428 Phil. 962
MELO, J.:
That on or about the 2nd day of November, 1995 at about 10:00 o’clock in the evening, at Brgy. Maligaya, Municipality of Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of violence and intimidation, did, then and there, willfully, unlawfully and feloniously succeed in having carnal knowledge without the consent and against the will of the complainant MARINA HERMANES, inside her house, the accused being her step-father, with threats of killing her and all members of her family.At his arraignment, appellant pleaded not guilty. Thereupon, trial ensued.
CONTRARY TO LAW.(p. 7, Rollo.)
On or about November 2, 1995 at around ten o’clock in the evening, private complainant Marina Hermanes, who at that time was ten (10) years old, was in the house shared by appellant Ernesto Hermanes, her stepfather, and his wife Milagros (p. 6, TSN, July 22, 1997). Marina’s natural mother already died (p. 135, Records). Marina further declared that she has been living with her stepfather, the appellant, and his wife Milagros since she was two (2) years old (p. 6, TSN, July 22, 1997).On November 4, 1995, or 2 days after the rape, Marina was physically examined by the Municipal Health Officer of Sta. Rita, Dra. Rusela Grapa. Marina was found to have hymenal lacerations at the 3 and 7 o’clock positions, which, according to Dra. Grapa could have been caused by the insertion of male organ (tsn, November 11, 1996, p. 5). Moreover, on direct examination, Dra. Grapa testified that these lacerations were “fresh.”
Marina was lying in her bedroom when appellant entered and undressed her. Appellant opened his trousers, placed himself on top of private complainant, and successfully inserted his organ (“sili’) into her vagina (“pipi”), Marina felt pain (p. 8, ibid.). Thereafter, appellant made a push and pull motion for quite some time (p. 9, ibid.). Having satisfied himself, appellant stood up, closed his trousers and left Marina alone to attend to his carabao (pp. 110-11, ibid.).
The following day at eight (8) o’clock in the morning, Marina proceeded to the house of Soltero Salubre, a Kagawad of their barangay at that time, and told him that her father, Ernesto Hermanes, raped her, and has raped her twice before the incident of November 2, 1995 (pp. 6, 12, TSN, January 14, 1998). Because of said complaint, Salubre brought Marina to the Department of Social Welfare and Development (DSWD) Office in Sta. Rita, Samar (p. 9, ibid.). Marina has since been in the custody of the DSWD Home for Girls (Abused) Children, Lingap Center, Palo, Leyte (p. 5, TSN, July 22, 1997).(pp. 4-5, Appellee’s Brief.)
As the prosecution was about to call its last witness on January 14, 1998, appellant, through counsel, manifested his desire to withdraw his previous plea of not guilty and to change the same to a plea of guilty. The trial court allowed him to do so. Thus, appellant was re-arraigned and, with the aid of his counsel, he subsequently pleaded guilty to the crime charged (Record, p. 86).
Q: When you examined the patient, what was then the nature of the lacerations? New or healing?
A: It was a fresh healing laceration. It was fresh but starting to heal.Q: If these lacerations were fresh but healing, can you estimate the time of the incident?
A: Yes.Q: And from your day of examination, when could have the incident happened?
A: Between 24 to 48 hours.Q: This laceration, was this caused by sexual intercourse?
A: Yes.
(tsn, August 14, 1997, p. 10-11.)
IN VIEW OF THE FOREGOING, finding the accused Guilty beyond reasonable doubt of the heinous crime of raping his own 10-year-old stepdaughter Marina Hermanes through the conclusive evidences presented by the prosecution as well as his admission of the same through his counsel, he is hereby sentenced to suffer the extreme penalty of DEATH. However, taking into consideration the underlying circumstances herein as above pointed out, the Court hereby recommends the granting of Executive Clemency to the said accused.Appellant assails the trial court on the sole issue of the imposition of the penalty of death.
Upon promulgation of the above, let the record herein be forwarded to the Honorable Supreme Court for automatic review.
SO ORDERED.(pp. 23-24, Rollo.)
Prescinding from the above, and on the basis of the manifestation filed by Atty. Nicolasora on August 14, 1998, the trial court observed that appellant admitted having raped his stepdaughter, stating that “it is only in this case now that the accused herein Ernesto Hermanes has admitted guilt, manifesting his desire to ask for forgiveness, and had practically and wholly submitted himself to the discretion and compassion of this Court (Decision, p. 10).” Said manifestation, states in part:
Q: Okey, do you recall where were you on November 2, 1995 at about 10:00 o’clock in the evening?
A: Yes, sir.Q: Where were you then, if you can recall?
A: I was in the house.Q: And where is this house of yours located that you are referring to?
A: Brgy. Maligaya, Sta. Rita, Samar. xxx xxx xxxQ: While you were there in your house that evening do you recall of any incident that occurred to you?
A: Yes, sir.Q: And what is this incident that occurred to you?
A: That night I was undressed.Q: By whom were you undressed?
A: Ernesto Hermanes.Q: Where were you then particularly inside the house when you were undressed?
A: I was in the bedroom.Q: How did Ernesto Hermanes undress you?
A: He placed himself on top of me.Q: What were you wearing then if you can recall?
A: I was wearing a dress.Q: After this Ernesto Hermanes undressed you and placed himself on top of you, what did he do to you next?
A: He sexually abused me.Q: By sexual abuse, what did he actually do to you?A: He placed his sili (organ) inside my pipi (vagina).Q: Do you know where is your pipi?A: Here (Witness pointing between her legs).Q: When Ernesto Hermanes put inside his organ to your organ, what did you feel?
A: It was very painful.Q: Do you know what do you mean by sili?A: Yes, sir. xxx xxx xxxQ: When his penis was already inside your vagina, what did Ernesto Hermanes do to you?
A: He did it again.Q: What do you mean by saying, he did it again?
A: I do not know how to call it.Q: As you were feeling the pain, what did you do next if any?
A: (No answer)Q: For how long did he place his penis inside your vagina?
A: It was 9:00 o’clock in the evening.Q: Was the penis of Ernesto Hermanes inside your vagina long?
A: Yes, sir.Q: Did he make any movement of his penis while it was inside your vagina?
A: Yes, sir.Q: How?
A: (He was making a push and pull motion as witness indicated).Q: How many times did Ernesto Hermanes do this sexual abuse to you during that evening?
A: One.(tsn, July 22, 1997, p. 6-10.)
A perusal of the manifestation filed by Atty. Nicolasora on behalf of appellant shows that it was signed only by Atty. Nicolasora, not by appellant. While we stated in People vs. Balisoro (307 SCRA 48 [1999]) that an admission made in the pleadings cannot be controverted by the party making such admission and that the same is conclusive as to him, it is also hornbook doctrine that the authority of an attorney to bind his client as to any admission of facts made by him is limited to matters of judicial procedure. An admission which operates as a waiver, surrender, or destruction of the client’s cause is beyond the scope of the attorney’s implied authority (People vs. Maceda, 73 Phil. 679 [1942]). In this case, Atty. Nicolasora’s admission that appellant was heavily intoxicated at the time of the incident and that he had no intention to commit so grave a wrong as that committed practically frittered away appellant’s case in favor of the prosecution. The manifestation cannot thus be held as an admission by appellant of his guilt.
- That after an exhausting conference with the accused, the latter informed the undersigned that he cannot bear his conscience and he would like to state completely in court the actual circumstances of the rape that transpired on November 2, 1995 at about 10:00 o’clock in the evening at Barangay Maligaya, Sta. Rita, Samar;
xxx xxx xxx
- That he is now remorseful and he believes that by completely stating the truth he may be forgiven by his foster daughter, Marina Hermanes (rape victim), his spouse and the public in general;
- That the gist of the would be testimony of the accused would show that during the rape incident he was heavily intoxicated and he and his foster daughter, Marina Hermanes, were alone at their residence;
- That he will present the following mitigating circumstances in his favor, as follows: (a) intoxication; (b) plea of guilty; (c) the degree of instruction and education of the offender; and (d) that he had no intention to commit so grave a wrong as that committed.
- That he plead for the mercy and compassion of the Honorable Court that in the event the penalty prescribed by law be meted against him, he respectfully pleads to this court that it recommends executive clemency for his behalf.
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:Summarizing the recent rulings of the Court under the aforequoted provision (People vs. Lomibao, 337 SCRA 211 [2000]; People vs. Acala, 307 SCRA 330 [1999]; People vs. Maglente, 306 SCRA 546 [1999]), the concurrence of the minority of the victim and her relationship to the offender constitute special qualifying circumstances and both factors must be alleged and proved with certainty, otherwise, the death penalty cannot be imposed. In the present case, while the information did state that appellant is the stepfather of the complainant, it, however, failed to mention that complainant was under 18 years of age at the time of the commission of the offense. As such, the charge of rape in the information is not in its qualified form so as to fall under the special qualifying circumstances stated in Section 11 of Republic Act No. 7659. Verily, the information’s failure to allege the minority of the victim cancels out the imposition of the death penalty.x x x
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1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.x x x
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