G.R. No. 86743. August 30, 1990
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RODOLFO RIZO Y RABINO, DEFENDANT-APPELLANT.
PADILLA, J.:
This is an appeal interposed by the defendant, Rodolfo Rizo y
Rabino, from the judgment*
rendered in Criminal Case No. 5083 of the Regional Trial Court at Masbate,
Masbate, the dispositive part of which reads, as follows:
“WHEREFORE, the Court finds the accused, Rodolfo Rizo, GUILTY
beyond reasonable doubt of the crime of Rape and hereby sentences said accused
to suffer the penalty of RECLUSION PERPETUA, to pay the victim, Felicidad
Valencia, the amount of P20,000.00 without subsidiary imprisonment in case of
insolvency, to acknowÂledge the offspring named John Paul Valencia as his
legitimate son and to support the child at P200.00 a month until he reaches the
age of majority, and to pay the costs.”
The record shows that on 28 May 1986, Concepcion Dimen noticed
that the stomach of her 22-year old mentally retarded sister, Felicidad
Valencia, was bigger than usual. She
was suspicious and obtained a sample of Felicidad’s urine which she sent to a
hospital for examination. The result
showed that Felicidad was pregnant.[1]
Upon questioning, Felicidad revealed that the herein defendant-appellant,
Rodolfo Rizo, the husband of her “yaya”, Ana Rizo, had sexual
intercourse with her in the bodega.[2]
Concepcion Dimen and her brother, Boy Valencia, confronted the accused and the
latter admitted that he had sexual intercourse with Felicidad. Consequently, the appellant was brought to
the Masbate police station for investigation. There, with the assistance of CLAO Atty. Osias Tambago, he also admitted
having done the act.[3]
In view thereof, Rodolfo Rizo was charged with the crime of Rape
before the Regional Trial Court at Masbate, Masbate. The case was docketed therein as Criminal Case No. 5083.
On 22 October 1986, Felicidad Valencia delivered a baby at a
Manila Hospital, whom they named John Paul Tiongson Valencia.[4]
At the trial, Dr. Emilio Quemi, a medical specialist at the
Masbate Provincial Hospital, declared that he examined Felicidad Valencia on 7
July 1986 and found her to be pregnant. He then issued a medical certificate relative to his findings.[5]
He also stated that Felicidad is a mongoloid whose intellectual capacity is
below normal and comparably that of a 5-year old child and could not distinÂguish
between what is moral and immoral.[6]
His observation was confirmed by Camila Ponferada, who conducts a
school for children of pre-school age, and had Felicidad for a pupil in the
summer of 1986.[7]
Felicidad Valencia, the victim, declared that she knows the
accused, Rodolfo Rizo, whose nickname is “Ompoy” and pointed to him
in court. She related the manner the
accused had sexual intercourse with her. She said:
“Q Did
Ompoy do anything to you?
A (Witness
nodded her head signifying yes).
Q What
did Ompoy do to you?
A In
the warehouse.
Q What
did Ompoy do to you in the warehouse?
A (Witness
touching her breast and demonstrating that she was undressed by Ompoy).
Q Now,
did you have a panty with you then?
A I
have a panty then.
Q Now,
what happened to your panty?
A He
removed my panty and my pants.
Q After
Ompoy removed your pants and panty, what did Ompoy do to you?
A (Witness
demonstrating that she was told to lie down by Ompoy and demonstrating her two
hands that Ompoy placed himself on top of her).
Q Did
he make you lie down?
A (Witness
nodded her head signifying yes).
Q Now,
after you lie (sic) down, what did Ompoy do?
A He
placed himself on top of me. (Witness
demonstrating that while she was lying down Ompoy was on top of her).
Q Now,
after that did it last long when Ompoy was on top of you?
A (Witness
nodded her head signifying yes).
ATTY. BOSA
continuing)
Q When
you lied down did Ompoy also take off his pants?
A (Witness
nodded her head signifying yes).
Q After
Ompoy took off his pants that was the time he lied on top of you?
A (Witness
nodded her head signifying yes).
Q Ompoy
touched your private parts?
A (Witness
nodded her head signifying yes that he placed his organ on her vagina).
ATTY. ANTONIO
Your Honor, may I make a
manifestation that the fiscal and the private prosecutor should refrain from
…
COURT
She could hardly be heard
of. I think you could also be given the
privelege (sic) because we could hardly get the testimony. I myself who is around a meter from the
witness could not hear the testimony. The mumbling and the nodding of the head is the only thing I could see.
ATTY. ANTONIO
But there is a translation
of her sister, Your Honor.
COURT
You can stay on your place
to give an objection. Proceed.
ATTY. BOSA
continuing)
Q Did
Ompoy make a push and pull motion after she has inserted his organ to you?
ATTY. ANTONIO
Misleading, Your Honor, there was no showing that …
ATTY. BOSA
Leading question, Your Honor …
COURT
Reform the question.
ATTY. BOSA
continuing)
Q Did
the penis of Ompoy push into your vagina?
A (Witness
nodded her head signifying yes).
Q After
Ompoy was through … may I withdraw my question … Do you know how many times did Ompoy did that act to you?
A (Witness
no answer).
ATTY. BOSA
It seems, Your Honor,
that the witness could not comprehend the question.
COURT
Make the question simpler and short.
ATTY. BOSA
I think that would be all. Your Honor, for the witness.
COURT
to the Witness)
Q How
did you know that the penis of Ompoy entered into your vagina?
A While
in the bodega he inserted his penis into my vagina.
Q How
did you feel when the penis of Ompoy entered into your vagina?
A That
we are in the bodega his penis entered into my vagina.
Q When
the penis of Ompoy entered into your vagina, was it painful or not?
A (Witness
shook her head signifying no).”[8]
x x x x
x x x x x
“COURT
continuing)
Q Again
what did Ompoy do to you?
A He
held my right hand and told me ‘Fely come with me’ and then I said ‘I do not
like’.
Q What
else happened after that?
A Then
I seated on a chair to get my paper to go to school then he held my hands.
Q After
that what happened?
A He
asked me.
Q Asked
of what?
A He
asked me to go to the bodega and he held my hands.
Q What
did Ompoy do to you?
A He
told me to go up the bodega and told me to lie down and he placed himself on
top of me.
Q When
Ompoy was on top of you what happened?
A I
was lying when he placed himself on top of me. (Witness demonstrating her two hands).
Q Was
Ompoy with or without pants when he lied on top of you?
A No
pants.
Q. Did
the penis of Ompoy entered (sic) into your vagina when he was on top of you?
WITNESS
testifying)
A (Witness nodded her head
signifying yes).”[9]
The defendant Rodolfo Rizo, however, did not confirm nor deny the
testimony of Felicidad that he had sexual intercourse with her. After the prosecution rested its case, the
said accused, instead of presenting evidence in exculÂpation, filed a motion to
dismiss (demurrer to evidence) claiming insufficiency of evidence in that there
is no evidence to prove his guilt other than the inadmissible testimony of
Felicidad Valencia who is mentally defective and, therefore, incompetent to
testify, pursuant to the provisions of Rule 130, Sec. 19 of the Rules of Court.[10]
But the trial court found Felicidad Valencia to be a competent
witness and rendered judgment against the accused.
Hence, the present recourse.
In this appeal, the accused-appellant insists that Felicidad
Valencia is an incompetent witness so that he should be exonerated from the
charge of Rape.
The appeal is without merit. To begin, with, the accused-appellant, knowing Felicidad Valencia to be
mentally defective or a mental retardate, did not object to her competency as a
witness before she was placed on the witness stand. Hereunder is what transpired in the court below immediately
preceding her testimony:
“COURT
That’s all. Do you have any other witness?
ATTY. BOSA
We have, Your Honor. But before we will present our next witness,
Your Honor, this is a crime of justity (sic) and because of which we ask for
the exclusion of the persons from the court room not necessary to the attendance
of the Court.
COURT
Exclude including these
practicum.
ATTY. BOSA
Another thing, Your Honor,
that we would like to ask from the Honorable Court that because of the
condition of the victim we prayed that we be given the privelege (sic) to ask
her leading questions. We have
established already ample evidence of her mental capacity by the Doctor, by the
sister taking charge of her and by her teacher.
COURT
No objection, companero?
ATTY. ANTONIO
I object to that
manifestation of the counsel, Your Honor, that he has submitted ample evidence
showing that the offended victim is allegedly retarded. There was no expert witness that he
presented before this Honorable Court that said witness is allegedly retarded.
COURT
Objection with the
privelege (sic) of asking …?
ATTY. ANTONIO
Yes, Your Honor, because
our position is that because he is asking this Honorable Court that he be
allowed to profound (sic) leading question on the ground that a victim is not a
normal person. Our position is that the
victim is a normal person.”[11]
The appellant’s failure to object to the
competency of Felicidad as a witness operated as a waiver and the trial court
has no power to disregard it. In an
early recorded case,[12]
the Court said:
“Had the opposing party interposed an objection to this
witness on the ground of incompetency, her testimony could not have been
received. His omission to object to her
operated as a waiver. The acceptance of
an incompetent witness to testify in a civil suit, as well as the allowance of
improper questions that may be put to him while on the stand is a matter
resting in the discretion of the litigant. He may assert his right by timely objection or he may waive it, either
expressly or by silence. In any case
the option rests with him. Once admitted,
the testimony is in the case for what it is worth and the judge has no power to
disregard it for the sole reason that it could have been excluded, if it had
been objected to, nor to strike it out on his own motion. The disqualification of witnesses found in
rules of evidence of this character, is one not founded on public policy but
for the protection and convenience
of litigants, and which
consequently lies within their control.”
Besides, the decision as to the competency of a person to testify
rests largely with the trial court, and in this regard, the trial court said:
“The Court has observed that when Felicidad Valencia was
called to the witness stand, she was led by her sister. She is around four (4) feet tall, with
slanting eyes, short small flat head, rounded and broad face, very shy and with
her tongue oftentimes protruding on her side lips of her mouth. Her hands and feet are short, broad and
stubby. She had high cheek bones and
small nose with a depressed bridge. When she was sworn to tell the truth and was asked twice by the
interpreter she did not answer. However, when the sister asked her to tell the truth, she nodded her
head facing the sister. She speaks in
stuttering soft monosyllables sometimes accomÂpanied by gestures and signs of
her hands as well as the movements of her head to indicate affirmative and
negative response to a question. Questions she does not know, she would not answer. She does not know her age, nor where she
lives. She has not gone Grade one nor
beyond. She does not know the date, the
time, and the number of times she was abused. During the trial, her actuations and mannerism were too childish and
innocent. She showed constantly opened
mouth with her tongue protruding on her side lips. Fely during the trial would untie her shoes on the witness stand
and lean on the shoulders of her sister. She would shake her head sidewise left to right or nod her head and
point her finger to her vagina (tsn, p. 241, Records). She would even yawn in the witness stand
resting her head on her two hands. She
would be scratching her head with her tongue protruding on the side lips of her
mouth (tsn, p. 245, Records). These
actuations in open court indicate mental abnormality and innocent childish
deficiency which are common forms of mental retardation considering that Fely
is a mongoloid of 22 years old. Yet,
she is a credible and competent witness.”[13]
As to the reliability of her testimony, we quote hereunder the
disquisition of the trial court which we find to be in accord with human
conduct and the natural course of events:
“Why should Fely single out and point to the accused to have
led her to the warehouse; that the accused touched her breast and undressed
her; that the accused removed her pants and panty; that the accused made her
lay down and lay on top of her; and that the accused placed his organ inside
her vagina? The victim is a mongoloid
and mentally retarded who does not even know her age nor where she lives. How could she fabricate and concoct this
heinous crime if this incident were not true? It would be incomprehensible to assume that Fely, a mongoloid whose
mental age is compaÂrable to a five (5) years old, an innocent and mentally
retarded girl, could invent a crime of rape against the accused. Neither could her sister do so knowing that
the accused had been their loyal worker for more than six (6) years and the
wife being the yaya of the victim and their laundry woman. It is against their own personal interest to
concoct a crime against the accused if the crime is not true. Considering the integrity of the brothers
and sisters who were mostly topnotcher professionals, they would not so easily
advertise to the whole world that their sister Fely had been raped, (sic) it
was not true. There is nothing to gain
in inventing a rape case if it was not true; but the stigma of a lingering
eternal dishonor of being raped.
x x x x x x x x x
As a matter of fact, Fely, the victim was
candid and honest enough to say that those in the jeep to deliver, did not
touch her. Berto was in the jeep did
not touch her. Other persons did not
touch her. She does not have male
friends and that nobody has violated her except the accused (tsn, pp. 235-236,
Records). So by the simple process of
elimination, the victim has excluded all others not to have touched her nor
abused her except the accused.”[14]
It results that the trial court did not commit an error in
finding the defendant-appellant guilty of the crime for which he is charged.
We note, however, that the trial court has ordered the
defendant-appellant to recognize the offspring John Paul Valencia as his
legitimate son despite the fact that said accused is a married man. The rule is that if the rapist is a married
man, he cannot be compelled to recognize the offspring of the crime, should
there be any, as his child, whether legitimate or illegitimate.[15]
That portion of the judgment appealed from, ordering the accused to recognize
the child John Paul Valencia as his legitimate son, should, therefore, be
eliminated.
WHEREFORE, the judgment appealed from is hereby AFFIRMED
with the only modification above-stated. With costs.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras, and Regalado, JJ., concur.
Sarmiento, J., on leave.
* Penned by
Judge Ricardo B. Butalid.
[1]
tsn of January 21, 1987, pp. 9-10, 16
[2]
Id., p. 17, also tsn of February 11, 1987, p. 42
[3]
tsn of January 21, 1987, pp. 18-19
[4]
Id., p. 19; see also Exhibit E, Original Record, p. 121
[5]
Exhibit A, Original Record, p. 120
[6]
tsn of January 19, 1987, pp. 10-12
[7]
tsn of February 11, 1987, pp. 2-5
[8]
tsn of February 11, 1987, pp. 23-26
[9]
Id., pp. 42-43
[10]
Original Record, p. 276
[11]
tsn of February 11, 1987, pp. 17-19
[12]
Marella vs. Reyes and Paterno,
12 Phil. 1, 3-4
[13]
Decision, pp. 5-6
[14]
Id., pp. 8-9
[15]
People vs. Luchico, 49 Phil.
689; People vs. Bernardo, 85 Phil. 874