FIRST DIVISION
G.R. No. 126921 August 28, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE MORENO y CASTOR, accused-appellant.
Separate Opinions
DAVIDE, JR., J., separate opinion;
I respectfully submit that accused-appellant may be validly convicted of rape under either the second or third circumstance provided for in Article 335 of the Revised Penal Code, even if the information has charged him only with rape under the first circumstance.
Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, pertinently provides as follows:
Art. 335. When and how rape committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
Before the amendment introduced by R.A. No. 7659, the third circumstance read as follows:
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraph shall be present.
Since the rape subject of this case was committed on 29 September 1993, the governing law then was Article 335 before it was amended by R.A. No. 7659.
The complaint here contained sufficient allegations showing that rape was committed under the first circumstance of Article 335.
The evidence, however, established that the victim was an imbecile with the mental age of a six-year old child. The record does not disclose that appellant objected to the presentation and offer by the prosecution of evidence of such fact. Appellant's failure to object was thus a waiver of the constitutional right to be informed of the nature and cause of the accusation. It is competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will. (1 ARTURO M. TOLENTINO, CIVIL CODE OF THE PHILIPPINES 31-32 [1983 ed.]). This Court has, on more than one occasion, recognized waivers of constitutional rights, e.g., the right against unreasonable searches and seizures (People v. Malasugui, 63 Phil. 221 [1936]; Viuda de Gracia v. Locsin, 65 Phil. 689 [1938]); the right to counsel and to remain silent (People v. Royo, 114 SCRA 304 [1982]); the right to be heard (Abriol v. Homeres, 84 Phil. 525 [1949]); People v. Dichoso, 96 SCRA 957 [1980]) and the right to bail (People v. Donato, 198 SCRA 130 [1991]). Reliance on U.S. v. Karelsen (3 Phil. 223 [1904]) and People v. Mabag y Labado (98 SCRA 730 [1980]) is inapposite for the former did not involve a conviction for an offense other than that charged, accused was in fact charged with and convicted of embezzlement; while in the latter, this Court sustained the conviction of the accused under Article 335 although he was charged with having violated Article 293 in relation to Paragraph 2 of Article 296 of the Revised Penal Code. Neither is People v. Pailano (169 SCRA 649 [1989]) of any persuasive import, for in fact, it did not totally discount a valid conviction for rape under the second circumstance of Article 335 although the complaint charged a violation of the first paragraph, in light of the failure on the part of the accused to object to the evidence to support the second circumstance. This Court noted there, thus:
It may be argued that although initially deficient, the criminal complaint was deemed corrected when the prosecution introduced evidence of the complainant's mental condition and the defense did not object, thereby waiving the procedural defect. Even so, the charge has not been adequately established.
In the first place, the doctor who examined Anita reported that he saw no evidence of insanity in her family history nor was there any indication of such condition in the complainant herself. He did observed that she had the mentality of a thirteen-year old, which was not that serious an impediment as her age at the time was only fifteen.
Secondly, and more importantly, the prosecution has not proved that during the encounter in the bushes, Anita's mental condition was so weakened that she could not resist Pailano's supposed advances.
Accordingly, appellant here can be convicted of the crime charged through either the second or third circumstance of committing such crime.ℒαwρhi৷
It is settled that an imbecile or a retardate woman with a mental age below that of a woman less than twelve (12) years of age is deprived of reason and carnal knowledge of her is considered rape under the second circumstance of Article 335 (People v. Gallano, 108 SCRA 405 [1981]; People v. Sunga, 137 SCRA 130 [1985]) or is of the same category as a woman under 12 years of age and carnal knowledge of her is deemed rape under the third circumstance (People v. Manlapaz, 88 SCRA 704. [1979]; People v. Asturias, 134 SCRA 405 [1985]; People v. Race, 212 SCRA 90 [1992]).
In People v. Rosare (264 SCRA 398 [1996]), the conviction was, principally, for rape under the second circumstance, and not under the first, as footnote numbered 20 on page 12 of the ponencia here states. The opinion that the accused there could be convicted under the first paragraph was merely an additional ground to sustain the rape conviction. What Rosare held as to why no conviction under the third circumstance was possible was that the accused was not charged with statutory rape, thus:
Nonetheless, we find and so hold that appellant cannot be held liable for statutory rape. The age of the victim is an essential element in the crime of statutory rape, but the information filed in the case at bar does not contain any averment thereof, even at least with regard to the mental age of the victim. This notwithstanding, appellant may still be convicted of rape under paragraph 2 of Article 335 of the Code on the basis of the facts and evidence hereinbefore discussed.
In addition, while there may have been no physical force employed on the victim, considering however that she is feeble-minded, there is authority to the effect that the force required by the statute is the sexual act itself, to wit:
Appellant contends in the instant case that it was not shown that the carnal knowledge was by force. It is plain, however, "forcibly" does not mean violently, but with that description of force which must be exercised in order to accomplish the act for there is no doubt that unlawful connection with a woman in a state of unconsciousness, produced by profound sleep, stupor or otherwise, . . . amounts to rape. . . . (T)his force may be constructive . . . where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, . . . she was incapable of consenting, and the law implied force. . . . In wrongful act. . . . A man who, knowing of a woman's insanity, takes advantage of her helpless condition to gratify his own lustful desires, is guilty of felonious rape, though he uses no more force than that involved in the carnal act, and though the woman offers no resistance to the consummation of his purpose. (Emphasis supplied).
Accordingly, appellant can also be held liable even under the first paragraph of Article 335 of the Revised Penal Code. Women, like the ill-fated girl in this case, must be protected, not only against the lecherous [sic] members of the opposite sex, but against themselves as well; and men who, knowing of their imbecility, take advantage of their helpless condition to gratify their own satyric desires, are guilty of rape, though they use no more force than that involved in the carnal act, and though the woman offers no resistance to the consummation of their purpose. (emphasis supplies)
The underscored statement in Rosare is plainly too sweeping and must be taken only as an obiter. It cannot be absolutely decreed that the sexual act itself constitutes force to make the carnal knowledge criminal. In the case of an imbecile or a retardate with a mental age below that of a woman less than 12 years old, the more acceptable pronouncement to bring carnal knowledge of her within the first circumstance of Article 335 was that forwarded in People v. Gallano (supra, at 413), to wit:
Her mental condition was such that she would not resist sexual advances because she was so deprived of reason to make any effective resistance. Hence, by her being so deprived, the act is made possible in the same way when there is active resistance but [the] same is overcome by force or threat, which is the essence of the crime of rape.
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