G.R. No. L-37791. October 30, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CESARIO SALAZAR, DEFENDANT-APPELLANT.
PER CURIAM:
Cesario Salazar was charged before the
Court of First Instance of Misamis Oriental for
having allegedly raped Mercedes Macahilos, a
thirteen-year old girl, on the night of September
17, 1972, in Barrio Ricoro, Gingoog City. Judgment was rendered in the case on July 31, 1973 whereby the defendant
was sentenced, under the charge aforesaid, “to suffer life imprisonment,
to indemnify the offended party in the amount of P6,000.00, and to pay the
costs.” From this judgment, the defendant has appealed, claiming that the
trial court erred:
“1. By not dismissing the case against the
accused-appellant for lack of jurisdiction as there was no valid complaint
filed;
“2. Granting, arguendo,
that the trial court has jurisdiction, by not acquitting the
defendant-appellant for insufficiency of evidence;
“3. By giving credit to the unsworn
testimony of complainant; and
“4. By not acquitting defendant-appellant on the
basis of his evidence.”
1. The first error assigned
by the appellant is that the trial court had not acquired jurisdiction over the
case since there was no valid complaint filed.
The complaint filed with the trial court reads, as follows:
“COMPLAINT
“The undersigned, Mercedes Macahilos,
herein Offended Party, after having been duly sworn, accuses Cesario Salazar of the crime of Rape, committed as follows:
“That on or about the 17th day of September, 1972, at more or
less 10:00 o’clock in the evening, in Barrio Ricoro, Gingood City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate intent to have
sexual intercourse with the Offended Party, did then and there wilfully, unlawÂfully and criminally with the use of a
dagger, force and intimidate Mercedes Macahilos, by
taking her downstairs from her house and upon reaching the pineapple plantation
and once there, ordered her to lie down and to remove her pantie
and when the offended party was laying on the ground, accused, with the use of
a dagger, and with force and intimidation, succeeded in having sexual
intercourse with MerÂcedes Macahilos, a thirteen-year
old woman of good reputation and against her will. That two attendant aggravating circumstances
are present in the comÂmission of the crime, namely, taking advantage of
superior strength and nightÂtime.
“Contrary to and in violation of Article, 335 of the Revised
Penal Code as amended by Republic Act 4111, in relation to Article 14, pars. 6
and 15 of the Revised Penal Code.
“Gingoog
City, for Cagayan
de Oro City, November
13, 1972.
(SGD.) MERCEDES
MACAHILOS
Offended Party
“I HEREBY CERTIFY that I have conducted a preliminary investigation
in the above-entitled case giving the accused the chance to appear in person
and counsel; to cross-examine the witÂnesses for the prosecution, and to give
testimony in his favor at said investigation and that there is reasonable
ground to believe that the offense charged has been committed and that accused
is probably guilty thereof.
(Sgd.)
NICOLAS P. TACANDONG, JR.
2nd Assistant
City Fiscal
“SUBSCRIBED AND SWORN to before me this 13th day of November,
1972, in Gingoog City,
Philippines.
(Sgd.)
DIOSDADO T. ABUGOTAL
City Fiscal
“WITNESSES:
1. Mercedes Macahilos,
Ricoro Gingoog City
2. Norma Batulan, Magallanes, Gingoog
City
3. Bernardina Macahilos, Ricoro, Gingoog City
4. Dr. Ireneo Pascual, Medical Officer, Gingoog City
and others.
“BAIL BOND RECOMMENDED: P40,000.00.”
The appellant claims that the above-quoted complaint was not
subscribed and sworn to by the complainant, and, hence, not a valid complaint
within the scope of Section 2, Rule 110 of the Rules of Court.[1]
In support thereof, the appellant cites the case of People vs. Santos,[2]
wherein the Court said the followÂing:
“We cannot consider the information, although signed by
petitioner Bansuelo toÂgether with the fiscal, as
equivalent to the complaint required by law, because said inÂformation lacks
the oath of the complainant; the jurat
contained therein is the subscribed and sworn certification of the fiscal that
he had conducted the preliminary investigation in which the offended party had
taken no parÂticipation whatsoever; in very unequivocal terms, the information
commences with the statement that ‘the undersigned fiscal accuse Engracio Santos of the crime of rape’, the offended party
not having been mentioned at all as one of the accusers.
x x x x
x x x
x x
“This Court has invariably maintained strict compliance with
the jurisdictional reÂquirement of a complaint by the offended party, as defied
in Section 2 of Rule 106 and Article 344 of the Revised Penal Code. In the case of People vs. Palabao
(L-8027, August 31, 1954), we considered insufficient an informaÂtion filed
with the Provincial Fiscal, wherein the offended party signed at the bottom
thereÂof and above the signature of the prosecuting officer, the information
even reciting that the Provincial Fiscal charged defendant with the crime of
seduction at the ‘instance of the ofÂfended party.’ In the case of People vs.
MarÂtinez, (76 Phil. 559), this Court motu proprio dismissed the case for failure of the aggrieved
party to file the proper complaint for the ofÂfense of oral defamation,
although the accused never raised the question on appeal, thereby showing the
necessity of strict compliance with the legal requirement even at the cost of
nullifying all the proceedings already had in the lower court.”
The contention is without merit.
As pointed out by the Solicitor General, there was substantial
compliance with the rules since the complaint states the name of the defendant;
the designation of the offense by statute; the acts or omissions complained of
as constituting the offense; the name of the ofÂfended party; the approximate
time of the commission of the offense, and the place wherein the offense was
committed, as required by Section 5, Rule 110 of the Rules of Court; and, beÂsides,
the complainant, Mercedes Macahilos, had subscribed
to her complaint of rape as shown in the opening paragraph of the complaint
which states:
“The undersigned, Mercedes Macahilos,
herein Offended Party, after having been duly sworn, accuses Cesario Salazar of the crime of Rape, x x
x.” (underscoring supplied)
The ruling of the Court in the case of People vs. Santos,
cited by the appellant, is not conclusive for the reason that it was an
information that was filed therein and not a complaint; and the opening
paragraph of the information clearly and unÂmistakably shows that it was the
fiscal alone who accused the respondent Santos with the crime of rape and the
offended party was not even referred to in the body of the information as
having requested its filing.
2. The appellant also
contends that the trial court erred in not acquitting him for insufficiency of
evidence. The Solicitor General
summarized the evidence of the prosecution as follows:
“The rape of Mercedes Macahilos took
place in their home barrio called Ricorro, a remote
and secluded place within the territory
of Gingoog
City, (p. 42, t.s.n., July 6, 1973; pp. 38-39, t.s.n., May 8, 1973).
Previous to the perpetration of the evil deed, at night time of
September 17, 1972, three young girls Mercedes Macahilos,
(the complainant, then 13 years old), Bernardina,
(complainant’s 11-year old sister) and their cousin, Norma Batulan
(then 17 years old), slept in the sala of the
humble Macahilos home in Ricorro. (pp. 24-26, & 40, t.s.n.,
May 8, 1973; pp. 1-2, t.s.n., July 6,
1973).
“At about 10:00 o’clock
that night, SeptÂember 17, 1972,
the appellant, Cesario Salazar, having somehow gained
unlawful access to the Macahilos home, rudely woke up
the 13-year old complainant as he touched and fondled her breasts. (pp. 26-27, t.s.n.,
May 8, 1973; p. 3, t.s.n., July 6,
1973). Salazar held a dagger
in his right hand, “pointing it” at the victim as he, in the
meanwhile, unilaterally enjoyed the victim’s innocent breasts. (pp. 28-29, t.s.n.,
May 8, 1973; p. 4, t.s.n., July 6,
1973). Mercedes had cried
aloud at one point because of pain, as the assailant pawed her breasts. (p. 40, t.s.n., May
8, 1973; p. 4, t.s.n., July 6, 1973).
“The appellant, subsequently, dragged the 13-year old girl to
the kitchen, then threatening, “If they will shout he will kill us
all.” (p. 5, t.s.n., July 6, 1973; p. 42, t.s.n., May 8, 1973).
From the kitchen, he forced the terrified young victim down the back
stairs towards the “pineapple plantation,” Salazar, all the while,
armed with his dagger, menacing his victim.
(pp. 5-6, t.s.n., July 6, 1973) Salazar, he with “his body which was
big,” took the full measure of the 13-year old girl’s chastity in that
pineapple plantation. (pp. 5-7, &
19, t.s.n., July
6, 1973) Mercedes Macahilos relates her
ordeal in the following manner:
“Q How
did he let you lie down?
“A He
pushed me and so I suddenly sat down.
“Q And
what happened after that?
“A Because
I was sitting down he pushed me again so, I was able to lie down.
“Q All
the while where was the dagger of Cesario Salazar?
“A It
was still in his right hand.
“Q What
did you feel when you were already sitting down and pushed by Cesario Salazar with a dagger in his right hand?
“A I
felt pain on my right shoulder beÂcause he held it tight and pushed me.
“Q Now,
when you were already lying down what did Cesario
Salazar do?
“A He
removed his pants.
“Q And
then?
“A And
then he removed my panty.
“Q And
after that what happened?
“A Then
he squatted near my feet and lifted my feet and placed them on his shoulders.
“Q How
were your feet placed on the shoulders of Cesario
Salazar?
“A He
held my feet, lifted my feet and place one foot on one shoulder and the other
to the other shoulder.
“Q And
what did he do after that?
“A Then
he started inserting his organ into my vagina.
“Q What
did you feel when he tried to insert his organ inside your vagina?
“A I
felt pain.
“Q What
did you do?
“A I
moved.
“Q How
did you move?
“A Sidewise.
“Q Then
what else happened?
“A He
removed his penis from my vagina and then he inserted his finger into my
vagina.
“Q And
what did you do after that?
“A Then
he again inserted his penis into my vagina.
“COURT:
“Q When
he inserted his finger to your vagina what did he do?
“A I
felt that he moved his finger inside.
“Q What
did you feel while his finger was inside your vagina?
“A Pain
sir.
“Q What
did you do?
“A I
moved and I cried.
“FISCAL TACANDONG:
“Q And
after inserting his finger what did Cesario Salazar
do next?
“A He
removed his finger from my vagina and then he inserted again his organ into my
vagina.
“Q What
organ are you referring to?
“A His
penis.
“Q When
he removed his finger and and again inserted his
penis was he able to insert his penis inside your vagina?
“A Yes
sir.
“Q What
was his action when he tried to insert his penis inside your vagina?
“A He
made a push and pull movement.
“Q And
what did you feel?
“A I
felt very painful.
“Q What
part of your vagina did you feel the pain?
Outside or inside?
“A Inside.
“Q What
did you do when you feel the pain inside your vagina when he inserted his
penis?
“A I
was moving and I cried.
“Q When
what happened, next?
“A When
there was already a discharge from his penis then he stopped.
“Q How
did you know that there was already a discharge?
“A My
vagina was wet.” (pp. 6-9, t.s.n., July 6, 1973).
A post-rape medical examination was conducted on the young victim
and the report thereof reads as follows:
“(1) Contusion Hematoma
Labia Majora, Right
“(2) Erythema on vaginal
opening on aperture and at Fourchett.
“(3) Hymen negative for laceration
“(4) Vaginal smear negative for Spermatocytes.”
(Exh. A, p. 8, rec.)[3]
The appellant assails the veracity of the testimony of the
complainant, claiming it is all a lie and a pure fabrication. But what powerful motive could have numbed
all sense of modesty and shame in a thirteen-year old girl, barely reaching the
age of puberty, and impelled her to concoct a story that would certainly bring
ignominy, dishonor and humiliation to her and her family? And if it were a fabrication, how could she
have told such a story and be cross-examined about it knowing that at any stage
her statements would be placed under the close scrutiny of men learned in the
law? Certainly, it was only to vindicate
her honor that gave her the courage and tenacity to undergo the trauma of
recalling her harrowing ordeal which she would have preferred to forget and to
leave unknown to others. As has been
said:
“A maiden especially a country girl like the offended party
herein, would not expose herself publicly and in court, airing acts so
repugnant to modesty as those involved in a narrative of acts constituting
rape, unless she is urged by the impelling force of sincerity and the honest
purpose of obtaining a redress for her grievance. Shameless effrontery and cynicism alone
cannot make a girl face without a blush the ordeals of publicity in making a
narÂration of rape; and we have not been shown that the offended party is a
shameless woman or anything of the kind.”[4]
The insinuation that this complaint
against the accused was filed in retaliation for the conviction of the uncle of
the complainant for the crime of rape and that the parents of the offended
party may have resented the appellant’s occupation of a neighboring parcel of
coconut land is preposterous and absurd.
It is against human nature and the ordinary course of things for the
said parents to sacrifice the honor, dignity and future of their daughter for
such nugatory motive. Besides, there is
no evidence that the appellant was instrumental in the conviction of the
relative of the complainant as to motivate her parents to wreak their vengeance
upon him.
At any rate, We have meticulously reviewed the record and find
that the purported inconsistencies and improbabilities pointed out by the
appellant are more fancied than real.
Thus, the appellant claims that the prosecution failed to explain how
the accused gained entry into the house of the complainant which was barricaded
from the inside. But, it was established
that the appellant and his victim had been neighbors for quite some time. It had also been shown that the accused had
stayed in the house of the complainant for a month’s time and thus became
intimately familiar with the complainant’s house.[5]
The appellant likewise points out that the complainant and her
companions in the house did not make an outcry when the accused dragged the
complainant to the kitchen and thence to the pineapple plantation where she was
raped. Persons, however, have different
reactions to similar situations. Some
may manifest an aggressive or violent attitude, while others like the
complainant and her companions in the house, may cringe in a mute fearful
attitude. Fear is capable of producing
and having the effect of physical force required to overcome the resistance put
up by a victim of rape. It was this fear
impressed firmly in the minds of the complainant and her companions, by the
appellant’s threat to kill the three of them, backed up by the dagger he was
then wielding, that overcame them.
Coupled with this is the superior male strength of the accused and the
relative tender ages of the complainant and her companions.
The appellant stresses the improbability of the commisÂsion of
the sexual act in view of the position taken by the accused in allegedly raping
the complainant. The appellant argues
thusly:
“8. Then comes the improbability of sexual
intercourse. Complainant declared that
after she laid down the defendant-appellant removed his pants or underwear,
whichever is correct and then the latter removed her panty, he squatted near
her feet and then lifted her feet and placed them in his shoulders (t.s.n., Pasal, p. 7). Then she modified this by declaring that it
was not her feet that were placed on his shoulders but her legs were resting on
his shoulders and her feet were hanging on his back (t.s.n.,
Pasal, p. 45).
So that when her legs and feet were on that position while
Defendant-Appellant was squatting, that was the time when he inserted his organ
in her vagina (t.s.n., Pasal,
p. 7). With this position of the
Defendant-Appellant on a half-sitted position
(squatting) and the feet of the complainant hanging or dangling at the back of Cesario Salazar while her legs were resting over her
shoulders, the position therefore of the vagina would be elevated than the
penis. The vagina must be positioned
between her breast and abdoÂmen. How
could Cesario Salazar insert his penis, unless he
would lie over her with face down and her feet spread out or crossed around the
waist or thigh of Salazar. If sexual
intercourse is improbable with this position, then it is not true your Honor
that Cesario Salazar had entered the house and
dragged the complainant down to the pineÂapple plantation and raped her. Moreover, if his hand was holding a dagger
and his arms gripped her thigh she would have been wounded with the
dagger.”[6]
A rapist, however, rarely considers the position his victim may
have in the sexual act. His purpose is
to be sated and that alone. Whether or
not his victim is contorted is the least of his concerns. It is not improbable, therefore, that the
appellant could have violated the complainant in the manner she described.
The appellant likewise emphasizes the impossibility of the
commission of the crime because the medical certificate indicated that the hymen
was negative for laceration or tear and that the vaginal smear is negative for spermatocytes.
However, the absence of lacerations, abrasions or rashes in the genital
organ of the victim that would indicate forcible sexual intercourse canÂnot
definitely be a basis for concluding that a woman did not have sexual
intercourse.[7]
It is not altogether impossible for the complainant to be endowed with an
elastic membrane so that no tear or laceration could be found therein after the
sexual act complained of.
Nor will the absence of spermatocytes
from the specimen taken from the complainant’s vaginal canal disprove the comÂmission
of the crime of rape. The important
factor in rape is not emission of the semen, but penetration, and the crime is
deemed consummated even without complete penetration, it being sufficient that
the labia has been penetrated.[8]
In fact, it is not even necessary that there be a medical examination of the
victim in cases of rape. Whether or not
the charge will prosper depends upon the evidence offered and so long as such
evidence convinces the court, a conviction for rape is proper. At any rate, it is not improbable that the
complainant washed herself not only for the sake of cleanliness but more particularly
in order to avoid possible conception.[9]
The appellant also assails the testimony of the parents of the
offended party, claiming it to be incredible and unworthy of belief. The settled, long-standing rule where the
issues raised hinge on credibility of witnesses is for the appellate triÂbunal
to give due respect to the assessment of the facts made by the lower court,
said court having had the opportunity, not only of receiving the evidence, but
also of observing the conduct and demeanor of the witnesses while testifying. This rule should not be overturned unless
there is a showing that in making the disputed factual findings, the trial
court has overÂlooked or failed to consider certain facts of weight and
importance that could have materially affected the conclusion reached in the
case.[10]
In the instant case, there is no positive reason that would justify a reversal
of the rule. Anyhow, the lone testimony
of the offended party is sufficient to sustain the conviction of the accused.
3. The appellant further
contends that the trial court erred in giving credit to the unsworn
testimony of the complainÂant. The
appellant puts emphasis on the fact that the transcript of stenographic notes
of the trial held on July 6, 1973
does not show that the complainant had been administered the oath before her
direct examination.
Indeed, in the transcript of stenographic notes of the trial held
on July 6, 1973, the court
stenographer omitted the statement that the witness had previously subscribed
to an oath before giving her testimony.
But, this omission can be attriÂbuted to the court stenographer’s
inadvertence or inexperience because at the resumption of the trial in the
afternoon of the said day, the same court stenographer stated that the witness
“testifying under the same oath,”[11]
which would show that an oath had been previously administered to the
witness. At any rate, it appears that
the complainant had been subjected to an extensive cross-examination by counsel
for the appellant. The appellant is now estopped from claiming that the witness was not under oath
when she testified. If a party fails to
object to the taking of the testimony of a witness without the administration
of an oath, he will be deemed to have waived the objection.[12]
4. Finally, the appellant
contends that the trial court erred in not acquitting him on the basis of his
evidence. The defense is alibi. According to the appellant, he was drunk on
the night in question and was sleeping in his house when the alÂleged rape took
place and did not wake up until dawn of the next day when he became hungry.
As to the proffer of alibi made solely by the appellant as his
basic defense, We need only state that by now it is almost trite to say that
alibi is amongst the weakest of defenses.
Easy to concoct, it may be properly credited only if established by
convincing and satisfactory proof. It
must be clearly shown not only that the accused was at some other place but as
well that it was physically impossible for him to be at the scene of the crime
at the time of its commission. Guillermo
Bendijo, Ricardo Lajola, Cipriana Salazar and Julito
Salazar who were presented by the appellant as witnesses in support of his
alibi merely declared that the appellant was drunk on the night in question;
that Ricardo Lajola had offered the appellant some wine
which the latter accepted; that Guillermo Bendijo
brought the appellant home because of his inebriation; and that his wife, Cipriana Salazar, attended to the appellant when he reached
home. Their declarations, however,
cannot serve to overthrow the testimony a Mercedes Macahilos
and Norma Batolan who positively identified the
appellant and definitely placed him at the situs of
the crime. Besides, Guillermo Bendijo left after bringing the appellant home and Cipriana Salazar and Julito
Salazar went to sleep after the appellant had laid down,[13]
so that they could not have known what the appellant did while they were
asleep.
The trial court, therefore, did not err in finding the accused Cesario Salazar guilty of the offense of rape. The commission thereof was with the use of a
deadly weapon, to wit a dagger. Under
Art. 335 of the Revised Penal Code, as amended by R.A. 4111, the imposable
penalty is reclusion perpetua to
death. Two aggravating circumstances are
present in the commission of the offense, to wit: that the crime was committed in the night
time and in the dwelling of the offended party.
WHEREFORE, appellant is sentenced to the penalty of Death,
and the indemnity is increased to P12,000.00.
As thus modified, the judgment appealed from is affirmed in all other
respects. Costs against the appellant.
SO ORDERED.
Makasiar, Antonio, Aquino, Concepcion, Jr., Santos,
Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.
Fernando, C.J., Teehankee, and Abad Santos,
JJ., no part.
Barredo, J., concur. In connection with the alleged defect of the complaint, I am
convinced that the jurat signed by the fiscal was
intended for the conclusions and not the certifications of the assistant
fiscal, this being unnecessary.
[1] The
said section provides:
“Sec. 2. Complaint
defined. – Complaint is a sworn
written statement charging a person with an offense, subscribed by the offended
party, any peace officer or other employee of the governÂment or governmental institution
in charge of the enforcement or execution of the law violated.”
[2]
101 Phil. 798, 802-803.
[3]
pp. 3-8, Appellee’s Brief.
[4]
People vs. Brocal, 36 Off. Gaz.,
858, 860.
[5]
pp. 29-30, 32, t.s.n., May 8, 1973; p. 14, t.s.n., July 6, 1973.
[6]
Appellant’s Brief, p. 17.
[7]
People vs. Canastre, 82 Phil. 480.
[8]
People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil.
980.
[9]
People vs. Selfaison, 110 Phil. 839.
[10]
People vs. Sales, L-29340, April
27, 1972, and cases cited therein.
[11] p.
13, t.s.n. of July
6, 1973, Pasal.
[12]
Francisco, Revised Rules of Court, Vol. VII, p. 197, citing 14 Ency. of Evidence.
[13]
p. 108, t.s.n. of July 14, 1973, Pasal.