THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCELO ALMENARIO @ “TOTOY”, DEFENDANT-APPELLANT.

This is an appeal from a decision of Branch 10 of the Regional
Trial Court of Abuyog, Leyte, wherein accused-appellant, Marcelo Almenario was
found guilty beyond reasonable doubt of the crime of rape with homicide under
an information which reads:

“That on or about 8:00 o’clock in the
evening of March 10, 1989, in Barangay Calzada, Javier, Leyte, Philippines, and
within the jurisdiction of this Honorable Court, the said accused Marcelo
Almenario alias “Totoy” did, then and there, willfully, unlawfully
and feloniously and by means of force, violence, and intimidation, to
wit: by the use of a bladed weapon
musculine [sic] force, and threats then and there pinning down one VISITACION
GARES an unmarried woman, succeeded in having carnal knowledge with her and by
reason or occasion thereof and in order to silenced [sic] her, willfully,
unlawfully and feloniously strangled her by the neck, which was the direct
cause of her death.

CONTRARY TO LAW.”^[1]

Accused-appellant was arraigned in open court duly assisted by
counsel, and entered a plea of guilty. Considering the nature of the charge as well as the plea entered by the
appellant, the trial court set the case for hearing for the presentation of the
prosecution’s evidence.

After the presentation of evidence by the prosecution,
accused-appellant asked the trial court that he be allowed to testify and
explain certain matters. In his
testimony, accused-appellant narrated the circumstances in justifying the
killing of Visitacion Gares but denied having raped her.^[2]

After trial, the Court rendered its Decision, the dispositive
portion of which reads:

“WHEREFORE, the prosecution having
proven the guilt of the accused beyond reasonable doubt, the Court finds the
accused guilty beyond reasonable doubt and the accused MARCELO ALMENARIO alias
“Totoy” is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA, to indemnify the heirs of Visitacion Gares the amount of P30,000.00
without subsidiary imprisonment in case of insolvency and to pay the
costs.”^[3]

The facts of the case are as follows:

On March 10, 1989 at around one o’clock in the afternoon, Alicia
Briones had some of her friends namely, Jaime Silvio and his wife, Aparicia, a
certain Isabelo Herbas alias “Beloy”, Arcadio Tesado, Marcelo
Almenario alias “Totoy”, (herein appellant) and Visitacion Gares
(victim) drinking in her house. The drinking
spree started at about noontime and lasted up to one o’clock that
afternoon. The group left Alicia’s
house, and decided to go instead to the house of Marcelo Almenario, herein
accused-appellant.

It was around four o’clock in the afternoon when Jaime and
Aparicia Silvio together with “Beloy” went back to the house of
Alicia Briones, leaving Marcelo “Totoy” and Visitacion behind.

The following day, Visitacion Gares was nowhere to be found. Upon learning that accused-appellant was the
person last seen with Visitacion, Alicia Briones approached Almenario and
inquired whether Visitacion slept in their house that evening of March 10,
1989. Accused-appellant replied in the
negative and even told Alicia that he accompanied Visitacion back to her house.

Alicia Briones then went to the house of Barangay Captain
Anacleto Tisado to report the incident. The incident was brought to the attention of the police authorities, and
Marcelo Almenario, being the sole suspect, was arrested.

Accused-appellant confessed his participation in the killing and
raping of Visitacion Gares and told the police authorities where the body of
the deceased can be found. Hence,
appellant together with Barangay Captain Tisado and Alicia Briones went to the
place pointed by herein appellant. The
body of Visitacion Gares was found dumped in a ricefield hidden between the
“talahib” or cogon grass. From there, the body was brought to the chapel and subsequently buried.

Upon the request of the Station Commander of the Leyte Integrated
National Police, the body of the victim was exhumed.

Dr. Floro Camenforte Jr., medico-legal officer of the National
Bureau of Investigation, Tacloban City, conducted the exhumation and proceeded
to examine the body of the victim. The
findings of the Exhumation Report^[4]
are:

“FINDINGS:

Body in moderate stage of post-mortem
decomposition, attired with a white T-shirt and black long pants, buried
underground without a coffin wrapped with a buri mat.

CONTUSIONS: 2.0 x 2.5 cm. and 2.0 x 1.0 cm. neck, antero lateral aspect,
right and left side respectively; 2.0 x 3.0 cm. posterior aspect middle third
arm, left.

LACERATION: hymen, incomplete, deep, edges sharp and coaptible, located at
three o’ clock position according to the face of the watch.

Heart and lungs with Tardieu’s spots.

Other visceral organs in starting
autolyzes.

Stomach empty.

CAUSE OF DEATH:

Asphyxia by manual strangulation.”

The witness also found not only lacerations of the hymen but
penetration of the vaginal wall caused by sexual intercourse as a result of
rape.

Dr. Ernest Lajara, Municipal Health Officer of Javier, Leyte
likewise testified on examining the accused-appellant Marcelo Almenario on
March 16, 1969 for some injuries he sustained and which he described in a
medical certificate, Exhibits “D” and “D-1”, and which
wounds are reflected in the sketch of the human form, Exhibit “E”, to
wit:

“1. Linear wound at the right side of the neck, 3 cm. below the right ear.

Length – 2 cm.

Depth – skin deep

“2. Linear wound at the right side of the back, 15 cm. below the base of the
nape and 3 cm. free from the vertebral column.

Length – 5 cm.

Depth – skin deep

“3. Linear wound at the right side of the back, 14 cm. below the right
shoulder and 14 cm. from the vertebral column.

Length – 2 cm.

Depth – skin deep

“4. Linear wound at the upper border of the left deltoid.

Length – 4 cm.

Depth – skin deep

Barring complications said injuries will require medical attendance
for a period of less than nine (9) days.^[5]

Since said injuries sustained by the accused-appellant are
“linear wounds” which are skin deep, said injuries according to the
good doctor could have been caused by fingernails or any sharp grass.

Appellant assigns the lone error of the trial court:

“The trial court erred in convicting
the accused of the complex crime of rape with homicide, despite the
insufficiency of evidence with respect to the commission of rape.”

There is no dispute as to the fact that appellant killed
Visitacion Gares. The issue raised on
appeal is whether or not appellant raped the victim thereby qualifying the
crime of rape with homicide thereby justifying the maximum penalty imposable.

Accused-appellant, Marcelo Almenario testified that on their way
home that evening of March 10, 1989, upon reaching an isolated place. Visitacion pulled out a nine (9) inch
stainless knife and said, “Cousin, we will not see each other again.”^[6]
He further testified that the deceased attempted three times to stab him but
was able to evade the thrusts. Why the
deceased Visitacion pulled out a knife and attempted to kill the
accused-appellant, the latter failed to fully explain and elucidate.

Although there may be no eye-witness in the actual commission of
rape, there is ample evidence clearly and unmistakably linking the accused as
the author of the crime.^[7]

As found by the court a quo:

“And, granting for the sake of
argument, by following the claim of the accused that the victim Visitacion was
a “tomboy” who carried with her a stainless steel knife, she must
have tried to thrust said knife at the accused to defend her honor when accused
overcomed by the lustful desire which he could no longer control, tried to have
sexual intercourse with Visitacion who rebuffed him. This angered the accused, and after having grappled for
possession of the knife, and was able to wrest it from Visitacion, when she had
fallen to the ground, the accused then choked Visitacion to weaken her
resistance so he could rape her.

“If, indeed, we follow this claim of
the accused that he only killed Visitacion because he got angry when she thrust
a knife at him three (3) times, but denied he raped her, why then, did he choke
Visitacion as proven by the autopsy conducted by prosecution witness Dr.
Floro Camenforte, Jr.? Why did accused
not stab Visitacion with the knife she was wielding which he allegedly wrested
from her? Why was she choked? Why did accused sustain skin deep linear
wounds at his back, neck, vertebral column and the upper border of the left
deltoid, which Dr. Ernesto Lajara Municipal Health Officer of Javier, Leyte,
who treated the accused, testified that
said linear wounds could have been caused by fingernails or sharp type of
grass?

“If Visitacion Cares were alive today,
she would have given a clear and straight forward account of how accused raped
her instead of the muddled, confused story reflected in accused’s
testimony. It is quite obvious that
accused merely, made up the story regarding the knife wielding victim Visitacion
for which reason he killed her. The
Court can only deduce that said linear skin deep wounds sustained by the
accused were caused by the fingernails of Visitacion when she vainly
tried to ward off and resist the lustful advances of the accused, when the
latter then choked her to stifle all resistance from her.”^[8]

WHEREFORE, the guilt of the accused-appellant having been
proved beyond reasonable doubt, the Decision appealed herefrom is hereby
AFFIRMED with the modification that the indemnity to be paid to the heirs of
the deceased be increased to P50,000.00.^[9]

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

^[1]
Records, p. 25.

^[2]
T.S.N., August 23, 1989, pp. 10-14.

^[3]
Rollo, p. 35.

^[4]
Exhibit “B-1”, Records, p. 17.

^[5]
Decision, pp. 4-5; Rollo, pp. 48-49.

^[6]
T.S.N., August 23, 1989, pp. 11-13.

^[7]
People vs. Marquez, G.R. No. L-48834, 153 SCRA 700, (1987).

^[8]
Decision, pp. 7-8; Rollo, pp. 51-52.

^[9]
People vs. Sison, G.R. No. 86455, 189 SCRA 643, (1990).