THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE CODERES, BASILIO CLARK AND JULIUS CLARK, ACCUSED-APPELLANTS.

For automatic review under Rule 122, Section 9 of the Rules of
Court is the decision of the Court of First Instance of Zambales,
Branch I, Olongapo City, finding accused-appellants
guilty of the crime of rape as principals and co-principals and sentencing each
of them to suffer three (3) death penalties, to pay the offended party the sum
of P5,000.00 as moral and exemplary damages, to be subsidiarily
liable for the individual civil liability of each of his co-accused, to
recognize the offspring that may be born as a consequence of the rape committed
in accordance with Article 283 of the New Civil Code and to pay the costs
proportionately.

Accused-appellants were indicted in three separate informations for the crime of rape allegedly committed as
follows:

“That on or about the 13th day of January, 1970, in Olongapo City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with force, violence and
intimidation, conspiring together, confederating and mutually helping one another
with the accused Jose Coderes on top of the victim Rosie de Villa and the accused Basilio Clark and Julius Clark holding her legs, arms,
hands and mouth to prevent Rosie de Villa from shouting for help, did then and
there wilfully, unlawfully and feloniously have
sexual intercourse with said Rosie de Villa against her will.

CONTRARY TO LAW, with the aggravating
circumstances of night time and advantage taken of superior strength.”^[1]

Accused were arraigned on
January 21, 1970.  Through counsel, they waived
the reading of the information and entered a plea of NOT GUILTY.

During trial, the
prosecution sought to establish the guilt of the accused by presenting five witnesses,
namely:  Rosie de Villa, the victim of
the alleged rape; Jose Dumlao, Jr., who corroborated
the victim’s testimony on all salient points; Patrolman Roberto Barnes of the Olongapo City Police Department who took the written
statements of the offended party and that of prosecution witness Jose Dumlao, Jr.; Fiscal Abraham Anonas
of the Olongapo City Fiscal’s
Office who conducted a preliminary investigation of the criminal complaints for
rape against the accused; and Dr. Basilia Beltran,
resident physician of the Olongapo City General
Hospital who conducted the physical and internal examination of Rosie de Villa.

The testimony of Rosie de
Villa, the victim who was then 15 to 16 years at the time of the alleged rape,
is summarized by the court a quo thus:

“On January 13, 1970, at about 2:00 in the morning, she and Shirly de Lara were eating at the Saulog
Canteen located at Barrio Pagasa, Olongapo
City, having come from the Jade East Night Club where she worked as an ago-go
dancer.  On their way out of the canteen, they met the three
accused, one of whom named Jose Coderes, who offered
to bring her home.  When Rosie refused
the offer, the three accused hailed a taxicab and Julius Clark forced her
inside the cab.  The taxicab was already
occupied by a passenger.  The three
accused joined her inside the taxicab. 
Inside the vehicle, she was boxed on the stomach by Jose Coderes.  Rosie asked
the accused to bring her to Reno Hotel where she lived, but upon reaching the
hotel the taxicab did not stop and instead the vehicle speeded away towards the
Tourist Spot.  Rosie did not shout for
help on the way because her mouth was covered by Basilio
Clark.  When they reached the Tourist
Spot, Julius Clark dragged her out of the taxicab.  The two other accused also alighted from the
vehicle.  Then the driver drove the
vehicle away with the unidentified passenger. 
After the taxicab left Basilio Clark threw
Rosie down face up on the ground, and despite her screams, he placed himself
horizontally on top of her and succeeded in having sexual intercourse with her
with the assistance of Julius Clark, who held her legs, and of Jose Coderes, who held her hands.  After Basilio Clark
has finished with her, one of the accused boxed her and then Jose Coderes also raped her, aided in the dastardly act by
Julius, who held her hands, and Basilio, who held her
legs.  After Coderes
was through, Julius Clark took his turn and while he was having sexual
intercourse with her, Basilio held her two legs and Coderes took hold of her hands.  (When Rosie was narrating how she was raped
in succession by the three accused, she was crying.) Just
then a man whom she came to know later as Jose Dumlao,
Jr. arrived at the scene and he fired a shot.  After Dumlao fired
the shot, Julius Clark and Jose Coderes stood up and attempted to escape but Dumlao fired at them, stopping them on their way up.  Dumlao then turned
his flashlight on the two accused and then on Rosie, who was still lying on the
ground naked from the waist down.  Rosie
then stood up to put on her “jean”. 
While Rosie was dressing up, Dumlao noticed Basilio Clark lying among the grasses on a prone position
and so he ordered Basilio to get up and join his
co-accused.  Then Dumlao
ordered the three accused to go to the road where he flagged down a passenger jeepney and he instructed the driver to call for the
police.  A few minutes thereafter, a
patrol jeep of the Olongapo City Police Department
arrived and she and the three accused were directed to ride on the vehicle and
they were brought to the Olongapo
City police headquarters, where she
filed charges of rape against the three accused.  Upon arrival at the police headquarters,
Rosie went to the comfort room of the
police headquarters and she washed her vagina because she was afraid she might
get pregnant.  After washing her genital
organ, she returned to the office of the Chief of Police to whom she gave an
account of the rapes committed at Half-Moon Beach.  In
the afternoon Rosie was interrogated by a police investigator to whom she gave
a written statement marked Exhibit “C”.  She was also examined at the Olongapo City General Hospital by a lady physician and she was furthermore
issued a medical certificate marked Exhibit “E”.  During the preliminary investigation of the
case, she was threatened with bodily harm by one Luis Midnat,
a companion of the accused, if she testified against the accused.  She was also maltreated by the other
companions of the accused, and in this connection, she showed to the Court the
black marks below her eyes where she was boxed. 
Accused’s companions also threatened Rosie
with further maltreatment if she continued to prosecute the criminal cases
against the accused.  She went to the
notary public to sign an already prepared document which she
did not even read because she was intimidated by the companions of the
accused.”^[2]

Corroborating the testimony
of Rosie de Villa, Jose Dumlao, Jr., a deputy sheriff
of the Olongapo City Court and a resident of Half-Moon Beach, Olongapo City, gave a narration of the incident as
follows:

“His residence at Half-Moon
Beach is just 50 meters below a
place known as Tourist Spot.  At about 2:30 in the morning of January 13, 1970, Dumlao,
who was inside his house, heard woman’s screams coming
from the direction of the
Tourist Spot.  Without delay he took his
gun and flashlight and went to
the place where the shouts came from.  Dumlao moved cautiously to where the woman was shouting,
and he saw on a small clearing inside the premises of the Tourist Spot a person
who was later identified as Julius Clark having sexual intercourse with a girl
whose name he came to know afterwards as Rosie de Villa, while another named
Jose Coderes held her feet.  After Julius Clark was through, Jose Coderes raped Rosie de Villa, while Julius Clark held her
feet.  Five minutes later Dumlao fired his gun three times in the air, and then he turned
his flashlight on the two accused and motioned them to move to the left with
his flashlight, as he approached Rosie de Villa.  Julius Clark and Jose Coderes
complied with Dumlao’s signal, and when Dumlao moved towards Rosie, he saw her half-naked lying on
the ground face upwards.  Rosie de Villa
had no jean or panty on, and she was wearing only a T-shirt.  She was crying and she tried to cover her
naked body with her hands.  Dumlao instructed Rosie to put on her dress.  At this time, Dumlao
saw Basilio Clark lying prostrate on the ground among
the tall grasses, about 2 meters away from where the girl lay.  However, Basilio
was not doing anything to the offended party when Dumlao
saw him.  Dumlao
told Basilio to join the other two accused, and Basilio complied.  Dumlao ordered the three accused to move on to the
road.  On the road Dumlao
stopped a passing passenger jeepney and told the
driver thereof to call for the police. 
Thereafter, Pat. Ayunque and another policeman
arrived riding in an Olongapo City Police patrol
jeep.  Dumlao
delivered custody of the three accused to the policemen and he also informed
the policemen that he is willing to testify in the criminal case which Rosie
may file against them.  Rosie de Villa
joined the accused inside the police jeep. 
In the afternoon of the same date, Dumlao was
interrogated by Patrolman Roberto Barnes of the Olongapo City
police to whom he gave a statement marked Exhibit “A”.  Threats of bodily harm were hurled at Dumlao should he testify against the accused who are
members of the dreaded Bahala na Gang, and so he hid in Manila
and then in San Narciso, Zambales.  However, he gathered enough courage to appear
before the Fiscal during the preliminary investigation.  At the investigation before the Fiscal, Dumlao had occasion to talk to Rosie de Villa and she
informed him that she too was threatened by the companions of the accused.  Dumlao prepared a
sketch marked Exhibit “B” showing the scene of the crime, and he
indicated therein by mark Exhibit “B-1” the spot where Rosie was
raped and by mark Exhibit “B-2” where he was when he witnessed the
incident.  Exhibit “B-1” was illuminated by lights of passing vehicles
and also by those coming from the United States naval installations at Cubi
Point and from the ships anchored in Subic Bay.”^[3]

The testimony of Patrolman Roberto Barnes of the Olongapo City Police Department, desk sergeant on the date
of the incident, disclosed that he took the written statement of prosecution
witness Jose Dumlao, Jr. as well as the statement of
Rosie de Villa.

Olongapo City Fiscal Abraham Anonas
declared that he conducted the preliminary investigation of the criminal
complaints for rape filed by Rosie de Villa.

Dr. Basilia Beltran, resident physician
of the Olongapo City General Hospital testified that
together with Dr. Servando Gutierrez (who had already
left the service), she treated Rosie de Villa who complained that she was
raped; that she took her case history; that she conducted physical and internal
examinations on Rosie de Villa by using the cervical smear method; that her
findings negated Rosie’s having had a recent sexual contact, although she found
her to have had previous sexual experience; that if a female did vaginal
washing before examination, it is possible that the male sperm cells inside the
vagina would be removed; that even if the sexual intercourse took place ten to
twelve hours before the medical examination, it is possible that male
spermatozoa would still be present inside the vagina; and that the abrasions found
on Rosie’s body may have been caused by her stumbling on the ground.

The prosecution reinforced its position by offering in evidence
the following exhibits:

Exhibit A      –   a written statement of prosecution witness
Jose Dumlao, Jr. executed on January 13, 1970 before Patrolman Roberto Barnes
of the Olongapo City Police Department;

Exhibit A-1 and
A-2… signatures of Jose Dumlao, Jr. appearing on
Exhibit “A”;

Exhibit B      –   a
sketch of the scene of the crime prepared by Jose Dumlao,
Jr.;

Exhibit B-1   –  a
spot on Exhibit B where the rape was allegedly committed;

Exhibit B-2   –  the
place on Exhibit B where Jose Dumlao, Jr. hid himself
before arresting the three accused;

Exhibit C      –  a
sworn statement dated January 13, 1970
of Rosie de Villa given to Pat. Barnes;

Exhibit D      –  the
criminal complaint filed by Rosie de Villa in Criminal Case No. 13;

Exhibit D-1   –  the
criminal complaint filed in Criminal Case No. 14;

Exhibit D-2   –  the
criminal complaint filed in Criminal Case No. 15;

Exhibit E      –   a medico-legal certificate dated January 14, 1970 issued by Dr. Servando M. Gutierrez of the Olongapo City
General Hospital;

Exhibit F      –   picture
depicting Rosie de Villa and
Shirley de Lara;

Exhibit F-1   –   picture
of Shirley de Lara;

Exhibit F-1a –   picture of Shirley de Lara shown in Exhibit
F;

Exhibit F-1b –   tattoo mark on right leg of Shirley de Lara;
and

Exhibit G     –   certification
issued by deputy police chief of Olongapo
City of the list of cases filed
against Shirley de Lara.

Evidence for the accused
consisted of their testimonies as well as the statements given at the witness
stand by Drs. Sixto Lemque,
Ernesto Castillo and Vicente Bacay, Atty. Leonardo
Gonzales and one Shirley de Lara.

Dr. Sixto
Lemque, resident physician of the Olongapo
City General Hospital and in charge of the Obstetrics and Gynecology Department
of the hospital declared that he handled several rape cases and that he was a
witness in two such cases in court; that he did not conduct any examination on
Rosie de Villa; that while there are 150 to 300 million sperm cells per male
ejaculation, it is highly improbable for sperm cells to be removed from the
vagina with soap and water.

Dr. Ernesto Castillo, in
charge of the Laboratory Section of the same hospital, testified that he had a
hand in the preparation of Exhibit “E” by releasing the result
of the laboratory examination after his confirmation; that by way of
verification of the results of the examination by Dr. Basilia
Beltran of Rosie de Villa, he examined by means of the direct smear and the
staining methods specimen materials given by Dr. Beltran which she allegedly
took from the vagina of Rosie de Villa, for the purpose of determining the
presence of male sperm cells; that while there are from 40 to 120 sperm cells
in a cubic centimeter of seminal fluid, the normal release of a male genital organ being from 2 to 6
cubic meters of seminal fluid per ejaculation, he found no sperm cells in the
material he examined; that while it is possible to remove all sperm cells from
the vagina by washing it with soap and water, it is not conceivable to take out
all sperm cells from the cervical canal. 
He admitted, however, that he did not conduct vaginal or cervical
examination of Rosie de Villa.

Dr. Vicente Bacay, rural health physician
of Olongapo City, corroborated the testimony of Dr.
Castillo to the effect that it is difficult to remove all sperm cells from the
vagina by washing after emission because a few may still be hidden in the
crevices of the vaginal canal.

Atty. Leonardo Gonzales declared that while he prepared an
affidavit of desistance marked Exhibit “1” which was signed by Rosie
de Villa in his law office, he never talked with Rosie before the preparation
of said exhibit; that it was one Rudy Villa (no relation of Rosie) who asked
him to prepare the document; that paragraphs 2 and 3 of Exhibit “1”
are his own words and they were formulated in accordance with certain patterns
of affidavits of desistance in his law office.

Shirley de Lara, 17 years
old, single, a dancer and a resident of New Ilalim, Olongapo City, professed having known Rosie de Villa about
5 months before the incident.  She
testified she was with Rosie up to 11:00 p.m. on January 12, 1970 and that they were both drunk at 10:00 earlier that evening at the Jade East Night
Club but disclaimed having been with her at 2:00 in the morning of January
13, 1970 at the Saulog Canteen. 
Shirley, likewise, declared that she and Rosie lived in Reno Hotel, but
Rosie did not sleep at the hotel in the night of January 12, 1970; that Rosie
informed Shirley of her having filed criminal complaints against the three
accused but admitted that she was drunk when the incident happened; that Jose Dumlao, Jr. brought Rosie and Shirley from Reno Hotel to
the 007 Hotel for Rosie’s protection and Dumlao paid
for their board and lodging; that Dumlao visited
Rosie when they were at the 007 Hotel; that for reasons not known to her, Rosie
ceased to work at the Nautilus Night Club; that when Rosie was at Sta. Rita on
February 15, 1970, she was maltreated by the companions of her common-law
husband because she was drunk and they hit her on the eyes.  Shirley admitted that the wife of Julius
Clark requested her to testify in court.

The accused who are all fishermen residing in the same place,
made a blanket denial of the commission of the crime.  However, they admitted their presence at the
Tourist Spot at the time the offense was allegedly committed.

Accused Jose Coderes, 24 years old,
single, staunchly denied having ravished the offended party.  His version of the incident is summarized by
the court a quo, thus:

“At about 2:00 in
the morning of January 13, 1970,
he and his co-accused saw Rosie de Villa dead-drunk lying on a wooden catwalk
behind the Saulog Canteen at Barrio Pagasa, Olongapo
City.  He had already known Rosie for about a month
because she used to work as a dancer at the Jade East Night Club.  Julius Clark approached Rosie de Villa and
asked what happened, and Rosie upon recognizing Julius requested him to bring
her home.  Julius was at first hesitant,
and he agreed to bring Rosie home only when somebody called for a taxicab.  When the vehicle arrived, Coderes
and his co-accused, all of whom were living in the same house, helped Rosie
inside the taxicab in order to bring her to her residence.  Rosie told Coderes
and his co-accused to bring her to Midway Hotel, but upon reaching the hotel
she changed her mind and she asked instead to be driven to the Reno Hotel.  But upon arriving at Reno Hotel, Rosie again
requested that she be brought to Subic,
and so they proceeded to that town.  On their way to Subic and while they
were nearing the Half-Moon Beach Resort, Rosie become apprehensive when she
noticed that her keys and ring were missing.  She was assured by the accused, however, that
they did not have the articles in their possession.  After passing by the said beach resort, Rosie
asked the taxicab driver to stop the vehicle because she wanted to urinate, and
so the taxicab stopped on the left side of the road.  Rosie was helped down the taxicab.  While she was urinating, three gun reports
were heard.  Basilio
Clark became apprehensive, and so he lay prostrate on the ground.  A man whom they came to know later to be Jose
Dumlao, Jr. approached them.  Coderes was then
sitting on the ground while Julius was urinating.  Two meters away from them was the taxicab
which Coderes and his co-accused rode on.  When Julius tried to get a cigarette from his
pocket Dumlao fired at him.  Dumlao questioned
the driver of the taxicab, and when the latter denied knowledge of the
incident, Dumlao told the driver to leave, after he
had already told a jeepney driver to call the
police.  The taxicab left after Basilio and Coderes paid their
fare amounting to P2.00.  Dumlao threatened to charge Coderes
and his co-accused with rape.  A few
minutes later a police jeep arrived and Coderes and
his companions were arrested.  Dumlao reported to the policemen that the three accused
raped Rosie.  Rosie was helped into the
jeep because she was still drunk.  Inside
the police jeep Rosie complained of the loss of her ring and keys.  At the police headquarters, Rosie found
difficulty in answering the questions of the police because she was still
drunk.  She did not leave the
investigation room and she waited the whole morning inside the room.  Coderes did not
give any written statement to the police. 
Before the incident happened, there was no misunderstanding between Dumlao or Rosie, on one hand, and Coderes
and the other accused on the other.”^[4]

Basilio Clark, the second accused, 23 years old,
married, also denied raping Rosie de Villa.  Resume of his testimony is reflected in the
decision of the trial court, thus:

“At about 2:00 in
the morning of January 13, 1970,
on their way home after having a drinking spree with his co-accused, they saw
Rosie dead-drunk lying on a wooden catwalk behind the Saulog
Canteen at Barrio Pagasa.  When Rosie saw Julius she called him and
Julius approached her and helped her get up. 
A taxicab was called and they helped Rosie into the taxicab.  Inside the taxicab, Basilio
sat in the front seat with the driver, while Rosie lay down on the laps of
Julius and Coderes because she was drunk.  At her request, she was brought to the Midway
Hotel.  But she was refused admittance at
that hotel, and so she asked to be driven to the Reno Hotel.  When they reached the hotel, Rosie refused to
alight from the taxicab and she asked instead to be brought to Subic, Zambales.  When they reached the Tourist Spot on their
way to Subic, Rosie went down
the taxicab in order to answer the call of nature.  When Rosie went down to urinate, Basilio also got out of the taxicab and he leaned on the
vehicle, waiting for Rosie to finish urinating. 
His brother Julius Clark helped Rosie to the spot where she said she would
answer the call of nature, which place is covered with tall grasses and is
about 3-1/2 meters away from the national road. 
When Basilio was standing near the taxicab, he
heard gun reports and seized with fear, he ran towards the cogon grasses and lay
prostrate thereon.  Suddenly, the man who
fired the shots emerged from same tall grasses. 
The one who fired the shots was a stranger to Basilio.  He came to know the man’s identity later on
as Jose Dumlao, Jr..  Dumlao arrested
Julius Clark and Coderes.  Basilio was also
arrested by Dumlao and when he protested innocence, Dumlao advised him to relate his story to the police.  After investigating the driver of the taxicab
Dumlao told him to leave, and then Dumlao directed the three accused to move on to the
national road, where Dumlao stopped a jeepney and asked the driver to call for the police.  Later on the police arrived and the three
accused and Rosie de Villa were brought to the police headquarters for
investigation.  None of the accused gave
statement to the police.  Basilio was mauled when he and his co-accused were brought
inside the detention cell, but he was not treated by a doctor and he did not
tell Fiscal Anonas about the maltreatment during the
preliminary investigation.  Rosie was
still drunk when they arrived at the police headquarters.  She could not talk clearly nor walk by
herself.  There was no misunderstanding
between Rosie and the three accused before the incident took place.”^[5]

The third accused, Julius Clark, brother of Basilio
Clark, 27 years old, single but with a common-law wife, likewise disclaimed any
participation in the alleged rape of Rosie de Villa.  The trial court gave his version of the
incident, thus:

“On his way home together with his co-accused he saw Rosie de
Villa dead-drunk lying down on a wooden catwalk surrounded by several
persons.  Julius approached Rosie and
when she recognized him among the crowd, she asked him to bring her home.  So Julius helped Rosie get up and then he
hailed a taxicab which he and his co-accused rode on, and, at her request, they
drove her to Midway Hotel.  Upon reaching
Midway Hotel, however, Rosie changed her mind and she asked to be brought
instead to Reno Hotel.  But when they
reached Reno Hotel
Rosie refused to get out of the
taxicab and she again asked them to bring her to Subic,
Zambales, to which request the accused acceded.  At a place past Half-Moon Beach, she stopped
the taxicab in order to urinate.  Julius
helped Rosie get out of the taxicab and he aided her to a place where she would
urinate because she was still drunk.  The
place where she answered the call of nature, which is about 3-1/2 meters away
from the national road, is covered with some talahib grasses about 1/2 meter tall.  Coderes and Basilio also alighted from the taxicab and they stayed
about one-arm length away from Rosie, while Basilio
was far from them.  Suddenly, Julius
heard three gun reports, and a few minutes thereafter a person who was
identified later as Jose Dumlao, Jr. appeared from
some tall grasses.  Dumlao
also fired at Julius as the latter tried to get a cigarette from his
pocket.  When Dumlao
saw Basilio lying prostrate on some talahib grasses two arms length away from
Rosie, Dumlao also fired at Basilio,
and so Basilio stood up and, upon Dumlao’s
order, Basilio joined his co-accused.  Then Dumlao
approached Rosie and helped her stand up. 
Dumlao ordered the accused to go to the highway
and he helped Rosie to the road.  Julius and his co-accused were brought
to the police headquarters in a police car which was called by Dumlao.  Rosie did
not give any statement to the police because she was still drunk when she
arrived at the headquarters.  When the
accused were investigated by the police, Rosie went out of the room.  Before the incident happened, Dumlao is not known to Julius.  Although Julius has known Rosie for quite
some time, there was no previous misunderstanding between them.”^[6]

The following exhibits of
the defense were all admitted in evidence:

Exhibit “1“  –   an affidavit of desistance allegedly executed
by Rosie de Villa;

Exhibit “2“  –   the same as Exhibit “E”
(medico-legal certificate dated Jan.
14, 1970 issued by Dr. Servando M.
Gutierrez of the Olongapo
City General Hospital);

Exhibit
“2-a” – a portion of Exhibit
“2” regarding internal examination findings.

Recalled as rebuttal
witness for the prosecution, Rosie de Villa negated Shirley de Lara’s testimony
that Jose Dumlao, Jr. paid for her expenses at the
007 Hotel and asserted that she herself paid such expenses.  She also denied Shirley’s insinuation that
she had intimate relations with Jose Dumlao, Jr.  Rosie, likewise, belied Shirley’s statement
regarding the injuries she suffered on both eyes, asserting that they were
inflicted by members of the Bahala Na Gang to which
the three (3) accused belonged.  She
averred that Shirley is herself a member of the Bahala
Na Gang as evidenced by the gang’s tattoo on her thigh.  Rosie further stated that she did not notice
any ejaculation from the three (3) accused during their sexual intercourse with
her but that she is, however, sure that there was penetration of the penis of
the accused in her genital organ.

Likewise, Jose Dumlao, Jr. was recalled as rebuttal witness for the
prosecution.  Corroborating Rosie de
Villa’s assertion that Shirley de Lara is a member of the Bahala
Na Gang, he declared that Shirley has a string of criminal cases as evidenced
by the certification marked Exhibit “G”.  Denying Shirley’s allegation that he paid
Rosie’s hotel bills and the imputation of intimate relationship with Rosie, he
declared that he would file a perjury charge against Shirley although he had no
misunderstanding with Shirley before he took the witness stand.

After a careful study and
consideration of the evidence extant in this case, the court a quo found the accused
guilty of the crimes of rape with
the attendance of two
aggravating circumstances – nighttime and uninhabited place – without any mitigating
circumstance and to each of the accused, having been found to have cooperated
as co-principals in the consummation of rape committed by each of the other
accused, for each information filed in the Court, the supreme penalty of death
was imposed.

Seeking reversal of the
judgment of conviction, accused-appellants, through counsel de oficio, assail the trial court’s decision, assigning
the following errors:

I.      The
trial court erred in holding that the controlling consideration in deciding
this case is the testimony of the complainant.

II.      The
trial court erred in its findings of fact of the case, the same being directly
and clearly in conflict with the evidence adduced at the trial.

III.     The
trial court erred in considering against the accused the aggravating
circumstances of “nighttime” and “uninhabited place”.

IV.    The
trial court erred in convicting accused-appellants of rape as charged in the informations, the evidence on record not being sufficient
to prove the essential elements of the crime.

I.   On the first assignment
of error

Appellants insist that it
was error for the court a quo to have relied primarily on the testimony of offended party Rosie de Villa in deciding the case against
them.  To buttress their stance, they
call attention to Shirley de Lara’s denial of Rosie de Villa’s claim that in the early morning of January 13, 1970, at around 2:00 a.m., she was eating with Shirley at the Saulog Canteen. 
Appellants stress that there was no reason for Shirley de Lara to abjure
the declaration of the complaining witness that they were together; that there
was no showing that they had any quarrel as to impel Shirley de Lara to falsely
testify against Rosie; and that Shirley was not called upon by the prosecution
to lend credence to Rosie de Villa’s testimony that the accused took her by
force and against her will.

Appellants’ assertion
clearly lacks merit.  We quote with
approval the categorical answer of the Solicitor General:

“(W)hat Rosie de Villa testified
was:  That she was with Shirley de Lara
at the Saulog Canteen at around 2:00 in the morning
of 13 January 1970; that after a while, she left, and at a distance of 28
meters away from the canteen, she met the appellants … Then the latter called
for a taxicab and they forced her to ride in it (pp. 2-3, 77 and 82, t.s.n., 24 February 1970). 
She did not state that when she was forcibly taken by the appellants,
Shirley de Lara was still with her. 
Therefore, she could not and did not cite her as a witness to the
incident.  As a matter of fact, de Villa
testified that at the time she was forced into the taxicab (p. 74, t.s.n., ibid.), there were no longer any customers
at the Saulog Canteen (p. 75, t.s.n.,
ibid.), and the vicinity was already deserted (p. 81, t.s.n., ibid.). 
This was what she obviously meant when
she said she was already alone at that time at the Saulog
Canteen, as was quoted in the appellants’ brief (p. 8, Appellants’ Brief).  She did not necessarily admit as appellants
would want to imply, that Shirley de Lara was not after all with her, as she
had testified.

While it is true that Shirley de Lara and Rosie de Villa had no
quarrel between them, this is no reason why de Lara could not have lied in her
testimony denying that she was with De Villa at 2:00
in the morning of 13 January 1970.  It has been shown during the trial that she
is a member of the Bahala-Na-Gang to which the
appellants belong.  This was proved by
her picture, Exhibit F-1, showing the tattoo marks “BNG” on her right
thigh, Exhibit F-1-B (p. 70, rec. of Criminal Case No. 13).  It is therefore, natural to expect that her
sympathies are with the appellants who are her gangmates.  Furthermore, she did not wait for a subpoena
to testify in court (p. 19, t.s.n., 24 February
1970).  As per her admission, she was requested
by the wife of Julius Clark to testify (p. 20, t.s.n.,
ibid.), and she made insinuations about an illicit relation developed
later between Rosie de Villa and Jose Dumlao, Jr. in
an attempt to discredit them (p. 8, t.s.n., ibid).  Her police record shows that she has been
apprehended and/or convicted in a long line of criminal cases, including two
apprehensions for vagrancy (Exh. G, p. 71, rec. of Criminal Case No.
13).”

Shirley de Lara is undoubtedly a biased witness.  Biased witnesses tend to exaggerate.  Although they may be honest, they cannot,
while human nature remains unchanged, overcome the tendency to distort, magnify
or even minimize as their interest persuades, the incidents which they
relate.  Shirley de Lara is a gangmate, a friend, of the accused-appellants.  The claims of friendship between a witness
and a party are frequently as powerful an
influence in shaping such witness’ testimoney
as any mercenary motive could be.  The
influence of the interest of a friend, or of the society of which the witness
is a member, is also most as strong as original self-interest; and it is more
insidious, because we are not so careful to guard against it, inasmuch as it
bears the semblance of a virtue.^[7]

Appellants also underscore the inconsistencies and contradictions
in the testimony of the prosecution witnesses. 
They dispute Dumlao’s averments that he did
not see Basilio Clark do anything to Rosie de Villa;
that he witnessed Julius followed by Jose having sexual consort with the
complaining witness; that he did not see Basilio
while Julius and Jose were making their erotic intercourse with Rosie
contending that Dumlao’s testimony contradicts Rosie
de Villa’s claim that Basilio Clark was holding her
legs while Jose Coderes and Julius Clark were allegedly
having sexual intercourse with her and that it was Basilio who first raped her followed by Jose and finally by Julius.  Appellants
thus conclude that the glaring inconsistencies in the prosecution witnesses’
testimony can mean only one thing – that there is no truth to what complainant
Rosie de Villa stated regarding the commission of the alleged crime of rape.

To appellants’ allegation of inconsistency in the testimony of
prosecution witnesses, the Solicitor General’s answer is impressed with merit
and We quote:

“While we admit that there are some inconsistencies in the
testimonies of Rosie de Villa and Jose Dumlao, Jr. regarding
the chronological order in which the appellants raped the complaining witness,
and as to who of them held her arms and legs while one of them was raping her
(pp. 8-12, Appellants’ Brief), yet we do not agree with the appellants’
contention that these inconsistencies can only mean one thing, and that is,
“that there is no truth to what complainant Rosie de Villa said regarding
the commission of the alleged crime.” For such contradictions and
inconsistencies indicate veracity rather than prevarication (People vs. Viñas, 25 SCRA 683, 28 October 1968), and they do not
necessarily affect the credibility of the witnesses (People vs. Hamtig, 29 SCRA 14; People vs. Gensola,
29 SCRA 483).  It is precisely in such
circumstances as would reveal some little variation in details that testimonies
would deserve weight (People vs. Pascual, et al., G.
R. No. L-4801, 30 June 1953).

Besides, the said inconsistencies can be explained.  As has already been pointed out, that morning
of the incident was the first time Jose Dumlao, Jr.
ever set eyes on the appellants.  He did not know them by their names and he
came to know of their identities only later on. 
The same is true with Rosie de Villa, who was not at the time well
familiar with the appellants.  When she
gave her story to the police, she did not identify the appellants by their
names, as can be shown by her statement, Exhibit C (p. 18, rec. of Crim. Case No. 15). 
She only pointed them out to the investigator, as what she did when she
testified in court (pp. 2-3, 62 & 63, t.s.n., 24 February 1970).  This, coupled with the fallibility of the
human memory, can very well explain why these two witnesses could not dove-tail
in all the details of their respective narrations, particularly in pointing out
the order in which the three appellants had raped Rosie de Villa.  Both witnesses, however, were consistent and
corroborative on the main and essential fact: 
that Rosie de Villa was raped, and that the appellants herein were the
perpetrators … (T)he mere possibility that there was
variance in the testimonies of De Villa and Dumlao as
to the order in which the former was raped and as to who was holding her arms
and legs at the time, will not necessarily destroy the established fact that
she was raped in succession by the appellants…”

Our jurisprudence is
replete with cases giving weight and credence to prosecution witnesses’
testimonies, although characterized by minor inconsistencies or
contradictions but absent improper motives. 
To cite the more recent cases, We have People
v. Bagsican, L-13486, 31 October 1962, 6 SCRA 400, where great stress
was laid by the defense upon the differences in narration of details by some of
those who testified for the government. 
And, for those contradictions, the rule in falsus
in uno falsus omnibus was
vehemently invoked.  It was ruled
that it would be unreasonable for the Court to sustain appellants’ position
with respect to those differences in details into which, truly, on occasions,
some of the prosecution witnesses lapsed … that it is quite obvious that said
contradictions were inconsequential. 
They did not touch upon any matter of significance.  They were such minor differences as naturally
were bound to arise from truthful descriptions of things past.  Had their testimonies been so perfect, so
flawless, so completely accurate in details, would they not only then have
offered themselves to serious suspicion that the testimonies they gave were
fabricated and rehearsed?

In People v. Alcantara, L-26867,
June 30, 1970, 33 SCRA 812, where We adjudged as a truism that the most candid
witness oftentimes commits mistakes and incurs inconsistencies in his declarations,
but such honest lapses do not necessarily impair his intrinsic
credibility.  Far from being evidence of
falsehood they could justifiably be regarded as a demonstration of good faith
and a confirmation of the fact that the witness was not a rehearsed witness;

In People v. Resayaga, L-23234,
December 26, 1973, 54 SCRA 350, which considered that inconsistencies, even
improbabilities, in the testimony of a witness, especially on minor details or
collateral matters is a common phenomenon; that it is not unusual to have
accounts of witnesses regarding the same occurrence as contradictory on certain
details; that there is no perfect or omniscient witness because there is no
person with perfect faculties or senses;

In People v. Pacala, L-26647, August 15, 1974, 58 SCRA 370,
where We pointed out the rule that inconsistencies in the testimony of
prosecution witnesses with respect to minor details and collateral matters do
not affect either the substance of their declaration, their veracity or weight
of their testimony; and

In People v. Sangalang, L-32914,
August 30, 1974, 58 SCRA 737, where We ruled
that inconsistencies or discrepancies in the declarations of prosecution
witnesses which are not glaring, strengthen their credibility and show that
their testimonies were not coached or rehearsed.  The discrepancies may be attributed to
deficiencies in observation and recollection, or misapprehension of the
misleading and confusing questions during cross-examination, or to the
defective translation of the questions and answers but they do not necessarily indicate a wilful attempt to commit falsehood (citing People v. Selfaison, 110 Phil. 839).

Appellants likewise point to the improbability of rape having
been committed as complaining witness declared that she did not notice any
ejaculation from any of the accused.  To
discredit Rosie de Villa’s credibility, appellants point to the following
circumstances negating the commission of rape: 
(1) complainant’s admission that this occasion is not exactly her first sexual
experience as she came to know of this when she cohabited with a man; and (2)
the medico-legal certificate showed that she is a non-virgin and that despite
the alleged sexual experience, there were no abrasions found around her vaginal
cleft, no congestion, and vaginal mucosa smooth, no abrasions.  And they question why she should wash her
“private part” at the police station to avoid getting pregnant.

Rosie de Villa, in answer to a question from the court, testified
that she did not notice any ejaculation from the appellants because she was
afraid.  Significantly, this statement of
Rosie de Villa reveals more than what the defense has bargained for.  It bolsters, rather than destroys the theory
that at the time Rosie de Villa was being raped by three men, one after the
other, she was fighting against it with all her might, and that it was very
much against her will; she was not concentrating on the act; that she was being
subjected at the same time to physical violence, such as fist blows on her
stomach; and that she did not give any cooperation at all to the sexual act,
much less derived any enjoyment from it, as the appellants would want to
imply.  We do not agree, however, that
because she did not notice any ejaculation, she would no longer be in a
position to narrate the circumstances under which she was raped, because there
is no showing that she had lost all consciousness at the time.  Neither is this circumstance inconsistent
with Rosie de Villa’s testimony that she washed her private parts at the police
station to avoid getting pregnant.  She washed as a precautionary measure.  Even if she did not notice any ejaculation,
she could not be sure that the appellants had not in fact ejaculated.

There is no truth to the allegation of the appellants that Rosie
de Villa has admitted that the concept of ejaculation is not exactly new to her. 
It is clear from her testimony that the time the multiple rape in
question occurred, she did not yet know what ejaculation means, and it was only
during the trial that she learned about it. 
Considering that she was then only about 15 years of age, just a little more than a child, her testimony
on this point can easily be believed.

Appellants maintain that rape could not have been committed
considering that the alleged scene of the crime is near the public highway and
at a place where motor vehicles continually passed.  The prosecution counters by pointing out that
the scene of the occurrence was surrounded by tall grasses such that a person
in prone position could be hidden from view unless one crawled near the place
as witness Jose Dumlao, Jr. did.  Aside from this, one must consider that the
accused who are members of the Bahala Na Gang are
three in number – Basilio, Julius and Jose – three
young men at the peak of their vigor and strength, being then 23, 27 and 24
years of age, respectively; three stalwart and energetic young men in their
prime and have been exposed to the rigors and adversities of life being
fishermen by occupation.  It is not
surprising, therefore, if they acted with boldness, daring and intrepidity
because they could easily overpower and silence their young victim.

Appellants would also want to give the impression that because
Rosie de Villa was an ago-go dancer and she admitted having drank liquor before
the incident, she might have consented to the rape
committed against her.  This posture is
highly improbable and utterly incredible. 
On all fours with the case at bar on this point is the case of People
v. Soriano, 35 SCRA 633, 30 October 1970, wherein We
ruled, thus:

“Indeed, no woman would have consented to have sexual
intercourse with two men – or three – *** in the presence of each other, unless
she were a prostitute or as morally debased as one.  Certainly, the record before us contains no
indication that Formacita, a 14-year old, *** can be
so characterized.  *** In fact,
appellants could not even suggest any reason why Formacita
would falsely impute to them the commission of the crime charged.”

In the case at bar, there
is not an iota of evidence to show that Rosie de Villa ever sold herself to the
public.  The fact that she is an ago-go
dancer in a night club does not militate against her for ago-go dancing is
merely dancing in the modern manner as seen every night in TV shows.  It is undisputed that this girl of 15 did not
even dance with customers.  Besides, if
she had consented to have sexual intercourse with the accused, then why should
she be shouting “Tulungan n’yo
ako, ayaw ko,” to which cry Dumlao responded? 
The defense never attempted to explain why Dumlao
appeared in the scene and why he apprehended them.

In their brief, the
appellants quote a portion of the testimony of the complaining witness wherein
she testified that she was not conscious of what was going on at the time the
appellants allegedly committed the alleged sexual intercourse, which testimony
they claim as casting more doubt on her credibility.  Suffice it to state, however, that in her
answer to the next succeeding question of the defense counsel, the point was
clarified beyond all doubt, thus:

“Q.  And
if you do not know what are those things going on, how come that you testified
before this Honorable Court that the three of them had used you one after the other?

 A.   Well,
when they spank my abdomen that was the time I became conscious and I noticed
the removal of my panty.” (p. 63,
t.s.n., 13 April 1970)

The appellants assail the
testimony of prosecution witness Jose Dumlao, Jr. on
the ground that if it is true that rape was being committed by Julius Clark followed
by Jose Coderes, why did he have to wait until Coderes was through before he helped the girl?  Jose Dumlao, Jr.
satisfactorily explained this in his testimony. 
In answer to questions propounded by the court, he testified:

“Q.  Why
did you have to wait for Coderes to have sexual
intercourse with the girl?  Why did you
not fire your gun after June Clark stood up?

 A.   I
would like to see also what they are doing.

 Q.  But I
thought you said a while ago
that you responded to the call for help?

 A.   I
responded but not immediately.  For
seeing that they are in the actual performance and I am single, I would like to
see what they are doing.” (pp. 28-29, tsn, 23 February 1970)

We believe that the above testimony of Dumlao
is honest enough and is at the same time credible.  He is indeed single and it was natural for
him to be curious of what was going on. 
Appellants’ contention that his actuations belie his alleged good
intentions is beside the point, for whatever Dumlao’s
motives were, We cannot see how they would detract
from the fact that he actually saw the two appellants rape the girl.

It is the appellants’ contention that since Dumlao
admitted that he was excited by the scene he saw, “then De Villa must have
been cooperating all the way, otherwise, We cannot see
why Dumlao would have to wait and enjoy the
scene.” Appellants lose sight of the fact that different individuals react
differently to certain perceptions or even similar situations.  To take an extreme example, some people are
repelled by violence while others derive pleasure from it; some persons may
manifest an aggressive or violent attitude while others may stalk away or
cringe in mute fearful attitude.  At any
rate, in the instant case, although Dumlao testified
that the rape was accompanied by the screams and struggles of the girl, the
mere sight of sex and naked bodies would be sufficient to excite his
sensibilities.

In the sum, appellants seek to impugn the credibility of the
prosecution’s witnesses by pointing out inconsistencies in the testimonies of
the two (2) principal witnesses.  The
settled, long-standing rule where the issues raised hinge on the credibility of
witnesses is for the appellate tribunal to give due respect to the assessment
of facts made by the lower court,^[8]
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.^[9]
This rule should not be overturned unless there is a showing that in making the
disputed factual findings, the trial court has overlooked 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, the inconsistencies pointed as such appearing
to be more apparent than real and absent any showing of motive that would have
impelled the prosecution witnesses to testify falsely against appellants who are
being indicted for a very serious and grave offense which might possibly send
them to the execution chamber.

II.  On the second assignment of error

Appellants state that the trial court erred in its findings of
fact of the case, the same being directly and clearly in conflict with the
evidence adduced at the trial.  To prop
this stance, appellants make an issue of the fact that the medico-legal
certificate showed no findings of abrasions around the vaginal cleft, or
spermatozoa inside the vagina thus negating the lower court’s finding that rape
was committed.

Appellants are in error. 
In the case of People v. Cesario Salazar,
L-37701, October 30, 1979, where the appellant therein likewise emphasized the
impossibility of the commission of the crime of rape because the medical
certificate indicated that the hymen was negative for laceration or tear and
the vaginal smear is negative for spermatocytes, We
ruled that the absence of lacerations, abrasions or rashes in the genital organ
of the victim that would indicate forcible sexual intercourse cannot definitely
be a basis for concluding that a woman did not have sexual intercourse.  As We said in the case of People v. Canastre, 82 Phil. 480, 483, “it is hard to
believe that a young unmarried girl would make such a revelation and allow an
examination of her private parts and thereafter permit herself to be the
subject even of a public trial, if she was not motivated solely by a desire to
have the culprits apprehended and punished. 
And the persuasive weight of this circumstance is such as to negative
the importance of the testimony of Dr. Parreñas to
the effect that there were no lacerations, abrasions or rashes in the genital
organ of Benedicta that indicated forcible sexual
intercourse.”

Nor will the absence of spermatocytes
from the specimen taken from the complainant’s vaginal canal disprove the
commission of the crime of rape.  The
important factor is not emission of the semen, but penetration.  Well-settled is the rule in this jurisdiction
that any penetration, however slight,
and whether reaching the hymen or not, is sufficient to constitute the crime of
rape.^[11]

Appellants also assert
that error was committed by the lower court in considering as evidence of the
force committed on the person of complainant the abrasions found on her arms
and waist.  They stress the point that
they found complainant lying on a wooden catwalk dead drunk and the abrasions
on her body could have been caused by her falling on the ground.

Appellants’ assertion
finds no factual basis on the records. 
No evidence whatsoever appears in the records to show that Rosie de Villa ever sustained a fall,
apart from the rape incident in question, at any time before she was medically
examined.  The appellants merely infer
the same from their allegation that they found her “lying on a wooden
catwalk” before they boarded her on the taxicab.  This allegation not having been proven during
the trial deserves no merit or consideration.

Conversely, Dr. Vicente
C. Bacay, another expert witness presented by the
defense, on cross-examination, testified that the aforementioned abrasions
found on the body of the complaining witness are vital findings which indicate
that rape was committed:

“Q.  And you also testify in the examination in
chief that the first thing you do in the examination of the victim after
securing her consent to the examination is to look for certain injury …
suffered on her person.  In this
particular case wherein the medical certificate issued by the attending
physician there appears to be abrasions … is that not one of the signs of
rape which you have stated in your examination in chief?

 A.   As I
said this is a vital finding in cases of rape especially those which are extra genital
injury which an examining physician found is fresh in appearance.

ATTY.
LLAMADO:

“Q.  What is extra
genital?

 A.   What
we mean by extra genital, it does not mean it is
confined around the area of the genital organ of a person.  It would appear like the arm, the head, the
front part of the body, the hip.  Those
are all the extra genital part of the human body, out of the genital
organ.” (pp. 53-54, t.s.n., 13 April 1970).

We, therefore, affirm as correct the finding of the trial court
that the complaining witness sustained the aforementioned multiple abrasions on
her arms and on her waist, which took five days to heal as per medical certificate, Exhibit “E”, by reason of
the force and violence inflicted upon her in the consummation of the multiple
rapes committed against her.

III.  On
the third assignment of error

Appellants contend that the trial court erred in considering
against them the aggravating circumstances of “nighttime” and
“uninhabited place”.

To buttress their particular stance that nighttime should not be
considered against them, appellants maintain that the prosecution has not
adduced evidence to prove that accused had planned to commit the alleged rape
at the date and time of the incident; that no less than the complainant
admitted she just met the accused; that nocturnity is
not necessarily an aggravating circumstance in the commission of a crime; and
where it is not evident that the defendant purposely sought nighttime, such circumstance should not prejudice
the defendant.

The law provides that
there are three (3) elements to be taken into account before the aggravating
circumstance of nighttime and uninhabited place may be considered, to wit:

(a)   When it facilitated the commission of the
crime; or

(b)   When especially sought for by the offender;
or

(c)   When offender took advantage thereof for the
purpose of impunity.

(U.S.
vs. Billedo, 32 Phil. 574; People vs. Matbagon, 60 Phil. 887).

With respect to
nighttime, the evidence adduced in the case at bar does not show that the scene
or place of alleged crime facilitated commission of the crime.  In the first place, there were houses within
the 50-meter radius and that there were plenty of cars passing along and
continuously illuminating the scene or place of alleged crime.

Similarly, accused could not have sought nighttime in committing
the alleged crime if their purpose was to avoid being recognized or to save
themselves against detection because it is clear from the evidence that the
place where the alleged rape was committed was only four (4) meters from the
road and there were plenty of cars passing at the time of alleged crime.

Appellants also strongly
vociferate against the trial court’s considering “uninhabited place”
as an aggravating circumstance in the commission of the alleged crime.  They contend that there is more than
sufficient evidence and based on the testimony itself for the prosecution that
the Tourist Spot or the place where the alleged rape was committed is not
uninhabited because of the following facts established and uncontradicted:

(1)   There are houses within the 50 meter radius
from the Tourist Spot.

(2)   Place where crime was allegedly committed
only 4 meters from road and is continuously illuminated by cars oncoming from Subic and Olongapo City.

(3)   There were plenty of cars passing through
during time of alleged crime.

(4)   Prosecution witness admits he was able to
flag down a jeepney to call for a police right
away.  This is established by the fact
that alleged crime was at 2:30 a.m.
and testimony that at 3:00 a.m. parties
were already at the Olongapo Police Station.

The Solicitor General
completely agrees with the accused’s asseveration
that the trial court erred in considering against them the aggravating
circumstances of “nighttime” and uninhabited place.” We quote with
approval portions of the observations taken by the Solicitor General apropos
this third assigned error:

“Nighttime”:

It does not appear from the evidence of the prosecution that the
appellants purposely sought nighttime for the perpetration of the crime, or
took advantage of it in order to facilitate its commission, or for the purpose
of impunity.  Nowhere in the records does
it appear that the appellants had decided to rape Rosie de Villa earlier in the
day then waited for the darkness of the night in order to consummate it.  Their meeting with Rosie de Villa at 2:00 in the morning outside the Saulog Canteen was only a casual encounter and was purely
accidental.

x x x (I)n the case at bar, since there is no evidence to show that
the appellants herein had premeditated to rape Rosie de Villa, it is safe to
presume that they conceived of raping her only shortly before its commission,
or at that precise moment when they saw her walking home alone, as demonstrated
by their subsequent acts of forcing her into a taxi  and bringing her to
Tourist Spot against her will.

x x x That the
appellants in the case at bar had not taken advantage of the darkness of the
night to facilitate the crime of rape is further shown by the uncontroverted fact on record that Tourist Spot which is
only four (4) meters from the national highway, was illumined, on one side, by
vehicles which were continuously passing by even while the complaining witness
was being raped; and that, on the other side, there was the reflection of lights
coming from Cubi Point, from the ships that were
anchored near, and from the fishing boats. 
This was established by the testimony of prosecution witness Jose Dumlao.

“Uninhabited
Place”:

It has been established through the testimony of prosecution witness
Dumlao that Tourist Spot is not an uninhabited
place.  His house is only 50 meters away
from it.  The Tourist Spot was
established and so named by the Rotarians for people to stand and view the
scenery of Grande Island
(p. 4, tsn, 23 Feb. ’70).  It is V-shaped surrounded by a fence, and
there is a gap or a passage way on one side where people, particularly the
witness, go up and down everyday (pp. 20 and 26, t.s.n.,
ibid.) Moreover, the Tourist Spot is only four meters away from the
national highway coming from Olongapo
City, and going to Subic, and where vehicles were continuously
passing by, even as the crime was being committed.

The house of Dumlao was inhabited by four
people at the time, including himself (p. 27, tsn, ibid.), and it was sufficiently near the
Tourist Spot for him to hear the screams of the complaining witness which
enabled him to go to her rescue.  x x x“

Re:  Nighttime (Nocturnity):

In People v. Matbagon, 60 Phil.
888, 893, which was decided as early as 12 November 1934, the Supreme Court
laid down the doctrine that nocturnity should be
considered as an aggravating circumstance only when it appeared that it was
especially sought by the offender or that he had taken advantage thereof in
order to facilitate the commission of the crime or for the purpose of
impunity.  The Supreme Court went on to
state that taking advantage of nighttime in order to facilitate the
commission of the crime must be coupled with an intention to do so; and it held:

“In the case at bar, the accused neither sought the nighttime
nor took advantage of it to commit the crime with greater facility or to
escape.  If he had hidden behind the tree
and attacked the deceased without warning or availed himself
of the darkness to prevent his being recognized or to escape, then nocturnity would have been an aggravating
circumstance.  If the accused in this
case did not take advantage of the nighttime to commit the crime or to escape,
then the darkness did not facilitate the commission of the offense.  To take advantage of a fact or circumstance
in committing a crime clearly implies an intention to do so, and one does not
avail himself of the darkness unless one intended to do so.” (Italics
supplied)

Of equal relevance is the
case of People v. Boyles, L-15308, May 29, 1964, 11 SCRA 89, where We
ruled:

“The lower court appreciated nocturnity
against the appellants solely on the basis of the fact on record that the crime
was committed at about 5:00 o’clock
in the morning.  This particular finding
can stand correction.  By and of itself,
nighttime is not an aggravating circumstance. 
It becomes so only when it is especially sought by the offender and
taken advantage of by him to facilitate the commission of the crime to insure
his immunity from capture (People v. Alcala, 46 Phil.
739; People v. Matbagon, 60 Phil. 887; People v. Pardo, 79 Phil. 658). 
Stated differently, in default of any showing or evidence that the
peculiar advantages of nighttime was purposely and deliberately sought by the
accused, the fact that the offense was committed at night will not suffice to
sustain nocturnidad.  It must concur with the intent or design of
the offender to capitalize on the intrinsic impunity afforded by the darkness
of night.

In the case presently on appeal, We note
that other than the time of the crime, nothing else whatsoever suggests the
aggravating circumstance of nighttime. 
Not one of the prosecution evidence, oral or documentary, makes the
slightest indication that the protection of night’s darkness was deliberately
availed of by the appellants.  In view of
this deficiency in the case for the Government, We are constrained to disallow
the said circumstance even as technically, it may have been accepted by them
when they pleaded guilty on arraignment.”

The above ruling that nocturnidad (to be appreciated as an aggravating
circumstance) “must concur with the intent or design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of the
night,” was subsequently reiterated in People vs. Condemena,
et al., L-22426, May 29, 1968, 23 SCRA 910, and People vs. Apduhan, Jr., et al., L-19491, August 30, 1968, 24 SCRA
798.

It is thus succinctly clear that absent any showing that the
accused in the case at bar took advantage of nighttime in order to facilitate the
commission of the crime of rape and failure of the prosecution to demonstrate
that the accused intended to capitalize on the intrinsic impunity afforded by
the darkness of the night, the appreciation of the aggravating circumstance of
nighttime against the three accused must necessarily fail.

Re:  Uninhabited Place (Despoblado):

Uninhabited place is aggravating when the crime is committed in a
solitary place, where help to the victim is difficult and escape of the accused
is easy, provided that solitude was purposely sought or taken advantage of to
facilitate the commission of the felony.

In the case of People v. Laoto,
52 Phil. 402, the aggravating circumstance of uninhabited place which the court
a quo appreciated against the accused was rejected by Us for the reason that from the house of
the deceased, “the place where the boat was could be seen, and his voice
could be heard therein.”

Likewise, the aggravating circumstance of uninhabited place was
not accepted in the case of People v. Aguinaldo,
55 Phil. 610, as there was lack of evidence to show that the appellant sought
the solitude of the place in order to better attain his purpose and that the
place where the crime was committed was about 1 kilometer away from the house.

The case of People v. Deguia, 88
Phil. 520 also repudiated the appreciation of uninhabited place against the
accused even when the nearest house to that of the offended party was 1 kilometer
away because the appellants did not select the place where to better attain
their objective without interference, or to secure themselves against detection
and punishment.

In the light of the foregoing decisions and in the presence of uncontradicted evidence that the alleged scene of the
offense is not uninhabited, there rises the inevitable conclusion that the
aggravating circumstance of uninhabited place cannot be considered against the
three accused-appellants in the case at bar.

IV.  On the fourth and last assignment of error

Appellants contend that the trial court erred in convicting them of
rape as charged in the informations, the evidence on
record not being sufficient to prove the
essential elements of the crime.  They
contend that, upon the evidence presented, the element of carnal knowledge has
not been established so as to support a conviction beyond any reasonable doubt
for not only were the testimonies of the principal prosecution witnesses
contradictory and improbable but that
complainant herself admits (a)
she was not conscious of what was going on at the time of the alleged rape; (b)
she did not notice any ejaculation; and (c) she was drunk at the time.  Likewise, appellants assert that while it is
true that in cases of rape rupturing of the hymen is not indispensable for
conviction, it is, however, essential that there must be proof of some degree
of entrance of the male organ within the labia of the pudendum and this, the
prosecution clearly failed to do. 
Appellants maintain that the prosecution should establish the essential
requisites of rape by clear and positive evidence not on inferences or dubious
evidence.

Refuting the assertion of appellants, the Solicitor General
emphatically states that all the elements of the crime of multiple rape have been proved beyond reasonable doubt against the
appellants, to wit:

That the three appellants, Basilio
Clark, Julius Clark, and Jose Coderes had carnal
knowledge of Rosie de Villa, in succession and helping one another, employing
force and intimidation, and against the consent of the complaining
witness.  To avoid repetitious arguments,
they adopt their refutations to the first and second assignments of error in
support of their stand.

As to the number of crimes committed by the appellants, each and everyone of them committed, and are guilty of three crimes
of rape.  Each of them is responsible,
not only for the act of rape committed by the others, because each one of them
cooperated in the consummation of the
rape committed by the others, by acts without which it could not have been
accomplished.

With regards to the participation of Basilio
Clark, the complaining witness testified that he was the first one who raped
her.  That Dumlao
testified that he did not see him do
anything to the girl means that he did not see him rape her because at that
time, he was still on his way up to the Tourist Spot. 
According to him, it took him around 30 minutes to reach the place
because he was afraid, and he took precautionary measures.  It is not true,
however, that Dumlao stated that Basilio
was not around while Julius and Jose were having intercourse with the girl, as
appellants stated in their brief.  Dumlao stated that he did not see Basilio
Clark because of the tall grasses.  He
only saw him when the two other appellants moved and he went closer to the
girl.  It is the contention of the
Solicitor General, therefore, and to this We give our
stamp of approval, that Basilio Clark is as guilty as
his co-appellants herein.

The Solicitor General points to the existence of the generic
aggravating circumstance of use of a motor vehicle which although not stated in
the information was not objected to by the defense.  It is undisputed that the accused brought the
complaining witness to Tourist Spot in a taxicab.  This was established by their declarations in
court and also in their own admissions (pp. 94-98, 126-128, 147-149, t.s.n., 4 March
1971).  The use of the motor
vehicle facilitated the taking of the victim and her subsequent rape.  Accordingly, the said aggravating circumstance
should and must be considered and appreciated against the accused.  (People vs. Collado, 60 Phil. 610; People vs. Cruz, 85 Phil. 577;
People vs. Raquino, 17 SCRA 914; People vs. Jovellano, et al., 56 SCRA 156).  We agree with the People’s Counsel and hereby
find that the generic aggravating circumstance of use of motor vehicle is
present in the case and may be taken into account in the imposition of the
penalty to the maximum period, absent any mitigating circumstance to offset the
same.

In resume, We fully agree and, therefore, affirm the guilt and conviction beyond reasonable doubt of
the three (3) accused for three separate crimes of rape committed by two or
more persons charged under the three (3) informations
filed against them jointly in Criminal Cases Nos. 13, 14 and 15, as defined
under Article 335 of the Revised Penal Code as amended by Republic Act 2632 and
Republic Act 4111 which provide for the penalty of reclusion perpetua to death. 
There being present the generic aggravating circumstance of use of a
motor vehicle, the penalty that shall be imposed shall be the maximum period
which is death.

The judgment of the court below now under automatic review which
reads as follows:

“Wherefore, the court finds the accused Jose Coderes, Julius Clark and Basilio
Clark guilty of rape committed by two or more persons, as defined and penalized
under Article 335 of the Revised Penal Code, in Criminal Cases Nos. 13, 14 and
15, attended by the aggravating circumstance of nighttime and uninhabited
place, and hereby sentences each of the said accused to suffer three (3) death
penalties, to pay the offended party Rosie de Villa the sum of P5,000.00 as
moral and exemplary damages and to be subsidiarily
for the individual civil liability of each of his co-accused, to recognize the
offspring that may be born as a consequence of the rapes committed in
accordance with Article 283 of the New Civil Code, and to pay the costs proportionately.

SO ORDERED.”

is hereby
modified by eliminating or disregarding the aggravating circumstances of
nighttime and uninhabited place, and in their place and stead consider and take
into account the aggravating circumstance of use of a motor vehicle.  The case against Julius Clark who, according
to the records, died at the NBP Hospital
in Muntinlupa during the pendency
of this automatic review on July 17,
1979, is considered dismissed insofar as his criminal liability is
concerned but his civil liability shall be taken from his estate.

In all other respects,
the said judgment, being in accordance with the evidence and the law, should be
affirmed.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment imposed by the court a
quo is hereby modified in that only the
aggravating circumstance of use of a motor vehicle is attendant in the case,
thereby imposing as it is hereby imposed upon the accused Jose Coderes and Basilio Clark the
sentence of three (3) death penalties each. 
In view of the death of the accused Julius Clark, the case against him
is hereby dismissed and he is discharged from criminal liability but his civil
liability shall remain and be taken from his estate.

In all other respects,
the judgment of the lower court is affirmed.

SO ORDERED.

Barredo, Makasiar,
Concepcion, Jr., Fernandez, Guerrero, and De Castro, JJ., concur.

Fernando, C.J., concurs with
the dissenting opinion of Justice Teehankee.  In the
absence of the required number of votes to affirm a death sentence, the penalty
imposed must be three reclusion perpetuas.  He likewise dissents from so much of the dispositive portion of the decision as would hold the
estate of Julius Clark civilly liable.

Teehankee, J., dissents in a separate opinion.

Aquino, J., votes for the imposition of reclusion perpetua.

Abad Santos, J., on leave.

Melencio-Herrera, J., in the result.

---

^[1]
Information in Criminal Case No. 13 (People vs. Jose Coderes, et al.) Two (2) separate informations similar to this were filed against Basilio Clark and Julius Clark as principals by direct
participation with Julius Clark and Jose Coderes, and
Basilio Clark and Jose Coderes
as principals by indispensable cooperation, respectively.

^[2]
Decision, Annex “A” of Appellant’s Brief, pp. 1-2.

^[3]
Ibid., pp. 2-3.

^[4]
Ibid., pp. 4-5.

^[5]
Ibid., pp. 5-6.

^[6]
Ibid., pp. 6-7.

^[7]
Newton v. Carbery, 5 Cranch
(C.C.) 626, 18 Fed. Cas.
No. 10, 189 (at p. 128).

^[8]
People vs. Antonio, L-25845, Aug. 25, 1970, 34 SCRA 401; People vs.
Bayongan, L-23658, April 26, 1967, 23 SCRA 237;
People vs. Guevarra, L-24371, April 16, 1968,
23 SCRA 58; People vs. Diva, L-22946, April 29, 1968, 23 SCRA 332;
People vs. Viñas, L-21756, Oct. 28, 1968, 25
SCRA 682; People vs. Sarangan, L-21757, Nov.
26, 1968, 26 SCRA 21; People vs. Pereto,
L-20894, Dec. 29, 1967, 21 SCRA 1468; People vs. Alcantara,
L-16832, Nov. 18, 1967, 21 SCRA 906.

^[9]
People vs. Pasiona, L-18295,
Feb. 28, 1966, 16 SCRA 212, People vs. Pelago,
L-24884, Aug.
31, 1968, 24 SCRA 1027; People vs. Ricaplaza, L-25856, April 29, 1968,
23 SCRA 374.

^[10]
People vs. Sales, L-29340, April 27, 1972, 44 SCRA 489; People vs. Dorado, L-23464, Oct. 31, 1969, 30 SCRA 53.

^[11]
People vs. Hernandez, 49 Phil. 980; People vs.
Oscar, 48 Phil. 527.

---

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