAT THE TESTIMONIES OF THE ACCUSED AND THEIR WITNESSES WERE INCONSISTENT AND CONTRADICTED EACH OTHER. III. THE TRIAL COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF THE COMPLAINANT AND HER WITNESSES WERE INSUFFICIENT AND INCREDIBLE. IV. THE TRIAL COURT ERRED IN NOT FINDING THAT THERE WAS A DELAY IN THE FILING OF THE COMPLAINT. V. THE TRIAL COURT ERRED IN NOT FINDING THAT THE COMPLAINANT AND HER WITNESS HAS (SIC) A MOTIVE IN FILING THE CHARGE OF RAPE. VI. THE TRIAL COURT ERRED IN MISAPPREHENDING THE FACTS OF THIS CASE. VII. THE TRIAL COURT ERRED IN NOT FINDING THAT THE GUILT OF THE ACCUSED WERE (SIC) NOT PROVEN BEYOND REASONABLE DOUBT. 3 After a careful evaluation of the entire record of the case, the Court finds no reason to reverse the decision appealed from. Inasmuch as the assigned errors are interrelated, the Court will consider them altogether. The appellants insist that there are no conclusive medical findings that the complainant had indeed been raped. This assertion is untenable. A medical examination is not an indispensable element in a prosecution for rape. 4 At any rate, the medical evidence discloses that the private complainant suffered abrasions on her body thereby confirming that she had been physically violated through the use of force.

The appellants contend that the testimonies of the prosecution witnesses were inconsistent and as such do not serve as valid grounds for their conviction. The contention is untenable. It is true that an accusation for rape can easily be fabricated because the nature of the crime is that it is difficult to prove. More often than not, only the victim and the accused are in a position to testify on the matter so much so that the conviction or acquittal of the accused hinges solely upon the credibility of the witnesses. 5 In the case at bar, the private complainant categorically identified the authors of the crime. She had no motive to conjure up a serious charge against the appellants. The appellants themselves admit that before the incident in question took place, there was no unpleasant relationship between the accused on the one hand and the private complainant on the other. The record, as a matter of fact, is devoid of inconsistencies on the part of the prosecution witnesses. The actuations of the private complainant after the commission of the rape upon her are consistent with that of a rape victim. What remains as the decisive factor is the positive identification of the appellants as the perpetrators of the rape. The Court reiterates its oft-mentioned observation that it is very difficult to believe that a woman would be willing to undergo the expense, trouble, inconvenience and scandal of a public prosecution for rape, as well as an examination of the private parts of her anatomy, if her intention is not to bring her rapists to justice. 6 Besides, the trial court had the opportunity of a first hand assessment of the testimonies of the witnesses, an opportunity that is not available to this Court. Thus, the findings of the trial court on the credibility of witnesses in a prosecution of a crime against chastity commands the highest respect from the Supreme Court, 7 in the absence of valid reasons for holding otherwise. No valid reasons have been presented by the appellants to merit a deviation from this principle. The defense of alibi raised by the appellants is of no value in the case at bar. In order for the appellants to establish alibi, they must show that it was impossible for them to have been present at the place where the crime was committed at the time of the commission of the same. 8 Alibi must be supported by clear and convincing evidence. 9 In the case at bar, the defense of alibi relied upon by the appellants does not preclude the possibility that they were present at the scene of the crime and at the time the same was committed. The distance between the alleged whereabouts of the appellants at the time of the commission of the crime and the scene of the crime itself may be easily negotiated by ordinary means. The defense witnesses themselves testified that Godines was not too ill to preclude his moving about the premises. As stated earlier, the material factor is that there is positive identification of the accused as the authors of the crime. Alibi cannot prevail over positive identification. 10 Needless to say, alibi is an issue of fact which is best resolved by the trial court. 11 In view of these observations, the Court does not find it necessary to pass upon the assigned error as to the alleged delay in the filing of the complaint. As to the crime committed by the appellants, the trial court correctly held that forcible abduction is absorbed in the crime of rape if the main objective of the appellant is to rape the victim. The appellants are charged of conspiring and confederating with each other in the commission of the offense charged. No doubt the evidence show the appellants through force and intimidation and conspiring with each other successfully raped the victim by taking turns in raping her while the other held the child of the victim and threatened her against resisting. Obviously two (2) rapes were committed by the appellants. In a conspiracy the act of one is the act of all. 12 Under Section 3 of Rule 120 of the Rules of Court, it is provided: Sec. 3. Judgment for two or more offenses. When two or more offenses are charged in a single complaint or information, and the accused fails to object to it before trial, the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them setting out separately the findings of fact and law in each case. In this case the appellants failed to object to the information filed and the evidence presented against them. Consequently the Court may convict them of as many offenses as has been charged and proven and may impose on them the penalty for the offenses committed.

An appeal in a criminal case opens the whole case for review and this includes the review of the penalty, indemnity and damages. 13 It may also include the nature and number of the offenses committed. Each of the appellants is guilty as principal of two (2) rapes, namely the rape he himself committed and the rape which his co-accused committed with his active and indispensable cooperation. WHEREFORE, the Court hereby modifies the appealed judgment by finding each of the appellants guilty beyond reasonable doubt of two (2) rapes, so each of them is hereby imposed the penalty of life imprisonment for each rape and each to indemnify the offended party P50,000.00 with costs against defendants-appellants. 4. Prosecution of private offenses G.R. No. 80116 June 30, 1989 IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents. REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15 On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option. This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus

presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21 In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 In the cited Loftus case, the Supreme Court of Iowa held that 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ... It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ... 25 Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED. Separate Opinions PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct

view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue. Crimes Against the Civil Status of Persons 1. Simulation of births People v. Sangalang, 74 OG 5977 2. Bigamy People v. Aragon, 100 Phil. 1033