G.R. No.

L-19052

December 29, 1962

MANUEL F. CABAL, petitioner,

vs.
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.
CONCEPCION, J.:
This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. Ruperto
Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of
said court, and to set aside an order of said respondent, as well as the whole proceedings in said criminal case. .
On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of Nation Defense a
letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, with
"graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman dictatorial tendencies,
giving false statements of his as sets and liabilities in 1958 and other equally reprehensible acts". On September 6,
1961, the President of the Philippines created a committee of five (5) members, consisting of former Justice
Marceliana R. Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and
Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of unexplained wealth contained in
said letter-complaint and submit its report and recommendations as soon as possible. At the beginning of the
investigation, on September 15, 1961, the Committee, upon request of complainant Col. Maristela, or considered
petitioner herein to take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned
charge of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request of Col.
Maristela and to the aforementioned order of the Committee, invoking his constitutional right against selfincrimination. The Committee insisted that petitioner take the witness stand and be sworn to, subject to his right to
refuse to answer such questions as may be incriminatory. This notwithstanding, petitioner respectfully refused to be
sworn to as a witness to take the witness stand. Hence, in a communication dated September 18, 1961, the
Committee referred the matter to respondent City Fiscal of Manila, for such action as he may deem proper. On
September 28, 1961, the City Fiscal filed with the Court of First Instance of Manila a "charge" reading as follows:
The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the Revised
Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court, committed as follows:
That on or about September 15, 1961, in the investigation conducted at the U.P. Little Theater:,
Padre Faura, Manila, by the Presidential Committee, which was created by the President of the
Republic of the Philippines in accordance with law to investigate the charges of alleged acquisition
by respondent of unexplained wealth and composed of Justice Marceliano Montemayor, as
Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez
and Guillermo Francisco, as members, with the power, among others, to compel the attendance of
witnesses and take their testimony under oath, respondent who was personally present at the time
before the Committee in compliance with a subpoena duly issued to him, did then and there
willfully, unlawfully, and contumaciously, without any justifiable cause or reason refusal and fail and
still refuses and fails to obey the lawful order of the Committee to take the witness stand, be sworn
and testify as witness in said investigation, in utter disregard of the lawful authority of the
Committee and thereby obstructing and degrading the proceedings before said body.
Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of contempt of the
Presidential Committee and accordingly disciplined as in contempt of court imprisonment until such time as
he shall obey the subject order of said committee.

This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, presided over
by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or
answer the charge filed against him within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with
respondent Judge a motion to quash the charge and/or order to show cause, upon the ground: (1) that the City Fiscal
has neither authority nor personality to file said char and the same is null and void, for, if criminal, the charge has
been filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil
cases being limited to representing the City of Manila; (2) that the facts charged constitute no offense for section 580
of the Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague and
uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to specify whether said
offense shall be treated also contempt of an inferior court or of a superior court (3) that more than one offense is
charged, for the contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as contempt
of a superior court an as contempt under section 7 of Rule 64 of the Rules Court; (4) that the Committee had no
power to order an require petitioner to take the witness stand and be sworn to, upon the request of Col. Maristela, as
witness for the latter, inasmuch as said order violates petitioner's constitutional right against self-incrimination.
By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on October 20,
1961, petitioner began the present action for the purpose adverted to above, alleging that, unless restrained by this
court, respondent Judge may summarily punish him for contempt, and that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being conducted by the Committee above
referred to is administrative, not criminal, in nature; that the legal provision relied upon by petitioner in relation to
preliminary investigations (Section '08-C, Republic Act No. 409, as amended by Republic Act No. 1201) is
inapplicable to contempt proceedings; that, under section 580 of the Revised Administrative Code. contempt against
an administrative officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only
one offense; and that, tinder the constitutional guarantee against self-incrimination, petitioner herein may refuse, not
to take the witness stand, but to answer incriminatory questions.
At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264).
Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is
civil or criminal in character.
In this connection, it should be noted that, although said Committee was created to investigate the administrative
charge of unexplained wealth, there seems to be no question that Col. Maristela does not seek the removal of
petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no longer holds such
office. It seems, likewise conceded that the purpose of the charge against petitioner is to apply the provisions of
Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the
State of property of a public officer or employee which is manifestly out of proportion to his salary as such public
officer or employee and his other lawful income and the income from legitimately acquired property. Such for
forfeiture has been held, however, to partake of the nature of a penalty.
In a strict signification, a forfeiture is a divestiture property without compensation, in consequence of a
default an offense, and the term is used in such a sense in this article. A forfeiture, as thus defined, is
imposed by way of punishment not by the mere convention of the parties, but by the lawmaking power, to
insure a prescribed course of conduct. It is a method deemed necessary by the legislature to restrain
the commission of an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is
to transfer the title to the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis
ours.)
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a definite sum of
money as the consequence of violating the provisions of some statute or refusal to comply with some
requirement of law." It may be said to be a penalty imposed for misconduct or breach of duty. (Com. vs.
French, 114 S.W. 255.)

As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the exemption of
defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto.
Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment
against any person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to
the extent that where the person using the res illegally is the owner or rightful possessor of it, the forfeiture
proceeding is in the nature of a punishment. They have been held to be so far in the nature criminal
proceedings that a general verdict on several count in an information is upheld if one count is
good.According to the authorities such proceedings, where the owner of the property appears, are so far
considered as quasi-criminal proceeding as to relieve the owner from being a witness against himself and to
prevent the compulsory production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.)
Although the contrary view formerly obtained, the late decisions are to the effect that suits for forfeitures
incurred by the commission of offenses against the law are so far of quasi-criminal nature as to be within the
reason of criminal proceedings for all purposes of ... that portion of the Fifth Amendment which declares that
no person shall be compelled in any criminal case to be a witness against himself. .... It has frequently been
held upon constitutional grounds under the various State Constitution, that a witness or party called as
witness cannot be made to testify against himself as to matters which would subject his property to
forfeiture. At early common law no person could be compelled to testify against himself or to answer any
question which would have had a tendency to expose his property to a forfeiture or to form a link in a chain
of evidence for that purpose, as well as to incriminate him. Under this common-law doctrine of protection
against compulsory disclosures which would tend to subject the witness to forfeiture, such protection was
claimed and availed of in some early American cases without placing the basis of the protection upon
constitutional grounds. (23 Am. Jur., 616; emphasis ours.)
Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings in rem. The
statute providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any
defect or want of form is applicable to them. In some aspects, however, suits for penalties and forfeitures
are of quasi-criminal nature and within the reason of criminal proceedings for all the purposes of ... that
portion of the Fifth Amendment which declares, that no person shall be compelled in any criminal case to be
a witness against himself. The proceeding is one against the owner, as well as against the goods; for it is his
breach of the laws which has to be proved to establish the forfeiture and his property is sought to be
forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.)
lawphil.net

The rule protecting a person from being compelled to furnish evidence which would incriminate him
exists not only when he is liable criminally to prosecution and punishment, but also when his answer would
tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.)
As already observed, the various constitutions provide that no person shall be compelled in any criminal
case to be a witness against himself. This prohibition against compelling a person to take the stand as a
witness against himself applied only to criminal, quasi-criminal, and penal proceedings, including a
proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a
proceeding in which the penalty recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49:
emphasis ours.)
The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question
which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A
question is not improper merely because the answer may tend to incriminate but, where a witness exercises
his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer
is because the answer may tend to incriminate the witness is improper.
The possibility that the examination of the witness will be pursued to the extent of requiring self-incrimination
will not justify the refusal to answer questions. However, where the position of the witness is virtually that of

an accused on trial, it would appear that he may invoke the privilege in support of a blanket refusal to
answer any and all questions. (C.J.S., p. 252; emphasis ours.)
A person may not be compelled to testify in an action against him for a penalty or to answer any question as
a witness which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a
vindication of the public justice of the state.
In general, both at common law and under a constitution provision against compulsory self-incrimination, a
person may not be compelled to answer any question as a witness which would subject him to a penalty
orforfeiture, or testify in action against him for a penalty.
The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication of the public
justice the state as a statutory fine or penalty, or a fine or penalty for violation of a municipal ordinance, even
though the action or proceeding for its enforcement is not brought in a criminal court but is prosecuted
through the modes of procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.)
Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to declaration a
forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding is
in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason criminal
proceedings for the purposes of that portion the Fifth Amendment of the Constitution of the U.S. which declares that
no person shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the
removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for
said portion of the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or
redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a
criminal case is a action, suit or cause instituted to punish an infraction the criminal laws, and, with this object in
view, it matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed
in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive
examination of pertinent cases, concludes that said constitutional provision applies whenever the proceeding is not
"purely remedial", or intended "as a redress for a private grievance", but primarily to punish "a violation of duty or a
public wrong and to deter others from offending in likewise manner. ...".
We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that,
after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be
amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground
that said forfeiture proceeding in civil in nature. This doctrine refers, however, to the purely proceduralaspect of said
proceeding, and has no bearing the substantial rights of the respondents therein, particularly their constitutional right
against self-incrimination.
WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from proceeding
further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered.
G.R. No. L-56291 June 27, 1988
CRISTOPHER GAMBOA, petitioner,
vs.
HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent.
Rene V. Sarmiento for petitioner.

PADILLA, J.:

Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order
dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled
"People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales, Accused," and to restrain the respondent
court from proceeding with the trial of the aforementioned case.
Petitioner alleges that:
On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of arrest, by
Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for
vagrancy and then detained therein together with several others.
The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B.
Bernal pointed to petitioner and said, "that one is a companion." After the Identification, the other detainees were
brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the
police investigator, petitioner was told to sit down in front of her.
On 23 July 1979, an information for robbery was filed against the petitioner.
On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the prosecution
formally offered its evidence and then rested its case.
On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that he was filing
a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said Motion predicated on the ground
that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional rights to
counsel and to due process.
On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar) denying the
Motion to Acquit:
For resolution is a motion to acquit the accused based on the grounds that the constitutional rights
of the said accused, to counsel and to due process, have been violated. After considering the
allegations and arguments in support of the said motion in relation to the evidence presented, the
Court finds the said motion to be without merit and, therefore, denies the same.
The hearing of this case for the purpose of presenting the evidence for the accused is hereby set
on November 28, 1980, at 8:30 o'clock in the morning.
Hence, the instant petition.
On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and continuing until
otherwise ordered by the court". 1
Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in
issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being
violative of his rights to counsel and to due process. 2
We find no merit in the contentions of petitioner.
To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to lack of
jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October 1980.

It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the
very antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions. 3To

warrant the issuance of the extraordinary writ of certiorari, the alleged lack of jurisdiction, excess thereof,
or abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount
to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, or to act at all, in
contemplation of law. 4 This is not the situation in the case at bar. The respondent court considered
petitioner's arguments as well as the prosecution's evidence against him, and required him to present his
evidence.
The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed by the
Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every person is entitled to
the full enjoyment of the rights guaranteed by the Constitution.
On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads:
No person shall be compelled to be a witness against himself Any person under investigation for
the commission of an offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him. Any confession obtained in violation of this section shall be
inadmissible in evidence.
The same guarantee, although worded in a different manner, is included in the 1987 Constitution. Section 12 (1, 2 &
3), Article III thereof provides:
Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.
The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask
questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage,
the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or
coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an
offense.
Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the
Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently
held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person
arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by
anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and
in the presence of counsel. 5

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the
custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states:
When petitioner was Identified by the complainant at the police line-up, he had not been held yet to
answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he
was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the
investigatory to the accusatory as when police investigation does not elicit a confession the
accused may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States
Federal Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in
the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not
deprived of his right to be assisted by counsel because the accusatory process had not yet set in.
The police could not have violated petitioner's right to counsel and due process as the
confrontation between the State and him had not begun. In fact, when he was Identified in the
police line-up by complainant he did not give any statement to the police. He was, therefore, not
interrogated at all as he was not facing a criminal charge. Far from what he professes, the police
did not, at that stage, exact a confession to be used against him. For it was not he but the
complainant who was being investigated at that time. He "was ordered to sit down in front of the
complainant while the latter was being investigated" (par. 3.03, Petition). Petitioner's right to
counsel had not accrued. 6
Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming
a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the votes of

the Justices therein are summarized as fellows:

After arresting the petitioner and a companion and bringing them to a police station, police officers
learned that certain items found in their possession had been stolen in a recent robbery. The
robbery victim was brought to the police station and immediately Identified the petitioner and his
companion as the robbers. No attorney was present when the Identification was made, and neither
the petitioner nor his companion had asked for legal assistance or had been advised of any right to
the presence of counsel. Several weeks later, the petitioner and his companion were indicted for
the robbery. At trial in an Illinois state court, the robbery victim testified that he had seen the
petitioner and his companion at the police station, and he pointed them out in the courtroom and
Identified them as the robbers. The petitioner and his companion were convicted, and the Illinois
Appellate Court, First District, affirmed the petitioner's conviction, holding that the constitutional rule
requiring the exclusion of evidence derived from out-of-court Identification procedures conducted in
the absence of counsel did not apply to pre-indictment Identifications (121 III App 2d 323, 257 NEE
2d 589).
On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In
an opinion by STEWART, J., announcing the judgment of the court and expressing the view of four
members of the court, it was held that the constitutional right to counsel did not attach until judicial
criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court
Identifications in the absence of counsel did not apply to Identification testimony based upon a
police station show-up which took place before the accused had been indicted or otherwise
formally charged with any criminal offense.
BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the
right to counsel did not attach until criminal charges were formally made against an accused.
POWELL, J., concurred in the result on the ground that the exclusionary rule should not be
extended.

BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although
Supreme Court decisions establishing the exclusionary rule happened to involve post-indictment
Identifications, the rationale behind the rule was equally applicable to the present case.
WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary
rule governed the present case. 8
Mr. Justice Stewart, expressing his view and that of three other members 9 of the Court, said:
In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in
Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established
that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra;
Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama,
368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct
792, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v.
United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L
Ed 2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951;
Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999.
This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the
trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the
Court has recently held that it exists also at the time of a preliminary hearing. Coleman v.
Alabama, supra. But the point is that, while members of the court have differed as to existence of
the right to counsel in the contexts of some of the above cases, all of those cases have involved
points of time at or after the initiation of adversary judicial criminal proceedings whether by way
of formal charge, preliminary hearing, indictment, information, or arraignment. (Emphasis
supplied). 10
As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of the right to
counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while, under the latter, the right to
counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him (the
accused)," under the 1973 and 1987 Philippine Constitutions, the right to counsel attaches at the start of investigation
against a respondent and, therefore, even before adversary judicial proceedings against the accused have begun.
Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation
the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no
real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an
urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or
innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the
right, but the waiver shall be made in writing and in the presence of counsel.
On the right to due process, the Court finds that petitioner was not, in any way, deprived of this substantive and
constitutional right, as he was duly represented by a member of the Bar. He was accorded all the opportunities to be
heard and to present evidence to substantiate his defense; only that he chose not to, and instead opted to file a
Motion to Acquit after the prosecution had rested its case. What due process abhors is the absolute lack of
opportunity to be heard. 11 The case at bar is far from this situation.
In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion To Acquit.
Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant shall immediately either
move to quash the complaint or information or plead thereto, or do both and that, if the defendant moves to quash,
without pleading, and the motion is withdrawn or overruled, he should immediately plead, which means that trial must

proceed. If, after trial on the merits, judgment is rendered adversely to the movant (in the motion to quash), he can
appeal the judgment and raise the same defenses or objections (earlier raised in his motion to quash) which would
then be subject to review by the appellate court.
An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It
is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be
reviewed, in the ordinary course of law, by an appeal from the judgment, after trial. As stated in Collins vs.
Wolfe,12 and reiterated in Mill vs. Yatco, 13 the accused, after the denial of his motion to quash, should have

proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he
could then appeal, and, upon such appeal, present the questions which he sought to be decided by the
appellate court in a petition for certiorari.
In Acharon vs. Purisima, 14 the procedure was well defined, thus:
Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him
was denied by the Municipal Court of General Santos his remedy was not to file a petition for
certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had
invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal
therefrom in the manner authorized by law. This is the procedure that he should have followed as
authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before
the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course
of law. 15
Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and to due process
is a question which he could raise, as a defense or objection, upon the trial on the merits, and, if that defense or
objection should fail, he could still raise the same on appeal.
On the other hand, if a defendant does not move to quash the complaint or information before he pleads, he shall be
taken to have waived all objections which are grounds for a motion to quash, except where the complaint or
information does not charge an offense, or the court is without jurisdiction of the same. 16
Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and rested its case.
Since the exceptions, above-stated, are not applicable, petitioner is deemed to have waived objections which are
grounds for a motion to quash.
Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds provided in Sec. 2,
Rule 117 of the Rules of Court for quashing a complaint or information. Consequently, the lower court did not err in
denying petitioner's Motion to Acquit.
WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is LIFTED. The
instant case is remanded to the respondent court for further proceedings to afford the petitioner-accused the
opportunity to present evidence on his behalf.
This decision is immediately executory. With costs against the petitioner.
SO ORDERED.

G.R. No. 74145 June 17, 1987PEOPLE OF THE PHILIPPINES,

plaintiff-appellee,vs.

ZOSIMO CRISOLOGO, alias "AMANG",

defendant-appellant.
FACTS:
Zosimo Crisologo alias Amang, a deaf-mute, was charged for robbery and
homicidecommitted on 1 May 1976 in Calamagoy, Poblacion Magsaysay, Davao del
Sur. Accusedwas allegedly informed of the charged against him through sign
language but apparently nosign language expert or representative was available.
The accused through a counsel deoficio waived the reading of the information and
pleaded not guilty. Trial proceeded withoutany evidence being presented on his part.
Finally, without the services of an expert in signlanguage ever being utilized at any
stage of the proceedings, the accused was found guiltybeyond reasonable doubt of
robbery with homicide and sentenced to die by electrocution.Executive clemency
was recommended, however, in view of the accused's infirmity and hisnearly tenyear detention as a suspect.
ISSUE:
Whether or not the accused was given due process of law and the insufficiency of
thepurely circumstantial evidence presented to overcome the constitutional presum
ption of innocence be in his favor.
HELD:
The Supreme Court held that the absence of an interpreter in sign language who
couldhave conveyed to the accused, a deaf-mute, the full facts of the offense with
which he
wascharged and who could also have communicated the accused's own version of t
hecircumstances which led to his implication in the crime, deprived the accused of a
full and fair trial and a reasonable opportunity to defend himself. Not even
the accused's final plea of notguilty can excuse these inherently unjust
circumstances.The absence of a qualified interpreter in sign language and of any
other means,whether in writing or otherwise, to inform the accused of the charges
against him denied theaccused his fundamental right to due process of law. The
accuracy and fairness of the
factualprocess by which the guilt or innocence of the accused was determined was
notsafeguarded. The accused could not be said to have enjoyed the right to be
heard by himself and counsel, and to be informed of the nature and cause of the
accusation against him in theproceedings where his life and liberty were at
stake.The Constitution of this state expressly provides that an accused has a right
to beheard by himself and counsel, also, to demand the nature and cause of the
accusation;against him, and, further to be confronted by the witnesses, who are to
testify against him. Inconstructing this constitutional provision it needs no
discussion in deciding that all this mustbe done in a manner by which the accused

can know, the nature and the cause of theaccusation he is called upon to answer,
and all necessary means must be provided, and thelaw so contemplates, that the
accused must not only be confronted by the witnesses against him, but he must be
accorded all necessary means to know and understand the testimony given by said
witnesses, and must be placed in a condition where he can make his plea rebut
such testimony, and give his own version of the transaction upon which the
accusation is based.
G.R. No. L-37933 April 15, 1988
FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO, petitioners,
vs.
HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance of Cebu and TEODORO DE LA VEGA,
JR., respondents.
The Solicitor General for petitioners.
Victor de la Serna for respondents.

GANCAYCO, J.:
Two basic issues are raised for Our resolution in this petition for certiorari and mandamus. The first is whether or not
a court loses jurisdiction over an accused who after being arraigned, escapes from the custody of the law. The other
issue is whether or not under Section 19, Article IV of the 1973 Constitution, an accused who has been duly tried
inabsentia retains his right to present evidence on his own behalf and to confront and cross-examine witnesses who
testified against him.
The following facts are not in dispute:
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio Baguio and the herein
private respondent Teodoro de la Vega Jr., were charged with the crime of murder.
On August 22, 1973 all the above-named. accused were arraigned and each of them pleaded not guilty to the crime
charged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the hearing of the case for
September 18, 1973 at 1:00 o'clock in the afternoon. All the acused including private respondent, were duly informed
of this.
Before the scheduled date of the first hearing the private respondent escaped from his detention center and on the
said date, failed to appear in court. This prompted the fiscals handling the case (the petitioners herein) to file a motion
with the lower court to proceed with the hearing of the case against all the accused praying that private respondent
de la Vega, Jr. be tried in absentia invoking the application of Section 19, Article IV of the 1973 Constitution which
provides:
SEC. 19. In all criminal prosecution, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment trial may proceed notwithstanding

the absence of the accused provided that he has been duly notified and his failure to appear is
unjustified. (Emphasis supplied.) *
Pursuant to the above-written provision, the lower court proceeded with the trial of the case but nevertheless gave the
private respondent the opportunity to take the witness stand the moment he shows up in court. 1
After due trial, or on November 6,1973, the lower court rendered a decision dismissing the case against the five
accused while holding in abeyance the proceedings against the private respondent. The dispositive portion is as
follows:
WHEREFORE, insofar as the accused Samson Suan Alex Potot, Rogelio Mula Fernando
Cargando and Rogelio Baguio are concerned, this case is hereby dismissed. The City Warden of
Lapu-Lapu City is hereby ordered to release these accused if they are no longer serving sentence
of conviction involving other crimes.
The proceedings in this case against the accused Teodoro de la Vega, Jr. who has escaped on
August 30,1973 shall remain pending, without prejudice on the part of the said accused to crossexamine the witnesses for the prosecution and to present his defense whenever the court acquires
back the jurisdiction over his person. 2
On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the above-quoted dispositive
portion on the ground that it will render nugatory the constitutional provision on "trial in absentia" cited earlier.
However, this was denied by the lower court in an Order dated November 22, 1973.
Hence, this petition.
The respondent court, in its Order denying the Motion for Reconsideration filed by the herein petitioners, expressed
the opinion that under Section 19, Article IV of the 1973 Constitution, the private respondent, who was tried in
absentia, did not lose his right to cross-examine the witnesses for the prosecution and present his evidence. 3 The

reasoning of the said court is that under the same provision, all accused should be presumed
innocent. 4 Furthermore the lower court maintains that jurisdiction over private respondent de la Vega, Jr.
was lost when he escaped and that his right to cross-examine and present evidence must not be denied
him once jurisdiction over his person is reacquired. 5
We disagree.
First of all, it is not disputed that the lower court acquired jurisdiction over the person of the accused-private
respondent when he appeared during the arraignment on August 22,1973 and pleaded not guilty to the crime
charged. In cases criminal, jurisdiction over the person of the accused is acquired either by his arrest for voluntary
appearance in court. Such voluntary appearance is accomplished by appearing for arraignment as what accusedprivate respondent did in this case.
But the question is this was that jurisdiction lost when the accused escaped from the custody of the law and failed
to appear during the trial? We answer this question in the negative. As We have consistently ruled in several earlier
cases,6 jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where the accused appears at the arraignment and pleads
not guilty to the crime charged, jurisdiction is acquired by the court over his person and this continues until the
termination of the case, notwithstanding his escape from the custody of the law.

Going to the second part of Section 19, Article IV of the 1973 Constitution aforecited a "trial in absentia"may be had
when the following requisites are present: (1) that there has been an arraignment; (2) that the accused has been
notified; and (3) that he fails to appear and his failure to do so is unjustified.
In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, the private
respondent was arraigned on August 22, 1973 and in the said arraignment he pleaded not guilty. He was also
informed of the scheduled hearings set on September 18 and 19, 1973 and this is evidenced by his signature on the
notice issued by the lower Court. 7 It was also proved by a certified copy of the Police Blotter 8 that private

respondent escaped from his detention center. No explanation for his failure to appear in court in any of
the scheduled hearings was given. Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions of the 1973 Constitution, correctly proceeded with the
reception of the evidence of the prosecution and the other accused in the absence of private respondent, but it erred
when it suspended the proceedings as to the private respondent and rendered a decision as to the other accused
only.
Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in court. The
court need not wait for the time until the accused who who escape from custody finally decides to appear in court to
present his evidence and moss e the witnesses against him. To allow the delay of proceedings for this purpose is to
render ineffective the constitutional provision on trial in absentia. As it has been aptly explained:
. . . The Constitutional Convention felt the need for such a provision as there were quite a number
of reported instances where the proceedings against a defendant had to be stayed indefinitely
because of his non- appearance. What the Constitution guarantees him is a fair trial, not continued
enjoyment of his freedom even if his guilt could be proved. With the categorical statement in the
fundamental law that his absence cannot justify a delay provided that he has been duly notified and
his failure to appear is unjustified, such an abuse could be remedied. That is the way it should be,
for both society and the offended party have a legitimate interest in seeing to it that crime should
not go unpunished. 9
The contention of the respondent judge that the right of the accused to be presumed innocent will be violated if a
judgment is rendered as to him is untenable. He is still presumed innocent. A judgment of conviction must still be
based upon the evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also,
there can be no violation of due process since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine and to present
evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually waived these
rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of
witnesses is a personal right and may be waived. 10 In the same vein, his right to present evidence on his

behalf, a right given to him for his own benefit and protection, may be waived by him.
Finally, at this point, We note that Our pronouncement in this case is buttressed by the provisions of the 1985 Rules
on Criminal Procedure, particularly Section 1 (c) of Rule 115 which clearly reflects the intention of the framers of our
Constitution, to wit:
... The absence of the accused without any justifiable cause at the trial on a particular date of which
he had notice shall be considered a waiver of his right to be present during that trial. When an
accused under custody had been notified of the date of the trail and escapes, he shall be deemed
to have waived his right to be present on said date and on all subsequent trial dates until custody in
regained....

Accordingly, it is Our considered opinion, and We so hold, that an escapee who has been duly tried in absentiawaives
his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against
him. 11
WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case No. 112-L in so far as it
suspends the proceedings against the herein private respondent Teodoro de la Vega, Jr. is reversed and set aside.
The respondent judge is hereby directed to render judgment upon the innocence or guilt of the herein private
respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the applicable law.
No pronouncement as to costs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
DECISION
September 30, 1983
G.R. No. , ,
vs.
,.
, J.:
Private respondent Rodolfo Valdez, Jr. is charged in Criminal Case No. U-3439 with
murder before the Regional Trial Court of Pangasinan, First Judicial Region, Branch
XLV in Urdaneta. He is out on a P30,000.00 bail bond which contains the following
conditions ?
The aforenamed, as bondsmen, hereby jointly and severally undertake that the
above-mentioned defendant, as principal therein will appear and answer the charge
above-mentioned in whatever Court it may be tried, and will at all times hold
himself amenable to the orders and processes of the Court, and if convicted, will
appear for judgment, and render himself to the execution thereof; or that if he fails
to perform any of these conditions will pay to the Republic of the Philippines the
sum of Thirty Thousand Pesos (P30,000.00) ... (Emphasis supplied)
After his arraignment, Rodolfo Valdez, Jr., thru his counsel, manifested orally in open
court that he was waiving his right to be present during the trial. The prosecuting
fiscal moved that respondent Rodolfo Valdez, Jr. be compelled to appear and be
present at the trial so that he could be Identified by prosecution witnesses.
Respondent judge in his Order, dated April 15, 1983, sustained the position of
private respondent who cited the majority opinion in the case of Benigno S. Aquino,
Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, and held that "he cannot be
validly compelled to appear and be present during the trial of this case."

Hence, this petition for certiorari with prayer, among others, (1) that pending the
resolution of this case on the merits, a writ of preliminary injunction be issued to
restrain respondent judge from enforcing his Order dated April 15, 1983; (2) that
said Order dated April 15, 1983 of respondent judge be annulled and set aside and
(3) that private respondent Rodolfo Valdez, Jr. be compelled to appear during the
trial of Criminal Case No. U-3439 whenever required to do so by the trial court.
On August 10, 1983, We resolved "(a) to require the respondents to file an ANSWER
thereto, within ten (10) days from notice hereof, and not to move to dismiss the
petition; and (b) to ISSUE effective immediately and until further orders from this
Court, a TEMPORARY RESTRAINING ORDER enjoining the respondent Judge from
enforcing the Order dated April 15, 1983, allowing the accused, Rodolfo Valdez, Jr. to
totally waive his presence during the trial of Criminal Case No. U-3439, entitled
"People of the Philippines, Plaintiff, versus Rodolfo Valdez, Jr., alias Ni
G.R. No. L-43833 November 28, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SOTERO NAVARRETE Y LUCERO, defendant-appellant.

MAKASIAR, J.:
Sotero Navarrete was charged on September 5, 1972 before the Court of First Instance of Manila, for having raped
his own daughter, Elizabeth Navarrete, allegedly committed as follows:
That sometime in the third week of August, 1972, in the City of Manila, Philippines, the said
accused, by means of force and intimidation to wit: by then and there pulling the arms of Elizabeth
Navarrete y de Guia, taking off her clothes and panty, forcibly laying her on bed and touching and
kissing her private parts, threatening to kill her with a sharp pointed instrument should she resist,
did then and there willfully, unlawfully and feloniously have sexual intercourse with said Elizabeth
Navarrete y de Guia, against her will and consent.
Contrary to law (Exh, C, p. 1, Folder of Exhibits).
Upon arraignment on September 15, 1972, the accused entered a plea of "not guilty."
The Trial court, presided then by Honorable Juan L. Bocar, after due trial, rendered its judgment on February 13,
1973, the dispositive portion of which is worded thus:
WHEREFORE, the Court renders judgment finding the accused guilty of the crime of rape and
sentences him to suffer imprisonment of not less than twelve (12) years of prision mayor as
minimum and twenty (20) years of reclusion temporal as maximum and to indemnify the offended
party in the amount of P10,000.00 without subsidiary imprisonment in case of insolvency and to
pay the costs (p. 13, rec.).
From this judgment, the accused Sotero Navarrete inter-posed an appeal to the Court of Appeals. On May 3, 1976,
the Court of Appeals rendered a decision which reads in part as follows:

We find that the guilt of the appellant has been established beyond reasonable doubt.
Article 335 imposes the penalty of reclusion perpetua for rape. Under Section 34 of the Judiciary
Act, this Court has no jurisdiction to impose this penalty.
WHEREFORE, let the entire record of this case be elevated to the Supreme Court for final
determination. The Clerk of Court is hereby directed to certify the case immediately to the Supreme
Court (p. 113, rec.).
In accordance with the aforequoted decision of the Court of Appeals, the case was certified to this Court and the
same was submitted for decision on May 26, 1976.
I
It must be noted at the outset that in the case of People vs. Daniel (L-40330, 86 SCRA 511, November 20, 1978), the
Supreme Court, through the late Chief Justice Fred Ruiz Castro, declared that:
... Henceforth, should the Court of Appeals be of the opinion that the penalty of death or reclusion
perpetua (life imprisonment) should be imposed in any criminal case appealed to it where the
penalty imposed by the trial court is less than reclusion perpetua, the said court, with a
comprehensive written analysis of the evidence and discussion of the law involved, render
judgment expressly and explicitly imposing the penalty of either death or reclusion perpetua as the
circumstances warrant, refrain from entering judgment, and forthwith certify the case and elevate
the entire record thereof to this court for review (emphasis supplied).
In that case, the trial court imposed a penalty of reclusion temporal on the accused for the crime of rape. The Court of
Appeals, however, recommended that the penalty of reclusion perpetua should be imposed and certified the case to
this Court. The accused was sentenced to suffer the penalty of reclusion perpetua by this Court.
In the instant case, the Court of Appeals in its decision dated May 3, 1976, affirmed the decision of the trial court
finding the accused guilty of the crime charged but certified the case to this Court with the recommendation that the
penalty of reclusion perpetua be imposed. The case was submitted for decision on May 26, 1976.
While the decision of the Court of Appeals is not in consonance with the procedural ruling of this Tribunal in People
vs. Daniel, nevertheless We assume jurisdiction rather than demand the case to the Court of Appeals because the
case was decided and certified to this Court on May 3, 1976, before the ruling in the case of People vs. Daniel was
made interpreting Section 34 of the Judiciary Act. Besides, this would avoid the unnecessary and time-wasting
shuttling of the case between the Supreme Court and the Court of Appeals especially so if the right of the accused to
speedy trial is to be considered.
The ruling in People vs. Daniel should therefore be given prospective effect so that beginning November 20, 1978,
should the Court of Appeals in criminal cases pending before it be of the opinion that the penalty of death orreclusion
perpetua should be imposed where the penalty meted by the trial court is less than reclusion perpetua, it should
follow the directive of this Court in the Daniel case as aforequoted. On the other hand, those certified criminal cases
already pending decision before this Court, like the present case, at the time People vs. Daniel was decided on
November 20, 1978, should be outrightly decided, rather than remanded to the Court of Appeals.
(Note: However, in People vs. Traya [89 SCRA 274 (1979)], a certified criminal case, decided on March 30, 1979, per
Justice Guerrero, this Court [1st Division], invoking the directive in People vs. Daniel, remanded the case to the Court
of Appeals for rendition of the proper judgment. In that case, the trial court imposed a penalty of reclusion
temporal On appeal, the Court of Appeals, believing that the penalty should be reclusion perpetua, refrained from

rendering judgment and certified the case to this Court. As per records, the case was certified by the Court of Appeals
on April 3, 1978 and submitted for decision on April 12, 1978; hence before the directive in the Daniel case).
II
The evidence for the prosecution consisted of the testimonies of Elizabeth Navarrete the rape victim Caridad de
Guia, the mother of the victim, Pat Vifedio Guillen, and Dr. Abelardo V. Lucero, the Medico-Legal Officer, and Exhibits
"A", the crime report; "A-1", the booking sheet and arrest report; "A-2", the sworn statement of Elizabeth Navarrete;
"B", medical certificate issued by Dr. Abelardo Lucero; "C". complaint signed by Elizabeth Navarrete; "C-1", the
signature of Elizabeth Navarrete appearing on the complaint "C-2", the signature of Fiscal Leonardo L. Arguelles
before whom the complaint was sworn by the victim; "D", the Medico Legal report of Dr. Abelardo Lucero; "E", the
marriage contract of Sotero Navarrete and Caridad de Guia; and "E-1", the marriage license. The evidence for the
defense rested mainly on the testimony of the accused, Sotero Navarrete.
From the evidence, it appears that Elizabeth Navarrete is the daughter of the accused, Sotero Navarrete and his wife,
Caridad de Guia. Elizabeth, who was a first year high school student, was only 15 years old when she became the
victim of the crime alleged in the complaint. At the time of her birth, her parents were merely living together in
common-law relationship although they subsequently got married on November 20, 1957 (Exh. "E", p. 36, Folder of
Exhibits). Sometime in 1959, two years after their marriage, Elizabeth's parents separated. Her mother was then
pregnant and later gave birth to her other sister, Emma Navarrete. Thereafter, Elizabeth and her sister lived with their
mother at 310 Antipolo Street, Sampaloc Manila, while their father, the accused, lived somewhere in Balic-Balic,
Sampaloc, sometimes with his friends and sometimes with his parents (pp. 9-11, 13, t.s.n., Nov. 3, 1972; p. 10, t.s.n.,
Nov. 10, 1972). It appears also that the accused was convicted of homicide sometime in 1959, for which he was
imprisoned for eleven (11) years [pp. 8-9, t.s.n., Dec. 8, 1972; p. 3, t.s.n. Jan. 29, 1973]. When he was released from
prison in 1970 (p. 8, t.s.n., Dec. 8,1972), he discovered that his wife was living with another man (p. 4, t.s.n., Jan. 29,
1973), but this notwithstanding, he occasionally visited his two daughters, E Elizabeth and Emma (pp. 11, 13, t.s.n.
November 3, 1972).
The evidence further revealed that in one of his visits which took place on or about the third week of August, 1972,
the accused invited his daughter Elizabeth to a birthday party somewhere in Loreto Street: Sampaloc, Elizabeth
gladly accepted the invitation and willingly went with her father, unmindful of his evil designs. They rode in a
passenger jeepney but they did not go down in Loreto Street and instead proceeded to Quiapo. Upon reaching their
destination, they got off the jeepney and the accused brought his daughter to the New Star Hotel in Quiapo. When
asked why they were entering that hotel, the accused told his daughter that he was going to fetch a friend who is
waiting for him and who will also attend the party. Believing her father, Elizabeth followed him in going up the stairs
inside the hotel. Then the accused paid a Chinese woman after which he entered a room and asked his daughter to
come inside. Once inside, Elizabeth asked her father why they were there. She also asked him about his friend whom
he was going to fetch. Her father did not say anything but simply laughed. After closing the door, the accused started
to remove his clothes. At this point, Elizabeth became apprehensive already. When the accused had removed his
clothes, he approached Elizabeth and told her to undress but she refused to do so. The accused became angry and
threatened to kill her, her sister and mother if she did not do as she was told. Then the accused held her arms and
pulled her towards the bed and removed her dress. Elizabeth cried and she lost her strength and composure. The
accused fondled her body and kissed her cheek, neck, breast and her private parts. She struggled and resisted her
father's advances but she could not do anything because he was holding her hands. Elizabeth just kept on crying. He
succeeded in having sexual intercourse with his daughter and she felt pain in her private parts. Soon thereafter, he
withdrew his private part from hers when she continued to cry. Then both of them dressed up without talking to each
other and the accused brought his daughter back home. Elizabeth narrated the harrowing incident to her aunt,
Estrelia Navarrete, the next day. Her aunt, who is a half-sister of her father and only 16 years old, could only shake
her head. Elizabeth asked for advice but her aunt was also afraid because the same thing might happen to her (pp.
13-17, t.s.n., Nov. 3, 1972; pp. 3-6, t.s.n., Dec. 4, 1972).
The accused visited Elizabeth on August 28, 1972 at about 6:00 o'clock in the evening to ask if she had informed
anybody about the incident at the hotel and she answered in the negative. The accused came again the next day at

about 5:30 in the afternoon to inform Elizabeth that he was going to rent a room so that he will not pay anymore for a
hotel room. In the afternoon of the following day, the accused came back to tell his daughter that he had rented a
place near the Balic-Balic church and invited her. He threatened his daughter that something drastic will happen to
her if she will not come to his place. That same afternoon, Elizabeth and her sister, Emma, went to the aforesaid
place accompanied by the accused. Arriving at the place, the accused and his two daughters cleaned the
surroundings. Afterwards, he brought them home and asked them to come again on the 31st of August (pp. 18-20.
t.s.n., Nov. 3, 1972).
At about 10:30 in the evening of August 31, 1972, the accused fetched his two daughters and brought them to his
place. When the two were already asleep, Elizabeth was awakened by her father as he was getting up and later she
felt that he was inserting his hand inside her T-shirt. She stood up and her father told her that he was again feeling
the sex urge. The accused held her by the arm and pulled her to a wooden bed. He undressed himself and Elizabeth
started to cry knowing what her father would do to her again. Then the accused removed the T-shirt and underwear of
his daughter. Thereafter, he held her hands and placed himself on top of her and succeeded in having sexual
intercourse. Elizabeth tried to resist by closing her legs but the accused was able to open her legs by means of his
legs also, Moreover, she could not do anything because she was afraid of the knife that was shown to her by the
accused and placed on top of the table. Elizabeth just kept on crying throughout her ordeal. After satisfying his lust,
the accused fell asleep and Elizabeth dressed up and waited for morning. That following morning, Elizabeth and her
sister were able to go home (pp. 20-23, t.s.n., Nov. 3, 1972).
The accused invited Elizabeth again to his place and succeeded in abusing her in the afternoon of September 1,
1972. As in the previous occasion, she went to his place because she was told that something drastic would happen
to her if she did not come. Subsequently, on September 3, 1972 at about 6:00 o'clock in the evening, the accused
came and asked his daughter to go to his place but she refused. He became mad and left. At about 1:00 o'clock in
the early morning of September 4, 1972, he returned drunk and with a companion. The accused asked Elizabeth why
she did not like to sleep anymore in his place. She told him that she was already having difficulty or moral conflict
because of what he was doing to her. But he told his daughter that he would come and drag her to this place if she
did not come at about 8:30 in the evening of that day. Then Elizabeth started crying. Her mother noticed her but did
not talk to her at that moment. When morning came, her mother asked her why she was crying and she finally
narrated what her father did to her. Upon learning what happened, her mother became sad and declared that if it
were not only a sin she would kill the accused. In the afternoon of that day, September 4, 1972, Elizabeth and her
mother went to Police Precinct No. 3 to file a complaint. Elizabeth gave her statement in writing (pp. 23-26, t.s.n.,
November 3, 1972). She was later physically examined by Dr. Abelardo Lucero, Medico-Legal Officer, who submitted
his findings, as follows:
xxx xxx xxx
(2) Newly healed laceration in the hymen at 6:00 o'clock position. The edges are thin and
reversible.
(3) Introitus vagina admits one adult finger easily but could hardly admit 2 fingers (Exhs. "B", "D",
pp. 35, 20, Folder of Exhibits).
The appellant, in his brief filed by his counsel de officio, Atty. Virgilio S. Castro, alleged that the trial court committed
an error in finding him guilty of the crime of rape.
There is no question that the appellant had carnal knowledge with his daughter, Elizabeth Navarrete; but in
avoidance, he claims that there was no force or intimidation employed and therefore he is not guilty of the crime
charged.
The contention of the appellant does not find support in the evidence on record. There is sufficient evidence to
establish the fact that the accused employed force in having sexual intercourse with his daughter. The offended

daughter testified in direct examination as to the manner the sexual intercourse was consummated and the pertinent
portions of her testimony are quoted below:
xxx xxx xxx
Q After your father had removed his clothings what happened next?
A He asked me to undress.
Q What did you tell your father when he asked you to do this?
A I refused to undress.
Q When you refused to undress, will you tell the Court what your father did?
A He became angry.
Q Did he say anything when he became mad'?
A He told me if I will 'not do as I tell you,' he will be going to kill me and also my
sister and my mother.
Q At the time he said this, do you know whether he was holding anything?
A No, sir.
Q Now what did you do after your father gave or made this threat to you and your
family?
A He held me by the arm and pulled me.
Q To what direction or place were you pulled you father?
A To the bed.
Q And what happened to you when your father pulled you towards the bed?
A He forced me.
Q What do you mean. Will you tell the Court what you mean by your father
forcing you?
A He undressed me. He removed my clothes.
Q While your father was undressing you, what did you tell him, if you told him
anything?
A I was crying.
Q Did you not ask why he was doing this to you'?

ATTY. GAPUZ
Very leading.
COURT
The witness may answer.
WITNESS
A I lost my composure.
FISCAL
Q What happened after this?
A Then he started fondling my body.
Q When your father was doing this, to you, were you already undressed?
A I am still dressed.
Q What were you doing at the time when he was as you said fondling your body?
A Nothing.
Q Then what happened next?
A I was struggling.
Q Why were you struggling?
A Because I don't like what he was doing.
Q Why, what was your father doing when you were struggling?
A He was holding my body, my hands.
Q And what followed next after he was holding your two arms?
A He was able to succeed his desire.
FISCAL
Q Please tell the Court how he was able to get what he wanted'.
A He forced me.
Q How did he force you; in what manner?

A He hold my two hands and then he inserted his private part on mine.
Q Will you tell the Court how he was able to do this when at the time you had still
your clothes on?
A He removed my clothes.
Q And after he was able to remove your clothes, what else did your father do to
you?
A He kissed me.
Q In what part of the body were you kissed?
A On the cheek; on the neck; and then on the breast, and then on my private
part.
Q When your father was doing these things to you, will you tell the Court what
you did, if any?
A I was crying.
Q Did you tell him anything?
A None, sir.
Q Will you tell the Court why you were not able to say anything while your father
was doing these things to you?
A Because I lost my composure.
Q Now after your father had done those things that you said to the Court of
caressing you in the different parts of your body, what did he do next?
A When he saw me crying, he removed his private part from mine,
FISCAL
I would ask, your Honor, that the question be repeated to the witness, because
the (answer) is not responsive.
Q After your father had kissed you on different parts of your body, I ask you what
did he do to you?
A He inserted his private part on mine.
Q And at the time that you said you felt the pain in your private part, will you tell
the Court what was the position of your father?
A He was on top of me.

Q Now as you said when your father saw you crying, he stood up and removed
his private part from your organ. What did you do when he did this?
A He dressed up and I also dressed up.
Q Did you notice anything on your private part as you were crying?
A None, sir.
Q Was there blood?
A There was.
Q Was there any conversation that transpired at the time that you were dressing
and your father was dressing too?
WITNESS
A No, sir (pp. 15-17, t.s.n., November 3, 1972).
From the foregoing testimony, it can be gleaned that there was an appreciable degree of force employed by the
appellant upon his daughter. It appears that the appellant did not rebut in the court below the testimony of his
daughter because he denied having committed the act imputed to him. He did not, therefore, deem it necessary to
present at the trial any evidence at all to show that the act of sexual intercourse was voluntary on the part of his
daughter. On appeal, however, the appellant apparently has abandoned the defense of denial interposed by him in
the court below, and now impliedly admits having had sexual intercourse with his own daughter; but he contends that
the prosecution has not shown satisfactorily that the same was done through force or intimidation. Not having
presented any evidence that the act of sexual intercourse was voluntary, the unrebutted and uncontradicted
testimony of the offended daughter now assumes more weight and importance and to which We give full credence.
This sudden change of attitude on the part of the appellant militates against his claim of innocence.
Moreover, the fact of sexual intercourse was substantially corroborated by the medical report and testimony of Dr.
Abelardo Lucero who examined the offended party and found a newly healed lacerated hymen. He opined that the
offended party could have had sexual intercourse with a man sometime during the month of August up to September
1, 1972 as alleged by her (pp. 29-31, t.s.n., Nov. 3, 1972).
It must be emphasized also that considering the relationship between father and daughter, the degree of force or
intimidation need not be the same as in other cases of rape where the parties involved have no relationship at all with
each other; because the father exercises strong moral and physical control over his daughter. As correctly stated by
the Court of Appeals in its May 3, 1976 decision certifying the case to Us, "indeed the kind of force and intimidation
as between father and daughter need not be of such nature and degree as would be required in cases where the
parties have no family relationship at all" (p. 5, C.A. decision, p. 111, rec.). And appellant admitted that "the
relationship between the complainant and the appellant herein has ample importance to show that there was some
kind of moral pressure on the complainant" (p. 21, Appellant's Brief; p. 72, rec.). Likewise, this Court has ruled that:
"The force or violence necessary in rape is naturally a relative term, depending on the age, size and strength of the
parties and their relation to each other" (People vs. Daniel, L-40330, 86, SCRA 511, 529, Nov. 20, 1978; People vs.
Sarile, 71 SCRA 593, 58 [1976]; People vs. Savellano, 57 SCRA 320, 328 [1974], citing 75 C.J.S 475; emphasis
supplied).
The claim of the appellant that his daughter practically submitted herself to him is hard to believe, for no daughter in
her right mind would voluntarily submit herself to her own father unless there was force or intimidation, as a sexual

act between father and daughter is so revolting. It must be noted that appellant himself admitted that consent was not
previously given by the offended party to the sexual intercourse (p. 17, Appellant's Brief: p. 68, rec.).
While it may be true that the resistance established in evidence by the prosecution may be wanting in comparison
with the resistance offered by victims in other rape cases that have reached this Court, the fact is, there was
resistance, and such, for purposes of this case, is sufficient to qualify the sexual act as rape, considering that the
offender is her own father, whose ruthless assertion of parental authority accompanied by threats subjugated her will
to resist. As aptly observed by the Solicitor General: "In the present case, Elizabeth was not only afraid of her father.
She must have also been shocked into submission by an experience that was unnatural and uncommon and certainly
not normally supposed to happen to persons so closely related" (p. 9, Brief for the Appellee; p. 100, rec.).
In addition, in a crime of rape, it is not necessary that the force used by the accused upon the victim be irresistible.
What is important is that through force, the accused is able to accomplish his evil design. In the instant case, the
appellant succeeded in the consummation of the sexual act against the will of the victim and in spite of her
resistance. As We have repeatedly declared:
It is a doctrine well established by the courts that in order to consider the existence of the crime of
rape it is not necessary that the force employed in accomplishing it be so great or of such character
as could not be resisted; it is only necessary that the force used by the guilty party be sufficient to
consummate the purpose which he had in view (People vs. Daniel, supra; People vs.
Sarile, supra; People vs. Savellano, supra, citing United States vs. Villarosa, 4 Phil. 434 L-1905]).
Along the same line, this Court has held that: "When force is an element of the crime of rape, it need not be
irresistible; it need but be present, and so long as it brings about the desired result, all consideration of whether it was
more or less irresistible is beside the point" (People vs. Daniel, supra; People vs. Sarile supra, citing People vs.
Momo 56 Phil. 86, 87 [1931]).
It must also be noted that the offended party was intimidated by the threat of the appellant to kill her, her mother and
sister and create a real fear in her mind considering that the offended was an ex-convict and she was just an
immature teenager, let alone the fact that the offender is her own father. This fear weakened whatever resistance she
could muster at the time of the assault. It has been held that: "Rape is likewise committed when intimidation is used
on the victim and the latter submits herself against her will because of fear for her life and personal safety" (People
vs. Daniel, supra; People vs. Garcines, 57 SCRA 653 [1974]). And it is an accepted rule that: "Force or violence
threatened for the purpose of preventing or overcoming resistance, if of such character as to create real
apprehension of dangerous consequences or serious bodily harm or such as in any manner to overpower the mind of
the victim so that she does not resist, is in all respects equivalent to physical force actually exerted for the same
purpose" (People vs. Gan, 46 SCRA 667, 677 [1904]).
Furthermore, women may have different reactions when confronted with such heinous act. Some would probably
fight, while others inay assume a silent and fearful attitude because not all women are of the same mettle (People vs.
Olden, 47 SCRA 45,52 [1972]).
The appellant attempted to exculpate himself by showing that his daughter Elizabeth might have denounced him as
the perpetrator of a very serious crime committed upon her person because he told her that he would take her and
her sister Emma away from their mother (p. 6, t.s.n.. Jan. 29, 1972). The motive alleged is not strong enough to make
a fifteen-year-old girl with a fair degree of education, like Elizabeth who is a high school student, invent a charge that
would only bring shame and humiliation upon her and her family and make her an object of gossip among her
classmates and friends. It cannot be denied that she commenced the present case, impelled by the enormity of the
crime and solely for the purpose of stating the truth.
Counsel for the appellant also presents a starting allegation in his brief, thus:

..., the acts of the herein appellant and his daughter, complainant herein, can be ascribed to the permissive character
of the times and the circumstances which surround their own society. It must be noted that appellant had spent
already the substantial portion of his life in jail for a previous crime. His moral education was molded by an abnormal
atmosphere. His hunger of the loins is stronger than his moral self-control, if he has any. While the complainant
herein, in submitting herself freely to the will of appellant as one is wont to believe, can be best explained by her own
parents morality where from she derives her own and which she has been subjected. It cannot be expected therefore
that the moral standard to which a free society imposed on its members can be applicable to appellant and his
daughter (pp. 23-24, Appellant's Brief; pp. 74-75, rec.).
Such an allegation is unwarranted under the circumstances and it is a disgrace to the Bar and an affront to this Court.
A lawyer's language should be dignified in keeping with the dignity of the legal profession. He should therefore be
warned for making such cavalier statements.
The records further disclose that the information charges only one crime of rape committed sometime in the third
week of August. However, the evidence presented by the prosecution established two other separate sexual
intercourses on two subsequent dates.
An accused cannot be convicted of an offense not charged or included in the information because the Constitution
guarantees that: "In all criminal prosecutions, the accused ... shall enjoy the right ... to be informed of the nature and
cause of the accusation against him ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution). Likewise, "... it matters
not how conclusive and convincing the evidence of guilt may be, an accused person cannot be convicted in the
courts of these Islands of any offense, unless it is charged in the complaint or information on which he is tried, or
necessarily included therein. He has a right to be informed as to the nature of the offense with which he is charged
before he is put on trial ..." (Matilde, Jr. vs. Jabson, 68 SCRA 456, 461 [1975], citing U.S. vs. Campo, 23 Phil. 396
[1912]). Consequently, the appellant herein may only be convicted of one crime of rape. In the case at bar, the
offended girl is a daughter of the appellant, and because of the nature of the crime, this relationship is an aggravating
circumstance in accordance with Article 15 of the Revised Penal Code.
WHEREFORE, WE HEREBY FIND APPELLANT SOTERO NAVARRETE GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF RAPE AND HEREBY SENTENCE HIM TO SUFFER THE PENALTY OF RECLUSION
PERPETUA, TO INDEMNIFY THE OFFENDED PARTY IN THE AMOUNT OF P12,000.00 AND TO PAY THE
COSTS.
SO ORDERED.
G.R. No. 120093 November 6, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DAVID GARCIA y QUITORIO, accused-appellant.

REGALADO, J.:
Accused-appellant David Garcia was found guilty beyond reasonable doubt of having raped herein complainant
Jackielyn Ong, 1 a minor, one hundred eighty-three (183) times during the period from November, 1990 up

to July 21, 1994, and was correspondingly sentenced to suffer one hundred eighty-three (183) penalties
of reclusion perpetua and to indemnify complainant in the amount of P50,000.00 as moral damages.
In an information dated July 25, 1994, appellant Garcia was charged with the crime of multiple rape allegedly
committed as follows:

That from November 1990 up to July 21, 1994, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously have multiple carnal knowledge of one Jackielyn Ong, a minor about twelve (12) years old, to the
damage and prejudice of the latter.
Complainant Jackielyn Ong and her younger brother, Darwin, had been abandoned by their mother since birth and
when their father Danilo Ong died, the latter's sister, Elizabeth Ong, took them under her care and custody. Jackielyn,
who was born on June 3, 1982, was only eight years old when she, together with Darwin and a stepbrother, Allan,
were left to the care of herein appellant Garcia, who was then the live-in partner of the victim's aforesaid aunt, when
the latter left for the United States sometime in November, 1990. Appellant Garcia stayed with the children in the
house of Elizabeth Ong at Fontaine Street, East Bajac-Bajac, Olongapo City. 2
On that fateful day of November 1990, after Elizabeth Garcia had left for the airport, complainant, who was then
playing with Darwin outside the house, was called by appellant Garcia who told her to go upstairs. Once there, Garcia
ordered her to remove her shirt and panty and, when she refused, the former was the one who removed them. He
made her lie on the bed and he then removed his pants and brief. Thereafter, he climbed into the bed with her,
spread her legs apart and inserted his private organ into hers. She felt pain when he forced himself upon her and he
was moving up and down. Jackielyn narrated that Garcia pulled out his organ when a whitish substance was
discharged therefrom. Then he ordered her to put back her shirt and panty. Later, complainant went back to play with
her brother.
According to Jackielyn, from November, 1990 up to July 21, 1994, appellant Garcia raped her almost weekly. 3These

incidents happened in all the three places where they lived, that is, at Fontaine Street, East Bajac-Bajac,
at 12th Street, Pag-asa, and at #40 14th Street, East Tapinac, all in Olongapo
City. 4 On July 21, 1994. Jacqueline was sleeping in bed beside her brother, Darwin, when appellant woke
her up, asked her to lie down beside him on the cushion inside the same room where he slept, and had
intercourse with her.
Prosecution witness Angelito Ong testified that sometime in May, 1994. his sister Elizabeth Ong called to inform him
that their brother in the States met an accident, and he was requested to support and take care of the children
because she would not be able to send them money in the meantime. Thenceforth, the children would go to Angelito
Ong's house for their food and other needs.
In the evening of July 22, 1994, Angelito was already becoming apprehensive because the children had not yet
arrived to get their food. He decided to go to the house where the children were staying but he only saw the children's
bags there. The door of the house was locked, and he found Jackielyn and Darwin at a nearby store. When he asked
them why they did not get their food, they answered that the house was locked and the key was with appellant
Garcia. They likewise told him that Garcia scolded them and would not allow them to go out of the house without the
former's permission. Angelito told the children that just because they were getting their food from him, appellant had
no right to be angry at them.
Thereafter, Angelito asked Jackielyn if she was having an affair with appellant or if she had been abused by him.
When Jackielyn refused to answer and merely kept silent, Angelito took it as an admission that what he was asking
her was true, so he brought Jackielyn to the Perpetual Help Clinic for checkup.
It appears that Angelito had already harbored suspicion because sometime in June, 1994, Darwin told him that
several times in the past, although Jackielyn slept beside Darwin at night, the latter would wake up in the morning
and see her sleeping beside appellant Garcia. At that time, Angelito merely warned Jackielyn that it was not proper
for her to be sleeping beside appellant because she was already a big girl. He did not bother to confront appellant
about it then because he did not want to appear invidious. Yet even before that, Angelito already thought it odd and
suspicious why appellant would not allow the children's relatives to go to their house.

Since the doctor at the Perpetual Help Clinic was not available, Angelito decided to bring the children home. Along
the way, Angelito kept on asking Jackielyn if she had been raped by appellant Garcia. At first, Jackielyn refused to
answer, but due to Angelito's persistence and after threatening her that he would eventually know once she is
examined by a doctor, she finally admitted that she had been raped several times by appellant. He then brought her
to the Olongapo City General Hospital where Jackielyn was examined by Dr. Laila Patricio who thereafter issued a
medicolegal certificate. 5
According to Dr. Patricio, the hymen of Jackielyn was no longer intact and, considering that there was no laceration, it
was possible that there had been sexual contact for more than five times. She discounted the probability that there
had been only one or two contacts, or that the loss of virginity was caused by biking, because otherwise there should
have been a laceration. She likewise conducted a "spermatozoa determination" to see if there had been sexual
intercourse during the past 24 hours, but the result was negative, although she clarified that the sperm normally stays
in the vagina for 24 hours unless the woman washes herself very well. Jackielyn told her, during the medical
examination, that she had been raped by the husband of her aunt who was in the States.
From the hospital, Angelito and Jackielyn proceeded to the police station where they filed a complaint for
rape 6against Garcia and later executed their sworn statements. 7 On the strength thereof, Garcia was

apprehended in his house at 32 Jones Street, Olongapo City. At the time of his arrest, no formal complaint
had as yet been filed in court nor had a warrant of arrest been
issued. 8
Appellant Garcia could only offer bare denials to the inculpatory testimonies of the victim and the prosecution
witnesses that he raped Jackielyn. He contends, however, that probably the reason why he was being falsely charged
was because Elizabeth Ong's family was not satisfied with the way he managed the house entrusted to him and the
money being sent by Elizabeth for the support of the children. He rationalizes that as the supposed guardian of the
children and with the trust reposed in him by Elizabeth, he could not and would never do such a thing to Jackielyn.
In his cross-examination, however, appellant Garcia admitted having sent a letter addressed to Elizabeth Ong and
several others, dated August 24, 1994, 9 wherein he disclosed that he and Jackielyn were having a

relationship and that he was asking for forgiveness from Elizabeth for what happened between him and
Jackielyn.
The conviction of herein appellant is now being controverted and assailed essentially on two grounds, namely, that
the information is defective and that the trial court erred in relying on the credibility of the testimony of the victim. 10
I. Appellant avers that the information for multiple rape filed against him is defective for failure to state the exact dates
and time when the alleged acts of rape were committed since it was merely stated therein that the offense was
committed "from November 1990 up to July 21, 1994." He asserts that each sexual act is a separate crime and,
hence, must be proven to have been committed on a precise date and time.
The defense, in support of this argument, relies mainly on Section 11, Rule 110 of the Rules of Court, as revised,
which provides:
Sec. 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.
It invokes the early case of U. S. vs. Dichao 11 wherein an order sustaining a demurrer to an information for

failure to conform to the subscribed form was upheld by the Court, in effect authorizing the outright
dismissal of the case, on the ground that:

. . . The allegations of an information should, if possible, be sufficiently explicit and certain as to time to
inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the
accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to
defend himself.
While Section 7 of the Code of Criminal Procedure provides that "except when time is a material ingredient
of an offense, the precise time of commission need not be stated in a complaint or information, but the act
may be alleged to have been committed at any time before the filing thereof," this does not mean that the
prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date
altogether, or that he may make the allegation so indefinite as to amount to the same thing. Where the exact
date cannot be fixed, or where the prosecuting officer is not thoroughly satisfied that he can prove a precise
date, he should allege in the information that the crime was committed on or about a date named. Under
such an allegation he is not required to prove any precise date but may prove any date which is not so
remote as to surprise and prejudice the defendant. In case of surprise the court may allow an amendment of
the information as to time and an adjournment to the accused, if necessary, to meet the amendment.
In the case before us the statement of the time when the crime is alleged to have been committed is so
indefinite and uncertain that it does not give the accused the information required by law. To allege in an
information that the accused committed rape on a certain girl between October 1910 and August 1912, is too
indefinite to give the accused an opportunity to prepare his defense . . . Section 7 of the Code of Criminal
Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the
commission of the crime as near to the actual date as the information of the prosecuting officer will permit,
and when that has been done any date may be proved which does not surprise and substantially prejudice
the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference
thereto as amounts to the same thing.
Assuming that this is still good case law, reliance cannot be placed thereon by appellant since the dicta are not
squarely applicable to the present case due to factual differences. Taking into consideration the circumstances
obtaining herein vis-a-vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of
a motion to quash in that case as pointed out in the aforequoted decision. There is no such motion in the case at bar,
and this spells the big differences.
The rule is that at any time before entering his plea, the accused may move to quash the information 12 on the

ground that it does not conform substantially to the prescribed form. 13 The failure of the accused to assert
any ground for a motion to quash before he pleads to the 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 for 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. 14
Perforce, a formal defect in the information not being one of the exceptions to the rule, appellant's failure to invoke
the same through a motion to quash is deemed to be a waiver of such objection and he cannot now be heard to seek
affirmative relief on that ground. Moreover, objections as to matters of form or substance in the information cannot be
made for the first time on appeal. 15
At any rate, even laying aside procedural technicalities and assuming arguendo that appellant Garcia could validly
raise this legal question before us, we are still not inclined to apply the ruling in Dichao to the case now before us.
It may readily be inferred from the decision in Dichao that where there is such an indefinite allegation in the
information as to the time of the commission of the offense which would substantially prejudice the defense, a motion
to quash the information may be granted and the case dismissed without the benefit of an amendment. On the other
hand, where there is a variance between the date of the commission of the crime alleged in the information and that
proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and that by reason thereof,

he is unable to properly defend himself, the court may, in the exercise of sound discretion based on all the
circumstances, order the information amended so as to set forth the correct date. It may further grant an adjournment
for such a length of time as will enable the accused to prepare himself to meet the variance in date which was the
cause of his surprise.
Apparently, that distinction was premised on the theory that the question on whether the allegations of the information
are sufficiently definite as to time, and the question which arises from a variance between the particulars of the
indictment and the proof, are different in nature and legal effect, and are decided on different principles.
It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will not be allowed, and
the motion to quash should instead be granted, where the information is, on its face, defective for failure to state with
certainty when the offense was committed, and such ambiguity is so gross as to deprive the accused of the
opportunity to defend himself. For all intents and purposes, however, a strict adherence thereto would no longer be a
sound procedural practice, especially in criminal proceedings which bears the mandate on speedy trial and wherein
the availability of bills of particulars have over time been adopted and recognized.
We believe that the principle laid down in the more recent case of Rocaberte vs. People, et al. 16 involving exactly

the same issue, presents the more logical and realistic interpretation of the rules. While the Court there
adverted to the Dichaocase, it nevertheless resorted to a less restrictive application of the rules by
disposing of the case in this wise:
A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for
a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that
account will be denied since the defect is one that can be cured by amendment; instead, the court shall
order the amendment to be made by stating the time with particularity.
The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient
definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of
1964.
xxx xxx xxx
From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is
indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of
having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made
to bear. The public prosecutor must make more definite and particular the time of the commission of the
crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be
maintained, the case must be dismissed.
WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED ANNULLING AND
SETTING ASIDE the challenged Orders of respondent Judge . . . , and DIRECTING the amendment of the
information in said case by the prosecution within such time as the respondent Judge may deem proper,
failing which the criminal prosecution against the petitioner and his co-defendants shall be dismissed
(Emphasis supplied).
Conformably thereto, where the allegation in the information as to the date or time of the commission of the offense is
so uncertain, indefinite or ambiguous as to constitute a violation of the right of the accused to be informed of the
nature and cause of the accusation against him, the proper disposition where a motion to quash is filed on that
ground, is for the trial court to overrule the motion and order the prosecution to amend the information by stating the
date or time with particularity, within such period as the trial court may deem proper under the circumstances.

This rule finds support in Section 4 of Rule 117 which provides that "if the motion to quash is based on an alleged
defect in the complaint or information which can be cured by amendment, the court shall order the amendment to be
made." Corollarily, Section 14 of Rule 110 states that "the information or complaint may be amended, in substance or
form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all
matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights
of the accused."
In the event that the public prosecutor still fails to make the necessary amendment within the time allowed therefor by
the court, only then may the court order the dismissal of the case. Hence, if herein appellant Garcia had filed a motion
to quash, the case would not require an outright dismissal.
Furthermore, it bears stressing that Section 11 of Rule 110 does not require that the precise time when the offense
was committed be stated in the information, except when time is a material ingredient of the offense. In rape cases,
the date or time is not an essential element of the crime and, therefore, need not be accurately stated. 17
II. The second issue hinges on the credibility of complainant's testimony. Appellant contends that the prosecution
failed to prove multiple rape and that the trial court erred in accepting in full complainant's testimony that she was
raped every week during the period earlier stated. It is averred that while complainant remembered the details of the
first and last acts of rape, she failed to narrate with similar clarity the other acts that allegedly transpired in the interim.
We are strongly convinced that, based on the testimonies of complainant and the prosecution witnesses, appellant
Garcia is guilty as charged. Absolute certainty of guilt is not demanded by the law for conviction of any criminal
charge; only moral certainty is required as to every proposition of proof requisite to constitute the offense. 18 Such

requirement has been complied with in the case at bar with respect to the criminal acts hereinafter
specified. Besides, aprima facie case affords sufficient basis for conviction if not overcome by the
evidence of the accused. 19
We have thoroughly examined the testimony of complainant Jackielyn Ong and we cannot but conclude that
complainant, in spite of her youth at the time she testified, was very candid, spontaneous and consistent in her
testimony in court, both in the direct and cross-examination. Her testimony is forthright, clear and free from serious
contradictions. It is a basic rule, founded on reason and experience, that when the victim testifies that she has been
raped, she says in effect all that is necessary to show that rape was committed. 20 Thus, if her testimony meets the

test of credibility, the accused may be convicted on the basis thereof. On this aspect, it is an accepted
precept that testimonies of rape victims who are young and of tender age are credible. Hence, the
revelation of an innocent child whose chastity was abused deserves full credence. 21
Nor have we chosen to merely rely on such doctrinal rules. Our conclusion further resulted from a painstaking
analysis of the evidence on record. The alleged inconsistency pointed out by appellant, to the effect that complainant
remembered the details of the first and last acts of rape but failed to expound on the other violations committed
against her, is not sufficient to render her testimony doubtful. Such failure does not necessarily detract from her
credibility nor negate the commission of the rape. The testimony of a witness must be considered and calibrated in its
entirety and not by truncated portions thereof or isolated passages therein. 22
Rape, as a harrowing experience, is usually not remembered in detail. For, such an offense is not something which
enhances one's life experience as to be worth recalling or reliving but, rather, something which causes deep
psychological wounds and casts a stigma upon the victim for the rest of her life, which her conscious or subconscious
mind would prefer to forget. Thus, a rape victim is not and cannot be expected to keep an accurate account of her
traumatic experience. 23 With more reason must we have greater compassionate understanding of herein

complainant's plight who, at a very tender age, was mercilessly corrupted by a conscienceless human
being with bestial desires.

The failure of complainant to immediately disclose the violations committed against her, and the fact that she went on
to play with her brother after the first rape incident, cannot be considered as absolutely unnatural and contrary to
normal human behavior. It must be remembered that the subject of appellant's lust is an innocent, naive and frail little
girl of eight years, extremely ignorant of the ways of the world and of men. One cannot and should not expect such a
wisp of a girl to act like an adult or like a mature and experienced woman who would know what to do under such
difficult circumstances. 24 In fact, her subsequent action is confirmatory of the unreasoning innocence of

childhood which in this case was mercilessly betrayed.

The alleged absence of resistance cannot likewise alter the condemnatory verdict against appellant. This Court has
consistently held that rape is committed when intimidation is used on the victim and this includes the moral kind of
intimidation or coercion. Intimidation is a relative term, depending on the age, size and strength of the parties, and
their relationship with each other. 25 It can be addressed to the mind as well. 26 Moreover, the intimidation must

be viewed in the light of the victim's perception and judgment at the time of the rape and not by any hard
and fast rule. It is therefore enough that it produces fear fear that if the victim does not yield to the
lustful demands of the accused, something would happen to her at the moment or thereafter. 27
In the instant case, a clear situation bespeaking abuse of transient authority is established by the records. There can
be no doubt that appellant Garcia had a sort of moral dominance and influence over Jackielyn such that he could
easily intimidate and force her to submit to his satyric desires, considering that she was very young at that time and
under his custody. 28 Jackielyn was only eight years old when Garcia started molesting her sexually.

Appellant himself admitted that he was expected to take care of complainant and her brother, and to give
them guidance and advice. Hence, the victim could hardly be expected to use any discretion and
discernment as to how she could resist the coercive power of appellant. 29
Jackielyn disclosed during her direct examination that she was afraid of appellant because sometimes he would get
mad at her and beat her. 30 On cross-examination, she declared that she never confided to her older brother

about the rape incidents because she feared that if she did so, appellant might get angry and beat
her. 31 Her fear of appellant is vividly illustrated by the testimony of her uncle. Angelito Ong, about that
incident when the victim and her younger brother failed to get their food from his house and he found
them in a nearby store because they were locked out of the house by appellant. 32 So great was the fear
instilled by appellant in the victim's mind that she would rather go hungry, which is an ordeal for young
children, than incur his ire.
In sum, complainant's tender age and appellant's custodial control and domination over her, had rendered her so
meek and subservient to his needs and desires, thus becoming an easy prey to appellant's lecherous
advances. 33This psychological predicament, in the mind of the Court, explains why the offended girl did not

give any outcry or offer any resistance when she was being raped, 34 especially when she became inured
to the outrage repeatedly committed over a period of time and which sexual assaults were corroborated
by medicolegal evidence.
Perhaps, though, the most convincing evidence that appellant Garcia committed the acts charged is his very own
admission of having had repeated carnal knowledge of the victim in a letter which he sent on August 24, 1994 from
his place of detention to Elizabeth Ong, his live-in partner and aunt of the victim, wherein he pleaded that he be given
another chance and promised to change for the better. 35 The following excerpts therefrom, to quote just a few,

are indeed revealing and revolting:

. . . OO, tutuong may ng yari sa amin ni Jackylyn, Yon ay alam niya. Kayo mismo ang kumausap. Nitong
May at June hanggang July 16, 1994. Yan ay inaamin ko pero hindi ko siya tinakot at ni rape. Alam ni
Jackylyn yon . . . Una halikan lang muna siya panga ang nag-umpisa. Ng umabot ng June bago
magpasukan nitong 1994 lang kami lumag-pas sa hindi dapat. At siya pa nga ang nagsabi sa akin

dinadatnan na siya kaya mag-ingat kami at baka raw mabuntis ko siya. Di kako bahala ka ikaw ang babae.
Mga 7 o 8 beses kami naulit. Mula May, June, July 16, 1994. Tapos kako nga pa sa kanya bakit gustonggusto mo na ginaganoon ko siya at anong dahilan. Ang sabi niya ay wala. Kako hindi mo ba alam maraming
magagalit at masasaktan. At saka kako hindi ka papayag ipaubaya ang pinakamahalagang bagay na
iniingatan ng babae. Bakit kako mahal mo ba ako sabi naman OO. . . Humihingi ako sa inyo ng isang
pagkakataon na ibalato na lang ninyo ang buhay ko kay Jackylyn . . . at Beth kung talagang mahal mo rin
ako ay pabayaan mo na ang kalayaan ko at sarili kay Jackylyn. . . Kaya humihingi ako sa inyong lima ng isa
pang pagkakataon na panagutan si Jackylyn. . . At yong ng yari samin ni Jackylyn ay kapwa namin
kagustuhan. . . At hindi kunaman talaga ni rape. . . Handa kunaman panagutan. . . Kayo ang pag-asa ko
para sa kaligtasan ng buhay ko dahil sa paratang nayan. . . Kaya nakikiusap ako at humihingi ng awa ninyo
at isang pag-kakataon. . . .
If what appellant claims in his letter that he and Jackielyn were lovers is true, it is paradoxical that he never
mentioned that in his testimony nor did he present any evidence to prove such supposed relationship. His silence on
the matter becomes highly suspect, considering that such a defense was undeniably intended to possibly save the
day for him. An elementary knowledge of human nature would expose his pretensions as merely an afterthought on
the part of appellant, in a desperate and vain attempt to exculpate himself from his shameless and heinous acts.
Besides, it is the height of incredibility that, as appellant would want to suggest in his aforestated letter, the initiative
came from the victim herself, this despite her age and the inbred modesty of a provincial lass. That would be
stretching the imagination too far and insulting to the intelligence and credulity of even an ordinary layman. It has
never been shown, nor has an insinuation been made, that Jackielyn was a girl of loose morals with the capacity to
lure a much older man into such indiscretions over an incredible period of time.
In contrast, the defense relied solely on the testimony of appellant which, as earlier observed, leaves very much to be
desired as it consists mainly of bare and pharisaical denials. Time and again we have said that denial, like alibi, is a
weak defense which becomes even weaker in the face of the positive identification of the accused by prosecution
witnesses. Appellant's denial constituted self-serving negative evidence which can hardly be considered as
overcoming a straightforward and creditworthy eyewitness account. As between positive and categorical testimony
which has the ring of truth on one hand, and a bare denial on the other, the former is generally held to
prevail, 36 especially given the facts obtaining in this case.
III. Be that as it may, however, on the bases of the evidence adduced by the prosecution, appellant can be convicted
only of the two rapes committed in November, 1990 and on July 21, 1994 as testified to by complainant, and for the
eight counts of rape committed in May and June and on July 16, 1994 as admitted in appellants aforementioned letter
of August 24, 1994. We cannot agree with the trial court that appellant is guilty of 183 counts of rape because, as
correctly asserted by the defense, each and every charge of rape is a separate and distinct crime so that each of
them should be proven beyond reasonable doubt. On that score alone, the indefinite testimonial evidence that
complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant
therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which
are uncorroborated by any other evidence, fall within this category.
We are fully convinced, however, that appellant is guilty of statutory rape for the sexual act committed in November,
1990 when Jackielyn was only eight years old. Sexual congress with a girl under twelve years of age is always rape
although there might have been consent to the sexual act. Being of such tender age, she is presumed not to have a
will of her own. The law does not consider any kind of consent given by her as voluntary. 37
It has likewise been sufficiently established beyond reasonable doubt that Jackielyn was raped by appellant on July
21, 1994. The evidence is well-nigh conclusive that she was intimidated into submitting to appellant's libidinous
craving and loathsome assault by reason of his authority and predominance over her. Jackielyn may well have been
over twelve years of age at that time, but what is the difference in mental fitness and attitude between a twelve-year
old girl and one who is twelve years and one month old? 38

Finally, appellant's admission in his letter of August 24, 1994 that "it happened 7 or 8 times in May, June until July 16,
1994," which was never explained away nor successfully refuted by the defense, should definitely be taken into
consideration. It is said that although written admissions have sometimes been treated as competent evidence under
the head of one of the exceptions to hearsay evidence, yet they are open to but few of the objections which may be
urged against hearsay testimony. They are, it is true, declarations made out of court and without sanction of an oath,
yet they are statements, not of third persons, but of a party to the litigation; and, where they are offered against him, it
is only fair to presume, until the contrary is shown, that they are correct. Whatever a party voluntarily admits to be
true, though the admission be contrary to his interest, may reasonably be taken for the truth. 39
No compelling reason exists in the case at bar to warrant the exclusion or disregard of these admissions of appellant.
These are admissions against his own interest which no sane or reasonable man would make if they were not true.
He voluntarily and intelligently made and even put them down in single-spaced handwriting on four full pages of legal
size ruled pad. On top of that, he identified the same and testified thereon, without any repudiation, in open court on
January 13, 1995, thus converting such extrajudicial admissions into judicial admissions.
One might ask why, having been burned the first time, the offended girl did not thereafter stay away from appellant,
thereby giving him other opportunities to inflict his lust on her. The obvious explanation is that we are dealing here not
with a worldly-wise woman but with a young and innocent child of tender age whose acts were dominated more by
fear than by reason. 40 This is especially understandable in this case where the victim is practically an

orphan abandoned in the care of a stranger masquerading in the guise of a guardian, and who never felt
a sense of belonging except to such a stranger whom she wrongly believed had a familial concern for her,
but whom she realized too late was devilishly unworthy of her trust and respect.
IV. We now proceed to consider the proper imposable penalty on appellant in light of his proven criminal misdeeds
consisting of ten acts of rape. Having been charged with the simple crime of rape, each of which warrants the
imposition of the penalty of reclusion perpetua, both the trial court and the People's Tribune agree on that penalty to
be imposed for each crime, although both contend that such penalty should be imposed on 183 acts of rape. We
have already explained that appellant can be convicted of only ten crimes of rape, but we have not answered the
unspoken question, since both the trial court and the Solicitor General have passed sub silentio thereover, on
whether the ten convictions we sustain should be for simple rape or for its qualified form under the circumstances
stated in Republic Act No. 7659 which amended Article 335 of the Revised Penal Code.
It is true that the appellant has been charged with simple rape, that the court below found him guilty only of simple
rape as charged, and that no issue over the effect of the amendatory law has been raised. However, it is a longsettled rule in criminal procedure, which is now enshrined in the Rules of
Court, 41 that an appeal throws the criminal case open for review by the appellate court which may

thereafter reverse the decision a quo, or modify the same by reducing or increasing the penalty upon a
concomitant modification of the findings on the nature of the crime committed or the computation of the
penalty therefor. Here, we are further confronted by the situation wherein the first crime of rape in 1990 of
which we find appellant guilty is covered by the original provisions of the Revised Penal Code, while the
other nine crimes of rape committed in 1994 are governed by the amendatory provisions of Republic Act
No. 7659, with circumstances necessitating higher penalties, and which took effect on December 31,
1993. 42
Section 11 of Republic Act No. 7659 provides that where the victim of the crime of rape is under eighteen years of
age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed. The inevitable query,
since the fact is mentioned in passing in the records, is whether or not appellant is a guardian in the contemplation of
this amendment to the law on rape such that, the victim being a minor, he should be punished with the higher penalty
of death for the nine crimes of rape committed by him in May and June, 1994 and on July 16 and July 21, 1994.
In the law on rape, the role of a guardian is provided for in Article 344 of the Revised Penal Code, specifically as one
who, aside from the offended party, her parents or grandparents, is authorized to file the sworn written complaint to

commence the prosecution for that crime. In People vs. De la Cruz, 43 it was held that the guardian referred to in

the law is either a legal or judicial guardian as understood in the rules on civil procedure.
That holding was rationalized as follows:
Article 344 of the Revised Penal Code, paragraph 3, is as follows:
"Tampoco puede procederse por causa de estupro, rapto, violacion o abusos deshonestos, sino en virtud de
denuncia de la parte agraviada, o de sus padres, o abuelos or tutor, ni despues de haberse otorgado al
ofensor perdon expreso por dichas partes, segun los casos." Without passing at this time on the question
whether the tutor (legal guardian) may file a complaint in the temporary absence of the parents or
grandparents of the offended party, it suffices to say that we cannot accept the view of the Government that
an aunt who has the temporary custody of a minor in the absence of her father occupies the position of a
tutor (legal guardian). The word "tutor" (guardian) appearing in article 344, supra, must be given the same
meaning as in section 551 of the Code of Civil Procedure, that is to say, a guardian legally appointed in
accordance with the provisions of Chapter XXVII of the Code of Civil Procedure.
It would not be logical to say that the word "guardian" in the third paragraph of Article 344 which is mentioned
together with parents and grandparents of the offended party would have a concept different from the "guardian" in
the recent amendment of Article 335 where he is also mentioned in the company of parents and ascendants of the
victim. In Article 344, the inclusion of the guardian is only to invest him with the power to sign a sworn written
complaint to initiate the prosecution of four crimes against chastity, while his inclusion in the enumeration of the
offenders in Article 335 is to authorize the imposition of the death penalty on him. With much more reason, therefore,
should the restrictive concept announced in De la Cruz, that is, that he be a legal or judicial guardian, be required in
the latter article.
The Court notes from the transcripts of the proceedings in Congress on this particular point 44 that the formulators

were not definitive on the concept of "guardian" as it now appears in the attendant circumstances added
to the original provisions of Article 335 of the Code. They took note of the status of a guardian as
contemplated in the law on rape but, apparently on pragmatic considerations to be determined by the
courts on an ad hoc basis, they agreed to just state "guardian" without the qualification that he should be
a legal or judicial guardian. It was assumed, however, that he should at the very least be a de
facto guardian. Indeed, they must have been aware of jurisprudence that the guardian envisaged in
Article 335 of the Code, even after its amendments by Republic Act No. 4111, would either be a natural
guardian, sometimes referred to as a legal or statutory guardian, or a judicial guardian appointed by the
court over the person of the ward.
They did agree, however, that the additional attendant circumstances introduced by Republic Act No. 7659 should be
considered as special qualifying circumstances specifically applicable to the crime of rape and, accordingly, cannot
be offset by mitigating circumstances. The obvious ratiocination is that, just like the effect of the attendant
circumstances therefore added by Republic Act No. 4111, although the crime is still denominated as rape such
circumstances have changed the nature of simple rape by producing a qualified form thereof punishable by the
higher penalty of death. 45
Coming back to the categorization of the functions of appellant in relation to private complainant and her brother, we
are not prepared to say that, under the particular and peculiar facts obtaining in this case, the former sustained the
relation of guardian to the latter, whether as a natural or legal, or even de facto and, much less, judicial guardian. He
cannot be a legal or natural guardian as that refers to parents, nor even a guardian de son tort (sometimes referred to
as a quasi-guardian or guardian by estoppel) since he did not on his own assume to act as a guardian of, say, a
foundling. 46 The fact is that he is not related to and he did not even support the children as it was Elizabeth

Ong, then later her brother who provided the food, other necessities and instructions for the care of the

children, and they have been living in Elizabeth's house wherein appellant was in that respect merely a
hanger-on and a freeloader. He was merely expected to carry out Elizabeth's directions, and Elizabeth
continued to be the guardian de facto of the children.
Appellant has not been proven to have exercised any valid act of patria potestas over complainant and her brother,
unless we consider beating and abusing them as within that concept. In fine, at the very most, appellant was only an
unwilling custodian and caretaker, not unlike a domestic majordomo or steward of the house and the children, and for
which services he obtained free board and lodging. Ironically, that amorphous role that he played in the lives of the
children, and which enabled him to abuse them, offers him salvation from the death penalty which he deserves. This
is because the Court proceeds only under the dictates of the law and never under errant emotionalism or maudlin
sentimentality.
The law requires a legal or judicial guardian since it is the consanguineous relation of the solemnity of judicial
appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating
its objectives. Such considerations do not obtain in appellant's case or, for that matter, any person similarly
circumstanced as a mere custodian of a ward or another's property. The fiduciary powers granted to a real guardian
warrant the exacting sanctions should he betray the trust.
In results, therefore, that appellant cannot be considered as the guardian falling within the ambit of the amendatory
provision introduced by Republic Act No. 7659. He would not fall either in the category of the "common-law spouse of
the parent of the victim" in the same enumeration, since his liaison is with respect to the aunt of Jackielyn. Since both
logic and fact conjointly demonstrate that he is actually only a custodian, that is, a mere caretaker of the children over
whom he exercises a limited degree of authority for a temporary period, we cannot impose the death penalty
contemplated for a real guardian under the amendments introduced by Republic Act No. 7659, since he does not fit
into that category.
One further observation, Article 335 originally provided only for simple rape punishable by reclusion perpetua, but
Republic Act No. 4111 introduced amendments thereto by providing for qualified forms of rape carrying the death
penalty, that is, when committed with the use of deadly weapon or by two or more persons, when by reason or on the
occasion of the rape the victim becomes insane, or, under the same circumstances, a homicide is committed. The
homicide in the last two instances in effect created a special complex crime of rape with homicide. The first two
attendant circumstances are considered as equivalent to qualifying circumstances since they increase the penalties
by degrees, and not merely as aggravating circumstances which effect only the period of the penalty but do not
increase it to a higher degree. The original provisions of Article 335 and the amendments of Republic Act No. 4111
are still maintained.
As earlier observed, Republic Act No. 7659 thereafter introduced seven more attendant circumstances the presence
of any of which takes the case out of the purview of simple rape, and effectively qualifies the same by increasing the
penalty one degree higher through the imposition of the death penalty. All these new attendant circumstances, just
like those introduced by Republic Act No. 4111, partake of the nature of qualifying circumstances, and not merely
aggravating circumstances, on the same rationale already explained.
Now, it has long been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same
are not pleaded but proved, they shall be considered only as aggravating circumstance, 47 since the latter admit of

proof even if not pleaded. 48 Indeed, it would be a denial of the right of the accused to be informed of the
charges against him and, consequently, a denial of due process, if he is charged with a simple rape and
be convicted of its qualified form punishable with death, although the attendant circumstance qualifying
the offense and resulting in capital punishment was not alleged in the indictment on which he was
arraigned.
Recapitulating, the information filed against appellant charged only the felony of simple rape and no attendant
qualifying circumstance, specifically that of his being supposedly a guardian of the victim, was alleged. On this

additional consideration, he cannot, therefore, be punished with the penalty of death even assuming arguendo that
he is such a guardian. Neither can that fact be considered to aggravate his liability as the penalty for simple rape is
the single indivisible penalty of reclusion perpetua. 49
The end result, therefore, is that for the ten crimes of rape of which we declare him guilty, only the penalty ofreclusion
perpetua can be imposed. He must, however, be further held liable for the corresponding indemnity to the victim, as
well as exemplary damages for each count of rape. 50
WHEREFORE, the challenged judgment of the court a quo is MODIFIED. Accused-appellant David Garcia y
Quintorio is hereby declared guilty of ten (10) felonies of simple rape and ordered to serve the penalty of reclusion
perpetua for each felony, subject to the provisions of Article 70 of the Revised Penal Code. He is further ordered to
indemnify Jackielyn Ong in the sum of P50,000.00 for each of the ten (10) felonies of rape, to pay her exemplary
damages of P25,000.00 likewise for each of the ten (10) felonies of rape, and to pay the costs in all instances of this
criminal proceeding.
SO ORDERED.