G.R. No. L-53403. November 12, 1981
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EMITERIO PASCUAL, JR., Y DOMINGO, ACCUSED-APPELLANT.
PER CURIAM:
Automatic review of the death sentence imposed by the Circuit Criminal
Court of the First Judicial District at Tuguegarao, Cagayan on the accused
Emiterio Pascual, Jr. y Domingo for the crime of rape with homicide.
It appears that appellant, on being arraigned, on November 15,
1979, pleaded not guilty with the assistance of Atty. Oscar Lorenzo as counsel de
oficio.[1]
When the case was called for hearing on February 5, 1980, appellant, assisted
by the same counsel, withdrew his plea of not guilty and entered a plea of
guilty (pp. 55-56, Record). The
proceedings taken on that day are recorded as follows:
“ATTY. LORENZO:
For
the accused your Honor. If your Honor
please, this representation upon conferring with the accused your Honor, the
accused has agreed to enter a plea of guilty and that he will withdraw his
former plea of not guilty your Honor.
“COURT:
Are you ready with
your witness Mr. Fiscal?
“FISCAL TABLANG:
Your
Honor please, we are ready to prosecute this case because of the presence of
our witnesses and one of them is an eye witness to the incident. If it is to expedite this case, the plea of
guilty is offered, we have no objections but we only would like to go on record
that the proper safeguard should be clearly told to the accused so that later
on, even the Supreme Court cannot blame us for doing this.
“COURT:
That
is why I am asking if you are ready with the witnesses even with the plea of
guilty, the imposable penalty being death, then, the Court has to hear the
evidence for the prosecution.
“FISCAL TABLANG:
We
are ready only we would like to point out to this Court, to the accused and to
the defense counsel that there is such a thing in the records of the case, a
confessional statement wherein the accused clearly described how he committed
the crime.
“COURT:
That
is it, even then with that confessional statement, the Court will still hear
the witnesses for the prosecution.
“COURT:
“Q – Tell him that his lawyer has manifested that you are prepared to
withdraw your plea of not guilty to plea of guilty. Please ask him that if he understand.
“A – Yes, sir.
“Q – And the crime charged against you is punishable by death?
“A – I understand, sir.
“Q – And in the event that the Court will find you guilty as charged, it
is an evitable (sic) that you will be hunged (sic) or you will be electrocuted,
do you understand that?
“A – Yes, sir.
“Q – That the Court is not satisfied with your plea of guilty.
And if the prosecution can prove that you have actually committed
the crime which were charged against you under the circumstances, is that read
to you in the information?
“A – Yes, sir.
“COURT:
O R D E R. . . . When
this case was called for initial hearing, Asst. Prov’l. Fiscal Valentino G.
Tablang appeared for the government. The
accused is in Court assisted and represented by Atty. Oscar C. Lorenzo as his
counsel de oficio. From
the records of the case, the accused was arraigned on November 15, 1979,
assisted and represented by his same counsel and to which the information
having been translated in the Ilocano dialect which he informed the Court that
he very well speaks and understands, he entered a plea of not guilty.
This case is now called
for initial hearing with the prosecution being represented by Asst. Prov’l.
Fiscal Valentino G. Tablang and Atty. Oscar Lorenzo as the counsel de oficio
of the accused. The latter orally
manifested to this Court of his desire to withdraw his plea of not guilty
earlier entered, that he will substitute the same to plea of guilty. In the light of this development, the Court
meticulously informed the accused that the crime of which he is charged, that
of Rape with Homicide, under the law is punishable by death. And with his intention of withdrawing his
plea of not guilty and substituting it with the plea of guilty, it might be
inevitable that he will be meted the penalty of death as provided by law. Even with these explanations of the Court, of
his own counsel and of the interpreter of this Court, the said accused still
insisted in withdrawing his plea of not guilty, and to substitute it with that
of guilty! Accordingly, as manifested by
his counsel and as he himself for several times personally confirmed even he
would be inevitably sentenced to death, the Court hereby reluctantly orders the
plea of not guilty entered by him when arraigned on November 15, 1979 be
withdrawn, that he maybe arraigned anew.
SO ORDERED.
“NOTE:
The
accused is being arraigned anew with the Information being read and translated
to him in the Ilocano dialect by the Interpreter.
“INTERPRETER:
The
accused EMITERIO PASCUAL, JR. Y DOMINGO pleaded guilty, sir”. (tsn., pp. 3-7, February 5, 1980).[2]
The prosecution thereafter presented evidence, notwithstanding
the plea of guilty and appellant’s assurance through counsel, that he
understood the meaning and consequences of such a plea which is, as explained
by the court a quo the inevitable imposition of the penalty of
death.
From the evidence of the prosecution, the following facts, as
quoted from Appellee’s brief, appear duly established:
“At about 4:00 p.m. on August 17, 1979, Renato Pavo, who was
sixteen (16) years old and an elementary graduate at the time he testified on
February 5, 1980, was astride a carabao after having gathered peanuts from a
cornfield. While thus situated, he saw
from a distance of about one hundred (100) meters Emeterio D. Pascual, Jr.,
appellant herein, dragging thirteen (13)-year old Nida Caranguian from a
cornfield to a place where tall grasses grew.
“Pascual then had a sheathed bolo at his waist. He dragged Nida to the tall grasses by
stepping backwards, with his left arm around her body and his right hand
covering her mouth. Renato Pavo could
see Nida struggling and heard her weak voice as she protested appellant’s
attack.
“Young Renato Pavo, however, did not intervene. He feared the appellant who was known as a
man of violence. Hence Renato proceeded
home and, restrained by that fear, did not inform his parents, or those of
Nida, what he had witnessed. (tsn., pp.
30-41, February 5, 1980).
“When Nida Caranguian failed to return home on the afternoon
of that day, her father searched for her and found her body amid tall grasses
beside a cornfield. Upon reporting her
death to the barangay authorities, he was told not to remove her body before
the incident was investigated by the police.
“The following day, August 18, 1979, Baggao policemen,
including Pfc. Celso Sorita and Patrolman Abraham Cudal, went to the place
where the body of Nida Caranguian lay, to conduct an investigation. They saw that her body lay on its back, near
a canal. Her dress was raised and her
panty drawn down to her thighs, such that her private part was completely
exposed. On her neck was an open wound
(tsn., pp. 46-50, February 5, 1980; Exhibit E, Rec. p. 12).
“Upon questioning
the parents of the victim, her mother pointed to appellant as the suspect. Whereupon, the policemen proceeded to look
for him and found him at the house of his aunt.
He denied any knowledge of or participation in the incident. However, when invited to the police station
he willingly went with the policemen (tsn., p. 5, February 5, 1980).
“Appellant was investigated at the Baggao police station by
Patrolman Dominador Suriaga. Pat.
Suriaga informed him (appellant) that he was suspected of having raped Nida
Caranguian and asked him if he was willing to give a statement. Appellant signified his willingness to give a
statement. He was, therefore, informed
that he had the right to remain silent and to be assisted by counsel of his
choice. Appellant stated that he understood
that any statement he would give may be used against him and he was not
interested in the assistance of counsel.
Pat. Suriaga then took his statement (Exhibits A and A-1; Rec; pp. 7-8)
by questioning him in the Ilocano dialect.
Appellant’s answers were typed in English which, however, were duly
translated to him (tsn., pp. 12-13, February 5, 1980).
“In his statement (Exhibits A and A-1; Rec. pp. 7-8), he
confessed to having seen Nida Caranguian gathering peanuts in a cornfield at
about 4:00 p.m. on August 17, 1979. He
approached her, engaged her in conversation and suddenly embraced her. He then took her by force to a place where
tall grasses grew and there, threatening her with his bolo, subdued her and had
sexual intercourse with her. The victim
told him that she would expose him to the authorities. Hearing that, appellant hacked her on the
neck with his bolo. After that, he fled
from the crime scene and threw away the bolo along the way (tsn., pp. 14-16,
25-26, February 5, 1980).
“The following day, August 19, 1980, appellant was taken to
the Municipal Judge of Baggao, Natividad Sabater Donato, who read the
statement to him line-by-line, translating them into the Ilocano dialect in the
process, and asked him if the contents thereof were true. Appellant said they were and his statement
was subscribed before the Municipal Judge (tsn., pp. 17-20, February 5, 1980).
“Dr. Salvador C. Pallagao, Municipal Health Officer of Baggao,
autopsied the body of Nida Caranguian.
He issued a Post-Mortem Report (Exhibit C; Rec. p. 9) and her Certificate of Death (Exhibit D; Rec. p.
12). The following were the findings of
Dr. Pallagao in his Post?Mortem Report:
‘1. Neck – Incised wound at the left side of the neck, 4 inches
long and 3 inches deep cutting the big blood vessels of the neck.
‘2. Genitalia – Internal Examination – Presence of hymenal
lacerations at 1:00 o’clock, 7 o’clock and 3:00 o’clock positions.
Introitus – Admits 2 fingers with a little difficulty.
Cause of death – Hemorrhage due to Incised Wound of the neck, left
side.”[3]
In this appeal, appellant assigns as errors of the trial court
(1) its improvidently accepting appellant’s substitute plea of guilty; (2) its
admission of the alleged confession (Exhibit “A”) of the accused;
(3) in giving credence to the testimony of Renato Pavo; and (4) in not
acquitting him.
Appellant, finally, contends that even supposing arguendo
the guilt of said appellant, he is entitled to the reduction, by this Court, of
the penalty from death to reclusion perpetua.[4]
From the proceedings as duly recorded and reproduced earlier in
this decision, We are satisfied that the trial court has not accepted
improvidently appellant’s plea of guilty.
It has exercised that patience and circumspection which is enjoined of
trial judges in explaining to the accused the nature and meaning of the
accusation and the full import of their plea of guilty. This injunction on trial judges in hearing a
capital offense where the accused enter a plea of guilty, reiterated in the
case of People vs. Baluyot[5]
relied upon by appellant, appears fully complied with in the instant case. The record speaks for itself, and nothing
more need hardly be said on this score.
To begin with, appellant was all along assisted by counsel. Notwithstanding appellant’s assurance of his
complete comprehension of the meaning, import and dire consequence of his plea
of guilty, the trial court was not satisfied.
Hence, it required the presentation of evidence by the prosecution as if
trial proceeded on a plea of not guilty.
In no way at all then may the trial judge be faulted of having
improvidently accepted appellant’s plea of guilty. He has taken all appropriate proceedings as
this Court has enjoined upon judges trying cases where a plea of guilty entered
by the accused would impel the court to impose no other penalty than death.
As to the admission of his extra-judicial confession (Exhibit
“A”), appellant would also impute error to the trial court, on the
ground that the statement was taken without previous waiver to his right to
counsel. He is invoking the safeguard
contained in Section 20, Article IV, of the Constitution which reads:
“Section 20. xxx Any
person under investigation for the commission of an offense shall have the
right to remain silent and to counsel and to be informed of such right.”
What is pointed to as the defect or infirmity of the extra?judicial
confession with reference to its admissibility is that appellant was not
informed that if he cannot get a lawyer, the State will provide him one, to
assist him in the investigation.
The omission is a grave one, considering the very intention of
the above cited provision of the Constitution, which by unanimous view in the
case of Magtoto vs. Manguera,[6]
embodies the very principles so clearly expressed in the case of Miranda vs.
Arizona.[7]
Thus in the Magtoto case this Court said:
“The Constitutional Convention at the time it deliberated on
Section 20, Article IV of the New Constitution was aware of the Escobedo and Miranda
rule which had been rejected in the case of Jose. That is the reason why the Miranda-Escobedo
rule was expressly included as a new right to a detained person in the present
provision of Section 20, Article IV of the New Constitution.”
With the infirmity just noted, We rule that the extra-judicial
confession of appellant (Exhibit “A”) was not properly admitted by
the trial court. We fail to see in
appellant’s statement that he is not interested in the assistance of counsel as
a waiver of the right counsel, if that statement is not prefaced with the offer
to secure for or give him a counsel at the instance of the State. A constitutional safeguard accorded to a
person must meticulously be made available to him before a waiver may be
declared to foreclose the availment of the right.
We, however, cannot agree that, as appellant contends, the trial
court erred in giving credence to the testimony of Renato Pavo, an eye-witness to highly inculpatory
facts against appellant.
In attempting to impugn Pavo’s credibility, appellant stated in
his brief as follows:
“Under the Statement of the Facts, the conflicting versions
given by Renato Pavo initially at the police investigation on August 22, 1979,
later at the preliminary investigation before the Baggao municipal judge on
September 10, 1979, and lastly at the trial of this case on February 5, 1980,
have been related.
“It will be recalled that on August 22, all that Renato swore
to about the accused was that he met him at about 4:00 p.m. on August 17, 1979
on his (Renato’s) way home —- accompanied by no one —– from the peanut
field as the accused was going to their cornfield, and all that he swore to
about Nida was that when he (Renato) was about 100 meters from the peanut
field, he saw Nida still harvesting peanuts.
It will be recalled also that at the preliminary investigation on
September 10, 1979, all that Renato Pavo said about the accused was that he —
with companions this time — while on their way home from the peanut field at
about 4:00 p.m., met the accused on his way to his cornfield, the accused asked
peanuts from them, and Teresa Pavo — apparently a sister or very close
relative — the accused two bundles. At
neither the police investigation of August 22 nor at the preliminary investigation of September 10, however,
did Renato give any indication that he saw Nida with the accused, much less
that he saw the accused embrace and pull Nida towards the bushes.
“At the trial of February 5, 1980, Renato had an entirely
different story to tell. He said that a
week after the August 17 incident, he told Nida’s father (Silvino) that he saw
the accused embrace and pull Nida to the bushes on August 17.”[8]
Renato was a young boy, and his silence prior to February 5, 1980
is easily explainable, as he so explained, by his fear of the appellant whom he
knew to be a man of violence.[9]
The fear of reprisal, as the cause of his failure to mention the name of appellant
as the suspect, is certainly a natural feeling, specially in a young witness as
Pavo. His silence just after the
commission of the dastardly crime for which appellant was a strong and the sole
suspect is, therefore, not a reasonable ground to discredit his testimony.
With the testimony of Pavo, there remains sufficient evidence
with which to convict appellant, independently of his plea of guilty, and even without admitting in evidence
his supposed extra-judicial confession.
He was an eye-witness to appellant dragging and pulling the victim away from where she was working on a cornfield,
uprooting peanuts. He stated that
appellant was armed with a “badang”, a big bolo which evidently
caused the gaping wound on the victim’s neck.
The victim was dragged to where tall grasses grew, and it was in the
same place where the body of the girl was found the following day, lying on its
back. That appellant is the author of
the heinous crime is thus placed beyond doubt, taking also into account his
voluntary surrender as he himself admitted[10]
in an effort to lower the penalty from death to life imprisonment, the subject
of his fifth assignment of error, not to mention his plea of guilty.
While appellant contends that he should have been acquitted (4th
assignment of error) after discussing his first three assigned errors, he also
states that assuming he is guilty, his penalty should not be death but reclusion
perpetua. In so contending he would
give as basis his voluntary surrender and plea of guilty, as two mitigating
circumstances. Unknowingly perhaps, he
has by this submission all the more strengthened moral certainty in his guilt. Both circumstances he has invoked to lower
the penalty are clear indications of an awareness of guilt. Under the circumstances of the case at bar
the fact that the victim was a helpless and a harmless young girl precludes
invocation by appellant of any circumstance to justify his act of raping and
killing, for which he surrendered voluntarily.
In using his plea of guilty as another ground for lowering his penalty,
he also thereby weakened, if not nullified, his claim of the trial court having
improvidently accepted his plea of guilty.
In any case, appellant’s contention as regards the proper penalty
to be imposed, may not be sustained. The
penalty for the crime committed is death as prescribed in the last paragraph of
Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 and
Republic Act No. 4111, which being indivisible, has to be imposed, regardless
of the presence of mitigating circumstance.[11]
This is obviously so because the prescribed penalty is death and none other,
considering the extraordinary gravity of the offenses committed.[12]
WHEREFORE, there being sufficient evidence, aside from
appellant’s plea of guilty which We find not to have been improvidently
accepted, the judgment appealed from imposing the death penalty is
affirmed. No costs.
SO ORDERED.
Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr.,
Fernandez, Guerrero, Abad Santos, De Castro,
and Melencio-Herrera, JJ., concur.
Fernando, C.J., no part.
[1]
p. 36, Record.
[2]
pp. 6-10, Appellee’s Brief, p. 42, Rollo.
[3]
pp. 1-5, Appellee’s Brief.
[4]
p. 21, Appellant’s Brief.
[5]
75 SCRA 148, 154.
[6]
63 SCRA 4, 18.
[7]
384 U.S., 436.
[8]
pp. 16-17, Appellee’s Brief.
[9]
pp. 40-41, t.s.n.
[10]
p. 20, Appellant’s Brief.
[11]
Article 63, Revised Penal Code, first paragraph.
[12]
See People vs. Amit, 32 SCRA 95.