349 Phil. 141
VITUG, J.:
"The undersigned Prosecutor II of Zamboanga del Sur, accuses JOSEPH BARRIENTOS, of the crime of DOUBLE ROBBERY WITH RAPE, committed as follows:Priorly filed by the Molave Chief of Police, Inspector Motalib Banding, before the Municipal Trial Court (“MTC”) of Molave, Zamboanga del Sur, which conducted the preliminary investigation, was the complaint; viz:
"That on February 11, 1992, at 5:30 o'clock in the afternoon at the compound of the Molave Regional Pilot School, Poblacion, Municipality of Molave, Province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent of gain and with intent to lie while armed with a batangas knife, threaten and by means of force and intimidation did then and there, willfully unlawfully and feloniously have a sexual intercourse with one Exaltacion Lopez for two (2) times and thereafter by means of force and intimidation did then and there wilfully, unlawfully and feloniously took from Exaltacion Lopez, the amount of One Hundred (P100.00) Pesos Philippine Currency, to her great damage and prejudice in the afore-stated amount.
"CONTRARY to Article 294, paragraph 2, of the Revised Penal Code.
"Molave, Zamboanga del Sur, May 26, 1992.(SGD.) FERNANDO G. CAGOCO
2nd Asst. Prov’l. Prosecutor”[1]
Substantiating the complaint was the sworn statement of the complainant, Exaltacion Lopez, which, in part, stated:
"C O M P L A I N T
"The undersigned Chief of Police Molave Police Station, Molave, Zamboanga del Sur, under oath accuses JOSEPH BARRIENTOS, of the crime of `ROBBERY WITH RAPE', committed as follows:
"That on the 11th day of February 1992, at 5:30 P.M. more or less, at the compound of the Molave Regional Pilot School, Molave, Zamboanga del Sur, Philippines, and within the preliminary jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation armed with a Batangas knife, did, then and there willfully, unlawfully and feloniously, raped and robbed the said complainant, Mrs. EXALTACION LOPEZ right in her classroom.
"CONTRARY TO LAW.
Molave, Zambo. del Sur, February 24, 1992.
(SGD.) MOTALIB T. BANDING Inspector, PNP
Chief of Police
"SUBSCRIBED AND SWORN to before me this 24th day of February 1992, at Molave, Zamboanga del Sur, Philippines.
(SGD.) DIOSDADO C. ARRIESGADO Municipal Trial Judge”[2]
"02 | Q-What prompted you to appear (at) the Office of the Chief of Police Molave Police Station? |
A-I am here to file complaint against Joseph Barrientos. | |
"03. | Q-What crime did he [commit] against you? |
A- | Because he raped me and then robbed. |
"04. | Q-When was that, and to wherein particular place did it [happen]? |
A-Last February 11, 1992, at about 5:30 p.m., more or less, right in my classroom situated at the Molave Regional Pilot School Campus."[3] |
“WHEREFORE, this court finds the accused guilty beyond reasonable doubt of the complex crime of rape with robbery and hereby sentences him to the penalty of reclusion perpetua and to pay the offended party Exaltacion Lopez moral damage in the sum of P300,000.00, and the cost of the proceedings.Interposing an appeal to this Court, the accused asseverates that the trial court has erred -
“SO ORDERED.”[18]
“I. IN HOLDING THAT THERE IS A VALID COMPLAINT SIGNED BY THE PRIVATE OFFENDED PARTY SUFFICIENT IN LAW TO CONFER JURISDICTION TO THE TRIAL COURT;Appellant assails both the complaint signed by the Chief of Police and the Information filed by the Assistant Provincial Prosecutor as being insufficient to confer jurisdiction on the court, arguing that the prosecution for rape can only be done by means of a valid complaint made by the offended party herself.
“II. IN ADMITTING THE TESTIMONY OF THE PRIVATE OFFENDED PARTY AND CHIEF OF POLICE, MOTALIB BANDING THE ACCUSED ASKED FORGIVENESS FROM THE PRIVATE OFFENDED PARTY THEREBY ADMITTING HIS GUILT;
“III. ON RELYING ON THE SOLE TESTIMONY OF THE PRIVATE OFFENDED PARTY THAT SHE COULD IDENTIFY THE ACCUSED AS THE VERY PERSON WHO RAPED AND ROBBED HER; and
“IV. IN NOT BELIEVING THE TESTIMONY OF THE ACCUSED-APPELLANT AS CORROBORATED BY HIS WITNESSES.”[19]
“x x x given a liberal or loose interpretation meaning a `charge, allegation, grievance, accusation or denunciation’ (p. 158, West’s Legal Thesaurus Dictionary) – rather than a strict legal construction, for more often than not the offended party who files it is unschooled in the law. The purpose of the complaint in Section 5, Rule 110, is merely to initiate or commence the prosecution of the accused. The victim’s `sinumpaang salaysay’ which was prepared in the vernacular, and the `complaint’ in English, which must have been prepared for her by someone else, complement each other, when read together, and satisfy the legal definition of a `complaint’ as `a sworn statement charging a person with an offense, subscribed by the offended party x x x’ (Sec. 3, Rule 110, 1985 Rules on Criminal Procedure). The Court is not inclined to disregard her salaysay (complaint) for mere lack of an oath for that would amount to suppressing her anguished cry for redress.”[21]The sworn statement of Exaltacion Lopez, the offended party in the case at bar, was signed by Lopez herself in the office of the Chief of Police (Motalib Banding). That statement, in “question and answer” form and filed with the Molave MTC to support the complaint signed by the Chief of Police, was to this effect:
“PRELIMINARY: | Mrs. Exaltacion Lopez Y Fernandez, you are being informed that under Article 183 of the Revised Penal Code, any person who knowingly making any untruthful statement shall testify under oath before any competent person duly authorized by law to administer oath shall commit the crime of Perjury. Is this clearly understood by you? | |
“ANSWER- | Yes Sir. | |
“Q. | Please state your name age and other personal circumstances? | |
“A. | Exaltacion Lopez Y Fernandez, 50 years old, married, Public School Teacher and resident of Quezon St, Molave, Zamboanga del Sur. | |
“Q. | What prompted you to appear before the Office of the Chief of Police Molave Police Station? | |
“A. | I am here to file complaint against Joseph Barrientos. | |
“Q. | What crimes did he [commit] against you? | |
“A. | Because he raped me and then robbed. | |
“Q. | When was that, and to wherein particular place did it [happen]? | |
“A. | Last February 11, 1992, at about 5:30 P.M. more or less, right in my classroom situated at the Molave Regional Pilot School Campus. | |
“Q. | Why did it [happen]? | |
“A. | During that time, I was in my classroom working my lesson plan, whom I noticed two female children entered roaming inside of which I cautioned them and they went out without any response. | |
“Q. | What transpired after the two children left the classroom? | |
“A. | I closed the window purposely to go home, suddenly somebody held my right arm tightly, at this moment, I turned my head to clarify and I saw a certain person whose head wrapped with a shirt (gibolokotan) and only his eyes were vi[s]ible, as if Ninja style, aiming the Batangas knife closely to my neck, at this juncture, I attempt to grab the said Batangas knife but all in vain since he aimed it closely to my neck, I asked him of what was his purpose, despite he q[uo]ted words `HUBO’, at this critical situation, I plan to escape walking towards the health corner waiting an opportunity but subject person walked on behind me closely still the Batangas knife positioning closely to my neck, until we reached the health corner, sensing have no chance to escape, I faced him and I was frighten[e]d when I saw the said person already [nude], at this juncture, I appeal to him saying words to q[uo]te `AYAW KO INTAWON PAGHIBABTI DONG KAY TIGULANG NA KO’ Meaning, `Please [don't] touch me I’m already old’, despite he ordered me to lie down in the cemented flooring, sensing my life will be on danger, and I observed his both eyes [were red], as if he acted as drug craze person, I obey his order of which accomplished him of his amorous desire to have sexually [intercourse] with me since I feel the discharged of his semen into my womb, after his first sexual intercourse, by forced and intimidation he demanded money of which I gave him the cash of P100.00 peso bill which the only money I have, therein expecting that he will be freed and or released me but still I observed him playing the said Batangas knife on and off then he told me to have another sexual [intercourse] of which still he freed to accomplish same of what he did for the first time. | |
“x x x x x x x x x | ||
“Q. | How come that you were able to identify Joseph Barrientos to be the very suspect who raped and robbed you, in fact according to you his head wrapped with a shirt and only his eyes were vi[s]ible? | |
“A. | Because of the scar at his right arm of which I saw when I glanced to the Batangas knife he was holding, and I noticed that his eyes is just protruding (Botlogon ug Mata). | |
“Q. | What else can you say with regards of his identity? | |
“A. | His [voice] and the body posture. | |
“x x x x x x x x x | ||
“Q. | How were you able to be sure enough that he is the identical person? | |
“A. | Because he personally beg pardon and apology from me in the presence of INSPECTOR MOTALIB T BANDING PNP, Chief of Police of Molave Police Station after he confessed of his wrong doings.”[22] |
“x x x at any time before entering his plea, the accused may move to quash the information on the ground that it does not conform substantially to the prescribed form. The failure of the accused to assert any ground for a motion to quash before he pleads to the information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds for a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy.”Appellant next faults the trial court for not rejecting the testimony to the effect that the accused has sought forgiveness from the complainant when made to confront him, on 21 February 1992, at the office of the Chief of Police. He claims that the confrontation between him and the complainant is violative of his right to counsel, he having been neither assisted, nor advised of his right to be represented, by counsel at the time.
“At the investigation by the police in the afternoon of February 12, 1992, the complainant described the person who ravished her as one of bulging eyes, of fair complexion, sturdily built in body, and with a scar at the right arm at the elbow joint. The accused fits the description given by the offended party. At the confrontation between the accused and the offended party in the Office of the Chief of Police, the offended party was able to positively identify the accused as the person who ravished her twice in the afternoon of February 11, 1992. She found the identifying scar in the part of the body of the accused where she said the same can be located. She was able to recognize the voice, the fair complexion of the accused, his bulging eyes and his body built.”[33]The positive identification made by the complainant of the person who took away her honor has placed the defense of alibi unacceptable. Alibi cannot prevail over positive identification.[34] Most importantly, alibi, to be convincing and effective, requires proof not only of the accused being at some other place at the time of commission of the crime but also of being physically impossible for him to be at the locus criminis[35] or within its immediate vicinity.[36] These requirements are not at all here extant.
“Q: | How many windows of the room were you able to close when a man entered your room? |
“A: | I was about to close the last window. |
“Q: | Were you able to close the last window when a man entered your room, is that correct? |
“A: | I was closing the last window when I noticed there was a man at my back and who grabbed my hand and when I looked at him to verify as to the person who grabbed my hand, I saw the head wrapped with a cloth and pointed his batangas knife right at my neck. |
“Q: | At the time you first noticed the man, he was not yet naked? |
“A: | He was half naked and he was wearing a pink jogging pants. |
Q: | “Was there an electric light at the room at the time when you first noticed a man in your room? |
“A: | There was a fl[uo]rescent lamp but I did not put the light on because it was not yet dark. |
“Q: | Will you describe to the court, the nature of your window of your room? |
“A: | It is wooden jalousie window. |
“Q: | In other words, when you closed the windows the room would be dark? |
“A: | Not totally dark. How could it be dark when the door was still [open]. |
“Q: | You mean to say the door was not closed when you were molested? |
“A: | Yes sir. |
“Q: | It was all the time [open]? |
“A: | Yes, it was [open] because I was about to go home. I usually don’t close the door when I am about to go home. |
“Q: | The man who entered the room did not close the door? |
“A: | I do not know whether he closed the door. At that time I was closing the window. My back was facing him when I noticed somebody held my hand closely. |
“x x x x x x x x x | |
“Q: | Was this man who entered the room wearing any shoes? |
“A: | No sir. |
“Q: | You said in your direct testimony that you were brought to the health corner after closing the last window. Then, you noticed a man who was already naked? |
“A: | Yes sir. He was already naked. |
“Q: | Was he completely naked at that time? |
“A: | Yes, he was totally naked. |
“Q: | At that time, was he at your back or in front of you? |
“A: | He was at my back. |
“Q: | You said the pants he was wearing was pink in color? |
“A: | Yes sir. |
“Q: | What was the color of the shirt? |
“A: | I do not know what color was that but I know it is technicolor that was used in wrapping his head. |
“Q: | Will you tell the court, how long after he first penetrated you. Did he finish the sexual act with you? |
“A: | I cannot tell how long but he really succeeded in molesting me because I felt his semen entered my vagina. |
“Q: | Was the first sexual intercourse lasted for about five minutes? |
“A: | I do not know how many minutes. |
“Q: | After the first sexual intercourse with you, how long did he do the second intercourse with you? |
“A: | I do not know how long he molested me. |
“Q: | Would the interval of the first intercourse to the second intercourse was one hour? |
“A: | I cannot tell how many minutes or hour was the interval. What I know he molested me again. |
“Q: | During the time he molested you in that room, did you notice any person outside the room? |
“A: | I did not see any person outside. If there are persons outside, I could have been saved. |
“Q: | When you went home, was it still light or already dark? |
“A: | It was still light. |
“Q: | You were then wearing watch what you are wearing now? |
“A: | Yes sir. |
“Q: | What time was it when you left that building? |
“A: | I did not look at my watch. I do not know what was the time when I left because I was not in my right mind and I did not notice the time anymore.”[38] |
“On the basis of the evidences submitted, [the] court is morally convinced that the accused committed the two acts of rape against, and the robbery of P100.00 from, the complaining witness Exaltacion Lopez. However, since the said acts were committed on the same occasion, [the] court believes that there is only one criminal intent and that, therefore, only one complex crime of rape with robbery was committed by the accused.”[42]The trial court might have had in mind, instead, the special complex crime of robbery with rape penalized under Article 294(2)[43] of the Revised Penal Code. This special complex crime contemplates a situation where the culprit or culprits have an original design to take personal property belonging to another with intent to gain and rape is committed merely as an “accompanying” crime; the principal offense is robbery (a crime against property) and rape is perpetrated incidental to the robbery. It is a public crime which can be prosecuted de oficio and where a separate complaint of the victim would not be indispensable.[44]
“Pros. Magangcong: | |
“Q: | On that particular date, did you remember if there was an unusual incident that took place? |
“A: | Yes sir. |
“Q: | Will you please inform this court what is that incident? |
“A: | That time, I was preparing my lesson plan when there was a person entered my room. |
“COURT: | |
“Q: | Who was with you that time when the person entered your room? |
“A: | I was alone. |
“Pros. Magangcong: | |
“Q: | Now, after the person entered your room, what did he do to you? |
“A: | While I was closing the windows my back was facing him, the person grab my right hand. |
“Q: | What happened next when that person grabbed your right hand? |
“A: | I looked back at him to verify as to who the person who grabbed my right hand. And what I saw is a person whose head is wrapped with shirt. |
“Q: | After looking at him, did you attempt to run? |
“A: | When I turned my back to verify as to who was the person holding my hand, I could not think what to do because that person pointed his batangas at my right neck. |
“Q: | Because you did not run, what happened next? |
“A: | I tried to grab his batangas but I did not succeed in getting it from him because he was stronger than me. |
“Q: | Because he was stronger, what did he do to you? |
“A: | He pointed his batangas on my neck. |
“Q: | After pointing his batangas, what happened next? |
“A: | I walked towards the health corner. |
“Q: | Did he also walk with you towards the health corner? |
“Atty. Acain: | |
Objection, Your Honor, leading. | |
“Pros. Magangcong: | |
“Q: | How did you happen to go to the health corner when the knife was pointed to your neck? |
“A: | He followed me towards the health corner while he was holding the knife pointed at my neck. |
“COURT: | |
“Q: | By the way, was there other classroom near your classroom? |
“A: | Yes sir. |
“Q: | How many classroom adjacent to your classroom? |
“A: | Two adjacent classrooms and another, my room. Three in all. |
“Q: | At that time, the two classrooms adjacent to your room have anybody inside? |
“A: | Nobody. |
“COURT: | |
Proceed. | |
“Pros. Magangcong: | |
“Q: | Because he followed you in the health corner, what happened there in the health corner? |
“A: | While he was following me, I faced him. When I faced him, he was already naked. |
“Q: | Because he was already naked, did he say anything? |
“Atty. Acain: | |
Objection, Your Honor, leading. | |
“COURT: | |
Ask what happened next. | |
“Pros. Magangcong: | |
Q: | What happened why he was naked? |
“A: | I pleaded to him not to molest me because I am already old but he ordered me to lie down on the cemented floor. |
“Q: | What happened next after he ordered you to lie down on the cemented floor? |
“A: | I did not lie down immediately on the cemented floor. Instead, I looked at him trying to gaze what was his intention towards me. And I saw my life is endangered because his eyes are very red. |
“COURT: | |
“Q: | Despite the fact that he was already naked, you did not know his intention? |
“A: | I know his intention that is why I pleaded to him not to molest me because I am already old.”[46] |
“The writer of this opinion together with Justices Hermogenes Concepcion, Jr., Ramon C. Fernandez, Juvenal K. Guerrero and Pacifico P. de Castro are for the affirmance in toto of the lower court’s decision. Justice Ameurfina A. Melencio-Herrera concurs with the aforementioned members of the Court and adds the observation `that even in a prosecution for Robbery with Rape, which can be prosecuted de oficio, the offended woman should still file a complaint for Rape as a jurisdictional requirement (sec. 4, Rule 110; Art. 344, Revised Penal Code), and out of consideration for her. But if the rape victim herself testifies in open Court, as in this case, the purpose behind the requirement should be deemed as having been met, it being apparent that the victim, as in a complaint filed by her, has decided to expose in a public trial the outrage on her person.’ Justice Claudio Teehankee concurs in the imposition of the death penalty but believes that not one but three death penalties should be meted to the accused. He has filed a separate opinion to this effect. Justice Antonio P. Barredo’s vote is `that appellant Paulino Mabag should be sentenced to three death penalties because as I have already explained in previous opinions, it is absurd to read Article 294 (2) of the Revised Penal Code without taking into account the latest amendment of Article 335. The construction of laws must never result in absurdity.’ Justice Felix V. Makasiar has filed a dissenting opinion to the effect that the accused should be convicted and sentenced to death for three separate crimes of robbery with rape. However, Chief Justice Enrique M. Fernando following his opinion in People vs. Carandang, L-31012, August 15, 1973, 52 SCRA 259, believes that the appropriate penalty is reclusion perpetua and so does Justice Ramon C. Aquino who has filed a dissenting opinion.It was during this period of diversity of opinion within the Court that, relevant to the instant case, People vs. Mabag,[53] was decided where, for lack of the required ten votes, the death sentence imposed on the accused was modified to reclusion perpetua, and where, among other things, it said:
“It thus appears that nine members of the Court are for the imposition of the death penalty in varying numbers, while two members are for reclusion perpetua only.
“WHEREFORE, for lack of the necessary votes the decision appealed from is hereby modified in that the accused shall suffer the penalty of reclusion perpetua but is affirmed in all other respects. Costs de oficio.”[52]
“As to the second assignment of error, the appellant claims that even assuming, without admitting, that he is guilty of the offense charged, he cannot be meted the death penalty because Arts. 293, 294, par. 2 and 296 of the Revised Penal Code which are mentioned in the information prescribe only the penalty of reclusion temporal in its medium period to reclusion perpetua when the robbery shall have been accompanied by rape, among other crimes. [Presidential Decree No. 767 which took effect on August 15, 1975 has amended Art. 294, par. 2 of the Revised Penal Code by adding the following: `PROVIDED, HOWEVER, THAT WHEN THE ROBBERY ACCOMPANIED WITH RAPE IS COMMITTED WITH THE USE OF A DEADLY WEAPON OR BY TWO OR MORE PERSONS THE PENALTY SHALL BE RECLUSION PERPETUA TO DEATH.’ This amendment cannot of course be given retroactive effect.]All taken, herein appellant must be convicted of two counts of rape under Article 335, qualified by with the use of deadly weapon (a batangas knife), and the crime of robbery under Article 294, paragraph 5, of the Revised Penal Code.
“But the applicable provision is Art. 335 of the Revised Penal Code the relevant portion of which reads: `Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty is reclusion perpetua to death.’ And this is the provision mentioned in the dispositive portion of the lower court’s decision quoted above. The fact that Art. 335 of the Revised Penal Code is not mentioned in the information is unimportant and did not deprive the appellant of his constitutional right to be informed of the accusation against him. As former Chief Justice Moran said:“`It has been held, however, that if the above requirement [Rule 110, Sec. 7, Rules of Court] is not complied with and no name has been given to the offense alleged to haven been committed, the defect is merely of form which does not prejudice the substantial rights of the defendant. This is especially so where the facts pleaded are clearly constitutive of a specific offense. In such cases, the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information. This is so because `from a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in his defense on the merits x x x. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute x x x. In the designation of the crime, the accused never has a real interest until the trial has ended. For his full and complete defense, he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights x x x. It is the province of the court alone to say what the crime is and what it is named.’ Accordingly, the accused will not be permitted `to stand by and watch the fiscal while he guesses as to the name which ought to be applied to the crime with which he charges the accused, and then take advantage of the guess if it happens to be wrong, while the acts and omissions upon which that guess was made and which are the only real foundation of the charges against him are clearly and fully stated in the information.’ Otherwise, it would `change the battleground in criminal cases from issues to guesses and from facts to fancy.’’ (IV Moran, Rules of Court, pp. 22-23, 1970 ed.)“That the lower court did not err in applying Art. 355 of the Revised Penal Code is shown by the decision of this Court in People vs. Obtinalia, G.R. No. L-30190, April 30, 1971, 38 SCRA 651.”[54]
“ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances.When, such as in the case at bar, the crime of rape was committed with the use of a deadly weapon, the penalty prescribed would be reclusion perpetua to death; there being neither mitigating nor aggravating circumstance shown, the minimum thereof, or reclusion perpetua, should be the appropriate penalty. The penalty of death, in any event, could not be imposed because of the then constitutional proscription.
“1. By using force or intimidation;
“2. When the woman is deprived of reason or otherwise unconscious; and
“3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
“The crime of rape shall be punished by reclusion perpetua.
“Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
“When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
“When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death.
“When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (As amended by Rep. Act No. 2632, approved June 18, 1960, and Rep. Act No. 4111, approved June 20, 1964.)”
“ART. 294. Robbery with violence against or intimidation of persons-Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:Applying the Indeterminate Sentence Law, and absent any mitigating or aggravating circumstance, the full range of the penalty that may be imposed is anywhere from arresto mayor in its maximum period to prision correccional in its medium period, as the minimum penalty, to prision mayor in its minimum period, as the maximum penalty.
“x x x x x x x x x
“5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. (As amended by Rep. Act No. 18.)”
(a) That the facts charged do not constitute an offense;[27] G.R. No. 120093, 06 November 1997.
(b) That the court trying the case has no jurisdiction over the offense charged or the person of the accused;
(c) That the officer who filed the information had no authority to do so;
(d) That it does not conform substantially to the prescribed form;
(e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses;
(f) That the criminal action or liability has been extinguished;
(g) That it contains averments which, if true, would constitute a legal excuse or justification; and
(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged.
x x x x x x x x x