Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 113518 January 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ESTEBAN ARLEE also known as "Boy Ising", accused-appellant.

PURISIMA, J.:

Before the Court is an appeal interposed by Esteban Arlee alias "Boy Ising" from the decision1 of the
Regional Trial Court, Branch 172 in Cavite City, finding him guilty of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua under Article 335 of the Revised Penal Code.

In the Complaint, dated June 5, 1992, Analyn M. Villanueva, a mental retardate, assisted by her
mother, Luningning M. Villanueva, charged accused-appellant with rape, alleging:

That sometime in or about the month of October, (sic) 1991, in the City of Cavite, Republic of
the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused
ESTEBAN ARLEE a.k.a. BOY ISING, armed with a bladed weapon, by means of force and
intimidation, did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of
the complainant ANALYN DE MESA VILLANUEVA, a mental retardate, against her will.

CONTRARY TO LAW.3

In his motion dated October 26, 1992, 4 accused-appellant sought to defer his arraignment pending
resolution of his petition for reinvestigation 5 before the City Prosecutor's Office. The said motion of the
defense was denied6 by the trial court, when it upheld the assertion of Asst. City Prosecutor Elizabeth
Silapan-Diesmo that the accused-appellant was not entitled to a reinvestigation because he evaded
service of the subpoenas7 by purposely making himself scarce in the indicated address.

Thus, the lower court directed the arraignment of accused-appellant on Nov. 25, 1992, 8 and after he
entered a plea of NOT GUILTY, trial ensued resulting in the assailed decision, the dispositive portion
of which reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Esteban Arlee a.k.a. Boy
Ising guilty beyond reasonable doubt of rape and he is hereby sentenced to reclusion
perpetua, to indemnify the offended party in the amount of P50,000.00 and to acknowledge
and support the offspring who is declared to be his as a result of this offense and to pay the
costs.9

From the evidence for the People, it can be gathered that:

Complainant Analyn Villanueva and the accused-appellant were neighbors at A. Del Rosario Street,
Caridad, Cavite City.10 Analyn, who merely finished grade two, 11 was twenty-six years old but with a
mental capacity of a eight-year old child. 12

Sometime in October 1991, while Analyn was about to fetch water at the foot of the bridge 13 in their
place, accused-appellant Esteban Arlee alias "Boy Ising" called her.14 When Analyn approached him,
he pointed a knife at her side15 and brought her to his nearby house. After stripping Analyn of her
clothes and undressing himself, accused-appellant laid on top of her 16 and succeeded in having
sexual intercourse with her. During that night, Analyn was raped by accused-appellant several
times.17 Thereafter, accused-appellant warned her not to tell the police what he did to her; otherwise,
he would stab her (Analyn).18

Soon after accused-appellant perpetrated the bestial acts, Analyn began to show signs of pregnancy
such as morning sickness, which caught the attention of her mother, Luningning Villanueva, who, with
nary a clue as to the fate which befell her daughter, thought that Analyn was merely suffering from
ulcer.19

As months passed, Analyn's belly started to swell, 20 a development which did not escape the
observation of her mother. When asked about her bulging stomach, 21 Analyn readily confessed to her
mother that Boy Ising was responsible therefor. Analyn then narrated her horrific experience in the
hands of accused-appellant.

On April 7, 1992, Dr. Floresto Arizala, Jr. of the National Bureau of Investigation (NBI) conducted a
physical examination on Analyn. Dr. Arizala's medical report embodied in Living Case No. MG 92
313,22 reported:

1. No extragenital physical injuries instead on the body of the subject at the time of
examination.

2. Old healed hymenal laceration present.

3. Probable signs corresponding to second trimester of pregnancy present.

REMARKS:

Pregnancy test done on April 7, 1992 showed positive results.

Dr. Arizala concluded that Analyn was fairly developed, conscious, cooperative, incoherent,
ambulatory subject with "moderate facies".23 The medico-legal officer testified in open court that
Analyn was a mental retardate, incoherent and non-responsive to proper inquiries. 24

Accused-appellant theorized that he could not have possibly done the offense charged sometime in
October 1991 because as early as May 8, 1991 25 or five (5) months prior to the commission of the
crime complained of, he had already left the place where the incident supposedly happened. Due to a
misunderstanding with his common-law wife, he transferred residence to Dalahican Street, about two
kilometers away from the site of the crime.26

Corroborating the theory of accused-appellant, Felicitas Paloma, common-law wife of accused-

appellant for the past sixteen years, 27 testified that they used to live together in a "barong-barong" 28 at
489 Int. A. Del Rosario Street, with three rooms. One room was rented out to a certain Dennis Rosal
and family and the other room to Rostia Reyes and her Child. 29 On May 8, 1991,30 accused-appellant
left her due to a misunderstanding. Felicitas declared that accused-appellant could not have raped
the victim, Analyn, in their house as she and their tenants were always present thereat. 31

The third defense witness, Mrs. Anita Santiago, barangay captain of the community where both the
Villanuevas and accused-appellant lived, also corroborated the testimony of accused-appellant and
his common-law wife, that the house in which the offense was allegedly committed was rented out to
boarders, at the time.32

In rejecting accused-appellant's defense of denial and alibi, the trial court gave full faith and credit to
the testimony of the victim, Analyn. Thus, it found accused-appellant guilty beyond reasonable doubt
of the crime charged.

Dissatisfied with the decision a quo, accused-appellant found his way to this Court via this appeal,
contending that:

1. The trial court gravely erred to go to trial without the mandatory preliminary investigation
(sic);

2. The trial court gravely erred to convict the accused instead of acquitting him beyond
reasonable doubt (sic);

3. The trial court gravely erred when it adjudged the accused liable of the civil aspect of the
charges (sic);33

In this appeal, accused-appellant makes capital of the fact that the subpoenas 34 dated April 23, 1992
and April 29, 1992, respectively, directing submission of counter-affidavits for purposes of preliminary
investigation, were not received by him since the same were sent to his former residence at A. Del
Rosario Street and not to Dalahican Street where he moved to. 35 Accused-appellant therefore,
maintains that he was deprived of his right to a preliminary investigation.

Accused-appellant posited that he could not have sexually assaulted Analyn in their small house at A.
Del Rosario Street considering that his common-law wife was always in the same house with some
boarders.36 He likewise theorized that he could not have sired Analyn's child because in a span of
twenty (20) years after cohabiting with four different women, he was not able to impregnate any of
them.37
Accused-appellant theorized further that the real culprit in the impregnation of Analyn was the latter's
father who was sexually abusing Analyn on a regular basis. According to accused-appellant, it was
widely-known in the neighborhood where he used to live. 38

Accused-appellant's assertions are barren of merit.

The first assigned error deserves scant attention considering that subpoenas were sent to accused-
appellant twice and both were he returned unserved with the annotation: "Subject person has gone
into hiding according to his former neighbor." 39 Contrary to what accused-appellant theorized upon, a
preliminary investigation was actually conducted by Prosecutor Diesmo, who based her finding of
a prima facie case on the evidence adduced by the complainant. Such procedure is sanctioned by
Rule 112, Section 3 (d) which reads:

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information

for an offense cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:

xxx xxx xxx

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit

counter-affidavits within the ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by complainant.

It is then decisively clear that the accused-appellant was not deprived of the right to a preliminary
investigation. Neither did the trial court err in refusing to grant a reinvestigation since to do so would
unnecessarily hamper the proceedings and just delay the disposition of the case.

In Mercado vs. Court of Appeals,40 this Court reiterated the rule that the New Rules on Criminal
Procedure "does not require as condition sine qua non to the validity of the proceedings (in the
preliminary investigation) the presence of the accused for as long as efforts to reach him were made,
and an opportunity to controvert the evidence for the complainant is accorded him. The obvious
purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of
offenses by hiding themselves or by employing dilatory tactics."

What is more, accused-appellant applied for bail 41 and voluntarily submitted himself for
arraignment,42 after his motion to defer the arraignment was denied. 43 Consequently, he is deemed to
have effectively waived his right to a preliminary investigation and it is now too late in the day to raise
the issue on appeal.

With the procedural aspect tackled, the next to pass upon are the substantive issues raised.

In People vs. Antido,44 the Court declared that: 1) an accusation for rape can be made with facility, it
is difficult to prove but more difficult for the person accused, though innocent, to disprove it; 2) in view
of the intrinsic nature of the crime of rape where two persons are usually involved, the testimony of
the complainant must be scrutinized with extreme caution; and 3) the evidence of the prosecution
must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense.

It also bears stressing that to warrant conviction in a case of rape, the victim's testimony must be
clear and free from contradictions for the reason that in prosecuting offenses of this nature, conviction
or acquittal virtually depends entirely on the credibility of the complainant's narration since usually,
only the participants can testify as to its occurrence. 45 Thus, more often than not, the issue in an
indictment for rape, as in this case, is simply one of credibility. And as regards the credibility of
witnesses, the Court usually defers to the findings by the trial court, absent a strong and cogent
reason to disregard the same.1wphi1.nt

As a general rule, this Court does not unduly disturb the findings by the lower court on the credibility
of witnesses. The determination by the said court on the matter is accorded great weight and respect
here since it had the distinct advantage and singular opportunity to observe the witnesses during the
hearing through the different indicators of truthfulness or falsehood. 46 Sans any showing that certain
facts of substance and significance have been overlooked or that the trial court's findings are
arbitrary,47 the conclusions arrived at below must be respected and the judgment on the basis thereof
affirmed.

In the case under scrutiny, the Court discerns no basis for departing from the oft-repeated rule
mentioned above and for applying the exceptions thereto.
In affirming the judgment of the court of origin convicting accused-appellant, this Court is mindful of
the doctrine that when a woman says that she has been raped, she says, in effect, all that is
necessary to show that she had indeed been raped, and if her of testimony meets the test credibility,
as in the case under consideration, the rapist may be adjudged guilty solely on that basis. 48

During the trial, Analyn testified thus:

DIRECT EXAMINATION BY PROS. DIESMOS:

Q. (sic) observed that you have a big tummy, what happened?

A. Boy Ising cohabited with me.

Q. This Boy Ising if he is inside this courtroom can you point to him?

A. (Witness pointing to a man who, when asked, identified himself as Esteban Arlee.)

Q. You said that Esteban Arlee was responsible for what appears to be pregnancy on your
part, what did this person do to you?

A. (Witness demonstrating, her two forefingers touching each other.)

COURT:

Q. What do you mean by that?

A. "Titi, puki."

PROSECUTOR DIESMOS:

Q. Where did he do this to you?

A. Saksak dito. (Witness pointing to her side.)

Q. What is that he pointed to your side?

A. A knife.

Q. When did he do this, do you remember the date?

A. Gabi. (night)

Q. Where?

A. In the house of Boy Ising.

Q. Where (sic) there people when he did this to you?

A. None.

COURT:

Q. Why did you go to the house of Boy Ising?

A. I am fetching water.

PROSECUTOR DIESMOS:

Q. But was there water there?

A. I will get water at the foot of the bridge.

Q. How were you able to go to the house of Boy Ising?

xxx xxx xxx

A. He called me and asked me to go with him.

 Q. After that incident, what did you do?

A. Boy Ising said not to tell it to the police.

Q. Did he tell you what he is going to do if you will report to the police?

xxx xxx xxx

A. He is going to stab me.

xxx xxx xxx

Q. How many times did he do that to you?

A. Many times. (Witness showing her 10 fingers.)49

Like the court below, this Court gives places reliance on the testimony of Analyn. Affirmable is the
following ratiocination:

Considering her mental state, The Court, in her appearance on the witness stand, is convinced
that complainant suffers from mental disability as claimed in view of her physical features and
her manner of talking needs no further in depth study about the same. However, the way she
answered questions propounded to her and which she readily understood, like her age and
what happened which she demonstrated by the use of her hands and fingers would more than
convince the Court of her sincerity and truthfulness. 50

Then too, the bare denials of accused-appellant cannot prevail over the positive testimony and
categorical assertion of Analyn that he (accused-appellant) was the author of her predicament. Denial
is inherently a weak defense. It cannot prevail over positive identifications. To be believed, it must be
buttressed by strong evidence of non-culpability; otherwise, such denial is purely self-serving and is
with nil evidentiary value. Affirmative testimony like that of the victim is stronger than a negative one. 51

Accused-appellant's alibi that he was no longer residing at the place where the incident took place is
certainly unavailing in view of his having been positively identified by Analyn as her violator. This
conclusion is ineluctable in the absence of any reliable proof that it was physically impossible for him
to have been at the locus criminis at the approximate time of commission of the offense since the
two-kilometer distance between Dalahican and A. Del Rosario Streets did not discount his presence
at the scene of the crime.52

The theory of accused-appellant that the father of the victim is the real culprit is anemic of evidentiary
support. No witness was ever called by the defense to substantiate such assertion even as
"concerned citizens" purportedly wrote to the barangay captain regarding the matter. 53

As regards the intimation of accused-appellant that he is sterile, it is utterly devoid of any sustainable
basis. The same could have been easily proven by the appropriate tests but the defense did not
present the results of a sperm analysis performed at the Cavite Medical Center on March 17,
199354 for the purpose of disputing the submission of the People that the child of Analyn is the fruit of
accused-appellant's salacious conduct.

Similarly unconvincing is the argument advanced by accused-appellant that he could not have raped
Analyn in the small house at A. Del Rosario Street, without any person noticing such happening
because subject house was always occupied by his common-law wife and some boarders. This Court
has encountered unlikely variations in the perpetration of rape committed in places many would
consider as inappropriate. As held in more than one case, 55 lust is no respecter of time and place for
rape can be committed even in places where people congregate, in parks, along the roadside, within
school premises, inside a house where there are other occupants, and even in the same room where
there are other members of the family.

Art. 335 of the Revised Penal Code provides:

When and how rape is committed. Rape is committed by having carnal knowledge of a
woman under the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

 3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

xxx xxx xxx

Being a mentally retarded woman, twenty-six years of age, Analyn is in the same class as a woman
deprived of reason or otherwise unconscious when she was raped by accused-appellant. Proof of
force and intimidation is not required if the victim is "deprived of reason" or suffering from mental
abnormality or deficiency since the same deprives the victim of the natural instinct to resist a bestial
assault on her chastity and womanhood. It is well-settled that sexual intercourse with a woman who is
a mental retardate constitutes statutory rape, which does not require proof that the rapist used force
or intimidation in having carnal knowledge of the victim. 56 Not only that, as testified to by Analyn, the
accused-appellant did employ force and intimidation by threatening her with a knife.

Neither is the Court persuaded by accused-appellant's submission that he cannot be required to

acknowledge and support the child begotten by him with Analyn. In point is the following provision of
the Revised Penal Code:

Art. 345. Civil liability of persons guilty of crimes against chastity. Persons guilty of rape,
seduction, or abduction, shall also be sentenced:

1. To indemnify the offended woman;

2. To acknowledge the offspring, unless the law should prevent him from so doing;

3. In every case to support the offspring. (Emphasis ours)

xxx xxx xxx

The aforecited provision of law is qualified by jurisprudence to the effect that "acknowledgment is
disallowed if the offender is a married man, with only support for the offspring as part of the
sentence.57

However, as opined in People vs. Bayani,58 there is no more need for the prohibition against
acknowledgment of the offspring by an offender who is married, because of the elimination by the
Family Code of the distinctions among illegitimate children. No further positive act is required of the
parent as the law itself provides the child's status as illegitimate. Therefore, under Article 345 of the
Revised Penal Code, the offender in a rape case who is married should only be sentenced to
indemnify the victim and support the offspring, if there be any.

Accordingly, accused-appellant has to support his illegitimate offspring, Alexis Villanueva. 59 The
amount and terms of the support shall be determined by the trial court after due notice and hearing,
taking into account the means or sources of income of accused-appellant. 60

All things studiedly considered, the Court affirms the finding of guilt appealed from. There being no
modifying circumstance in attendance, the trial court correctly imposed the penalty of reclusion
perpetua, with an award of P50,000.00 as indemnity ex delicto. In line with the prevailing
jurisprudence, the victim should likewise be awarded P50,000.00 as moral damages.

WHEREFORE, the appealed judgment is AFFIRMED with the modification that accused-appellant
ESTEBAN ARLEE alias BOY ISING is further sentenced to pay P50,000.00 as moral damages, in
addition to the indemnity ex delicto awarded by the lower court.1wphi1.nt

Accused-appellant is also ordered to support his illegitimate child, Alexis Villanueva, in the amount to
be fixed by the court a quo after due notice and hearing on the matter support. Costs against
accused-appellant.

SO ORDERED.

Melo, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

Footnotes
1
dated Nov. 10, 1993.
2
Presided by Judge Rolando Diaz.
3
Rollo, p. 19.
4
OR, pp. 63-64.
5
OR, pp. 60-62.
6
OR, Nov. 11,1992, p. 71.
7
OR, pp. 35 & 36.
8
OR, Cert. Of Arraignment, p. 74.
9
Rollo, pp. 24-25.
10
TSN, July 8, 1992, p. 25.
11
Ibid., p. 7.
12
TSN, June 16, 1993, p. 3.
13
TSN, July 8, 1992, p. 9.
14
Ibid., p. 10.
15
Ibid., p. 8.
16
Ibid., p. 19.
17
Ibid., p. 11.
18
TSN, July 8, 1992, p. 10.
19
Ibid., p. 20.
20
Ibid., p. 28.
21
Ibid., p. 18.
22
OR, p. 33.
23
should be "retardate" as corrected by Dr. Arizala during direct examination and as noted by
the trial court; TSN, Dec. 17, 1992, p. 7-8.
24
TSN, Dec. 17, 1992, pp. 9-11.
25
TSN, August 18, 1992, p. 15.
26
Ibid., p. 9.
27
TSN, July 21, 1992, p. 5.
28
Ibid., p. 7.
29
Ibid., pp. 7-8.
30
Ibid., p. 7.
31
TSN, July 21, 1992, p. 10.
32
TSN, Aug. 18, 1992, p. 18.
33
Rollo, p. 47.
34
OR, pp. 35-36.
35
Rollo, Appellant's Brief, p. 52.
38
Ibid., pp. 58-59.
37
Ibid., p. 46.
38
Ibid., pp. 56-57.
39
OR, p. 36.
40
245 SCRA 594; citing Rodis vs. Sandiganbayan, 166 SCRA 618.
41
OR, p. 14.
42
OR, p. 74.
43
OR, pp. 71 & 72.
44
278 SCRA 425; citing People vs. De los Reyes, 203 SCRA 707; People vs. Tismo, 204
SCRA 535; People vs. Casinillo, 231 SCRA 777; People vs. Matrimonio, 215 SCRA 613;
People vs. Lucas, 232 SCRA 537.
45
People vs. Castillon, 217 SCRA 76.
46
People vs. Alitagtag, G.R. Nos. 124449-51, June 29, 1999, citing: People vs. Quijada, 259
SCRA 191.
47
People vs. Renola, G.R. No. 122909-12, June 10, 1999; citing People vs. Quejada, 223
SCRA 77.
48
People vs. Arnan, 224 SCRA 37; citing People vs. Indaya, G.R. No. 90296, April 25, 1991
and cases cited therein.
49
TSN, July 8, 1992, pp. 6-11.
50
Decision, p. 6.
51
People vs. Silvano, G.R. No. 127356, June 29, 1999 and cases cited therein.
52
People vs. Alojado, G.R. No. 122966-67, March 25, 1999; People vs. Tulop, G.R. No.
124839, April 21, 1998.
53
Rollo, pp. 79-80.
54
Rollo, p. 107.
55
People vs. Manggasin, L-130599-600, April 21, 1999; citing People vs. Cura, 240 SCRA 234.
56
People vs. Andaya y Flores, G.R. No. 126545, April 21, 1999.
57
People vs. Emocling, 297 SCRA 214, citing People vs. De Guzman, 217 SCRA 395, People
vs. Rizo, 189 SCRA 265, People vs. Luchico, 49 Phil. 689, People vs. Belandres and
Maacop, 85 Phil. 874.
58
262 SCRA 660.
59
TSN, March 23, 1993, p. 3.
60
Art. 201, Family Code.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6025 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.

-----------------------------

G.R. No. L-6026 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.

LABRADOR, J.:

This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of
Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al.,
and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the
charge is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan
J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano
Samson and Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but they have
withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed
but Andres Balsa, Jr. withdrew his appeal.

The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:

I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until
the present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center
of all their rebellious activities in the different parts of the Philippines, the said accused, conspiring,
confederating and cooperating with each other, as well as with the thirty-one (31) defendants charged in
Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First Instance of Manila
(decided May 11, 1951) and also with others whose whereabouts and identities are still unknown, the said
accused and their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an armed
rebellion against the Government of the Philippines thru act theretofore committed and planned to be further
committed in Manila and other places in the Philippines, and of which party the "Hukbong Mapagpalaya Ng
Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then and there
willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms
against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the
purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof
as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly and taken arms
to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against
police, constabulary and army detachments as well as innocent civilians, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public
property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the
aforesaid purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians by
Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March
29, 1950.)

II. That during the period of time and under the same circumstances herein-above indicated the said
accused in the above-entitled case, conspiring among themselves and with several others as aforesaid,
willfully, unlawfully and feloniously organized, established, led and/or maintained the Congress of Labor
Organizations (CLO), formerly known as the Committee on Labor Organizations (CLO), with central offices
in Manila and chapters and affiliated or associated labor unions and other "mass organizations" in different
 places in the Philippines, as an active agency, organ, and instrumentality of the Communist Party of the
Philippines (P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize its
activities as the CLO thus organized, established, led and/or maintained by the herein accused and their
co-conspirators, has in fact fully cooperated in and synchronized its activities with the activities of the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the
Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and
permanent success of the above-mentioned armed rebellion against the Government of the Philippines.

The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and
Teopista Valerio, alleges:

That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously
up to the present time, in the City of Manila, the seat of the government of the Republic of the Philippines,
which the herein accused have intended to overthrow, and the place chosen for that purpose as the nerve
center of all their rebellious atrocities in the different parts of the country, the said accused being then high
ranking officials and/or members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter
being the armed forces of said Communist Party of the Philippines; having come to an agreement with the
29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the Court of First
Instance of Manila and decided to commit the crime of rebellion, and therefore, conspiring and confederating
with all of the 29 accused in said criminal cases, acting in accordance with their conspiracy and in
furtherance thereof, together with many others whose whereabouts and identities are still unknown up to the
filing of this information, and helping one another, did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the
Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or otherwise participate therein
for the purpose of overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or
Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by then and there making
armed raids, sorties and ambushes, attacks against police, constabulary and army detachment, and as a
necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, by
then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned destruction
of private and public buildings, to create and spread terrorism in order to facilitate the accomplishment of the
aforesaid purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or civilians by
Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March
29, 1950).

A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals.

APPEAL OF AMADO V. HERNANDEZ

After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following: (1) that he is a
member of the Communist Party of the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he
was furnished copies of "Titis", a Communist publication, as well as other publications of the Party; (3) that he held
the position of President of the Congress of Labor Organizations; (4) that he had close connections with the
Secretariat of the Communist Party and held continuous communications with its leaders and its members; (5) that
he furnished a mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the Philippines and
had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also
received by the court that Hernandez made various speeches encouraging the people to join in the Huk movement
in the provinces.

The court also found that there was a close tie-up between the Communist Party and the Congress of Labor
Organizations, of which Hernandez was the President, and that this Congress was organized by Hernandez in
conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc.

We will now consider the nature and character of both the testimonial as well as the documentary evidence,
independently of each other, to find out if the said evidence supports the findings of the court.

Testimonial Evidence

Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices
of the Congress of Labor Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu,
Pedro Castro, Andres Balsa, etc. As a Communist he was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made various speeches on the following dates and occasions:

(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he
announced that the people will soon meet their dear comrade in the person of Comrade Luis Taruc.
 (2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos
told Goufar that the PKM, CLO and the Huks are in one effort that the PKM are the peasants in the field and
the Huks are the armed forces of the Communist Party; and the CLO falls under the TUD of the Communist
Party. 1wph1.t

(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of
Trade Unions and after arrival from abroad a dinner was given to him by the people of Gagalangin, at which
Hernandez delivered a speech and he said that he preferred to go with the Huks because he felt safer with
them than with the authorities of the Government.

(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947
elections, graft and corruption in the elections and that if improvement cannot be made by the ballots, they
could be made by bullets; and enjoined the people to go to the hills and join Luis Taruc the head of the
dissidents in the Philippines.

(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at
the CLO headquarters at 330 P. Campa. He attacked the city mayor and incited the people to go to
Balintawak and see Bonifacio there and thereafter join four comrades under the leadership of Luis Taruc.

(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He
asked the unemployed to approve a resolution urging the Government to give them jobs. In conclusion he
said that if the Government fails to give them jobs the only way out was to join the revolutionary forces
fighting in the hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove Chiang
Kai Shek from his country, and that Luis Taruc was also being chased by Government forces run by puppets
like Quirino, etc.

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed
regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to the field to join the
liberation army of the HMB, justifying their going out and becoming heroes by fighting in the fields against
Government forces until the ultimate goal is achieved.

The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since
August, 1948.

On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to
1950, explained:

(1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and
violence; thru armed revolution and replace it with the so-called dictatorship of the proletariat the Communist
Party carries its program of armed overthrow of the present government by organizing the HMB and other
forms of organization's such as the CLO, PKM, union organizations, and the professional and intellectual
group; the CLO was organized by the Trade Union Division TUD of the Communist Party.

(2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were
also top ranking officials of the Communist Party; activities undertaken by the TUD - the vital undertaking of
the TUD is to see that the directives coming from the organizational bureau of the Communist Party can be
discussed within the CLO especially the Executive Committee. And it is a fact that since a good majority of
the members of the Executive Committee are party members, there is no time, there is no single time that
those directives and decisions of the organizational department, thru the TUD are being objected to by the
Executive Committee of the CLO. These directives refer to how the CLO will conduct its functions. The
executive committee is under the chairmanship of accused Amado V. Hernandez.

(3) The CLO played its role in the overall Communist program of armed overthrow of the present
government and its replacement by the dictatorship of the proletariat by means of propaganda - by
propagating the principles of Communism, by giving monetary aid, clothing, medicine and other forms of
material help to the HMB. This role is manifested in the very constitution of the CLO itself which expounded
the theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the
CLO Constitution contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist Party and disseminated Communist ideas by:

(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662),
founder of Communism in the Philippines, in the session hall of the CLO headquarters at 2070
Azcarraga and then at 330 P. Campa;

(b) The distribution of foreign communist reading materials such as the World Federation of Trade
Union Magazine, International Union of Students magazine, Voice magazine of the marine cooks of
the CLO, World Committee of the Defenders of the Peace magazine, Free Bulgaria magazine,
 Soviet Russia Today magazine and World Federation of Democratic Youth magazine (Exhs. V-911,
V-907, V-910, V-899, V-912, V-853, W-996 and V-967);

(c) The publication and distribution of some local subversive publications such as the "Titis", "Bisig",
Kidlat", which are Communist Party organs; "The Philippine Labor Demands Justice" and "Hands Off
Korea" authored by accused Amado V. Hernandez;

(d) Principles of Communism were also propagated thru lectures, meetings, and by means of
organization of committees in the educational department as well as researches in the Worker's
Institute of the CLO.

(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members
and selected leaders of the HMB within the trade unions under the control of the CLO. The Communist Party
thru the CLO assigned Communist Party leaders and organizers to different factories in order to organize
unions. After the organization of the union, it will affiliate itself with the CLO thru the Communist leaders and
the CLO in turn, will register said union with the Department of Labor; and the orientation and indoctrination
of the workers is continued in the line of class struggle. After this orientation and infiltration of the Communist
Party members and selected leaders of the HMB with the trade unions under the control of the CLO is
already achieved and the group made strong enough to carry out its aims, they will begin the sporadic
strikes and the liquidation of anti-labor elements and anti-Communist elements and will create a so-called
revolutionary crisis. That revolutionary crisis will be done for the party to give directives to the HMB who are
fighting in the countrysides and made them come to the city gates. The entry of the HMB is being paved by
the simultaneous and sporadic strikes, by ultimate general strikes thru the management of the CLO.

Important Documents Submitted at Trial

1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was referred to as
"Victor" or "Soliman".

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his
sympathies for other communists, describing his experiences with Communists abroad, telling Julie
to dispose of materials that may be sent by Victor. (Exh. D-2001-2004)

(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor heads
one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres
assigned to different industries. (Exh. V-40-41)

(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor from
co-party members Hugo and Ely. (Exh. LL)

(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103)

(e) Saulo's letter about his escape, asks Victor why his press statement was not published in the
newspapers. (Exh. C-362) Letter was however published by Hernandez in the Daily Mirror.

(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D-463-64)

(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to bring to
the latter communications from the Communist Party. (Exh. D-1203) That Soliman was given copies
of "Titis". (Exh. D-1209)

(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels. (Exh.
F-92-93. SEC)

(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of
careerism and tendency to want to deal with leaders of the party"; that he should be asked to choose
to go underground or fight legally. (Exh. F-562)

(j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-87) (1)
His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as President of
CLO until August of following year. (Exhs. V-42, W-9)

2. Letters and Messages of Hernandez.

(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)

(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh. V-82)
 (c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120)

(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks and
Stewards, states that labor has one common struggle "the liberation of all the peoples from the
chains of tyranny, fascism and imperialism". (Exh. V-259)

(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)

(f) Appeal to the Women and Asia. (Exh. V-5-10)

(g) Letter to Julie (Exh. V-2001-2004)

(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc. Tells of
reward of P100,000.00 on Taruc's head. (Exh. X-85-88)

(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption and
graft in Quirino administration, etc. (Exh. V-83)

(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)

(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for joining
the Huks. (Exhs. V-12-22, V-289)

(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and
Government. (Exh. V-94) .

(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks North
Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)

(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment. (Exh.
V-90-93)

(o) Article "Progressive Philippines" (Exh. V-287)

(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)

(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)

(r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo.
(Exh. V-72)

3. Other Activities of Hernandez.

(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the field.
Letters show of sending of supplies to Huks. (Exh. S-383)

(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh. C-364)

(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for inclusion in
Bulosan's book. (Exh. FF-1)

(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces.
(Photographs, Exhs. X-6 RR-54-55A)

(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-136-
138A)

(f) Had knowledge of the going underground of Capadocia and Balgos and issued press release
about their going underground. (Exh. F-91)

(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)

(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451-A)

(i) Associated with fellow ranking Communist leaders.

The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as
a party and in order to carry out its aims and policies a established a National Congress, a Central Committee (CC),
Politburo PB, Secretariat (SEC), Organization Bureau (OB), and National Courier or Communication Division (NCD),
each body performing functions indicated in their respective names; (2) that in a meeting held on August 11, 1950
the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September
29, 1950 the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body
known as the National Intelligence Division was created, to gather essential military intelligence and, in general, all
information useful for the conduct of the armed struggle (4) that a National Finance Committee was also organized
as a part of the Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco
comprising the Manila and suburbs command; (6) that since November, 1949 the CPP had declared the existence
of a revolutionary situation and since then the Party had gone underground and the CPP is leading the armed
struggle for national liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP
prepared plans for expansion and development not only of the Party but also of the HMB; the expansion of the
cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in
September 1951, et seq.

Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political
purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the HMB on March 25,
1950. The HMB attacks that were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947;
May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6,
1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September
12, 1950; March 26, 1950; March 29, 1950.

The theory of the prosecution, as stated in the lower court's decision, is as follows:

The evidence does not show that the defendants in these cases now before this Court had taken a direct
part in those raids and in the commission of the crimes that had been committed. It is not, however, the
theory of the prosecution that they in fact had direct participation in the commission of the same but rather
that the defendants in these cases have cooperated, conspired and confederated with the Communist Party
in the prosecution and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).

The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the
CPP, having its own National Congress, a Central Committee (which acts in the absence of and in representation of
the National Congress), an Executive Committee (which acts when the National Congress and the Executive
Committee are not in session), and seven permanent Committees, namely, of Organization, Unemployment and
Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the
Communist Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which
Hernandez was the President, is described by the court below in finding, thus:

Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained
by witness Guillermo S. Calayag, one-time ranking member of the Communist Party and the CLO who typewrites
the "Patnubay sa Education" from a handwritten draft of Capadocia, which is one of the texts used in the Worker's
institute of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid,
clothing, medicine and other material forms of help to the HMB, which constitutes the armed forces of the
Communist Party. Propaganda is done by lectures, meetings, and the organization of committees of the educational
department as well as researches at the CLO Worker's Institute.

Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders
to act as organizers in the different factories in forming a union. These Party Members help workers in the
factories to agitate for the eradication of social classes and ultimately effect the total emancipation of the
working classes thru the establishment of the so-called dictatorship of the proletariat. It is the duty of these
Communist Party members to indoctrinate uninitiated workers in the union to become proselytes of the
Communist Party ideology. After the right number is secured and a union is formed under a communist
leader, this union is affiliated with the CLO and this in turn registers the same with the Department of Labor.
The orientation and indoctrination of the masses is continued with the help of the CLO. The primary
objective of the CLO is to create what is called a revolutionary crisis. It seeks to attain this objective by first
making demands from the employers for concessions which become more and more unreasonable until the
employers would find it difficult to grant the same. Then a strike is declared. But the strikes are only
preparation for the ultimate attainment of the Communist goal of armed overthrow of the government. After
the workers in the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist Party, the
HMB, to intervene and carry the revolution now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against
him and sentenced him to suffer the penalty of reclusion perpetua with the accessories provided by law, and to pay
the proportionate amount of the costs.

Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by
the Solicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an
active advocate of the principles of Communism, frequently exhorting his hearers to follow the footsteps of Taruc
and join the uprising of the laboring classes against capitalism and more specifically against America and the
Quirino administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open
advocacy of Communistic Theory there appears no evidence that he actually participated in the actual conspiracy to
overthrow by force the constituted authority.

Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by
Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures, meetings and organization of
committees of education by Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the Communist Party and proselytize
them to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow
of the Government first by making demands from employers for concessions until the employers find it difficult to
grant the same, at which time a strike is declared; if it is only after the various strikes have been carried out and a
crisis is thereby developed among the laboring class, that the Communist forces would intervene and carry the
revolution it is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the
Communist' ultimate revolution. In other words, the CLO had no function but that of indoctrination and preparation of
the members for the uprising that would come. It was only a preparatory organization prior to revolution, not the
revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a leader in actual
rebellion or of the actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his
presidency and leadership of the CLO cannot be considered as having actually risen up in arms in rebellion against
the Government of the Philippines, or taken part in the conspiracy to commit the rebellion as charged against him in
the present case; he was merely a propagandist and indoctrinator of Communism, he was not a Communist
conspiring to commit the actual rebellion by the mere fact of his presidency of the CLO.

The court below declares that since November 1949 the Communist Party of the Philippines had declared the
existence of the revolutionary situation and since then the Party had gone underground, with the CPP leading the
struggle for national integration and that in the month of January 1950, it was decided by the said Party to intensify
the HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-conspirator
in this resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion
unwarranted. The seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court below has not been able to point out, nor have We been able to find among all acts
attributed to Hernandez, any single fact or act of his from which it may be inferred that he took part in the
deliberations declaring the existence of a revolutionary situation, or that he had gone underground. As a matter of
fact the prosecution's evidence is to the effect that Hernandez refused to go underground preferring to engage in
what they consider the legal battle for the cause.

We have also looked into the different documents which have been presented at the time of the trial and which were
confiscated from the office of the Politburo of the Communist Party. The speeches of Hernandez were delivered
before the declaration by the Communist Party of a state of revolutionary situation in 1949. Neither was it shown
that Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist
Party; so NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In
short, there has been no evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising
or the resolution to continue or maintain said uprising, his participation in the deliberations leading to the uprising
being inferred only from the fact that he was a communist.

The practice among the top Communists, as declared by the trial court appears to have been for important
members, if they intend actually to join the rebellion, to go underground, which meant leaving the city, disappearing
from sight and/or secretly joining the forces in the field.

The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1,
1950, to Saulo and Hernandez, which reads:

11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem
of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not,
send him out with Elias. Same goes with Com. Mino and other relatively exposed mass leaders.

And the lower court itself found that whereas Saulo went underground and joined the underground forces outside
the City, Hernandez remained in the City, engaged in the work of propaganda, making speeches and causing the
publication of such matters as the Communist Party leaders directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following reasons
(excuses) given by him for not going underground, namely (1) that his term of councilor of the City of Manila was to
extend to December, 1951; and (2) that he was elected President of the CLO for a term which was to end the year
1951.

As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and
reported to the Politburo that Hernandez "has tendencies of careerism, and tending to want to deal with leaders of
the Nacionalista Party instead of following CPP organizational procedures."

The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very
document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that
clothes and shoes that Hernandez was supposed to have sent have not been received. It is true that some clothes
had been sent thru him to the field, but these clothes had come from a crew member of a ship of the American
President Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain
Niagara Duplicating machine received by Hernandez from one Rolland Scott Bullard a crew member of the SS
President Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.

Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn
issued press releases for which he found space in the local papers. His acts in this respect belong to the category of
propaganda, to which he appears to have limited his actions as a Communist.

The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not
prove that he actually and in fact conspired with the leaders of the Communist Party in the uprising or in the actual
rebellion, for which acts he is charged in the information. And his refusal to go underground because of his political
commitments occasioned by his term of election as president of the CLO and the impressions caused by his acts on
the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista
Party to which he was affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his
political ambitions, that motivated his speeches sympathizing with the Huks. For which reason We hold that the
evidence submitted fails to prove beyond reasonable doubt that he has conspired in the instigation of the rebellion
for which he is held to account in this criminal case.

The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per
se render Hernandez or any Communist guilty of conspiracy to commit rebellion under the provisions of Article 136
of the Revised Penal Code? The pertinent provision reads:

ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and proposal to
commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum
period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a
fine not exceeding 2,000 pesos.

The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of
conspiracy unless transformed or converted into an advocacy of action. In the very nature of things, mere advocacy
of a theory or principle is insufficient unless the communist advocates action, immediate and positive, the actual
agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of the
working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually
advocated or intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of
the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As a theorist the
Communist is not yet actually considered as engaging in the criminal field subject to punishment. Only when the
Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit
rebellion. Borrowing the language of the Supreme Court of the United States:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can
only be justified by reference to the relationship of that status or conduct to other concededly criminal activity
(here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept
of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.
Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore
been recognized by this Court to be such a relationship. ... .

What must be met, then, is the argument that membership, even when accompanied by the elements of
knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged
criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of
criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member
of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its
purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement
which comes from the knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical impetus given to a
criminal enterprise which is lent for instance by a commitment on the part of the conspirator to act in
 furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a
criminal enterprise by the very fact of his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)

The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of
labor through his organization, the CLO. While the CLO of which he is the founder and active president, has
communistic tendencies, its activity refers to the strengthening of the unity and cooperation between labor elements
and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against
Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor
activities especially in connection with the CLO and other trade unions, were impelled and fostered by the desire to
secure the labor vote to support his political ambitions. It is doubtful whether his desire to foster the labor union of
which he was the head was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.

Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any
particular act on his part been pointed to Us, which would indicate that he had advocated action or the use of force
in securing the ends of Communism. True it is, he had friends among the leaders of the Communist Party, and
especially the heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended
their meetings, or collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or
advancing the cause thereof. Insofar as the furnishing of the mimeograph machine and clothes is concerned, it
appears that he acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or to the forces of
the rebellion in the field.

But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the
rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster the rebellion or the
uprising.

We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of
Communism and in favor of rebellion can be considered as a criminal act of conspiracy to commit rebellion as
defined in the law. In this respect, the mere fact of his giving and rendering speeches favoring Communism would
not make him guilty of conspiracy, because there was no evidence that the hearers of his speeches of propaganda
then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government
as envisaged by the principles of Communism. To this effect is the following comment of Viada:

CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara
la subasta de consumes se echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el
reparto entre los vecinos ricos solamente, sera responsable de un delito de conspiracion para la sedicion?
El Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que
entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay
conspiracion cuando dos o mas personas se conciertan para la execution de un delito y resuelven cmeterlo;
y no constando que existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta
del veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin expresar el
efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o no lo
que se las propuso, resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5
de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)

In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt
that the appellant (Hernandez) actually participated in the rebellion or in any act of conspiracy to commit or foster
the cause of the rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby absolve,
the appellant Amado V. Hernandez from the crime charged, with a proportionate share of the costs de oficio.

APPEAL OF OTHER DEFENDANTS-APPELLANTS

All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and
were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor, with the accessories provided by
law, and to pay their proportionate share of the costs.

Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is believed useful if
not necessary to lay dawn the circumstances or facts that may be determinative of their criminal responsibility or the
existence or nature thereof. To begin with, as We have exhaustively discussed in relation to the appeal of
Hernandez, we do not believe that mere membership in the Communist Party or in the CLO renders the member
liable, either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely
implies advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy
becomes criminal only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to
commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to
secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the
HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that
force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders
the member guilty of conspiracy to commit rebellion punishable by law.

And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like
soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field
and joins in the rebellion or uprising, in which latter case he commits rebellion.

In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the
purpose of which was to overthrow the government by force. Each of the defendants on various times solicited
funds from the people of Mexico, Pampanga. The Court held that the defendants were guilty of conspiracy and
proposal to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:

From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of
inciting, setting or foot, or assisting or engaging in rebellion, but rather of the crime of conspiring to
overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands,
and therefore we find that said defendants, and each of them, did, together with others, in the months of
February and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to overthrow, put
down, and to destroy by force the Government of the United States in the Philippine Islands. (U.S. v.
Vergara, et al., 3 Phil. 432, 434.)

JUAN J. CRUZ

The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO
member of the Central Committee of the CPP and as such committed to the establishment of the dictatorship of the
proletariat To the same effect is the testimony of Guillermo Calayag.

There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore
be absolved of the charges contained in the information.

AMADO RACANDAY

The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a
communications center of the Communist Party, having been found in possession of letters from Federico Maclang
to Salome Cruz, and solicitor of contributions for the Huks.

Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government
Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the Central Committee of
the Communist Party entrusted with the duty of receiving directives of the Regional Committee of the Communist
Party.

The letters found in his possession are dated February 14, 1950, before the Communist Party went underground.
We have been unable to find the evidence upon which the court bases its conclusion that he received contributions
for the Huks. With these circumstances in mind, We are not convinced beyond reasonable doubt that as a
Communist he took part in the conspiracy among the officials of the Communist Party to take part and support the
rebellion of the Huks.

We are, therefore, constrained to absolve him of the charges filed against him.

GENARO DE LA CRUZ

The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a
member of the Central Committee and Treasurer of the CLO. He admitted his membership and his position as
member of the executive committee and treasurer of the CLO these facts being corroborated by the witness
Guillermo Calayag.

His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz
received quotas and monetary contributions coming from the areas under his jurisdiction, and one time he made a
receipt from a member from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which
is one of his aliases. He also distributed copies of the "Titis" magazine. `

While his membership in the Communist Party plus his having received contributions for the party indicate that he is
an active member, it was not shown that the contributions that he received from Communist Party members were
received around the year 1950 when the Central Committee of the Communist Party had already agreed to conspire
and go underground and support the Huk rebellion. Under these circumstances We cannot find him guilty of
conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt.

JULIAN LUMANOG

The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and
Central Committee member of the CLO as per Testimony of Guillermo Calayag.

He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of
the laborers. He also admitted being a member of the Central Committee of the CLO Calayag testified that
Lumanog organized the HMB units of the Communist Party in the Lumber Unions and attended a Communist
meeting held by Maclang.

Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio
Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his
contributions he actually participated in the conspiracy to overthrow the government and should, therefore, be held
liable for such conspiracy, and should be sentenced accordingly.

FERMIN RODILLAS

The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in
soliciting contributions, in cash and in kind, from city residents for the use of the HMB, turning over said collections
to the Party; that he has given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which
house was used as Military post. The above findings of the court are fully supported by the testimony of Domingo
Clarin.

Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by
soliciting contributions for it and had given shelter to the Huks. We feel that the court was fully justified in finding him
guilty, but We hold that he should be declared liable merely as a co-conspirator in the crime of conspiracy to commit
rebellion, and should be sentenced accordingly.

BAYANI ESPIRITU

This appellant was found by the court to be a Communist, he having admitted membership in the Communist Party
since 1945; that his duties as a Communist was to help in the office of the National Finance Committee, assorting
papers and written documents; that sometimes he accompanied the purchaser of medicines, shoes, papers,
foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in
Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier
of the Communist Party, when he asked for his necessities, such as money and shoes, etc.

The facts found by the court are sufficiently supported by the communications and evidence submitted by the
prosecution. The exhibits show that he was in constant communication with the communists; serving them as
courier. His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all
orders of the Party and to propagate the stability of the PKP.

Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani
Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court
was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he
may only be declared guilty of conspiracy to commit rebellion.

TEOPISTA VALERIO

The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto
Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was
found in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a
letter from Taruc congratulating her for the delivers, of a son.

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija, later
Chairman of the Finance Department, and then promoted to Finance Officer of the Central Luzon Committee. Alicia
Vergara, a Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn
also a courier.

Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that
she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was
a Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an
uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with the other
members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond
reasonable doubt that she is guilty of conspiracy to commit rebellion.

DEFENDANTS NOT INCLUDED IN DECISION

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B.
Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND

REPUBLIC ACT NO. 1700, DISTINGUISHED

In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the
Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the
Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista
was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No.
292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the
Government, they cannot be held guilty of inciting the people to arms under Article 138, which is a different offense.

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any
organization or association committed to subvert the Government, cannot be applied to the appellants because said
Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an
organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion
with which appellants are charged.

CONCLUSION

WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J.
Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with
their proportionate share of the costs de oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas in
Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in
Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion,
as defined and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-one days of prision correccional, and to pay
a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their proportional share of the
costs. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ., concur.
Padilla, Barrera and Regala, JJ., took no part.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 118986-89 February 19, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HERNANI DICHOSON, accused-appellant.

MENDOZA, J.:

This is an appeal from the decision1 of the Regional Trial Court, Branch 25, Iloilo City, finding accused-appellant
Hernani Dichoson guilty of one count of acts of lasciviousness and three counts of rape and sentencing him
accordingly.

The information2 for acts of lasciviousness alleged

The [o]n or about the month of October 1981, in the Municipality of Dumangas, Province of Iloilo,
Philippines, and within the jurisdiction of this Court, the above-named accused did then and there wilfully,
unlawfully and feloniously commit an act of lasciviousness upon the person of the undersigned, a minor, by
then and there kissing, fondling her breast, touching her vagina and ordering her to hold his penis, against
the latters will and by means of force and intimidation.3

Except as to the dates appearing therein, the three informations 4 for rape commonly alleged

That on or about [date]5 in the Municipality of Dumangas, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, by means of force and
intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the undersigned
against her will and consent.6

Upon arraignment, accused-appellant pleaded not guilty to the charges, whereupon the cases were jointly tried.

The prosecution presented evidence showing the following:

Complainant Lelanie Dusaran, born on September 22, 1970, is the seventh of the nine children of Arnulfo Dusaran
and Concepcion Nene of Bolilao, Dumangas, Iloilo. Accused-appellants wife, Roces Dichoson, is a first cousin of
complainants parents. In 1979, when complainant was only nine years old, Roces Dichoson asked complainants
parents to let her (complainant) live with her (Dichosons) family to look after the children. Complainants parents
agreed, and so complainant moved in the Dichoson household in Barangay Bolilao. 7

According to complainant, one evening in October 1981, at around 8 oclock in the evening, while she was sleeping
in a playpen in the bedroom, accused-appellant, who also slept in the same bedroom with his wife and children,
took her hand and placed it on his sex organ. Complainant was awakened and, frightened, she drew back her hand.
She said accused-appellant did not say anything. 1wphi1.nt

Complainant said she was again molested by accused-appellant the following evening. Accused-appellant made
complainant hold his genitals and fondled her breasts and private parts. Similar incidents took place that month
(October 1981) although complainant could no longer recall the exact date of their commission. Complainant stated
that she did not report these incidents to her parents because at first she thought accused-appellant had lost his
mind and later because she did not want to bring shame to her family.8

On May 4, 1982, accused-appellants sister came for a visit. Complainant had to sleep in the living room so that
accused-appellants sister could sleep in the room previously occupied by her. Complainant said that while the rest
of the household was sleep, accused-appellant went over to her, dragged her towards the kitchen, and there forced
her to have sexual intercourse with him. Complainant said she tried to fight accused-appellants advances but she
was overpowered. She was afraid because she knew that, aside from the knives in the kitchen which accused-
appellant might use to harm her, he placed a revolver in one of the kitchen cabinets. 9
In the evening of June 16, 1982, complainant was again sexually abused by accused-appellant. While complainant
was asleep, accused-appellant entered complainants room, lowered her undergarments down to her knees, and
had sexual intercourse with her. After he was through, he left without a word. 10

The third rape incident, which is subject of Criminal Case No. 16250, took place in the morning of July 12, 1982.
Complainant testified that while she was in her room accused-appellant came and had sexual intercourse with her.11

According to complainant, after the rape incident of July 12, 1982, accused-appellant continued to rape her on
subsequent occasions so numerous that she could no longer recall the dates when each incident took place. When
asked during the cross-examination why she did not report the rapes to anyone, she replied that she did not want to
put her family to shame.12

In May 1983, complainants parents noticed that complainant had stopped having her menstruation and her
abdomen had become distended. They decided to take her to a "healer" but, upon accused-appellants instruction,
complainant told her parents that she had been raped by a certain Tony Lopez. Her parents, therefore, decided that
complainant should be brought to Zamboanga.13

But complainants father doubted his daughters account because the boy she had implicated was a mental
retardate. While he and his daughter were on their way to Zamboanga, he decided to drop by his brothers house in
La Paz, Iloilo, where, upon the prodding of her cousins, complainant revealed that it was actually accused-appellant
who had repeatedly raped her, causing her to become pregnant.14

Complainant was then examined at the Iloilo provincial hospital and later at the office of the National Bureau of
Investigation. On May 24, 1983, she executed her affidavit-complaint before Assistant Provincial Prosecutor Romeo
H. Mediodia of Iloilo. On July 9, 1983, complainant gave birth to a baby girl at the Iloilo provincial hospital. These
cases were subsequently filed on August 4, 1983.15

Complainants mother, Concepcion Dusaran, was to testify as to complainants date of birth. However, as the
defense agreed that complainants date of birth was that stated in her birth certificate 16 (September 22, 1970), the
mothers testimony was dispensed with.17

The defense then presented its case. Accused-appellant, 40, denied the allegations against him. He named Tony
Lopez as the guilty party. He testified that in February 1982, he allegedly hired Lopez to tend to his piggery. Lopez,
who was allegedly good-looking and single, worked for accused-appellant until December 1982 during which Lopez
stayed in the latters house. Accused-appellant claimed that many times he observed Lopez and complainant sitting
beside each other and being "sweet to each other." On one occasion, he said he came upon Lopez and complainant
sleeping in the same room with his children.18

Accused-appellant testified that Lopez expressed willingness to marry complainant upon learning of the birth of
complainants child.19

Accused-appellants defense was alibi. He claimed that he was not at home from 9 oclock in the evening of May 4,
1982 to 6 oclock in the morning of the following day, May 5, 1982. He said that he was in the cockpit in Dumangas
in the morning on May 4, 1982. Afterwards, he went with some friends to the town plaza, going home only at 6
oclock in the morning of the next day, May 5, 1982. At around 12 noon that day, he allegedly went back to
Dumangas for the fiesta celebration.20

As for his whereabouts on June 16, 1982, accused-appellant testified that from 8 oclock in the morning to 6 oclock
in the evening of that day, he was in Barangay Barotac to watch a cockfight. He was allegedly not home either from
4 oclock in the morning to 10 oclock in the evening of July 12, 1982 as he had allegedly had gone to other
barangays to purchase palay for his business. Upon being questioned by the court, however, he could not recall
where he had gone to buy palay that day.21

Accused-appellant claimed that complainants father harbored ill feelings towards him because their business
venture of buying and selling palay failed.22 He testified that the day before he was arrested, when he learned that
some policemen were looking for him, he immediately went to see his cousin, Sulpicio Diaz, a member of the
Sangguniang Bayan of Dumangas, in order to surrender to the authorities. But his cousin told him to go home while
he (Diaz) arranged for his bailbond. The following day, the policemen came back and arrested him. He was
provicionally released after he posted bail.23

Pepito Dumayas, a barriomate of accused-appellant, corroborated the latters testimony regarding the identity of
Tony Lopez and his (Lopezs) alleged stay in the house of accused-appellant. Dumayas admitted, however, that he
could not recall the year when he first and last saw Lopez in accused-appellants house. 24

On May 27, 1994, the trial court rendered judgment as follows:

Wherefore, in the light of the foregoing premises, there being proof beyond reasonable doubt that the
accused committed the three counts of rape and an act of lasciviousness as charged in the [informations],
accused Hernani Dichoson is hereby pronounced guilty thereof and is sentenced to suffer an indivisible
penalty of Reclusion Perpetua in each of these three cases of rape and, as regards the charge of act of
lasciviousness, he is also found guilty thereof and is sentenced to suffer an indeterminate penalty of
imprisonment of from Six Months of Arresto Mayor, as minimum, to Two (2) Years, Two (2) Months and one
(1) day of Prision Correccional, as maximum, and he is further ordered to give support to the child borne out
of his liaison with the private complainant and as well as pay the costs. 25
Assailing the trial courts decision, accused-appellant alleges that

I. THE COURT IN THE LOWER LEVEL ERRED IN CONVICTING THE ACCUSED IN A JOINT JUDGMENT
[FOR] THE CRIME OF RAPE IN CRIMINAL CASE NO[S]. 16250, 16251, AND 16252 AND CRIMINAL
CASE NO. 16249 FOR ACTS OF LASCIVIOUSNESS, INSTEAD OF ACQUITTING HIM (ACCUSED) ON
[THE] GROUND THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.

II. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF INSUFFICIENT
AND DOUBTFUL EVIDENCE AND OVERLOOKED FACTS OF SUBSTANCE AND VALUE WHICH
AFFECT[ED THE] THE RESULT[S] OF THE CASE.

III. THE COURT A QUO ERRED AND FAILED TO TAKE COGNIZANCE OF THE FACT THAT THERE WAS
DELAY IN THE FILING OF THE COMPLAINT WHICH RENDERS THE SAME DOUBTFUL. 26

First. Accused-appellant maintains that, as complainant herself said, the person who had raped her was Tony
Lopez.27

This is not correct. Complainant explained why in the beginning she implicated Lopez, thus:

Q Can you please tell the Court the circumstances of the discovery of that pregnancy?

A At first, I never thought I was pregnant.

Q But later on?

A Later on, my mother consulted my aunt why I was not menstruating anymore.

Q And what happened when your aunt consulted rather, your mother consulted your aunt?

A They said they would bring me to a healer to be cured. That afternoon I was to be brought to the
healer, the accused told me to tell them that I became pregnant because I was raped by a mentally retarded
who was staying in their house by the name of Tony Lopez.

Q And were you brought to the healer that day?

A No, Sir.

Q Why?

A They found out I was really pregnant.

Q You mean to say, you told your parents you were pregnant?

A Yes, Sir.

Q And what did you tell your parents as to who made you pregnant?

A The same as what he told me.

Q Whom are you referring?

A That it was Tony Lopez.

Q When you said the same that "he" told me, you mean the accused as the person who told you to
mention the name of Tony Lopez, the mental retardate?

A Yes, Sir.28

That complainant followed what she had been told to say by accused-appellant could be explained by the fact that
accused-appellant exercised a strong moral dominance over her. It was only after her father had taken her to La
Paz, away from the control of accused-appellant, that she found courage to tell the truth and pointed to accused-
appellant as the culprit. Complainant vindicated herself during the trial of these cases. She unwaveringly declared
that it was accused-appellant who had subjected her to a series of sexual abuse. She affirmed on the stand that
what she had told her father and later the investigating prosecutor was the truth, thus:

Q And were they able to bring you to Zamboanga?

A No, Sir.

Q Why, what happened?

....
 A Instead of going to Zamboanga, he brought me to the house of my aunt in La Paz and there made me
tell the truth.

Q And when you said "he" made me tell the truth, you are referring to your father?

A Yes, Sir.

Q And did you tell your father the truth?

A Yes, Sir.

Q Including that you were only told by the accused to implicate Tony Lopez, the mental retardate, as the
person who impregnated you?

A Yes, Sir.

Q Do we understand that what you told the Court were the ones you told your father?

A Yes, Sir.

....

Q And you told also the investigating fiscal what you told your father?

A Yes, Sir.

Q And what you told the court this morning?

A Yes, Sir.29

Second. Accused-appellant argues that complainants uncorroborated testimony is insufficient to establish his
guilt.30

This contention lacks merit. It is settled that in cases of rape (including acts of lasciviousness), the lone testimony of
the offended party, if credible, is sufficient to establish the guilt of the accused. 31 Such is the testimony of rape
victims who are young, immature, and have no motive to falsely testify against the accused. 32

Here, although already 18 when she took the stand, complainant testified to the acts of lasciviousness and the
series of rapes committed by accused-appellant in October 1981, May 4, June 16, and July 12, 1982, respectively,
when she was only 11 years old. We have reviewed the records of the case and have found no reason to disturb the
findings of the trial court on the credibility of complainant and of her testimony. Her testimony is straightforward,
spontaneous, and bereft of any artificialities which are the mark of a rehearsed testimony.

The defenses attempt to show that complainant was merely influenced by her father to bring false charges against
accused-appellant flies in the face of the uncontroverted testimony of complainant that her parents would not have
known of the rapes and acts of lasciviousness had they not discovered her pregnancy. Clearly, in filing these cases,
complainant was impelled by no other motive than to see to it that accused-appellant is brought to justice.

Third. Accused-appellant claims that the delay in the filing of the charges against him gives rise to doubt as to his
guilt.

Again, this contention is untenable. Mere delay in the filing of a complaint does not necessarily imply it is merely
fabricated specially when such delay is sufficiently explained. Here, complainant testified that she did not report the
sexual abuses committed against her by accused-appellant because she did not want to disgrace her family. She
preferred to suffer in silence and was forced to disclose her misfortune only when she became pregnant.

Indeed, different people react differently to a given situation. There is no standard norm of human response when
one is confronted with physically and psychologically disturbing incidents such as repeated sexual abuse, especially
of a young girl of 11.33 Indeed, in these cases, as soon as complainants condition became known, her father lost no
time in having her daughter file the charges before the Office of Provincial Prosecutor of Iloilo on May 24, 1983.

Admittedly, the prosecution did not present evidence pertaining to the medical examination of complainant although
she had testified that she was examined at the Iloilo provincial hospital and later at the NBI office before executing
her complaint-affidavit. However, a medical examination is not an indispensable requirement in prosecutions for
rape provided that, as in these cases, the testimony of the victim is credible. 34

Indeed, to counter the serious charges filed against him, accused-appellant could only rely on the defense of denial
and alibi. We have carefully examined his testimony on these points and have found nothing which would justify
departure from the settled rule that alibi cannot prevail over the positive identification of the accused. 35 The
weakness of accused-appellants defense is aggravated by his failure to present witnesses to corroborate his
version of events. This is specially true with regard to his alibi that, on May 4, 1982, he went with some friends and
spent the whole night in the Dumangas town plaza. The same conclusion holds true with regard to his alibi for June
16 and July 12, 1982. His testimony that he went home from Barangay Barotac at 6 oclock in the evening of June
16, 1982 does not conflict with complainants testimony that accused-appellant raped her at around 10 oclock that
night. Lastly, accused-appellants testimony that he was not in his house from 4 oclock in the morning to 10 oclock
in the evening of July 12, 1982 as he was buying palay elsewhere is undermined by his inability to say where he
had gone to buy palay.

Fourth. Accused-appellant contends that the informations in the cases at bar are defective because they do not
allege that complainant was below 12 years at the time of the commission of the crimes charged.

The contention is untenable. Accused-appellant was not charged with statutory rape and acts of lasciviousness, but
rather with three counts of rape and one count of acts of lasciviousness committed by means of force or
intimidation. In a number of cases, this Court has ruled that the moral ascendancy or influence exercised by the
accused over the victim substitutes for the element of physical force or intimidation in cases of rape and, it may be
added, acts of lasciviousness. The Court has applied this rule to rapes committed by fathers against their
daughters,36 stepfathers against their stepdaughters,37 a godfather against his goddaughter,38 uncles against their
nieces,39 and, as in these cases, by the first cousin of the victims mother.40

The prosecution had shown that from the time when complainant was only nine years old up to the time her parents
discovered her pregnancy when she was 13 years old, complainant had been living under the care and custody of
accused-appellant. Accused-appellant thus acquired moral ascendancy over her, specially because accused-
appellants wife is the aunt of the complainant, a first cousin of her parents.

Fifth. Although accused-appellant testified that the day before he was arrested he had "surrendered" to his cousin,
Sulpicio Diaz, who was then a member of the Sangguniang Bayan of Dumangas, he cannot be credited with the
mitigating circumstance of voluntary surrender.

The elements of voluntary surrender are: 1) the offender has not been arrested; (2) he surrendered himself to a
person in authority or to the latters agent; and (3) the surrender was voluntary.41 Needless to say, it is indispensable
that the accused must in fact surrender to the custody of a person in authority or of his agent. 42Here, although
accused-appellant went to see his cousin to surrender, he did not actually do so because he agreed, at the
suggestion of his cousin, to just post bail after he has been arrested. Accused-appellant, therefore, went back home.

The trial court correctly sentenced accused-appellant to suffer the penalty of reclusion perpetua for each of the three
counts of rape. In addition, however, accused-appellant is likewise liable to pay complainant indemnity in the
amount of P50,000.00 and moral damages in the amount of P50,000.00 for each of the three counts of rape. 43With
regard to the penalty44 imposed by the trial court in Criminal Case No. 16249 (acts of lasciviousness), the Court sees
no need to modify the same considering that it falls within the range provided under Art. 336 taking into account the
pertinent provisions of the Indeterminate Sentence Law.

However, the order of the trial court requiring accused-appellant to pay support to complainants child should be set
aside. Under Art. 345 of the Revised Penal Code, as amended, those guilty of rape should be ordered to
acknowledge and support the child born as a consequence of the rape. Here, however, accused-appellant is
married, and, thus, cannot be made to acknowledge the child of complainant. 45 The question is whether accused-
appellant should be ordered to support the child. In People v. Bayani,46 it was held that in order for an accused to be
made to pay such support, it must be shown that the period of the commission of the rape coincides, more or less,
with the period of conception of the child.47 In People v. Malapo,48 the Court noted that the period of pregnancy is 37
weeks or roughly 9.3 months. It is not disputed that in these cases complainant underwent the full term of her
pregnancy and gave birth to a baby girl on July 9, 1983. She is thus estimated to have conceived the child
sometime in October 1982. Accused-appellant, however, stands accused of three counts of rape, the last of which
was committed on July 12, 1982. In view of the difference of about three months between the date of the
commission of the rape on July 12, 1982 and the date of birth of complainants child on July 9, 1983, accused-
appellant cannot be ordered to support complainants child.

Needless to say, the foregoing does not affect the earlier findings of the Court on the guilt of the accused-appellant
with regard to the three counts of rape filed against him. Not only is the impregnation of the rape victim not an
element of rape49 but it must also be remembered that complainant stated that accused-appellant continued to rape
her even after July 12, 1982. Although accused-appellant cannot be held liable for such alleged rapes because
these cases do not cover other incidents of rape after July 12, 1982, complainants testimony on this point provides
a possible explanation for her childbirth on July 9, 1983.1wphi1.nt

WHEREFORE, the decision of the Regional Trial Court, Branch 25, Iloilo City, dated May 27, 1994, is AFFIRMED
with the modification that accused-appellant is ordered to pay complainant Lelanie Dusaran moral damages in the
amount of P50,000.00 and civil indemnity in the amount of P50,000.00 for each of the three counts of rape in
Criminal Case Nos. 16250, 16251, and 16252.

The order of the trial court requiring accused-appellant to give support to the child borne of complainant on July 9,
1983 is DELETED.

SO ORDERED.

Bellosillo, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Footnotes:
1
Per Judge Bartolome M. Fanual.

2
Docketed as Criminal Case No. 16249.

3
Rollo, p. 13.

4
Docketed as Criminal Case Nos. 16252, 16251, and 16250.

5
May 4, 1982, June 16, 1982, and July 12, 1982.

6
Rollo, pp. 15-20.

7
TSN (Lelanie Dusaran), pp. 9-10, Nov. 11, 1988; TSN, pp. 2-3, March 30, 1990; TSN (Arnulfo Dusaran),
pp. 5, 7-8, March 30, 1990.

8
TSN (Lelani Dusaran), pp. 11-12, 14-15, Nov. 18, 1988; TSN, p. 9, Sept. 8, 1989.

9
Id., pp. 16-17; id., pp. 21-22.

10
TSN (Lelanie Dusaran), pp. 16-18, 20, 22, Oct. 6, 1989,

11
TSN (Lelanie Dusaran), p. 19, Nov. 18, 1988.

12
Id., p. 19; TSN, p. 23, Oct. 6, 1989.

13
TSN (Lelanie Dusaran), pp. 20-22, Nov. 18, 1988; TSN (Arnulfo Dusaran), pp. 8-9, March 30, 1990.

14
Id., pp. 21-22; id., p. 9.

15
TSN (Lelanie Dusaran), pp. 11-13, Nov. 18, 1988.

16
Exh. B; Records, p. 162.

17
TSN (Concepcion Dusaran), pp. 1-4, May 3, 1991.

18
TSN (Hernani Dichoson), pp. 13-14, Oct. 17, 1991.

19
TSN (Hernani Dichoson), p. 9, Dec. 9, 1993.

20
TSN (Hernani Dichoson), pp. 6-7, Sept. 5, 1991.

21
TSN (Hernani Dichoson), pp. 6-7, Dec. 9, 1993.

22
TSN (Hernani Dichoson), p. 5, Oct. 17, 1991.

23
TSN (Hernanie Dichoson), pp. 3-5, Dec. 9, 1993.

24
TSN (Pepito Dumayas), pp. 3-6, Nov. 26, 1993.

25
Decision, p. 11; Rollo, p. 43.

26
Accused-Appellants Brief, p. 1; Rollo, p. 62.

27
Id., pp. 3-5, 8-10; id., pp. 64-66, 69-71.

28
TSN (Lelanie Dichoson), pp. 20-21, Nov. 18, 1988.

29
TSN (Lelani Dusaran), pp. 21-24, Nov. 18, 1988.

30
Accused-appellants Brief, pp. 10, 21; Rollo, pp. 71, 82.

31
People v. Acala, 307 SCRA 330 (1999); People v. Abordo, 258 SCRA 571 (1996).

People v. Fraga, G.R. Nos. 134130-33, April 12, 2000; People v. Abordo, supra; People v. Molina, 53
32

SCRA 495 (1973).

33
See People v. Campaner, G.R. Nos. 130500 & 143834, July 26, 2000; People v. Raptus, 198 SCRA 425
(1991).

People v. Licanda, G.R. No. 134084, May 4, 2000; People v. Martinez, G.R. No. 130606, Feb. 15, 2000;
34

People v. Bugarin, 273 SCRA 384 (1997).

35
People v. Tabarangao, 303 SCRA 623 (1999); People v. Sanchez, 250 SCRA 14 (1995).

36
People v. Bazona, G.R. Nos. 133343-44, March 2, 2000; People v. Maglente, 306 SCRA 546 (1999);
People v. Acala, supra; People v. Panique, 316 SCRA 757 (1999) People v. Tabugoca, 285 SCRA 312
(1998); People v. Bartolome, 296 SCRA 615 (1998); People v. Adora, 275 SCRA 441 (1997).

37
People v. Vitor, 245 SCRA 392 (1995); People v. Robles, 170 SCRA 557 (1989).

38
People v. Casil, 241 SCRA 285 (1995).

39
People v. Betonio, 279 SCRA 532 (1997).

40
People v. Perez, 307 SCRA 276 (1999).

41
People v. Caber, Sr., G.R. No. 129252, Nov. 28, 2000; People v. Antonio, 303 SCRA 414 (1999).

42
People v. Palo, 101 Phil. 963 (1957).

43
People v. Baid, G.R. No. 129667, July 31, 2000; People v. Barcelona, G.R. No. 125341, Feb. 9, 2000.

44
Six (6) months of arresto mayor, as minimum, to two (2) years, two (2) months, and one (1) day of prision
correccional, as maximum.

45
People v. Bayani, 262 SCRA 660 (1996).

46
Id.

47
Id.

48
294 SCRA 579 (1998).

49
Id.; People v. Alib, 222 SCRA 517 (1997).
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 106539 July 18, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TORTILLANO NAMAYAN, accused-appellant.

FRANCISCO, J.:

Convicted of rape for having carnal knowledge with complainant Margie Pagaygay, a woman deprived of reason and
mentally retarded, against her will, by means of violence and intimidation, sometime in March, 1991, in Barangay
Giliga-on, Siaton, Negros Oriental, appellant Tortillano Namayan, alias Dodo was sentenced "to suffer the penalty of
imprisonment (sic) of reclusion perpetua; to compulsorily acknowledge the child when born as a result of his act; to
render support to the same child until he or she attains the age of 21 years; to indemnify the offended party the sum
of P30,000.00 and to pay the cost".

Appellant now seeks the reversal of the decision in this appeal assigning as errors the following:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF RAPE EVEN
THOUGH THERE WAS PHYSICAL IMPOSSIBILITY OF COMMITTING THE SAME, THE ACCUSED
BEING DETAINED IN JAIL AT THE TIME OF THE INCIDENT.

II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF RAPE AS DEFINED AND PENALIZED UNDER ART. 335 OF THE REVISED PENAL
CODE DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT. 1

This much has been established by the evidence for the prosecution: The complainant, who was twenty years old at
the time of the alleged offense, is moderately retarded with a mental age comparable to that of a three to seven year
old child. Her mental defect was found to be congenital in nature. She had an impaired judgment and insight and an
I.Q. of 25 to 50. She could neither do simple arithmetical solutions nor answer hypothetical questions. She had
difficulty remembering dates, times and places. Although she went to school for four years, she was unable to pass
Grade 1. 2

Sometime in July, 1991, complainant's mother, Estelita Pagaygay, noticed the bulging stomach and enlarging
breasts of complainant. The mother surmised that she was pregnant. On July 30, 1991, she was brought to the
Negros Oriental Provincial Hospital. There, Dr. Teresito Orbito examined her and subjected her to an ultra sound
examination. She was found to be four to five months pregnant.

Complainant blamed appellant, their long-time neighbor in Barangay Giliga-on, Municipality of Siaton, Negros
Oriental, for her condition. She disclosed that appellant raped her on several occasions. In the month of March,
1991, as she was fetching water from an artesian well, appellant suddenly approached her, pulled out a hunting
knife and poked it at her neck. At knife's point, she was brought to a banana hill where, sheltered by the clump,
appellant undressed her, removed her panty and had intercourse with her. Appellant offered her five pesos but she
refused. 3
The incident was subsequently repeated but this time it took place in a bathroom near the artesian well. Appellant
who was then taking a bath and in his underwear suddenly pushed complainant who had come to fetch water from
the well, to the ground. He removed her underwear and inserted his penis into her vagina while telling her that they
were to make a child. This sexual assault was repeated a third time when she was sent by her mother to buy a
bottle of beer. Appellant approached complainant with a hunting knife in hand and brought her to a bridge where he
again had carnal knowledge with her. 4

The appellant simply made a bland denial of his presence at the place, time and date, charged in the information.
According to him he could not have committed the alleged crime because he was under detention at the Siaton
Municipal Jail, Negros Oriental from February 5, 1991 to April 12, 1991 due to a pending case of illegal discharge of
firearms filed against him. On this score, he lays stress on the testimony and certification of Ruben Gadayan in that
as the jailer of Siaton, he checks the inmates twice a day, once in the morning and in the afternoon and that the
appellant was released only on April 12, 1991 upon an order of Judge Fe Bustamante due to the withdrawal of the
case against him. Appellant further harps on the presumption that Gadayan, being a law enforcer, is presumed to
have regularly performed his duty. 5 It appears, in this connection, that appellant was also charged of frustrated
murder on November 28, 1990 and the case was provisionally dismissed on January 24, 1991. 6

The court cannot repose much reliance on the testimony of Gadayan. No less than Gadayan himself confirmed the
fact that his duty is limited to entering into the record the detention prisoners as well as those facing criminal
charges. It does not include "guarding of the detainees". Furthermore, some detainees are even allowed to live
outside the Municipal Jail upon the discretion of the guard in-charge. Thus:

Q. Mr. Gadayan, you said you are the jailer of Siaton, Negros Oriental. What do you
mean by that?

A. The jailer is the one incharge of the records of the inmates or prisoners.

Q. In short, your duty as a jailer does not include guarding of detainees?

A. Yes, sir.

xxx xxx xxx

Court:

Q. Your duty being a jailer is only to take the records of those prisoners and to enter
into the police blotter those persons who are to be detained and who are facing
criminal charges?

A. Yes, sir. 7

xxx xxx xxx

Q. So you do not know if some detainees are placed by the guard at living out after
you check up at 8:00 o'clock in the morning?

A. I do not know its up to the outgoing guard to allow him. It depends upon the
discretion of the guard. 8

Clearly, from the foregoing, Gadayan is not in a position to categorically state that appellant never left his detention
cell during the period when the alleged acts of rape were committed. Similarly, his certification (Exhibit "1") merely
contains a statement that appellant was a detainee at the municipal jail from February 5, 1991 to April 12, 1991. It
does not recite any other details which would duly prove that appellant never left the place during the period of his
detention.

At any rate, the presence of the appellant at the time and place essential to the commission of the offense charged
has been sufficiently established by the prosecution witnesses Lilian Gomez and Gaudencio Pagaygay who testified
as follows:

LILIAN Gomez:

Q On March 6, 1991 did you see the accused, your neighbor in

Giliga-on, Siaton, Negros Oriental?

A Yes.

Q Where did you see him?

A I saw him in sitio Looc, that was fiesta, March 6, 1991, playing "hantak".

Q Where is this Looc situated?

A Half (1/2) kilometer from our barangay.

Q Looc is part of Giligaon?

A Yes.

Q Was there any unusal (sic) incident that happened on March 6, 1991?

A Yes.

Q What was that?

A There was a fistfight between him, Tortillano Namayan, and a person by the
name of "Bongoy".

Q The following day after that fistfight, was there any complaint before the office of
your mother the barangay captain of barangay Giligaon?

A The father-in-law of "Bongoy" reported the matter to my mother.

Q What was the report about?

A About the fighting of "Bongoy" his son-in-law with Tortillano Namayan.

Q What is the full name of "Bongoy"?

A I do not know. They just call him "Bongoy" but the surname is Sarita.

Q Aside from that incident of March 6, 1991, wherein you saw the accused
Tortillano Namayan playing "hantak" and had a fistfight with a certain "Bongoy"
Sarita, have you ever seen this Tortillano Namayan in some other dates in the month
of March, 1991?

A Yes.

Q In what occasion was that?

A Fiesta of barangay Giligaon, March 19, 1991.

Q Who was with Tortillano Namayan when you saw him during the fiesta of
Giligaon on March 19, 1991?

A He was alone eating at my Lolo's house in the kitchen.

Q What time was that?

A 11:30 o'clock in the morning.

Q Did you ever know that this Tortillano Namayan was a detention prisoner in the
month of March, 1991?

A I heard that he is in prison because he has a case by Mr. Rolando Namayan, but I
don't know why he was in Giligaon. 9

Gaudencio Pagaygay:

Q Do you know the accused in this case, Tortillano Namayan?

A I know.

Q Why do you know him?

A Because we are neighbors.

Q Where?

A At Giligaon, Siaton.

Q How long have you known him before this incident subject matter of this case
on March 6, 1991?

A I lived there for about twenty (20) years already.

Q You mean, you have known Tortillano Namayan for twenty (20) years before the
time of the incident subject matter of this case?

A Yes.

Q If he is in the courtroom, please point to him?

A He is there.

(Witness, Gaudencio Pagaygay pointing to a person sitting on the bench intended for
the accused)

CLERK OF COURT: (Addressing to the person being pointed to by the witness)

Q What is your name?

A Tortillano Namayan.

FISCAL VERGARA: (Continuation of her direct examination of witness, Gaudencio

Pagaygay)

Q According to him in his defense, he was detained on March, 1991, at the Siaton
municipal jail. Did you see him in Giligaon Siaton, Negros Oriental, on March, 1991?

A I saw him because there was a time while I was sitting in my store, he
approached me and asked me to play with him "Mahjong".

Q What date was that if you can remember?

A That was March, 1991.

Q And what time was that when he approached you while you were sitting at your
store?

A Around 5:00 o'clock in the afternoon.

Q You testified that he asked you to play "Mahjong" with him. Did you eventually
play "Mahjong" with him?

A We played "Mahjong" at that time.

Q Until what time was that?

A We played only one (1) game because he had no more money to pay. He did
not pay me anymore the bet.

Q How much did he owe you?

A P6.00.

Q After March 9, 1991, did you see again Tortillano Namayan the accused in this
case?

A I saw him dancing.

Q Where?

A Dance hall.
 Q Dancing hall of where?

A Giligaon.

Q When?

A Fiesta.

Q When was that fiesta of Giligaon?

A March 19.

Q What time did you see him at the dancing hall of Giligaon, Siaton, on March 19,
1991?

A About 10:00 o'clock past. 10

This was unrebutted.

It is worth stressing, in this connection, that alibi is one of the weakest defenses that can be resorted to by an
accused, especially if there is direct testimony of an eyewitness duly corroborated by that of another, not only
because it is inherently weak and unreliable but also because of the ease of fabricating evidence of alibi and the
difficulty of checking or rebutting it. People vs. Estrada, L-261003, January 17, 1968, 22 SCRA 111 was cited in
support of such a view. Thus: "No jurisprudence in criminal cases is more settled than the rule that alibi is the
weakest of all defenses and that the same should be rejected when the identity of the accused has been sufficiently
and positively established by eye witnesses to the crime." Such should be the rule, for as a defense, alibi is easy to
concoct. It is not enough to prove that defendant was somewhere else, when the crime was committed, but he must,
likewise, demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of
its commission. 11

But appellant cautions that the testimony of complainant betrays the normal behavior of a girl whose virtue was
threatened. Having allegedly been raped several times, dominated more by fear and ignorance, rather than by
reason. In the same manner, it is incredible to believe that she could have fabricated the charges against the
accused. The filing of the complaint was impelled by no other reason than to vindicate an offense committed against
the victim and her family. It is hard to believe that a rape victim and her family would publicly disclose the incident
and thus sully their honor and reputation in the community unless it is true. 12

While the evidence shows three acts of rape, there can be prosecution for only one, because the information
charges only one offense. 13

In any event, whether under paragraph 1 or under paragraph 2 of Article 335 14 of the Revised Penal Code,
appellant's guilt is demonstrated beyond reasonable doubt.

There is no question that the child then being conceived by the complainant resulted from the act of sexual
intercourse complained of. As correctly observed by the trial court:

According to the Medical witness, Margie Pagaygay, at the time of examination on July 30, 1991, was
found to be pregnant with fetus aging 4 to 5 months old. Based on this (sic) findings, the act or acts of
sexual intercourse might have happened during approximately the period of between March 15, 1991 to
April 15, 1991, a period of one month before the start of the conception. Even assuming that the accused
was released from confinement in jail on April 12, 1991 as contented (sic) by him, yet from April 15, 1991,
to July 30, 1991, would be approximately four (4) months after April 12, 1991. Time computation here is
not so exact as like any other mathematical computation because coetus (sic) and pregnancy are
mysterious acts of nature which only the Great Creator knows with exactitude. Added is the fact that on
March 19, 1991, during the fiesta of Barangay Giligaon, Municipality of Siaton, Province of Negros
Oriental, Lilian Gomez, a prosecution rebuttal witness saw the accused Tortillano Namayan in the said
place playing "jantac" a game of chance played by means of tossing up coins. Besides, the alleged
charge for which the accused Tortillano Namayan claims he had been detained is not serious and only
requires minimum security risks if ever he was detained from February, 1991 to April 12, 1991. Therefore,
the oral rebuttal testimony furnished by Lilian Gomez for the prosecution is credit worthy. 15

Compulsory acknowledgment, as well as the support of the child is indeed proper there being no legal impediment
in doing so, as it appears that complainant and appellant are both single. The crime of rape committed by the
accused carries with it, among others, the obligations to acknowledge the offspring if the character of its origin does
not prevent it and to support the same. 16

WHEREFORE, the judgment appealed from is hereby AFFIRMED, modified only as far as the award of damages is
concerned, which is increased to FORTY THOUSAND PESOS (P40,000) in line with current jurisprudence. 17
SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

Footnotes

1 Brief for the Appellant, p. 1; Rollo, p. 23.

2 Decision, p. 2; Psychiatric Evaluation, Exhibit "A"; TSN, pp. 3-7.

3 TSN, pp. 5-6, Hearing of November 19, 1991.

4 TSN, pp. 6-8, Hearing of November 19, 1991.

5 TSN, p. 8, Hearing of November 28, 1991.

6 TSN, p. 4, Hearing of December 10, 1991.

7 Appellee's Brief, pp. 9-10, citing TSN, R. Gadayan, December 10, 1991,
pp. 11, 13.

8 Id., p. 10, citing TSN, R. Gadayan, December 10, 1991, p. 16.

9 TSN, pp. 4-6, Hearing of January 8, 1992.

10 TSN, pp. 14-16, Id.

11 People vs. Brioso, G.R. No. L-28482, January 30, 1971; 37 SCRA 336.
See also "People vs. Umali", G.R. No. 76530, March 1, 1995; "People vs. Morin", G.R. No. 101794,
February 24, 1995.

12 People vs. Robles, 170 SCRA 557.

13 People vs. Coral, Matilde, Jr. vs. Jabson, 68 SCRA 456; People vs. Robles,
170 SCRA 557; People vs. Joya, 227 SCRA 9.

14 xxx xxx xxx

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

xxx xxx xxx

15 RTC Decision, pp. 2-3; Rollo, pp. 13-14.

16 People vs. Luchico, 49 Phil. 689, 698.

17 People vs. Antonio, 233 SCRA 283.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 102077 January 4, 1994

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NORBERTO ERROJO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Lolita Contretras-Besana for accused-appellant.

NOCON, J.:

At the lithesome age of fourteen, a girl is just metamorphosing into womanhood. No worse experience can
transform the joys and thrills of this age into a nightmare than the crimes of rape committed on her person by a
married man that results in pregnancy and untimely motherhood. No less than sheer condemnation for such
licentious act is warranted and yet, pursuant to its Constitutional mandate, this Court will take a second look to
determine, if indeed, the proofs show beyond reasonable doubt that said crimes had been committed and that the
accused-appellant herein is the malefactor.
In an information dated January 30, 1990, accused Norberto Errojo alias "Norbing" was charged before the Regional
Trial Court of Roxas City,
Branch 15, of the crimes of rape, committed as follows:

That on March 5 and 12, 1989, in Brgy. Cudian, Ivisan, Capiz, Philippines, and within the jurisdiction of
this Court, the said accused Norberto Errojo alias Norbing, armed with a knife, by means of violence and
intimidation, wilfully and feloniously have carnal knowledge of
ANITA Q. ARABIA against her will. 1

Upon arraignment, accused with the assistance of a counsel of his own choice, entered a plea of not guilty.
Thereupon, the trial of the case proceeded on its course and a decision 2 thereon was rendered on June 28, 1991,
the dispositive portion of which states as follows:

WHEREFORE, the court finds the accused, Norberto Errojo, guilty beyond reasonable doubt for the
crimes of rape penalized under Article 335 of the Revised Penal Code as amended by Republic Acts
Nos. 2632 and 411 and sentenced him to suffer the penalties of:

1. Reclusion perpetua for the crime of rape committed by the accused on March 5, 1989 and to
indemnify the complainant, Anita Arabia, the sum of P40,000;

2. Reclusion perpetua for the crime of rape committed by the accused on March 12, 1989, and to
indemnify the complainant, Anita Arabia, the sum of P40,000;

Since bail is not a matter of right on capital offenses even with the non-imposition of the death
penalty, with the finding of convictions herein, the court orders the cancellation of the property bond
of the accused. He shall be placed under detention the finality of herein judgment.

Cost against the accused.

SO ORDERED. 3

The prosecution established the following facts:

On March 5, 1989 at around 6:00 p.m., complainant Anita Q. Arabia, who was then fourteen years and eight months
old, was walking alone on a pathway in Barangay Cudian, Ivisan, Capiz on her way home from her sister's house
when a man collared her from behind. She looked back and recognized the man as the accused Norberto Errojo. 4

Accused poked a knife at complainant, held her by the neck and without uttering a word, pushed her towards a
forested area. Complainant asked accused what he wanted from her but the latter kept silent and continued to push
her with a knife poked against her neck. Then, accused held complainant by the shoulders, turned her body towards
him and pushed her to the ground. 5

With his right hand still thrusting the knife at complainant's neck, accused took off his pants and complainant's
shorts and underwear. Accused warned her not to move. Then, accused went on top of her, inserted his organ into
hers, and consummated the sexual act. 6 Accused repeated the coitus consuming more or less the same period as
the first time. 7 Thereafter, accused, before leaving, threatened complainant not to tell her parents about the incident,
otherwise, he would kill her and her brothers. 8

Complainant wiped her private parts with her underwear, and noticed blood in it. 9 Nevertheless, she put it on,
together with her shorts and proceeded back to their house. Her mother asked her why she was late. She lied to her
by telling her that her sister requested her to watch their store. Then, she went to the comfort room, washed herself
and went to sleep. 10

One week thereafter, or on March 12, 1989, at around 6:00 p.m., accused again accosted complainant on her way
home after bringing the laundry of her sister. Accused again succeeded in raping complainant twice at the point of a
knife. He also warned complainant not to tell the incidents to her parents and her brothers. 11

Complainant revealed to the court her fear for the accused's threats on her life, and on the lives of her brothers.
Thus, she did not reveal the incidents to anyone, including her parents. However, the complainant intended to take
an advance officer's course in the Citizen's Military Training (CMT) of their school. A medical certificate showing her
physical fitness was needed so she submitted herself to a medical examination on November 16, 1989. The
resident physician of Roxas Memorial Hospital, Dr. Mariano Alovera, discovered and informed her that she was in an
advanced state of pregnancy, being already eight (8) months in the family way. For the first time, she disclosed to
her mother the sexual assaults of the accused upon her person on March 5 and 12, 1989. 12 On December 11, 1989,
complainant delivered a boy whom she named Amor John Arabia. As a consequence, she discontinued her studies
and took care of her son. 13
The accused, forty-one years of age, married and a former resident of Barangay Cudian, Ivisan, Capiz until August,
1988, denied the charges of rape against him. He stated that he had transferred his residence to Barangay
Cabugao, Ivisan, Capiz, upon the advice of his father because of frequent quarrels with the family of
complainant. 14 From his present residence to barangay Cudian, one has to take a pumpboat, a jeep and a tricycle. 15

When he transferred to Barangay Cabugao, he asked his compadre, Leopoldo Palanimpato, to attend to his
farmland. His farm animals, on the other hand, were left under the care of one Jimmy Vegas, however, abandoned
them sometime in February, 1989. Accordingly, he went to Barangay Cabugao to get someone to herd the
carabaos. Jimmy Vegas, according to him, was the boyfriend of complainant. When asked why he said that, he
explained that he had seen them ride his bicycle together. 16

As to his whereabouts on March 5, 1989, he claimed that he worked with four (4) other companions repairing the
main gate of Crisanto Bista's fishpond located at Barangay Cabugao from 7:00 o'clock in the morning. He went
home that day around 8:00 o'clock in the evening. 17 On the other hand, on March 12, 1989, he claimed that at
around 5:00 o'clock in the afternoon, he and his son fetched water from a public faucet near the house of Crisanto
Bista.

On cross-examination, accused declared that he had a quarrel with Rolando Valles Arabia, complainant's first
cousin, while he and his wife were watching the thresher. Asked when the incident happened, he said he was still
staying then in Barangay Cudian but specified that it was in the year 1989. 18 He alleged that Rolandos' father and
complainant's father and brothers confronted him and even fired his house. But he was the one charged with illegal
possession of firearm because the barangay captain of Cudian belongs to the same family as the Arabias.

Crisanto Bista, the Barangay, testified that the accused Norberto Errojo in a resident of his resident of his barangay
since August 5, 1988, up to the present. He corroborated accused's testimony that on March 5, 1989, he had the
main gate of his fishpond repaired by the accused and four (4) other men starting at 6:00 o'clock in the morning.
After working on the fishpond, he invited the workers to his house to eat dinner. 19 On March 12, 1989, he stayed at
home and saw accused and his son fetch water at around 6:00 o'clock p.m. from the faucet near his house. 20

The sole issue in this appeal boils down to the question of credibility. The rule is to accord much weight to the
impressions of the trial judge, who had the opportunity to observe the witness directly and to test their credibility by
their demeanor on the stand. By such observation, he must have been able to ascertain whether they honored their
oath. Thus, in the absence of a showing that his conclusions are abitrary, they are judiciously accepted on appeal
and even considered conclusive upon the reviewing court.

In believing complainant's story, the trial court took into account "the sincerity and demeanor she displayed while
testifying as she described and gave details of the terrible experience which had befallen her particularly on (the)
March 5, 1989 incident." 21 Due regard was given to the fact that complainant at the time of commission of the crime
was only fourteen (14) years of age, a lowly barrio lass, simple and innocent.

Accused-appellant argued that complainant should have resisted the attack while the former was thrusting a knife at
her and at the same time taking off his pants, her shorts and underwear. By not doing so, she did not employ
enough force that the law required.

It bears repeating that the force and violence required in rape cases is relative; when applied, it need not be
overpowering or irresistible. What is essential is that the force used is sufficient to consummate the purpose which
the offender had in mind, or to bring about the result. The force and 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. 22 All consideration of
whether it was more or less irresistible is beside the point. 23

At a tender age of fourteen, innocent of the ways of the world, complainant is no match to the accused-appellant, a
forty-one year old married, individual who sexually assaulted her. The sheer force and strength of the accused-
appellant would have easily overcome any resistance that complainant could have put up. What more if the assault
was committed with a deadly knife, the sight of which would have necessarily evoked fear in complainant. Thus, it is
understandable if she easily succumbed to the sexual intrusion.

Her failure to disclose the outrage on her person to anybody including her parents is due to the threats on her life
and her brothers. Indeed, one cannot expect her to act like an adult or a mature and experienced woman who would
have the courage and intelligence to disregard a threat to her life and complain immediately that she have been
sexually assaulted. 24 It is not uncommon for young girls to conceal for sometime the assaults on their virtue because
of the rapist's threats on their lives. 25

It has also been held that delay or vacillation in making a criminal accusation does not necessarily impair the
credibility of the witness is such delay is satisfactorily explained. The law on prescription of crimes would be
meaningless if were to yield to the proposition that delay in the prosecution of crimes would be fatal to the State and
to the offended parties. In fixing the different prescriptive periods on the basis of the gravity of the penalty prescribed
therfor, the law takes into account or allows reasonable delays in the prosecution thereof. 26
In the instant case, the complainant would not have filed the rape charges had she not become pregnant. This Court
has taken judicial cognizance of the fact that many victims of rape never complain or file criminal charges against
the rapists. They prefer to bear the ignominy and pain rather than reveal their shame to the world and risk the
rapists' making good their threats to kill or hurt their victims. 27

Moreover, complainant apparently became aware of her state of pregnancy when she submitted herself for physical
examination as a
pre-requisite for Citizens Military Training. Her parents likewise did not have an inkling whatsoever that she was
pregnant probably because of her upright behavior. Whether a woman may be unconscious of her pregnancy is
hardly credible but may happen in rare instances. 28 Thus, the delay in prosecuting the rape in this case has been
sufficiently explained and does not destroy the credibility of complainant.

Her naivete in passing through the same path one week after the first assault may likewise be attributed to her
tender age. She simply did not realize the danger to which she exposed herself. Even adults sometimes fail to
foresee imminent hazards in everyday life. So a fourteen-year old girl's indiscretion in laying herself open to another
rape when she passed the same spot should not be taken against her.

The insinuation of accused-appellant that complainant was simply used by her family to harass him because they
had a "grudge" against his family is preposterous. Noteworthy is the fact that the accused-appellant failed to specify
what his family and the family of complainant were quarreling about. Accused-appellant made general averments of
a long-standing feud between them. When asked for details, he simply said that he came to blows with Rolando
Valles Arabia, a first cousin of complainant and later, with Rolando's father and complainant's father and brothers.
Apparently, the controversy between them relates to a trifling matter. Hence, it is inconceivable that complainant
would make up a story of rape with all its attendant scandal and humiliation just because of a petty quarrel. She
would not have made the offense public and endured the ordeal of testifying to all its gory details if she had not in
fact been raped. 29

Since complainant was not impelled by any improper motive in filing charges of rape against accused-appellant, her
positive testimony pointing to the latter as the perpetrator of the rape must prevail over his defense of alibi. This
Court has inconsistently held that alibi as a defense is weak because it can easily be manufactured and
fabricated. 30 The social standing of the witness corroborating the accused-appellant's alibi is not guarantee of its
truthfulness. Testimony to be believed must not only proceed from a credible witness but must be credible in itself
and be able to stand the test of scrutiny along with the other testimonies. 31

After this painstaking review of the records of the case, we conclude that the trial court did not err in ruling that
accused-appellant is guilty beyond reasonable doubt of the crimes charged. Worthy of note is the fact that the
information in this case charged two crimes of rape, one committed on March 5, 1989 and the other, on March 12,
1989. While there is duplicity of offenses charged in the information, the accused-appellant, however, failed to object
to it before trial. Thus, in accordance with Section 3, Rule 120 of the Revised Rules of Court, the trial court correctly
convicted the accused-appellant herein with two offenses of rape as were charged and proved and imposed on him
the penalty of reclusion perpetua for each them. It failed, however, in the dispositive portion of its decision to require
the accused-appellant to acknowledge complainant's offspring insofar as the latter's filiation is concerned and to
support the latter in accordance with Article 283 of the New Civil Code and Article 345 of the Revised Penal Code.

WHEREFORE, the decision dated June 28, 1991 of the trial court convicting the accused-appellant Norberto Errojo
of the crimes of rape is hereby AFFIRMED. Said accused-appellant is further sentenced to acknowledge the filiation
of the complainant's offspring and to give support, the amount of which shall be determined by the trial court.
Accordingly, the records of this case are hereby REMANDED to the Regional Trial Court of Roxas City, Branch 15
for the fixing of the amount of support.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

#Footnotes

1 Rollo, p. 3

2 Penned by Judge David A. Alfeche, Jr.

3 Rollo, p. 22; citation omitted.

4 TSN, October 6, 1990, p. 3.

5 Ibid, pp. 3-4.

6 Ibid, p. 4.

7 Ibid, p. 5.

8 Ibid, pp. 5-6.

9 Ibid, p. 22.

10 Ibid.

11 Ibid, pp. 6-7.

12 Ibid, p. 9.

13 Ibid, p. 11.

14 TSN, March 6, 1991, p. 5.

15 Ibid, p. 8.

16 Ibid, p. 6.

17 Ibid, p. 17.

18 Ibid, p. 21.

19 TSN, February 25, 1991, pp. 3-4.

20 Ibid, p. 5.

21 Rollo, p. 16.

22 People v. Alvarez, G.R. No. 73071, 213 SCRA 722 (1992).

23 People v. Corro, G.R. No. 62673, 197 SCRA 121 (1991).

24 People v. Olivar, G.R. No. 101577, 215 SCRA 759 (1992).

25 People v. Dabon, G.R. No. 102004, 216 SCRA 656 (1992).

26 People v. Rostata, et al., G.R. No. 91482, February 9, 1993.

27 People v. Silfavan, G.R. No. 71510, 151 SCRA 617 (1987).

28 Solis, Pedro P., Legal Machine, 1987 ed., p. 550.

29 People v. Estolano, G.R. No. 57737, 193 SCRA 383 (1991).

30 People v. Agcaoili, G.R. No. 92143, 206 SCRA 606 (1992).

31 People v. Java, G.R. No. 104611, November 9, 1993.

Republic of the Philippines

SUPREME COURT
Manila
 FIRST DIVISION

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.

Alberto C. Dulalas for petitioner.

The Solicitor General for respondent.

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
accused-petitioner 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.
SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Group members:

Janice P. Fausto

Gretchen Bugnay

Ferdie Sia-ed

Joanne Estoque

Dean Excel Saldivar