447 Phil. 207
CALLEJO, SR., J.:
Pregnancy uterine, 26 5/7 weeks AOG by LMP, 32-33 weeks by pelvic ultrasound (July 01, 1997), cephalic, NIL; G1PO [5]After the requisite preliminary investigation, three Informations were filed on October 27, 1997, with the Regional Trial Court of Pangasinan (Tayug, Branch 51) for rape, each Information reading and docketed as follows:
That sometime during the year 1992, in the evening, inside the house of the victim located at Brgy. Libertad, municipality of Tayug, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the stepfather of complainant, by means of force, threat and intimidation, did then and there wilfully (sic), unlawfully and feloniously have sexual intercourse with AAA, who was then 9 years old, against her will and consent, to the damage and prejudice of said AAA.
CONTRARY to Article 335 of the Revised Penal Code.[6]
xxx
That sometime during the year 1993, early dawn, inside the house of the victim located at Brgy. Libertad, municipality of Tayug, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the stepfather of complainant, by means of force, threat and intimidation, did then and there wilfully (sic), unlawfully and feloniously have sexual intercourse with AAA, who was then 10 years old, against her will and consent, to the damage and prejudice of said AAA.
CONTRARY to Article 335 of the Revised Penal Code.[7]
xxx
That sometime during the month of January, 1997, inside the house of the victim located at Brgy. Libertad, municipality of Tayug, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-name accused is (sic) the stepfather of complainant, by means of force, threat and intimidation, did then and there wilfully (sic), unlawfully and feloniously have sexual intercourse with AAA, who was then 14 years old, against her will and consent, to the damage and prejudice of said AAA.On December 18, 1997, Edgardo was duly arraigned, assisted by counsel de parte and entered a plea of Not Guilty to all the charges.[9]
CONTRARY to Article 335 of the Revised Penal Code.[8]
WHEREFORE, pursuant to Section 2, Rule 133 of the Rules of Court, and applying Article 335 of the Revised Penal Code as amended by Republic Act Nos. 2632, 4111 and 7659, respectively, in relation to Article 63 thereof, the Court finds the accused EDGARDO MAURO, a native of Llanera, Nueva Ecija GUILTY beyond reasonable doubt, of three (3) counts of rape, and hereby sentences him to suffer the penalties of RECLUSION PERPETUA relative to Crim. Case No. T-2008, RECLUSION PERPETUA in regard to Crim. Case No. T-2009, and DEATH with respect to Crim. Case No. T-2010; to indemnify complainant AAA of Brgy. Libertad, Tayug, Pangasinan for damages in the negotiated sum ofAppellant seeks reversal of the decision of the trial court contending that:P125,000.00; to support their common offspring; and to pay the costs.[11]
On the first assignment of error, appellant avers that he was deprived of his right to be informed of the nature of the charges against him in Criminal Cases Nos. 2008 and 2009. The phrases “sometime during the year 1992” and “sometime during the year 1993” in both informations are not sufficiently explicit enough and certain as to the date of the commission of said crimes. Appellant cited another ruling in People vs. Ladrillo,[12] to buttress his contention.FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT FOR THREE (3) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO DEFINE OR INCLUDE IN THE FIRST TWO INFORMATIONS THE PARTICULAR DATES DURING 1992 AND 1993 WHEN THE OFFENSE WERE ALLEGEDLY COMMITTED;SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT FOR THREE (3) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PRESENT EVIDENCE TO PROVE BEYOND REASONABLE DOUBT THE RAPE COMMITTED IN JANUARY 1997.
Section 10. Date of the Commission of the Offense. - It is not necessary to state in the complaint or information the precise date the offense was committed except when it is material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.[13]The Court held in People vs. Lizada[14] that the precise date of the commission of the crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not render the information ipso facto defective. After all, the gravamen of the crime is carnal knowledge of private complainant under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as amended. The Court ruled that as long as it is alleged in the Information that the offense was committed at any time as near to the actual date when the offense was committed, an information is sufficient. Citing its ruling in People vs. Salalima,[15] the Court held:
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed “before and until October 15, 1994,” “sometime in the year 1991 and the days thereafter,” “sometime in November 1995 and some occasions prior and/or subsequent thereto” and “on or about and sometime in the year 1988” constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.The Court believes that the allegations in the informations that the crimes were committed “sometime during the year 1992” and “sometime during the year 1993” substantially apprised appellant of the crimes he was charged with since all the essential elements thereof are sufficiently and succinctly alleged in the informations.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we believe that the allegations therein that the acts were committed “sometime during the month of March 1996 or thereabout,” “sometime during the month of April 1996 or thereabout,” “sometime during the month of May 1996 or thereabout” substantially apprised appellant of the crimes he was charged with since all the elements of rape were stated in the informations. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the cases filed against him. Accordingly, appellant’s assertion that he was deprived of the opportunity to prepare for his defense has no leg to stand on.[16]
As may be deduced from the above discussion, it is already too late in the day for appellant to question the sufficiency of the information. He had all the time to raise this issue during the course of the trial, particularly during his arraignment. He could have filed for a bill of particulars in order to be properly informed of the dates of the alleged rapes. However, appellant chose to be silent and never lifted a finger to question the information. As a result, he is deemed to have waived whatever objections he had and he cannot now be heard to seek affirmative relief. Furthermore, objections as to matters of form or substance in the information cannot be made for the first time on appeal.[18]Reliance by appellant of the ruling of this Court in People vs. Ladrillo is misplaced. In said case, the information alleged that the crime charged was committed “on or about the year 1992” which this Court held as encompassing not only the twelve months of 1992 but including the years prior to and subsequent to 1992:
The phrase “on or about the year 1992” encompasses not only the twelve (12) months of 1992 but includes the years prior and subsequent to 1992, e.g., 1991 and 1993, for which accused-appellant has to virtually account for his whereabouts. Hence, the failure of the prosecution to alleged with particularity the date of the commission of the offense and, worse, its failure to prove during the trial the date of the commission of the offense as alleged in the Information, deprived accused-appellant of his right to intelligently prepare for his defense and convincingly refute the charges against him. At most, accused-appellant could only establish his place of residence in the year indicated in the Information and not for the particular time he supposedly committed the rape.[19]In contrast, the informations in Criminal Cases Nos. 2008 and 2009 respectively allege that the crimes were “committed sometime during the year 1992” and “sometime during the year 1993,” thus excluding the years before and after 1992 and 1993. In fact, the informations in said cases further alleged that when the crimes charged were committed in 1992 and 1993, the victim was 9 years old and 10 years old, thus clearly confining the period of the commission of the crime to the year 1992 and 1993, respectively.
The Court agrees with the Office of the Solicitor General. In People vs. Juntilla,[21] the Court held that:Appellant admitted that he had sex with AAA sometime in January 1997, but claimed that it was consensual. Appellant even had the temerity to claim that it was AAA, then only fourteen years old, who seduced him by sitting on his lap and placing his hands on her body (pp. 11-12, TSN, Feb. 2, 1999). However, considering that AAA positively testified that she had been repeatedly raped by appellant since January 3, 1992, appellant’s defense of consensual sex is futile.
- There is no credence to appellant’s
claim that he and private complainant
had an illicit relationship
It should be stressed that appellant and Florida cohabited since AAA was only two (2) years old. AAA grew with appellant and considered him as his real father (p. 8, TSN, May 28, 1998); thus, it is highly improbable that she would initiate a sexual relationship with appellant. Instead, what was evident was that having helped his live-in partner rear AAA, appellant exercised moral and physical ascendancy over her which he used sufficient (sic) to cow AAA to submit to his lustful desires. Furthermore, it is improbable that AAA, who was only fourteen year old at the time she revealed what he had done, and one who was not exposed to the ways of the world, would impute a crime as serious as rape to any man, let alone her stepfather, if what she claimed was not true [People v. Manggasin, 306 SCRA 228 (1999)]. Clearly, appellant’s claim that he and AAA were maintaining amorous relations behind her mother’s back was concocted in a desperate attempt to exculpate himself from criminal liability.
It should be worth noting that even defense’s witness Edward Mauro, the son of appellant and half brother of AAA testified that sometime in March 1992 after coming from school, he caught appellant engaging in sexual intercourse with AAA and the said incident was again repeated sometime in 1993 (pp. 8-13, TSN, June 21, 1999). Thus, there is no doubt that appellant has been sexually abusing AAA since 1992 and as such, his claim of consensual sex is clearly without any credence.[20]
The case of People vs. Manggasin involved a young girl who was sexually molested at age 12 and which abuse lasted until she was 17. In that case, accused-appellant was the common law spouse of the private complainant’s mother. We ruled that accused-appellant exercised moral ascendancy over complainant which made the threats effective. Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will to the rapist’s embrace because of fear for her life and personal safety.In these cases, AAA testified that she did not tell her mother that she was raped by appellant in 1992 and 1993 because he threatened to kill her and she did not want to cause a scandal in the family. If she divulged to her uncle or her grandfather that she was raped by appellant she was afraid that her uncle or her grandfather might kill her or her uncle or grandfather might be killed by appellant. Moreover, she was afraid of her mother:
The aforementioned ruling is applicable to the case at bar considering that appellant is private-complainant’s father whose moral ascendancy cannot be doubted. Also, the fact that appellant had a bolo by his side at the time of the rape is enough to intimidate private complainant.
Private complainant’s delay in instituting the complaint does not weaken the case for the prosecution. It is not uncommon for a young girl to conceal assaults on her virtue, especially when the rapist is living with her. In People vs. Caloma, we ruled that even a delay of 8 years is not a sign of fabrication.
We have consistently held that delay or vacillation in making a criminal accusation does not necessarily adulterate the credibility of witnesses. We are not about to change the rules in mid-stream.[22]
Q You have an immediate neighbor[s] in your house and that is your grandfather, is that correct? A It is far, sir. Q How far? A About 50 meters, sir. COURT: Q Was your grandfather your nearest neighbor then? A Yes, sir, there was (sic) only 2 houses there. ATTY. CASTILLO: Q Did you not inform your grandfather about the incident? A No, sir. Q Why? A I was afraid of the fact that my stepfather might kill me or my mother might kill me. Q You also have your immediate neighbor who is your uncle or the brother of your mother, is that correct? A There was, sir. COURT: Q How far? A About the same distance of 50 meters, sir. PROS. BINCE May we place on record that the witness is crying, Your Honor. COURT: All right. Q You mean your uncle and your grandfather were close neighbors 50 meters away from your house? WITNESS: A Yes, sir. PROS. BINCE Before we proceed further may we ask from the private complainant if she desire (sic) the exclusion of the public, Your Honor. COURT: Would you like the public excluded while you testify Miss complainant? A No, sir. ATTY. CASTILLO – Q Did you not inform your uncle considering that your house was just 50 meters away? A No more, sir. Q Why? A I was afraid because I might be killed by them, sir. COURT – Q By your uncle even? A No, sir, if my uncle and my stepfather would quarrel my uncle might be killed, sir. Q A while ago you said that you were also afraid as your stepfather and your mother might kill you (sic) why were you also afraid that if this incident you are testifying on would be known by your mother your mother might also kill you? A Yes, sir, I was informed that if she could not kill me she is going to disown me, sir. Q You mean you were afraid also of your mother? A Yes, sir, before but now no more. Q Were you afraid of your mother already before this January 3 incident? A No, sir, because she was strict. Q Was she strict of you because she made known to you that she was suspecting that you are yielding physically to your stepfather? A I do not know, sir, but she considered me as if I was not her child.[23]. . . . . PROS. CORPUZ: Q After all these things that happened to you did you reveal it to anybody else? A When my mother had discovered that I no longer have my menstrual period sometime on (sic) June 1996 I already divulged. COURT: Q So if she did not discover that you would not have complained to her? A No, sir. Q Why? A My stepfather was always at the side of my mother. COURT: Q What was your reason for not telling your mother or anyone about it until after your mother discovered that you no longer have your menstrual period? A I was afraid. Q Of whom? A To my mother, sir, beforehand or during that time she said that she was not believing in me. Q You mean your mother was suspecting that you have an affair with your stepfather? A I do not know, sir. Q Why are you afraid of your mother? A Because she was angry at me, and before that she did not believe me. Q Why was she angry with you? A I do not know, sir. PROS. CORPUZ: Q After your mother has discovered that you no longer have your menstrual period, what did she tell you? A After divulging to her what happened to me we went to the clinic. COURT: The witness is testifying between sads (sic).[24]
This Court agrees with the Office of the Solicitor General. For appellant to be convicted of qualified rape, the information must allege the minority of the victim and the relationship of the latter and appellant. Absent such allegation, appellant cannot be convicted of qualified rape but only of simple rape. This was the ruling of this Court in People vs. Lizada:The trial court is correct in imposing the penalty of reclusion perpetua in Criminal Cases Nos. T-2008 and T-2009 since the rape covered in Criminal Case No. T-2008 was committed in 1992 while Criminal Case No. 2009 covers a rape which was committed sometime in 1993. Both crimes were committed before Article 335 of the Revised Penal Code was amended on December 31, 1993 by Republic Act No. 7659, which imposes the death penalty in cases of rape when the victim is under eighteen (18) years of age and the offender is the common law spouse of the parent of the victim.
- The penalty imposed on
appellant in Criminal Case No.
T-2008 and T-2009 is correct,
while the death penalty imposed
on appellant in Criminal Case No.
T-2010 should be reduced to
reclusion perpetua.
However, it is submitted that the trial court erred in imposing the death penalty in Criminal Case No. T-2010.
The Information in Criminal Case No. T-1010 (sic) filed against appellant reads as follows:The undersigned upon a verified complaint of FLORIDA MAURO (mother of the victim, AAA), hereby accuses EDGARDO MAURO of the crime of RAPE, committed as follows:All the informations stated that appellant is the stepfather of AAA. Except for the bare allegation of Florida that she married appellant before the municipal judge of Llanera, Nueva Ecija (p. 16, TSN, June 22, 1998), which was denied by appellant (p. 3, TSN, Feb. 2, 1999), the prosecution failed to present clear and convincing evidence of such marriage to show that appellant is indeed the stepfather of AAA. Thus, consonant with this Honorable Court’s pronouncement in People v. Mangasin (ibid), the death penalty meted out to appellant should be reduced to reclusion perpetua for although a common law husband is subject to punishment by death in case he commits rape against his wife’s daughter, nevertheless, the death penalty cannot be imposed on appellant because the relationship alleged in the information is different from that actually proven. Accordingly, appellant must be sentenced to the lesser penalty of reclusion perpetua since the failure to allege accurately the relationship between appellant and his victim in the information bars his conviction in its qualified form that is punishable with death [People v. Pinado, 311 SCRA 529 (1997)]. Thus, it is recommended that the penalty imposed on appellant in Criminal Case No. T-1010 (sic) be reduced to reclusion perpetua.[25]
“That sometime during the month of January, 1997, inside the house of the victim located at Brgy. Libertad, municipality of Tayug, Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused is the stepfather of complainant, by means of force, threat, and intimidation, did then and there willfully, unlawfully, feloniously have sexual intercourse with AAA, who was then 14 years old against her will and consent, to the damage and prejudice of said AAA.
CONTRARY to Article 335 of the Revised Penal Code.
Tayug, Pangasinan, October 27, 1997.(SGD.) NOEL C. BINCE
3rd Asst. Prov’l. Prosecutor”
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the common-law husband of the victim’s mother, is a special qualifying circumstance warranting the imposition of the death penalty. However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to the accused. Hence, even if the prosecution proved the special qualifying circumstance of minority of private complainant and relationship, the accused-appellant being the common-law husband of her mother, accused-appellant is guilty only of simple rape.[26]Although the information in Criminal Case No. 2010 alleges that appellant is the stepfather of the victim, however, the evidence shows that he is merely the common-law husband of Florida Mones, the natural mother of the victim. Moreover, the information does not allege the minority of the victim. Hence, appellant is guilty of simple rape in Criminal Case No. 2010.
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