382 Phil. 887
PER CURIAM:
"That on or about the 7th day of October, 1995, in the Municipality of Dulag, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other and with lewd designs, did then and there willfully, unlawfully and feloniously enter the house of Maricel Capongcol - the offended party, and once inside, succeeded in having carnal knowledge of (sic) her with the use of bladed weapon, without her consent and against her will.Cinco remained at large. On March 8, 1996, accused-appellant pleaded not guilty.[3]
Contrary to law with the generic aggravating circumstances of dwelling."[2]
"WHEREFORE, AND IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court finds the accused, Liberato Mendiona, GUILTY beyond reasonable doubt of the crime of Rape, defined and penalized by Art. 335 of our Revised Penal Code, as amended by R.A. 7659, (sic) with reclusion perpetua to death. With the presence of two (2) aggravating circumstances of dwelling and unlawful entry, not offset by any mitigating circumstance, the Court hereby sentences said accused, pursuant to No. 1, Article 63 of our Revised Penal Code as well as the Heinous Crimes Law, with the supreme penalty of DEATH; to pay the offended party, Maricel Capongcol, the amount of P50,000.00 as moral damages and to pay the costs.Before this Court, appellant maintains that his conviction for rape is erroneous. As first ground, he assails the credibility of Maricel. He states that he was initially charged with the lesser crime of acts of lasciviousness and Maricel testified that on her own, she would have maintained said charge.[10] A careful examination, however, of the complete testimony of Maricel - direct, cross and redirect - will reveal that she clearly impressed on the trial court that she was raped by the accused-appellant, viz:
Let the accused be transferred to the National Penitentiary at Muntinglupa City, Metro Manila.
In order that the case as against accused, Tirso Cinco, shall not remain pending for an indefinite period of time, the records of the case are hereby sent to the archives.
Let also alias warrants of arrest issue against said accused furnishing copies thereof to the Philippine National Police (PNP) Provincial Superintendent of Leyte, Tacloban City, and the National Bureau of Investigation (NBI), Manila, and Tacloban City in order that his name shall be included in the list of wanted persons. Furnish also a copy of said alias warrant of arrest to the family of the offended party who is hereby authorized to secure the assistance of any officer of the law to effect the arrest of the accused, Tirso Cinco.
IT IS SO ORDERED."[9]
"Acts of lasciviousness" is a technical term whose meaning and nuances could not have been appreciated by Maricel. We note that the trial court described Maricel in its Decisions as "very shy, afraid and secretive 19-year old with slow comprehension and behave like a 7 – year old xxx."[12] A review of the records will also show that upon re-investigation the charge of rape was filed against the accused-appellant by the public prosecutor based on the medical report which showed that Maricel has healed hymenal lacerations and her revelation that it was her first time to have a sexual encounter with a man.
"x x x "Q You testified on cross-examination that when you reported to Brgy. Captain Sergio Bangcaran, you told him that Renato Mendiona touched your womanhood, and when you were asked to explain what you meant by that (sic) words you said that his – Renato’s penis, was placed inside your vagina. When you executed your affidavit on October 10, 1995, you also told the investigator or Police Investigator – Police Officer, your statement to SPO4 Mahinay of the Dulag Police Station that in the evening of October 7, 1995, the accused forcibly entered your – the accused Renato Mendiona entered your house and sexually molested you by hugging you, kissing you, mashing your breasts and touching your womanhood. By this term ‘Touching your womanhood’, do you want to convey to this court that the penis of Renato Mendiona was placed inside your vagina? "ATTY. TANDINCO: "Leading and misleading because from the answer of the witness, - made by the witness (sic) she said that there was holding of the hands. "PROS. LOPEZ: "But she also mentioned in her affidavit that the accused, aside from hugging, kissing her, mashing her breasts and touching her womanhood, (sic). I am asking her if by touching her womanhood – what she meant by the words ‘touching her womanhood’? "ATTY. TANDINCO: "Practically impeaching her own witness, your Honor. "COURT: "Objection overruled. "ATTY. TANDINCO: "In fact, in my cross [examination] I emphasized on that particular portion of that statement on what is meant by touching her womanhood and the answer was that it was merely held. "PROS. LOPEZ: "I want to clarify because according to the witness when she reported this to the barangay captain that her womanhood was touched by the accused and when she was made to explain or clarify what she meant by that word, the witness testified that accused Renato placed his penis inside her vagina. There is also the word [or] phrase ‘touching her womanhood’ on her affidavit. So I am asking the witness what she meant by that. "COURT: "That is why during the direct [examination], she explained what she meant by ‘touching her womanhood’, that is, aside from mashing her breasts, kissing her and hugging and sexually molesting her (sic). And on cross [examination], she was asked, ‘If you have your own way, you would only want the accused to be charged of (sic) Acts of Lasciviousness.’, and she said "Yes.’ So she has her own way. So, the ruling stands. Witness may answer. "A Yes, ma’am. "x x x"[11]
As second ground, accused-appellant contends that he should not have been sentenced to death because the crime he committed has "less horrifying features" than the heinous crimes mentioned in R.A. No. 7659.[14]
"x x x "PROS. LOPEZ: "Q On cross-examination, you also testified that your Uncle Matias Teston instigated the filing of this rape case against Renato Mendiona and Tirso Cinco. Please explain to the court what you mean by ‘instigating’. What do you mean by that ‘instigating of your Uncle (sic)’? "A I was the one who informed my mother about the incident. "Q And what was that information you gave to your mother? "A That I was deflowered. "Q You said it was you yourself who told your mother that you were deflowered. If you know, how did he come to know that you were deflowered? "A My mother informed my Uncle Matias Teston about the incident."[13]
"Art. 335. When and how rape is committed. – Rape is committed by having carnal knowledge of a woman under any of the following circumstances:In the instant case, the prosecution established that appellant and Cinco succeeded in defiling Maricel with the use of a deadly weapon, i.e., "pisao." Accordingly, the range of penalty imposable on appellant is composed of two indivisible penalties, i.e., reclusion perpetua to death. Following Article 63 (1)[15] of the same Code, which provides the rules for the application of indivisible penalties, appellant was correctly meted the supreme penalty of death since the aggravating circumstances of dwelling and unlawful entry attended the commission of the rape. The attendance of these aggravating circumstances is not contested by the accused-appellant.
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.
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.
x x x."
[16] People of the Philippines v. Senen Prades, 293 SCRA 411 (1998)x x x.
- When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.