Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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 or reclusion 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.
Teehankee (Chairman), Fernandez, Guerrero and Melencio-Herrera, JJ., concur.
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