G.R. No. 132045. August 25, 2000
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO BANIHIT ALIAS “BOBBY”, ACCUSED-APPELLANT.
YNARES-SANTIAGO, J.:
convicted accused-appellant of rape in Criminal Case No. 39,591-97,
sentenced him to death and ordered him to indemnify the victim in the
sum of P50,000.00.
The victim, Glaiza Mae Banihit, is the niece of accused-appellant. Her
father, Napoleon Banihit, is accused-appellant’s older brother.[2] At the time of the incident, she was a day short of nine years in age.[3]
On September 7, 1997, at around 6:00 o’clock in the evening, Lucita
Banihit, Glaiza’s mother, was in her house located at Bagong Buhay,
Agdao, Davao City, doing the laundry. Accused-appellant arrived looking
for Napoleon. Lucita told him that Napoleon was not home.
Accused-appellant asked for Glaiza, who was then in their neighbor’s
house watching television. A younger sister went to fetch her, and when
she arrived, accused-appellant told her, “We will look for your father.”[4]
Accused-appellant and Glaiza rode a motorcycle and went to a grassy lot
in a place called Del Pilar. There, accused-appellant undressed Glaiza
and made her lie down on a big tire. Accused-appellant took off his own
clothes, went on top of Glaiza and had sexual intercourse with her.
Glaiza was pinned between the big tire and accused-appellant.[5] She felt pain but was afraid to cry. After that, Glaiza put on her clothes, and she and accused-appellant walked home.[6]
Accused-appellant and Glaiza walked towards her grandmother’s house.
Meanwhile, Lucita, who was looking for her daughter, found her and
accused-appellant along Dacudao Avenue. Together, they proceeded to the
house of Glaiza’s grandmother, followed by accused-appellant. Before
they left, accused-appellant gave Glaiza P9.00 in coins to buy her
pencils. When they reached the house, Lucita told her mother-in-law that
she had already found Glaiza, and thereafter they went home.[7]
Glaiza did not tell her mother what happened. The next evening,
September 8, 1997, Glaiza could not sleep because she felt pain in her
vagina. She had to tell her mother what she felt.[8] Lucita examined Glaiza’s vagina and saw that it was reddish and found a pus-like discharge.[9]
Lucita grilled her daughter to tell her what happened, and Glaiza said
she was raped by her uncle. Since Lucita had no money, she told Glaiza
that they will just go to the hospital to have her treated the following
week. On September 16, 1997, Lucita brought Glaiza to the Regional
Hospital, but they were advised to go to the City Health Office. There,
Glaiza was examined by Dr. Danilo Ledesma, Medico-Legal Officer,[10]
who stated in his findings that he found Glaiza’s hymen to be “swollen
with a healing deep laceration at 3 o’clock position corresponding to
the face of a watch, edges congested, edematous, bleeds on slight
manipulation”.[11] Further, Glaiza was found positive for gonorrhea which Dr. Ledesma confided to Lucita.[12]
From the City Health Office, Lucita and Glaiza proceeded to the Sta. Ana
Police Station, where they were referred to the Child and Youth
Relationship Section (CYRS). The police entered the incident in the
blotter. Lucita wanted to keep the matter a secret from her husband,
Napoleon, for fear that he might kill his own brother. But when they
returned home that evening, she had to tell Napoleon that he was being
summoned at the CYRS the following day. He asked why, and Lucita told
him that she had Glaiza examined and they will find out what her disease
was at the CYRS. Later that night, at around 9:00 o’clock, Napoleon
noticed that Glaiza was crying and uneasy. He scolded Glaiza and whipped
her with his belt because she was tossing and turning in bed. Finally,
Glaiza told her father what her uncle had done.[13]
Napoleon left the house in anger. He went to the house of his mother to
look for accused-appellant, who was living there. When he saw
accused-appellant, he beat him up. He only stopped when he was pacified
by their eldest brother, Benjamin, and ordered to leave.[14]
After Napoleon left, Lucita went to the house of the Barangay Captain
and narrated the rape incident to him. The Barangay Captain asked that
Glaiza be brought to him and she told him that she was raped by her
uncle. All three of them went to Lucita’s house where they found
accused-appellant, quite drunk. The Barangay Captain brought
accused-appellant to the CYRS and left him there. The following day,
Lucita, Glaiza and the Barangay Captain returned to the CYRS to file a
formal complaint for rape against accused-appellant.[15]
An Information was filed against accused-appellant on September 18,
1997. After he pleaded not guilty, the trial of the case ensued.
At the hearing of October 10, 1997, the prosecution moved that
accused-appellant be medically examined to determine whether he was
likewise afflicted with the venereal disease.[16]
The trial court ruled that the examination would not violate
accused-appellant’s right against self-incrimination, and directed the
Warden of the Davao City Jail to cause the examination of
accused-appellant at the Davao Medical Center.[17]
Parenthetically, it is true that the constitutional right of an accused
against self-incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely
mechanical acts are not included in the prohibition as the accused does
not thereby speak his guilt, hence the assistance and guiding hand of
counsel is not required. The essence of the right against
self-incrimination is testimonial compulsion, that is, the giving of
evidence against himself through a testimonial act. Hence, it has been
held that an accused may be compelled to submit to physical examination
and to have a substance taken from his body for medical determination as
to whether he was suffering from gonorrhea which was contracted by his
victim.[18]
Accordingly, a urethral smear was performed on accused-appellant on
October 11, 1997, after which Dr. Oscar P. Grageda, Pathologist of the
Davao Medical Center, diagnosed the “presence of extacellular (sic)
gram-negative diplococci.”[19]
Explaining the meaning of these terms, Dr. Maria Fidela Hocson
testified that the same was suggestive of venereal disease, specifically
gonorrhea.[20]
The prosecution rested its case. On November 3, 1997, at the hearing
scheduled for reception of defense evidence, defense counsel manifested
that accused-appellant refused to testify and that he had no other
witnesses to present. The trial court informed accused-appellant of the
consequences if he failed to present evidence in his defense,
specifically, in the event the prosecution is able to establish his
guilt beyond reasonable doubt, he may be sentenced to death. Despite
this, accused-appellant insisted that he does not intend to present
evidence on his behalf.
On November 7, 1997, the trial court promulgated its Decision, the dispositive portion of which reads:
WHEREFORE, finding the accused guilty beyond reasonable doubt of the
crime of RAPE, and considering that the victim is a minor, nine years
of age, and taking into account the qualifying circumstance of
relationship, the victim being his niece within the third degree of
consanguinity, he is hereby sentenced to suffer the supreme penalty of
DEATH with all the accessory penalties provided for by law, and to
indemnify the offended party in the amount of P50,000.00.His immediate confinement to the National Penitentiary is hereby ordered.
Costs de officio.
SO ORDERED.[21]
Accused-appellant appealed the Decision on the following lone assignment of error:
THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH FOR THE
CRIME CHARGED DESPITE THAT ACCUSED WAS NOT PROPERLY INFORMED OF THE
NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WHICH IS IN VIOLATION OF
HIS CONSTITUTIONAL RIGHT.[22]
At the outset, it may not be amiss to state that the trial court was
correct in its declaration that accused-appellant validly waived his
right to present evidence. Although the right to present evidence is
guaranteed by no less than the Constitution itself for the protection of
the accused, this right may be waived expressly or impliedly.[23]
This is in consonance with the doctrine of waiver which recognizes
that everyone has a right to waive, and agree to waive, the advantage of
a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right, and without
detriment to the community at large.[24]
Going now to the assignment of error, accused-appellant contends in fine
that the trial court erred when it imposed the death penalty on him for
the rape of his minor niece, when the Information accused him of rape
under Article 335, paragraph 3, of the Revised Penal Code, as amended by
R.A. 7659, which provides:
Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
xxx………………………..xxx………………………..xxx.
3…..When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Thus, accused-appellant prays that the penalty imposed on him be modified from death to reclusion perpetua.[25]
The Information charges accused-appellant with the following acts:
That on or about September 7, 1997, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused by means of force and intimidation, did then and
there wilfully, unlawfully and feloniously have carnal knowledge with
(sic) his niece Glaiza Mae Banihit, who is nine (9) years old.CONTRARY TO LAW.[26]
It can readily be gleaned that the commission of rape by
accused-appellant as described in the body of the Information was
attended by one of the seven circumstances which qualify rape,
enumerated in then Article 335 (now Article 266-B) of the Revised Penal
Code. More specifically, accused-appellant’s acts fall under the first
mode, viz:
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
1…..when the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, stepparent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
Contrary to accused-appellant’s contention, what is controlling in an
Information should not be the title of the complaint, nor the
designation of the offense charged or the particular law or part thereof
allegedly violated, these being, by and large, mere conclusions of law
made by the prosecutor, but the description of the crime charged and the
particular facts therein recited.[27]
x x x. In the event, however, that the appellation of the crime
charged as determined by the public prosecutor, does not exactly
correspond to the actual crime constituted by the criminal acts
described in the information to have been committed by the accused, what
controls is the description of the said criminal acts and not the
technical name of the crime supplied by the public prosecutor. As this
Court, through Justice Moreland’s authoritative disquisition, has held:
“x x x………………………..x x x………………………..x x x.
“From a legal point of view, and in a very real sense, it is of
no concern to the accused what is the technical name of the crime of
which he stands charged. It in no way aids him in a defense on the
merits. x x x That to which his attention should be directed, and in
which he, above all things else, should be most interested, are the
facts alleged. The real question is not did he commit a crime given in
the law some technical and specific name, but did he perform the acts
alleged in the body of the information in the matter therein set forth.
If he did, it is of no consequence to him, either as a matter of
procedure or of substantive right, how the law denominates the crime
which those acts constitute. The designation of the crime by name in the
caption of the information from the facts alleged in the body of that
pleading is a conclusion of law made by the fiscal. x x x For his full
and complete defense he need not know the name of the crime at all. It
is of no consequence whatever for the protection of his substantial
rights. The real and important question to him is, ‘Did you perform the
acts alleged in the manner alleged?’ not, ‘Did you commit a crime named
murder?’ If he performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the penalty
therefor. It is the province of the court alone to say what the
crime is or what it is named. If the accused performed the acts alleged
in the manner alleged, then he ought to be punished and punished
adequately, whatever may be the name of the crime which those acts
constitute.”x x x………………………..x x x………………………..x x x.”[28]
In other words, the real nature of the criminal charge is determined not
from the caption or preamble of the information nor from the
specification of the provision of the law alleged to have been violated,
they being conclusions of law which in no way affect the legal aspects
of the information, but from the actual recital of facts as alleged in
the body of the information.[29]
Indeed, it is not the designation of the offense in the Information that
is controlling but the allegations therein which directly apprise the
accused of the nature and cause of the accusation against him.[30]
Therefore, accused-appellant’s constitutional right to be informed of
the nature and cause of the accusation against him was not violated,
notwithstanding that the preamble of the Information stated that he was
being charged with the rape of a woman who was under twelve years of age
or who was demented. As stated above, this was a mere conclusion of law
made by the prosecutor who prepared the Information. It must be
stressed that the acts described in the body of the Information clearly
accused him of raping his niece, a relative by consanguinity within the
third civil degree, who was a minor. That was sufficient to apprise him
of the specific charge against him and to enable him to prepare his
defense.
However, we find that accused-appellant’s relationship to the victim
within the third civil degree, while proven by competent evidence, was
not sufficiently alleged in the Information.
We have consistently held that the seven attendant circumstances in
Article 335 (now Article 266-B) of the Revised Penal Code, given that
they alter the nature of the crime of rape and thus increase the degree
of the penalty, are in the nature of qualifying circumstances. Plainly,
these attendant circumstances added by R.A. 7659 are not ordinary
aggravating circumstances, which merely increase the period of the
penalty. These are special qualifying circumstances which must be
specifically pleaded or alleged with certainty in the information;
otherwise, the death penalty cannot be imposed.[31]
This Court has ruled in a long line of cases that the circumstances
under the amendatory provisions of Section 11 of Republic Act 7659, the
attendance of any of which mandates the single indivisible penalty of
death are in the nature of qualifying circumstances which cannot be
proved as such unless alleged with particularity in the information
unlike ordinary aggravating circumstances which affect only the period
of the penalty and which may be proven even if not alleged in the
information.[32]
In People v. Ferolino,[33] we
held that the allegation that the victim was the accused-appellant’s
niece is not specific enough to satisfy the special qualifying
circumstances of relationship. If the offender is merely a relation —
not a parent, ascendant, step-parent, or guardian or common law spouse
of the mother of the victim — it must be alleged in the information
that he is “a relative by consanguinity or affinity [as the case may be]
within the third civil degree.” Even if that relationship by
consanguinity or affinity was alleged in the informations in that case,
it was still necessary to further allege that such relationship was
within the third civil degree.
As such, accused-appellant can only be held liable for simple rape and sentenced to suffer the penalty of reclusion perpetua.
In addition to the trial court’s award of civil indemnity, we award to
the victim, Glaiza Mae Banihit, moral damages in the amount of
P50,000.00, without need for pleading or proof of the basis thereof. The
fact that the complainant in rape has suffered the trauma of mental,
physical and psychological sufferings which constitute the basis for
moral damages are too obvious to still require recital thereof at the
trial by the victim since we assume and acknowledge such agony on her
part as a gauge of her credibility.[34]
WHEREFORE, accused-appellant is found GUILTY beyond
reasonable doubt of the crime of simple rape and is sentenced to suffer
the penalty of reclusion perpetua. Accused-appellant is also
ordered to pay the victim, Glaiza Mae Banihit, civil indemnity in the
amount of P50,000.00 and moral damages in the amount of P50,000.00.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
[1] Presided by Judge Wenceslao E. Ibabao.
[2] TSN, October 14, 1997, p. 4.
[3] She was born on September 8, 1988 per Certificate of Live Birth, Exh. “E”.
[4] TSN, October 13, 1997, pp. 7-8.
[5] TSN, October 10, 1997, pp. 14-18.
[6] Ibid., pp. 4-6.
[7] Ibid., pp. 6-7; TSN, October 13, 1997, pp. 9-14.
[8] TSN, October 10, 1997, pp. 7-8.
[9] TSN, October 13, 1997, pp. 15-16.
[10] Ibid., pp. 17-19.
[11] Medico-Legal Findings, Exh. “A”.
[12] TSN, October 13, 1997, p. 19.
[13] Ibid., pp. 19-22; October 20, 1997, pp. 4-5.
[14] TSN, October 20, 1997, pp. 5-7.
[15] TSN, October 13, 1997, pp. 23-27; pp. 52-57.
[16] TSN, October 10, 1997, p. 23.
[17] Order dated October 10, 1997; Record, p. 27.
[18] People v. Gallardo, G.R. No. 133025, February 17, 2000; U.S. v. Tan Teng, 23 Phil. 145 (1912)
[19] Exh. “I”.
[20] TSN, October 30, 1997, p. 6.
[21] Rollo, p. 34.
[22] Ibid., p. 52.
[23] Citing People v. Dichoso 96 SCRA 957 (1980); People v. Angco, 103 Phil. 33 (1958)
[24] People v. Hernandez, 260 SCRA 25, 39-40 (1996)
[25] Id., p. 62.
[26] Record, p. 1.
[27] People v. Taño, G.R. No. 133872, May 5, 2000; People v. Barrientos, 285 SCRA 221, 244-45 (1998)
[28] Citing U.S. v. Lim San, 17 Phil. 273, 278-281 (1910)
[29] Buhat v. Court of Appeals, 265 SCRA 701, 715-717 (1996)
[30] People v. Elampano, G.R. No. 121572, March 31, 2000; citing People v. Resayaga, 159 SCRA 426, 430-31 (1988)
[31] People v. Ferolino, G.R. No. 131730-31, April 5, 2000.
[32] People v. Decena, G.R.
No. 131843, May 31, 2000; People v. Nuñez, G.R. No. 128875, July 8,
1999; People v. Dimapilis, 300 SCRA 279 (1998); People v. Perez, 296
SCRA 17 (1998)
[33] Supra.
[34] People v. Magdato, G.R. 134122-27, February 7, 2000; People v. Prades, 293 SCRA 411, 431 (1998)