G.R. No. L-41819. February 28, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. WINSTON MANLAPAZ Y POLING, ACCUSED.
AQUINO, J.:
This is a rape case involving a thirteen-year-old, mentally
retarded girl named Therese Endencia, the daughter of
the spouses, Jerome Endencia and Teresita
Encarnacion.
They resided at 10 Padre Burgos Street,
near Aurora Boulevard,
Project 4, Quezon City. Therese, who was born in Chicago,
Illinois, is a fair complexioned girl with mestiza features.
Residing in the same neighborhood in an apartment identified as
1021-M Aurora Boulevard, near the
Marian Bakery, also in Project 4, was a nineteen-year-old, unmarried boy named
Winston Manlapaz who was studying electrical
engineering in the University of the East.
That apartment was about five hundred meters away from the residence of
Therese. Nearby, on Calderon
Street, was a basketball court.
Winston stayed in the apartment with his elder sister, Bituin Manlapaz, 30, an employee
of the Universal Textile Mills at Barranca, Marikina. He has mestizo
features also, being the son of an American mother and a Filipino father who
lived in Uson, Masbate. Winston and Therese met at the basketball
court in November, 1972. They became
friends. Therese came to know the
residence of Winston. She went there two
or three times with her neighbor, Vicky, and her friend, Robin, a
teenager. She got acquainted with
Winston’ s sister.
According to the prosecution, Winston had sexual intercourse
with Therese in his apartment in the afternoon of November 28 and 30,
1972. Winston denied that he had sexual
intercourse with Therese but that denial does not merit any credence. He admits that Therese was in his apartment
on those two afternoons. Whether the
sexual intercourse was consummated by the use of force is not clear since the
only witness on that point is Therese herself.
Due to her mental handicap, she was not able to give a coherent, clear
and consistent narrative as to how she was ravished by Winston.
According to Mrs. Endencia, since
infancy, Therese has a speech impediment.
She could not talk when she was already two years old. As she grew older, she spoke in broken
sentences. She was enrolled in different
schools but, as her mother noted, she could not cope or keep up with the other
children. Her parents were advised to
enroll her in a special school.
From the age of seven years, or during the school years, 1966-67,
1969-70, 1970-71, 1971-72 and the second semester of 1972-73. Therese was enrolled in the Saint Joseph of
Cupertino School for retarded children located at Mangyan Road, La Vista
Subdivision, Loyola Heights,
Quezon City.
Doctor Fernando Hofileña, a
pediatrician with orientation in child psychiatry and experience in the
treatment of mentally retarded children, was the clinical head of the Saint
Joseph of Cupertino School. Therese was
examined by Doctor Hofileña and by a psychologist, a
special teacher, a social worker and a guidance counselor. Doctor Hofileña
concluded that Therese has an unsound mind, meaning that she has a mental
deficiency. He testified on
cross-examination:
“Q. Doctor, x x
x based on your answer as an expert, will you please
tell the Court whether or not Therese is possessed with (of) a sound or
unsound mind? x x x. – A. –
I believe she has an unsound mind.
“Q. Are you certain of that,
Doctor? – A. Yes, sir.” (38-39 tsn November 28, 1973).
As clinical head of the school, he issued a certificate dated January 23, 1973, or fifty-four days
after the commission of the alleged rape, stating that Therese had been
diagnosed “as mentally retarded of the educable type” and as a
“speech-defective” (Exh. B).
Doctor Hofileña ventured the opinion
that Therese might not completely understand the nature and consequences of
sexual intercourse (41-42 tsn) or has only a vague
notion that sexual intercourse is bad (49-50 tsn) or
is not possessed of mental capacity to judge for herself whether sexual
intercourse is good or bad (50 tsn) or may give her
consent to a request without much deliberation and without knowing the
consequences of her assent (49 tsn).
Leticia Joaquin Lizaso, the directress
of the school, confirmed the findings of Doctor Hofileña. She certified that “psychometric tests
taken (in) 1971 revealed Therese’s mental age as five years and 2 months
and level of intellectual functioning to be mentally defective in the educable
level” (Exh. C).
That conclusion was based on the report of Carolina Chan, the
psychologist who examined Therese. The
tests were given by Maria Lourdes Avanceña, the
guidance counselor of the Madonna Center.
Mrs. Endencia recounted in court how
she came to know that Therese had sexual intercourse with Winston. On New Year’s Day, January 1, 1973, while Mrs. Endencia
was cleaning her house, she found two white pills in the locker of
Therese. When she queried her daughter
as to the function of the pills, Therese answered that the pills “were for
not having a baby” or were contraceptive pills. Mrs. Endencia found
out that her daughter got the pills from Winston and that Therese had sexual
intercourse with him two times.
Mrs. Endencia consulted her relatives
as to the proper course or action to take under the circumstances. Her uncle-in-law, former Justice Pastor Endencia, accompanied her to the City Fiscal of Quezon City. That
prosecuting officer advised them to go to the Detective Bureau.
A detective took down the statement of Therese on January 4, 1973. He said that he encountered much difficulty
in getting her statement. He had to use
much patience. Therese took a long time
to answer his questions. Sometimes, she
did not answer; she just laughed.
Sometimes, she was hostile. The
detective said: “Paulit-ulit ang
ginagawa ko sa bata para
lang masagot” (sumagot). The
questions had to be explained to her.
The explanations of the detective and some of the remarks made by
Therese do not appear in her statement, Exhibit A.
The next day, January 5, Therese was examined by the medico-legal
officer of the Philippine Constabulary crime laboratory at Camp
Crame. He found her to be “feeble-minded
but coherent”. It was not easy to
elicit the facts from her because she was hesitant and her recollection was
poor. She was assisted by her
mother. However, it was Therese herself
who narrated the facts without any leading questions from her mother.
The doctor found that Therese was no longer a virgin. Her hymen had two deep and healed lacerations
at the five and seven o’clock
positions. Her vaginal orifice offered
slight resistance to the index finger and the virgin-sized speculum. The lacerations were more than a month old.
The doctor also noted in his report that Therese, who is five
feet and two inches tall and weighed one hundred and two pounds, had conical
breasts “with pinkish-brown areola and nipples from which no secretion
could be pressed out”.
On January 12, 1973,
at about eleven-forty in the morning, there was a confrontation in the police
headquarters between Therese and Winston.
She identified Winston as the rapist (50-54 tsn
November 26, 1973). Winston admitted that there was such a
confrontation. It should be stressed
that on that occasion Winston did not make any statement. He was silent (69-73 tsn
September 9, 1974).
On June 4, 1973,
Therese and her mother filed the following complaint for rape against Winston Manlapaz in the Court of First Instance at Quezon City.
“That on or about the 28th and 30th days of November, 1972, in
Quezon City, Philippines, the above-named accused,
did, then and there, wilfully, unlawfully and
feloniously by means of force and against her will, have sexual
intercourse with the undersigned complainant, a minor, mentally retarded, with
mental level as that of a five-year old child to her damage and prejudice,
in such amount as may be awarded to her under the provisions of the Civil Code
of the Philippines.”
Note that the charge is that Manlapaz
employed force in having sexual intercourse with Therese, a mentally retarded
minor with the mental level of a five-year-old child. The trial court regarded that charge as
proven, meaning that Manlapaz had forcible sexual
intercourse with a feeble-minded girl, a victim, with “mental abnormality
or deficiency of reason”.
It convicted Manlapaz of simple rape,
sentenced him to reclusion perpetua and
ordered him to pay Therese Endencia damages amounting
to P40,000.
Manlapaz contends in this appeal (1)
that the lower court’s judgment is void, (2) that Therese was not mentally
retarded, (3) that her testimony should not be given credence, and (4) that the
prosecution’s evidence is not sufficient to warrant conviction.
The contention that the lower court’s decision is void cannot be
taken seriously. Appellant argues that
the decision is void because Judge Onofre Villaluz did not hear the case and he rendered the judgment
after the expiration of the ninety-day period from the time when it was
submitted for decision. The case was
heard by Judge Julian E. Lustre who suffered a stroke
before he could decide it.
The fact that Judge Villaluz did not
conduct the trial and that he was merely detailed to the sala
did not mean that he could not decide the case.
His detail carries with it the prerogative to decide the cases already
submitted for decision to his predecessor, Judge Lustre. (See People vs. Buslon,
L-22778, November 29, 1965, 15 SCRA 460.) There is no law which prohibits a
judge from deciding a case just because he did not hear the witnesses who
testified therein (Ortiz vs. Aramburo, 8 Phil. 98;
Villanueva vs. Estenzo, L-30050, June 27, 1975, 64
SCRA 407).
Thus, in the Ortiz case, it was held that where the judge
who heard the evidence resigned without deciding the case, his successor,
having before him the evidence presented to the first judge, could render a
valid judgment on the basis of such evidence.
In the instant case, the circumstance that the decision was
rendered after the ninety-day period fixed in section 5 of the Judiciary Law
does not mean that the decision is void.
The judge, who does not decide the case within the ninety-day period,
may be subject to disciplinary action.
The ninety-day period did not apply to Judge Villaluz
because the case was submitted for decision when Judge Lustre
was still the incumbent Judge.
As to the merits of the case, we are convinced that Manlapaz had sexual intercourse with Therese on the two
occasions mentioned by her. That fact
was ascertained from her by the police investigator and by the medico-legal
officer who examined her. It is
noteworthy that Manlapaz did not deny it at the
confrontation in the police precinct. “He who remains silent when he ought
to speak cannot be heard to speak when he should be silent”. (31 C.J.S. 494. See sec. 23, Rule 130, Rules of Court on
admission by silence, which was applied in People vs. Pilones,
L-32754-5, July 21, 1978.)
Although the testimony of Therese at the trial may be vitiated by
contradictions and inadequacies, due to her low intelligence, she,
nevertheless, stuck steadfastly to her story that she, to use her own words,
had “made baby” or had carnal intercourse with Manlapaz
in the afternoon of November 28 and 30, 1972.
However, the circumstance as to whether Manlapaz
employed force in “making baby” with her or in inserting his organ
into her “paddy” was not proven beyond reasonable doubt. There are indications that Therese did not tenaciously
resist the advances of Manlapaz. According to the police investigator,
Therese narrated the alleged rape in this manner (Exh.
A):
“13. Q: How did he make baby with you? – A. Winston invited me to his house because he
said that his sister wants to be friend with me. So I go with him. When we arrive at their house, Winston told
me that his sister is not in the house.
So I want to leave the house.
When I am going out of the house, Winston locked the door.
“When Winston
locked the door, I fight him and told him I want to go home. But, he hold my hands and lay me down the
floor and then he put his body on top of me.
I cannot move anymore and he pulled my panty. Then, he insert his peny
in my paddy. This take him about 15
minutes before he let me go. Then he
gave me a pill, colored red and white and told me to drink the pill for my meanstration. After
giving the pill he accompanied me up to the basketball court. Then, I went home alone.
“At about 3:00 o’clock in the afternoon of November 29, 1972, I went to the
basketball court at the corner of Calderon and a small street I do not know
the name. At the basketball court,
Winston see me and told me to go to his house.
I told him I want to go with somebody to his house. So I go with Robin and Winston. At the house we just talk and then later we
all leave the house and I go home.
“At about 4:30 pm, November 30, 1972, I play basketball at the
basketball court again. Then, when I was
playing, I saw Winston and he saw me also.
Winston called me and I continue playing. Then Edgar comes to me and told me that
Winston is calling me. I asked him
why. He said that Winston will tell me
something and if I will not go, he will get mad of me. So I go with Winston and he take me to his
house again.
“When we were at
the garage he closed the door of the garage and then told me ‘I want to make
love’. I told him I do not like. But he hold my hands again while I was sitting
on chair and told me to lay down. I told
him do not like (sic). So, pushed me
very hard and I fall on the chair and he put his body again on top of me and
pulled my panty and insert again his penny in to my paddy. It takes us about ten minutes. Then he told me to go home alone. So I go home alone.” (pp. 108-109,
Record).
The police investigator admitted that he pieced the above account
from the fragmented narration which he extracted with much trouble from Therese
and which was punctuated by remarks not included in her statement.
Even the above recital does not exclude the hypothesis that
Therese consented to the carnal intercourse although with some show of
reluctance. The initiative came from Manlapaz.
The issue is whether the complaint and the evidence are
sufficient to convict appellant Manlapaz of rape
committed when the victim was deprived of reason (privada
de razon).
The complaint does not spell out that Manlapaz
had sexual intercourse with a girl who was “deprived of reason”, as
contemplated in paragraph 2 of article 335 of the Revised Penal Code. But the allegation therein that Manlapaz had sexual intercourse with a mental retardate
implies that the victim was not in full possession of her normal reasoning
faculty. That is sufficient to alert the
accused as to the nature of rape imputed to him. So, he has no reason to protest that he has
not been charged with having abused a girl who was deprived of reason.
Sexual intercourse with a woman who is deprived of reason or with
a girl who is below twelve years of age is rape because she is incapable of
giving rational consent to the carnal intercourse. “Las mujeres privadas de razón, enajenadas, idiotas, imbeciles,
son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces
de consentir. Pero no es condición precisa que la carencia de razón sea completa, basta la abnormalidad o deficiencia mental que solo la disminuye, sin embargo, la jurisprudencia
es discordante” (II Cuello Calon, Derecho
Penal, 14th Ed., 1975, pp. 538-9).
“Comete violación
el que yace con mujer que no tiene
normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui está comprendido
el yacimiento con debiles o
retrasados mentales
(11 mayo 1932, 25 feb. 1948, 27 sept.
1951); constituye este delito, el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad
para conocer el valor de sus actos (2 marzo
1953); el yacimiento con oligofrenicas
(mentally deficient persons) (28 abril, 24 octubre, 1956, 19 feb. 1958); x x x” (Ibid, note 3).*
The same rule prevails in American jurisprudence. “There can
be no question but that a copulation with a woman known to be mentally
incapable of giving even an imperfect consent is rape” (State vs. Jewett,
192 Atl. 7).
“An accused is guilty of the crime of rape when it is
established that he had sexual intercourse with a female who was mentally
incapable of validly consenting to or opposing the carnal act” (65 Am Jur 2nd 766 citing State vs. Prokosch,
152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR, 3rd 1227, sec. 3).
“In this species of rape neither force upon the part of the
man nor resistance upon the part of the woman forms an element of the
crime. If, by reason of any mental
weakness, she is incapable of legally consenting, resistance is not expected
any more than it is in the case of one who has been drugged to unconsciousness,
or robbed of judgment by intoxicants.
Nor will an apparent consent in such a case avail any more than in the
case of a child who may actually consent, but who by law is conclusively held
incapable of legal consent. Whether the
woman possessed mental capacity sufficient to give legal consent must, saving
in exceptional cases, remain a question of fact x x x. It need but be
said that legal consent presupposes an intelligence capable of understanding
the act, its nature, and possible consequences. This degree of intelligence may exist with an
impaired and weakened intellect, or it may not” (People vs. Boggs, 290
Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44).
The instant case bears some similarity to State vs. Prokosch, supra, where Frank Prokosch
was charged with having raped a twenty-two-year-old girl, an inmate of the
State School for Feeble-Minded. The girl
had been committed to that school since she was eleven years old. At the time the sexual intercourse took
place, the girl was at her father’s home on temporary leave of absence during
the holiday season. After her return to
the school, the attendants discovered that she was pregnant. She later delivered a fully developed child.
The girl testified that during her stay in her father’s home she
had sexual relations with three men, one of whom was Prokosch. Her testimony was found to be credible. The court found that she was not an
imbecile. She had sufficient
intelligence to comprehend the nature of sexual intercourse but not sufficient
“to require a holding as a matter of law that she understood and
appreciated the moral wrong or the natural consequences to flow therefrom. She was
classed by an expert psychologist, a witness for the state, as a moron, and to
possess the mentality of a child about the age of eight years.” Prokosch was convicted of rape.
In the Boggs case, supra, a case also similar to
the instant case, the accused had sexual intercourse twice with a
twenty-two-year-old woman of subnormal mentality. She reached high school but, according to one
of her teachers, the victim had the “mentality of a child twelve years old”. A doctor testified that she had no “sufficient
mentality to protect herself from the ordinary vicissitudes of
life”. The victim testified and,
“while she showed considerable intelligence in fixing dates and describing
places and events, her understanding of the nature of sexual intercourse and
its consequences was essentially that of a child”.
“It is true that she seemed to know what constitutes the
physical act and that pregnancy might result therefrom,
but she apparently had little conception of other serious consequences which
would follow.” Another doctor testified that the victim sometimes gave
intelligent answers to questions, “showing, of course, what she had
assimilated by contact with older people, and then again the answers showed the
irrelevancy of a child rather than an adult”.
It was held that the victim was incapable of giving legal consent
to sexual intercourse because of mental subnormality. The accused was convicted of rape. The court said that it would be a reproach to
the State to hold that it affords no protection to morons of weak mental
capacity, like the victim, “against the base passions of unprincipled
men”.
In the instant case, the victim has the mentality of a
five-year-old child. If sexual
intercourse with a child below twelve years of age is rape, then it should
follow that sexual intercourse with a thirteen-year old girl whose mental
capacity is that of a five-year old child would constitute rape.
The mental deficiency of Therese may be gleaned from her
testimony. She testified that she
resided at “P. Go, Project 4, Quezon
City”. When she was asked to spell
“P. Go”, she said that she could not spell it (4 tsn
January 30, 1974). She actually resided at 10
Padre Burgos Street.
Asked to explain her testimony that she “was fucking
with” Winston, she replied that fucking means “fighting” and
that when she “made baby” with Winston she was “fighting
with” him (Ibid, 19 and 23 tsn). She testified that Winston placed his penis
“in the couch” (29 tsn), that she did not
suffer any physical injury because she “had no voice” (43 tsn) and that she did not cry for help but a moment later
she said that she cried for help (44 tsn).
During the second time Therese was under cross-examination, she
testified that she had sexual intercourse with Winston in the market in Cubao, meaning the Unimart (14 tsn April 1, 1974). She did not know whether her friend, Robin,
is a teenager (35 tsn). She made contradictory statements as to
whether Winston inserted his organ into her private part (41 tsn). Usually, she
answered questions by making statements but when she answered in the
affirmative or in the negative, she just nodded or shook her head as the case
may be (44 and 48 tsn).
During the third time that she was under cross-examination, she
could not understand what making contradictory statements meant (16 tsn April 3, 1974). She testified that she did not know that
sexual intercourse with appellant Manlapaz was wrong:
“Q. Precisely, knowing that . . . , do you know that what Winston did to
you on November 28 was wrong? – A. No,
sir.
“Q.
You did not know that having (sexual) intercourse with Winston was not wrong?
(sic) – A. I do not know that.
“Q.
Do you know that having (sexual) intercourse with a man may cause pregnancy,
may make you pregnant? – A. No, sir.”
(43 tsn April
1, 1974).
Considering the circumstances detailed above and the testimonies
of Doctor Hofileña and Mrs. Lizaso
as to the mental incapacity of Therese, appellant’s contention that Therese is
not mentally retarded cannot be sustained.
Manlapaz testified that he knew Therese
to be a normal person and that she informed him that she was studying at the
“St. Joseph College”. He denied any knowledge that Therese was
mentally retarded (63-65 tsn September 9, 1974).
However, considering that Therese was not his girl friend, that
he never courted her, and that after knowing her for two or three weeks, he was
able to have sexual congress with her two times, we cannot believe his
pretension that he did not know that Therese was mentally handicapped or was subnormal. Anyone who conversed with Therese would not
fail to notice that she has some mental deficiency. The Constabulary medico-legal officer, who
examined her, concluded that she was “feeble-minded” although he did
not give her any psychometric tests.
In the Boggs case, supra, where a
twenty-two-year-old girl with subnormal mentality was ravished, the court noted
that the accused “must have known of the subnormal mentality of his
victim. Notwithstanding such knowledge,
he persisted in his lustful purpose until he overcame her weak resistance and
accomplished her ruin.” That observation applies to the instant case.
Appellant Manlapaz, taking advantage of
Therese’s mental deficiency and immaturity (she had barely reached the age of
puberty) and subordinating his will to his concupiscence or animal instincts,
was able to have carnal intercourse twice with a thirteen-year-old girl who
was not aware of the disgrace and dishonorable consequences resulting from that
immoral act.
The crime committed by the accused is simple rape. No Modifying circumstances can be appreciated
in this case. The trial court properly
sentenced him to reclusion perpetua
[Arts. 63 and 335(2), Revised Penal Code].
Before article 335 was amended, simple rape was penalized by reclusion
temporal or twelve years and one day to twenty years. Republic Act No. 4111 raised the penalty for
simple rape to reclusion perpetua and
made qualified rape a capital offense.
Taking notice of the rampancy of sexual assaults, ensuing from the lawlessness
and deterioration of morals occasioned by the war, the lawmaking body sought to
deter rapists by increasing the penalty for rape.
After a judicious consideration of the facts and circumstances
of this case, we believe that after appellant Manlapaz
had served a term of imprisonment consistent with the ends of retributive
justice, executive clemency may be extended to him in the discretion of the
Chief Executive and Prime Minister. A
copy of this decision should be furnished the Minister of Justice.
The trial court’s judgment is affirmed subject to the observation
in the preceding paragraph as to the application to this case of article 5 of
the Revised Penal Code. Costs against
the appellant.
SO ORDERED.
Fernando, (Chairman), Barredo,
Antonio, Concepcion, Jr., Santos,
and Abad
Santos, JJ., concur.
* In People vs.
Ladeca, CA-G. R. No. 3835-R, June 30, 1950, the Court
of Appeals cites the opinion of the Spanish commentator, Groizard,
5 Codigo Penal de 1870, 105-107,that in “rape
committed when the woman is deprived of reason or otherwise unconscious, it is
the lack of will in the victim that determines the existence of the crime, and
this lack of will is present, not only when the victim is unconscious or
totally deprived of reason, but also where the woman is suffering from mental
deficiency to the extent that she is deprived of reason or free will. In such cases, it is not necessary that the
woman offer real or constant resistance to the consummation of the criminal
act.
“It is a settled proposition,
both in civil law as well as in common law jurisdiction, that carnal knowledge
of a woman, who is weak in intellect to the extent that she is incapable of
legally consenting, constitutes the crime of rape; and that in this type of
rape the employment of force or intimidation on the part of the man and
resistance on the part of the woman is not essential.
“It being an established fact
that the offended party was feeble-minded, sickly, weak in mind and intellect,
almost an idiot, she was deprived of reason when the accused had carnal
knowledge of her within the meaning of article 335, Case No. 2 of the Revised
Penal Code. The fact that she did not
offer any resistance did not mean that she consented, for she was incapable of
giving rational consent.” (18 Velayo’s Digest,
931-2).
“The deprivation of reason
contemplated by law does not need to be complete. Mental abnormality or deficiency is
enough. So, it was held by the Supreme
Court of Spain that a man having carnal knowledge of a woman whose mental faculties
are not normally developed or who is suffering from hemiplegia
and mentally backward or who is an idiot commits the crime of rape”
(Sentences of November 19, 1930, May 11, 1932 and June 24, 1935 cited in People
vs. Daing, CA 49 O. G. 2331, 2338).
In the Daing
case, the sixty-five-year-old accused was convicted of rape of a
fourteen-year-old feeble-minded girl who communicated her ideas and feelings in
monosyllables, punctuated here and there by gestures and signs of her hands as
well as by her facial expressions, especially through the medium of her
lips. The case was considered as rape of
a girl deprived of reason. She was
allowed to testify in court.