377 Phil. 750
KAPUNAN, J.:
That sometimes (sic) on (sic) the year 1991 and the days thereafter, in Barangay Pawican, Municipality of San Jose, Province of Occidental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the accused, with lewd design, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of Poblica Magbanua, against her will and consent.Upon his arraignment on 23 July 1996, appellant entered a plea of “NOT GUILTY.”[4] Thereafter, trial on the merits ensued.
CONTRARY TO LAW.[3]
Dr. Sy explained that Poblica’s vagina admits two (2) to three (3) fingers with less degree of resistance because its orifice was already wide and elastic as a result of the entry of a foreign object.[21] At the time of the examination, Poblica’s hymen was no longer intact and based on the cervical discharge she collected from the patient, it showed signs of cervicitis, an infection of the cervix.[22] According to Dr. Sy, cervicitis could have been sustained from the delivery of the child. When asked by the trial court to clarify this point, she averred that cervicitis may also be contracted through sexual intercourse with a man having a venereal disease. However, she did not negate the possibility that cervicitis could also result from the delivery of a child and by the poor hygiene of the patient.
P.E.: Vagina admits 2-3 fingers Hymen not intact, with cervicitis Grms. Staining: with pus cells RBC moderate Negative to spermatozoa.[20]
WHEREFORE, finding the accused Charito Isug Magbanua, guilty beyond reasonable doubt of the crime of rape, described and penalized under Article 335 of the Revised Penal Code and Section 11 of Republic Act No. 7659, otherwise referred to as the Death Penalty Law, this Court hereby sentences him to suffer the capital penalty of DEATH.The above decision is now the subject of the present review.
The accused is ordered to indemnify the offended party, damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).
The accused who is presently detained at the Provincial Jail at Magbay, San Jose, Occidental, Mindoro is ordered immediately transferred to the New Bilibid Prisons, Muntinlupa City.
SO ORDERED.[31]
Appellant faults the trial court in convicting him on the basis of an allegedly insufficient information for its failure to specify the exact dates when the rapes were perpetrated because it merely stated that these rapes were committed “sometimes (sic) on (sic) the year 1991 and the days thereafter.” He asserts that since each sexual act is considered a separate crime, each of these acts should have been established as executed on certain dates or times and set forth in the information as such. He further argues that the indefiniteness of the information with respect to time could not have been cured by evidence presented by the prosecution in derogation of his right to be informed of the nature of the crime charged against him. In support of the above arguments, appellant cites the case of US vs. Dichao.[33]I
THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE INFORMATION INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR ITS FAILURE TO STATE THE PRECISE DATE OF THE OFFENSE, IT BEING AN ESSENTIAL INGREDIENT OF THE CRIME CHARGED.II
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON ACCUSED-APPELLANT BY APPLYING RETROACTIVELY REPUBLIC ACT NO. 7659 (DEATH PENALTY LAW).[32]
Section 11. Time of the commission of the offense.- It is not necessary to state in the complaint or information the precise time at which the offense was committed except when the time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.Although the information did not state with particularity the dates when the sexual attacks took place, we believe that the allegations therein that the acts were committed “on (sic) the year 1991 and the days thereafter” substantially apprised appellant of the crime he was charged with since all the essential elements of the crime of rape were stated in the information. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the case filed against him. An information can withstand the test of judicial scrutiny as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof.[37]
Assuming that this is still good case law (referring to Dichao) reliance cannot be placed thereon by appellant since the dicta are not applicable to the present case due to factual differences. Taking into consideration the circumstances obtaining herein vis-à-vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of a motion to quash in that case as pointed out in the aforequoted decision. There is no such motion in the case at bar, and this spells the big difference.Explaining further why appellant therein cannot seek refuge in Dichao, the Court in People vs. Garcia said:
The rule is that 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.
Perforce, a formal defect in the information not being one of the exceptions to the rule, appellant’s failure to invoke the same through a motion to quash is deemed to be a waiver of such objection and he cannot now be heard to seek affirmative relief on that ground. Moreover, objections as to matters of form or substance in the information cannot be made for the first time on appeal.[40]
It may readily be inferred from the decision in Dichao that where there is such an indefinite allegation in the information as to the time of the commission of the offense which would substantially prejudice the defense, a motion to quash the information may be granted and the case dismissed without the benefit of an amendment. On the other hand, where there is variance between the date of the commission of the crime alleged in the information and that proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and that by reason thereof, he is unable to properly defend himself, the court may in the exercise of sound discretion based on all the circumstances, order the information amended so as to set forth the correct date. It may further grant an adjournment for such a length of time as will enable the accused to prepare himself to meet the variance in date which was the cause of his surprise.The above ruling firmly sustained the pronouncement the Court made in Rocaberte vs. People[42] which we adopted in People vs. Garcia were we held:
Apparently, that distinction was premised on the theory that the question on whether the allegations of the information are sufficiently definite as to time, and the question which arises from the variance between the particulars of the indictment and the proof, are different in nature and legal effect, and are decided on different principles.
It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will not be allowed, and the motion to quash should instead be granted, where the information is, on its face, defective for failure to state with certainty when the offense was committed, and such ambiguity is so gross as to deprive the accused of the opportunity to defend himself. For all intents and purposes, however, a strict adherence thereto would no longer be a sound procedural practice, especially in criminal proceedings which bears the mandate on speedy trial and where in the availability of bills of particulars have over time been adopted and recognized.[41]
We believe that the principle laid down in the more recent case of Rocaberte vs. People, et al. involving exactly the same issue, presents the more logical and realistic interpretation of the rules. While the Court there adverted to the Dichao case, it nevertheless resorted to a less restrictive application of the rules by disposing of the case in this wise: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.[44]
“A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the time with particularity.
The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964.”[43]
Against this direct and categorical testimony of Poblica, appellant could only offer bare denial of the commission of the crime. The Court has of pronounced that denial, just like alibi, is insufficient to overcome the positive identification made by the witness for the prosecution.[47] Denial is an inherently weak defense which cannot prevail over the credible testimony of the witness that the accused committed the crime charged.[48] It must be supported by strong evidence of non-culpability in order to merit acceptability.[49] Appellant, in the present case, failed to discharge this burden. His lame attempt to shift the blame to a certain Ricky Pacaul, who may not even exist, in order to exculpate himself, cannot save him. Moreover, where there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.[50] Hence, appellant’s denial must fail.
Fiscal Salcedo: x x xQ Now, will you recall that sometime when you were 13 years old if ever your father Charito Isug Magbanua had sexually abused you? A I was sexually abused when I was 13 years old. I am not yet having (sic) my monthly menstrual period, sir. Q Will you kindly tell us how did your father abused you? A He was abusing me by poking me with a knife, sir. Q Tell us, the first time that you were abused by your own father what were you doing? A I was crying, sir. Q My question is, was it night time or day time that you were abused by your father?
A Noon time, sir. Q During that noon time what particular activity were you doing? A None, sir. Q Were you sleeping at that time? FISCAL SALCEDO: The witness has already stated, Your Honor please, that she did not even finish grade I and she couldn’t write her name and that neither she could read. The way I appreciate the testimony of the witness, it would seem that she could not catch my direct question, perhaps of low mental ability. In view of this, predicament, Your Honor, may we request that we be allowed to propound direct leading question. x x xCOURT:
Your motion is granted. FISCAL SALCEDO: Q You were not doing anything during that noon time that your father first sexually abused you? A None, sir. Q And your father poked a knife at you? A Yes, sir. Q And after your father poked the knife at you, he removed your underwear? A Yes, sir. Q And after he removed your panty he laid you down?
A Yes, sir. Q And he also removed his underwear? A Yes, sir. Q And he placed himself on top of you? A Yes, sir. Q Why did you not resist? A Because the knife was poked at me that time, sir. Q When he placed himself on top of you, he directed his penis into your vagina, is it not?
A Yes, sir. Q He pushed up and downward? A Yes, sir. Q And what did you feel when he was pushing up and downward? A I felt pain, sir. Q You feel (sic) that the private part of your father entered your private part? A Yes, sir. Q What did you do at the time that your father was performing his sexual act?
A I just cried, sir. Q For how long did your father stay on top of you? A “Sandali lang po”, sir. Q After your father perform (sic) that sexual intercourse what did he say if he said anything? A He told me not to report to anybody what he did to me, sir. Q And after that he wore his underwear? A Yes, sir. Q How about you, what did you do? A I also wore my underwear, sir. Q But before you wore your underwear what did you notice in your vagina?
A I felt pain, I did not notice anything, sir. Q Was it bleeding? A Yes, sir. Q Now, thereafter, your father again sexually abused you? A Yes, sir. Q If you could remember, how many times did your father sexually abused (sic) you in one month[‘s] time? A Many times, sir. Q What time of the day or night [did] your father usually abused (sic) you?
A Noon time, sir. Q Why, were was your mother during noon time? A She is in the town, sir. Q Why was she going to the town (sic)? A She used to go to town to buy our needs, sir. Q How about your sisters and brothers, where are (sic) they during the time that your father was abusing you? A They were staying in my grandmother’s house, sir. Q How far is the house of your grandmother from your house? A It is quite far, sir. Q Now, as a result of [the] sexual abuses made by your father to you, what happened to you?
A I got pregnant, sir. Q You got pregnant and you delivered a child? A Yes, sir. Q Do you remember when did you give birth? A I can not remember, sir. Q Is it not a fact that you gave birth on November 15, 1995? A Yes, sir. Q What is your baby, boy or girl? A Boy, sir. Q Who is the father of this baby boy that you delivered?
A Charito, sir. Q Why do you say that it is Charito, your father who is the father of your child? A Because he was the one who sexually abused me, sir. Q Do you want to tell us that from 1991 up to the time that you gave birth to your baby boy your father regularly had sexual intercourse with your? A Yes, sir.[46]
Article 335. When and how rape is committed.-In People vs. Perez,[53] this Court has declared that the special circumstances of rape introduced by R.A. 7659, including the above which call for the automatic application of the penalty of death, partake of the nature of qualifying circumstances since these circumstances increase the penalty of rape by one degree. As such, these circumstances should be pleaded in the information in order to be appreciated in the imposition of the proper penalty. Thus, the concurrence of the minority of the victim and her relationship to the offender should be specifically alleged in the information conformably with the accused’s right to be informed of the nature and cause of the accusation against him.[54] In this case, although the minority of Poblica and her relationship with appellant were established by the prosecution beyond doubt, the death penalty cannot be imposed because these qualifying circumstances were not specified in the information. It would be a denial of the right of the appellant to be informed of the charges against him, and consequently, a denial of due process, if he is charged with simple rape and convicted of its qualified form punishable by death although the attendant circumstances qualifying the offense and resulting in capital punishment were not set forth in the indictment on which he was arraigned.[55] Therefore, despite the many rapes committed by appellant he cannot be meted the supreme penalty. Accordingly, the penalty of death imposed by the trial court must be reduced to reclusion perpetua. The Court, however, is sentencing appellant to a single punishment of reclusion perpetua only because despite the several rapes perpetrated by appellant on Poblica the information merely stated a lone allegation of rape. Appellant can only be penalized correspondingly.x x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: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
Section 22. No ex-post facto law or bill of attainder shall be enacted.[53] G.R. No. 122764, September 24, 1998.
An ex post facto law has been defined as one which:
(a) makes criminal an act before the passage of the law and which was innocent when done, and punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when committed;
(c) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;
(d) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense;
(e) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and
(f) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (In Re: Kay Villegas Kami, Inc. 35 SCRA 429, 431 (1970) (Underscoring supplied.)