THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FERNANDO PERELLO, JR. (AT LARGE), JOSE MALIBIRAN, ALMARIO HILARIO AND EXEQUIEL AUSTIN B. JOHNSON, JR., III, DEFENDANTS, EX…

Johnson versus Perello

The Case

This is the People of the Philippines against Fernando Perello, Junior and several others, but the appeal belongs to one accused alone, Exequiel Austin B. Johnson, Junior, the Third. He was charged with, and convicted of, the special complex crime of robbery with rape committed in Makati in December 1967. The case matters to a reviewee for three reasons: it fixes the penalty for robbery with rape under the Revised Penal Code before the amendatory decree took effect, it refuses to import the qualified rape penalty into that composite crime, and it illustrates the non-retroactivity of the constitutional rights of a person under custodial investigation.

Procedural History

Johnson and his co-accused were tried in the Court of First Instance of Rizal, Makati Branch Fifteen. The trial court convicted Johnson of robbery with rape, sentenced him to death, and ordered him to pay an indemnity of forty thousand pesos to the offended woman. Jose Malibiran and Almario Hilario were convicted of robbery only, and they later withdrew their appeal, which withdrawal this Court granted. Johnson appealed his conviction directly to the Supreme Court, raising errors on the admission of his extrajudicial confession, the credibility of the rape testimony, motive, the use of his family's supposed indifference against him, insufficient identification, and the penalty imposed.

Facts

On the second of December 1967, at about two thirty in the afternoon, a man rang the doorbell at the Makati residence of Remedios Vengco-Lim and told the housemaid he was a meter reader of the Manila Electric Company. He followed her inside, drew a gun from an envelope, announced a holdup, and waved in a companion. The household was herded face down in the studyroom and the telephone was disconnected. Johnson took Mrs. Lim upstairs, made her open the safe, and took jewelry worth thirty three thousand pesos and cash of seven thousand pesos.

As she tried to leave the bedroom, Johnson held her arm, closed the door, and at gunpoint ordered her to undress. She refused, knelt, and begged for mercy. He kicked her on the left thigh, cocked his gun, pulled down her dress and panties, forced her to lie down, and had sexual congress with her while the gun was pressed against her forehead. He then took her ring and brought her downstairs. The malefactors divested the other persons of their valuables and left after warning them not to report the matter.

Mrs. Lim reported the robbery that same afternoon and the robbery with rape the following day. A medico-legal examination twelve days later showed ecchymosis on the left arm and left thigh and contusion on the left thigh. Johnson was arrested only on the third of March 1968. He claimed he was tortured into signing an extrajudicial confession, and he put up an alibi. The trial court believed the confession was voluntary, disbelieved the alibi, and convicted him.

Issues

• Whether or not the extrajudicial confession of Johnson is admissible against him, given that it was taken before the effectivity of the constitutional Bill of Rights provision on custodial investigation.
• Whether or not the testimony of Mrs. Lim on the rape is credible, and whether or not Johnson was sufficiently identified.
• Whether or not the death penalty was correctly imposed, that is, whether the penalty for qualified rape under the Revised Penal Code may be applied to the crime of robbery with rape.

Applicable Provisions

Section 20 of the Bill of Rights, as quoted in the decision, provides:

Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

The Court held that this provision does not apply retroactively to confessions obtained before the Constitution took effect on January 17, 1973, so it does not govern Johnson's confession taken in 1968.

Article 294, paragraph 2, of the Revised Penal Code, as discussed in the decision, penalizes robbery with rape by reclusion temporal medium to reclusion perpetua. This is the provision the Court applied in fixing Johnson's penalty.

Article 335 of the Revised Penal Code, as amended, is the qualified rape provision which the trial court applied. The Court refused to apply it to robbery with rape, holding that the composite crime must be penalized under Article 294, paragraph 2.

Ruling

On the first issue, the Court held that the confession was admissible. The rights announced in Miranda versus Arizona are now embodied in Section 20 of the Bill of Rights, but the Court ruled that this section does not retroactively apply to confessions obtained prior to January 17, 1973. The Court also held that a confession is presumed voluntary, and that before it can be set aside, both the confession and the reasons for its repudiation must be carefully scrutinized. It would be unsound practice to disregard a confession simply because the accused repudiates it at trial.

On the second issue, the Court held that even if the confession were disregarded, the evidence proved guilt beyond reasonable doubt. Mrs. Lim's testimony appeared credible, and considering her social standing, it was hard to believe she would concoct a rape charge and expose herself and her family to scandal and disgrace. The alleged inconsistencies dealt with minor matters. As to identification, the crime was committed in the afternoon, Johnson used no disguise, and he had been implicated by his co-accused.

On the third issue, the Court held that the death penalty could not be imposed. The trial court had applied the qualified rape penalty under Article 335, but the Court held that article cannot be applied to robbery with rape. As the accused was charged with a crime against property, he should not be convicted of a crime against chastity, a private offense. The imposable penalty is that under Article 294, paragraph 2, which is reclusion perpetua. For lack of the necessary votes to affirm the death penalty, the Court modified the judgment.

Doctrine

First, the constitutional rights of a person under custodial investigation, now found in Section 20 of the Bill of Rights, do not apply retroactively to confessions obtained before January 17, 1973. Second, a confession is presumed voluntary, and repudiation at trial does not by itself nullify it. Third, robbery with rape is a composite crime penalized under Article 294, paragraph 2, of the Revised Penal Code by reclusion temporal medium to reclusion perpetua, and the qualified rape penalty under Article 335 cannot be applied to it, because the accused is charged with a crime against property and not a crime against chastity.

Disposition

The Court modified the judgment, sentencing Johnson to reclusion perpetua, ordering him to pay an indemnity of twenty thousand pesos to Remedios V. Lim for the rape and, solidarily with Malibiran and Hilario, forty thousand pesos as the value of the objects taken, with costs de oficio.

Remember This

The one line to memorize: robbery with rape is punished under Article 294, paragraph 2, of the Revised Penal Code, and the qualified rape penalty under Article 335 cannot be imported into it. Examiners use this case to test the non-retroactivity of custodial investigation rights and the correct penalty for the composite crime of robbery with rape.