PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOVITO LOSANO Y NACIS ACCUSED-APPELLANT.

People versus Losano

The Case

This is the automatic review by the Supreme Court of a conviction for the rape of a six-year-old girl by her own father. The accused, Jovito Losano, was charged with having carnal knowledge of his daughter Rowena by means of force and intimidation, and the trial court sentenced him to death. The case matters to a reviewee for three reasons: it teaches the rule on the time of the commission of an offense and the effect of a failure to move to quash, it teaches the treatment of leading questions to a child of tender years, and it teaches how the Court weighs the alleged bias of a trial judge and the improvident stipulations of counsel.

Procedural History

The accused was arraigned in the Regional Trial Court and entered a plea of not guilty. After trial, the trial court rendered its decision on September 27, 1996, finding him guilty beyond reasonable doubt of rape and imposing the supreme penalty of death, ordering him to pay the complainant 50,000 pesos as damages, and to pay the costs. Because the penalty of death was imposed, the case came before the Supreme Court on automatic review, pursuant to Article 47 of the Revised Penal Code and Section 1(e) of Rule 122 of the Rules of Court. The Free Legal Assistance Group, through its Anti-Death Penalty Task Force, submitted a brief for the accused, assigning four errors of the trial court.

Facts

Rowena Losano was born on April 17, 1990, and was six years old at the time of the alleged rape. She is the daughter of the accused and Rosita Losano, and the third of four children. Her mother had gone to Kuwait in 1995 and had not returned by the time of trial. The information charged that the accused, by means of force and intimidation, had carnal knowledge of Rowena sometime in May 1995 in Barangay Alipangpang, Pozorrubio, Pangasinan.

On September 25, 1995, while in Baguio City, Rowena told her grandmother Veronica Losano that her father had mashed her breast and removed her panties, and, upon further questioning, that he had inserted his penis inside her. Veronica and her daughter Priscilla Fetalino brought Rowena to the National Bureau of Investigation in Baguio City, where Dr. Ronald Bandonill examined her on October 3, 1995. The medical certificate stated that there were no extra-genital physical injuries and that her physical virginity was preserved, but it remarked that the presence of congestion and inflammation at the vestibular mucosa and the hymenal area, coupled with intense pain and tenderness, indicated the probability of attempted penetration by the hard erect male organ which was not successful, since it would produce massive genital injury.

Rowena testified that while she was staying at their house in Barangay Alipangpang, her father removed her dress and panties, fondled her breasts, and got on top of her. She saw his sex organ and felt it inserted inside her, and she felt pain. He told her not to tell anybody, otherwise he would kill her. She said her father inserted his penis inside her every day. On cross-examination, she said the rape happened at nighttime, while she was sleeping with her sister Maricel and her grandmother Veronica in a room on the second floor, and that her father carried her outside and raped her. The accused denied the charge, claimed he was the victim of a frameup, and said his mother and sister held a grudge against him because he refused to sell them items from Saudi Arabia at a low price and refused to sign a document selling their land. On cross-examination, he admitted that Rowena was six years old and that his other daughter Maricel, aged eleven, had filed a criminal case for acts of lasciviousness against him.

Issues

• Whether or not the trial court gravely erred in convicting the accused of an offense not charged in the information, the rape having been proved to have occurred later than the date alleged.
• Whether or not the trial court gravely erred in giving full weight and credence to the testimony of the private complainant and in disregarding its inconsistencies.
• Whether or not the trial court manifested bias, thereby depriving the accused of his right to a fair and impartial trial and violating his right to be presumed innocent, when it led him to admit a medico-legal examination report that it later used to convict him.
• Whether or not the trial court gravely erred in finding that the accused had the propensity to sexually abuse his children on the basis of a pending case of acts of lasciviousness filed by another child, and in using that finding to convict him.

Applicable Provisions

Section 11 of Rule 110 of the Rules of Court provides:

Section 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.

This provision governs the first issue, because the date of the rape is not an essential element of the crime, so proof need not correspond to the date alleged.

Section 1 of Rule 117 of the Rules of Court provides:

Section 1. Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information.

This fixes the moment within which the accused must object to a defective information.

Section 3 of Rule 117 of the Rules of Court provides, in its relevant paragraph:

Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: xxx xxx xxx d) That it does not conform substantially to the prescribed form; xxx xxx xxx

An erroneous date is a defect in form, which is exactly the ground the accused should have raised before his plea.

Section 8 of Rule 117 of the Rules of Court provides:

Section 8. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule.

This is the waiver rule that defeats the accused's belated objection to the date alleged.

Ruling

On the first issue, the Court held that the argument holds no water. The date of commission is not an essential element of the crime of rape; what is material is the occurrence of the rape, not the time of its commission. Hence, proof of the time of the rape need not correspond to the allegation in the information, so long as the crime was committed within the period of the statute of limitations and the action was commenced after the rape had transpired. The Court added that it was too late in the day for the accused to object, because he never filed a motion to quash on the ground that the information did not conform substantially to the prescribed form. By entering a plea of not guilty instead, he waived that ground. Where there is a variance between the allegation and the proof as to time, and the accused raises no timely objection but instead accepts the issue and meets it with his own evidence, an objection raised for the first time on appeal is untenable.

On the second issue, the Court held that while leading questions are generally not allowed, it is proper for the court to allow them when the witness is a child of tender years, since it is usually difficult for such a child to state facts without prompting or suggestion. Rowena was only seven years old at the time of her testimony. The Court also held that the sole testimony of the victim in a rape case is sufficient to sustain a conviction if it is credible, and it found no reason to disturb the trial court's reliance on her testimony, the findings of fact of the trial court being entitled to the highest respect. The alleged inconsistencies pertained only to minor matters, and the presence or absence of the grandmother at the house did not detract from the fact that Rowena's testimony pointed to the accused as her assailant. The nearby presence of people is no guarantee that rape will not be committed, lust being no respecter of time and place. The Court likewise rejected the claim of a frameup, and held that denial is inherently weak and easily fabricated, especially against the positive identification by the victim.

On the third issue, the Court held that while the trial court's denomination of the medico-legal report as negative may not have been judicial nor judicious, it could hardly be deduced that the court peremptorily ordered defense counsel to stipulate. The court was addressing the fiscal, not defense counsel, and it was defense counsel who admitted the existence of the report and later adopted it as his own exhibit to prove the absence of spermatozoa. The accused cannot denounce the judge for bias for the improvidence of his own counsel, since the decision on what evidence to admit and what theory to pursue is within the authority of the attorney and binds the client.

On the fourth issue, the Court rejected the contention that the rape charge arose from bad blood, reasoning that no sister would be so depraved as to condemn a brother to possible death over a karaoke, a Walkman, and watches, and no mother so callous as to seal her son's doom over a refusal to sell land. It was unlikely for a seven-year-old to fabricate a story of rape that would put her own father on death row.

Doctrine

First, the time of the commission of an offense need not be stated with precision in the information unless time is a material ingredient of the offense, and the date of commission is not an essential element of rape. Second, a defect in the information as to the time of the offense is a ground for a motion to quash because it does not conform substantially to the prescribed form, and the failure to raise it before entering a plea waives it under Section 8 of Rule 117. Third, leading questions may be allowed when the witness is a child of tender years. Fourth, the sole testimony of the victim, if credible, is sufficient to sustain a conviction for rape. Fifth, the findings of fact of the trial court on credibility are entitled to the highest respect. Sixth, the procedural choices of counsel, including stipulations on evidence, bind the client and cannot later be used to claim judicial bias.

Disposition

The Supreme Court affirmed the judgment of conviction in its entirety, holding the accused guilty beyond reasonable doubt of rape and sustaining the penalty of death, the award of 50,000 pesos in damages, and the costs.

Remember This

Memorize this line: the date of commission is not an essential element of rape, and the failure to move to quash an information for an erroneous date waives the objection. Examiners use this case to test the waiver rule under Rule 117 and the allowance of leading questions to a child of tender years.