THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MARCELINO ACOSTA Y RIVERA (ALIAS MARCELINO RIVERA, ALIAS M. A. RIVERA), DEFENDANT AND APPELLANT.

This is an appeal taken by the defendant from
the judgment rendered by the Court of First Instance of Manila finding
him guilty of the crimes of rape and homicide and sentencing hin for
the first crime to seventeen years, four months and one day of prision correccional and for the second, to fourteen years, eight months and one day of reclusion temporal,
with the accessory penalties of the law, to indemnify the heirs of the
offended party in the sum of P1,000, and to pay the costs.

The information alleged:

“That within the time comprised between July, 1933
and October 22, of the same year, in the City of Manila, Philippine
Islands, the said accused, with force, intimidation and abuse of
confidence, did then and there willfully, unlawfully and feloniously
have sexual intercourse with Magdalena Asegurado, a virgin over twelve
(12) and under eighteen (18) years of age, and as a consequence
thereof, the said minor was infected with venereal diseases and caused
physical injuries which resulted in her death on October 22, 1933.

“Contrary to law.”

For many years prior to the dates stated in the information, the
defendant and the widow Gregoria Buenvenida lived together with the
latter’s two daughters Magdalena and Virginia Asegurado, of 14 and 8
years of age, respectively, in a house situated on 991 P. Noval Street
in the City of Manila. One day in July, 1933, at midnight, the
defendant approached Magdalena, entering the mosquito net under which
she was sleeping; and, threatening to kill her with the open penknife
which he carried, if she did not accede to his lewd designs, succeeded
in having sexual intercourse with her.

On that occasion, the defendant was suffering from gonorrhæa and
naturally he infected the offended party with the said disease. The
offended party did not complain to her mother nor did she suffer from
the serious consequences of the infection until the beginning of the
month of September when she complained of intense pains in the abdomen.
At that time the defendant was in Tarlac and, upon his return two days
later, he and Gregoria brought the offended party for treatment to the
General Hospital. She then had high fever and was in a critical and
serious condition for she was suffering from intense pains and she felt
that she was about to die.

In the hospital, she was examined by Dr. Paterno Pavino who
discovered that she was suffering from gonorrhæa and had been raped.
Asked by him who had raped her, she, after much hesitation, answered
that it was the man who was outside the hall and who later turned out
to be the defendant. The latter asked by the doctor, denied the
accusation.

Inasmuch as the offended party was seriously ill and a surgical
operation alone could save her life, Dr. Fernando Galderon operated on
her but he had to desist from his intention to cut off her appendix
because she was found to be suffering from peritonitis. Dr. Calderon
diagnosed the case as salpingitis and asserted that the patient was
suffering from gonorrhæa and that she died as a consequence of said
disease. In short, the doctor categorically declared that the offended
party died of peritonitis but that this disease was caused by the
gonorrhæa with which she had been infected, which, in turn, had been
produced by sexual intercourse. In other words, although the direct and
immediate cause of her death was peritonitis, the same can also be
traced to the sexual intercourse, which the defendant had, as its
concomitant and determining cause.

On the afternoon of October 3, 1933, Consuelo del Rosario, a friend
of the offended party, visited her at the General Hospital and in the
short conversation which she had with the patient, the latter disclosed
to her that she was seriously ill, that she believed that she was going
to die and that the author of her illness was the defendant who had
raped her. On the following day, Gregoria Buenvenida, accompanied by
Consuelo, went to the office of the secret service of the City of
Manila and reported the case. Detectives Quintos and Gallardo, acting
upon Gregoria’s statement that the offended party was dying, went to
the hospital and conversed with the patient. Said patient could hardly
utter a word and after repeatedly stating that she was seriously ill
and that she thought she was going to die, said agents of the law
reduced to writing her ante mortem statement. In the said
document the offended party again reiterated her statement that the
defendant had raped her and that it was he who had infected her with
the venereal disease. The offended party finally died on October 22,
1933, that is, eighteen days after she had made her ante mortem statement.

The above stated facts have been conclusively and convincingly
established by the evidence for the prosecution. There is not the least
doubt but that the defendant abused the unfortunate girl, as alleged.
Neither is there any doubt that her death was caused by the sexual
intercourse which he had against the will of the offended party,
although the immediate cause thereof, as stated by Dr. Calderon, was
the peritonitis which, in that case, was but a mere complication of the
gonorrhæa from which the patient was suffering.

The question of law which now arises is whether the proven facts
should be considered1 as independent crimes of rape and homicide, or as
the complex crime of rape with homicide. In the information, the crime
charged was the latter and in his brief the Solicitor-General
recommends that the defendant be convicted of said complex crime. The
trial court was not of that opinion and convicted the defendant of the
crimes of rape and homicide. Taking into consideration the weight of
the evidence and the fact that both crimes, rape and homicide, were but
the result of a single act, which is the sexual intercourse, this court
declares that such acts should be held as constituting the complex
crime of rape with homicide, in accordance with the provisions of
article 48 of the Revised Penal Code, as amended by Act No. 4000.

According to the above cited article, the penalty of reclusion temporal
prescribed for both crimes should be imposed in its maximum degree, and
nocturnity and abuse of superior strength should be taken into
consideration as aggravating circumstances in the commission thereof.
One of the said circumstances is compensated by the mitigating
circumstance of lack of intention on the part of the defendant to
commit so grave a crime as that produced, which this court takes into
consideration in his favor. Applying the rules of the Indeterminate
Sentence Law, the penalty which should be imposed is from twelve years
of prision mayor to twenty years of reclusion temporal.

Wherefore, and reversing the judgment appealed from, the defendant
is declared guilty beyond reasonable doubt of the complex crime of rape
with homicide and is hereby sentenced to the penalty the duration of
which is from twelve years, of prision mayor to twenty years of reclusion temporal,
with the accessory penalties of the law, and to indemnify the heirs of
the offended party in the sum of P1,000, with the costs of both
instances de oficio. So ordered.

Abad Santos, Butte, Goddard, and Diaz, JJ., concur.