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[ G.R. Nos. 131861-63. March 14, 2000]
PEOPLE vs. BENJAMIN LIM y BELTRAN
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated MAR 14 2000.
G.R. Nos. 131861-63 (People of the Philippines vs. Benjamin Lim y Beltran.)
For consideration is accused-appellant's motion for leave to admit the incorporated second motion for reconsideration of this Court's decision, dated August 17, 1999, sentencing accused-appellant to death for each of the two counts of rape he had committed in 1994 and 1996 against the daughter of his common-law wife. Accused-appellant prays for the appointment by the Court of a competent physician to determine whether he is not in fact impotent or, in the alternative, for the reduction of each of his death sentences to reclusion perpetua, pursuant to Articles 47 and 83 of the Revised Penal Code, on the ground that he is now over 70 years of age.
I. Anent the first ground of the motion, accused-appellant reiterates the request in his first motion for reconsideration that he be subjected to the necessary medical examination to determine the veracity of his claim of impotence. He invokes the precedent set in the case of People v. Parazo,1 G.R. No. 121176, July 8, 1999. in which this Court ordered the mental examination of the accused to determined whether he should have been assisted by a sign language expert at his arraignment and trial. Indeed, the medical examination showed that he is a "deaf-mute, a mental retardate whose mental age is only seven (7) years and nine (9) months, and with low I.Q. of 60 only." For this reason, his conviction was set aside, and he was ordered rearraigned and retried "with the assistance of counsel and a competent sign language expert."
We do not see how this case is analogous to the Parazo case because here, there is competent evidence to show that at the time of the commission of the crimes, accused-appellant was not impotent. As this Court explained in its resolution of January 18, 2000 in denying with finality accused-appellant's first motion for reconsideration based on the same ground:
First of all, the Court cannot see why, if accused-appellant thinks there is a need for further testing to prove his claim of impotence, he did not ask the same during the trial, considering it was on [the trial court's] own initiative that the trial court ordered his medical examination. The doctor who conducted the ensuing manual stimulation test, while noting the lack of erection, testified that it was still possible for accused-appellant to have had sex from 1992 to 1996 because "impotency is usually related to emotional and psychological problems." Indeed, the possibility exists that even if accused-appellant was found impotent in 1997 when he was examined, he was not so when the rapes in these cases were committed. It is noteworthy that accused-appellant did not present any medical certificate nor give the specifics as to the cause of his alleged impotence, merely claiming that the same was caused by a fall from a jeep where he suffered broken hips.
Indeed, accused-appellant is capable of sexual intercourse and, therefore, his committing rapes in 1993, 1994 and 1996 has been clearly shown in this case. As the Court pointed out in its decision, accused-appellant had a child, Ianbe Cebrian Lim, by his common-law wife in 1992 after the year (1990) when he claimed he had the debilitating accident. His common-law spouse Vivian Cebrian Morado Had a stillbirth on October 17, 1994 as shown in the Certificate of Fetal Death (Exh. F) listing them both as the child's parents. It is clear that "Vivian Morgado Lim" is the same as Vivian Cebrian Morado. "Morgado" is a mere typographical deviation from "Morado," which is the surname of Vivian's Legal spouse and private complainant's father, while "Lim" is accused-appellant's surname which Vivian adopted as her own. Furthermore, as pointed out by the Office of the Solicitor General in his opposition to petitioner's motion for reconsideration:
It is an established fact that appellant and Vivian Morado Lim lived together as husband and wife during the time material to this case. As such, it is presumed that things have happened according to the ordinary course of nature and the ordinary habits of life. Accordingly, it is presumed that appellant was the father of the fetus Baby Boy Cebrian Lim who was conceived during the existence of their cohabitation unless appellant can show the contrary by competent evidence. This, appellant failed to do.
Moreover, the Certificate of Fetal Death is an official document issued by the Civil Registry which indicates that appellant was the father of the fetus. Section 44, Rule 130 of the Rules of Court provides:
Sec. 44. Entries in official records. - Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.
Vivian herself impliedly admitted the veracity of Exh. F's contents when she testified that she and accused-appellant had five children (when accused-appellant said they had four). She obviously counted the stillborn baby, Baby Boy Cebrian Lim, as she explained that one of her five children "died so [now] there are only four."
II. Accused-appellant also contends that, in accordance with Articles 47 and 83 of the Revised Penal Code, the death penalty cannot be imposed on him because he turned 70 years old on November 11, 1999.2 Actually, this was after the decision in this had been promulgated on August 17, 1999. These provisions state:
ART. 47. In what cases the death penalty shall not be imposed; Automatic review of death penalty cases.- The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty in which cases the penalty shall be reclusion perpetua.
In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but not earlier than fifteen (15) days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.
ART. 83. Suspension of the execution of the death sentence.- The death sentence shall not be inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalty provided in Article 40.
In all cases where the death sentence has become final, the records of the case shall be forwarded immediately by the Supreme Court to the Office of the President for possible exercise of the pardoning power. (Emphasis added)
In the first place, even assuming that accused-appellant's claim to be over 70 years of age is true, the decision in this case was promulgated on August 17, 1999, prior to the alleged 70th birthday of accused-appellant on November 11, 1999, so that this claim is more properly ventilated before the authorities charged with the execution of the Court's decision.
Secondly, there are serious doubts as to the veracity of accused-appellant's claim that his date of birth is November 11, 1929. As proof of his age, accused-appellant submitted a certificate of baptism stating that he was born on November 11, 19293 Rollo, p. 233. as well as an affidavit of birth4 Id., p. 234. executed on January 26, 2000 by Pedro Mondano and Macario Moleta, allegedly friends of accused-appellant's parents, who claim that they personally know accused-appellant's birthdate to be November 11, 1929. Accused-appellant claims that he tried to obtain a certified copy of his birth certificate from the Office of the Civil Registrar General, National Census and Statistics Office (NCSO), Manila, but he was informed that the records of births, deaths, and marriages in that office commenced only from 1932. However, the NCSO "certified that civil registry of birth for the year 1929 are INTACT in the files of the Office of the Local Civil Registrar of above named locality [Mainit (formerly part of Placer), Surigao del Norte] as per status report of civil registry records submitted to this office... Further verification may therefore be requested in the files of that office."
Instead of securing a certified true copy of his birth certificate from the Local Civil Registrar of Mainit, Surigao del Norte, accused-appellant submitted a mere xerox copy of a certificate of birth purporting to have been issued by the Local Civil Registrar of Placer, Surigao del Sur, stating that he was born on November 11, 1929. This alleged certificate was prepared only on January 10, 2000 and is not based on the existing records of the Local Civil Registrar of Placer but only on information supplied by accused-appellant's son, Benjamin D. Lim, Jr., who is listed in the birth certificate as the "INFORMANT." This is contrary to �5 of Act No. 3753, establishing the Civil Register, which provides in pertinent part:
Registration and certification of birth. - The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from the documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.
In such declaration, the persons above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship, and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; (f) and such other date as may be required in the regulations to be issued.
In the case of an exposed child, the person who found the same shall report to the local civil registrar the place, date, and hour of finding and other attendant circumstances.
In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified.
Any foetus having human features which dies after twenty-four hours of existence completely disengaged from the maternal womb shall be entered in the proper registers as having been born and having died. (Emphasis added)
On the other hand, the certificate of baptism of accused-appellant shows that it was issued only on September 24, 1997, while the sworn statement was executed by Pedro Mondano and Macario Moleta who state their ages as 81 and 83 years old, respectively. Both claim to be close and intimate friends of accused-appellant's parents. But if on January 26, 2000, when they executed the affidavit, Mondano and Moleta were 81 and 83 years old, respectively, they would have been only on 10 and 12 years old, respectively, when accused-appellant was allegedly born on November 11, 1929. They would be too young not only to have become intimate friends of accused-appellant's parents but also to have known the date of birth of accused-appellant. They could actually have become family friends of accused-appellant's parents, but this must be after the two have reached adulthood.
Indeed, accused-appellant's claim that he is now over 70 years old, having attained that age on November 11, 1929, is contrary to his own testimony on March 26, 19975 TSN, pp. 2-3, 9, March 26, 1997. that he was then 62 years of age, so that now he is only 65. Thus, he testified:
COURT INTERPRETER:
Please state your name, status and other personal circumstances;
TESTIMONY OF:
BENJAMIN LIM, 62 years old, married, jobless and residing at Santiago, Agusan del Norte.
ATTY. TE [counsel for accused-appellant]:
The testimony of this witness, who is the accused in th[e] three counts of rape filed by Jovelyn Morada his step daughter is offered to deny his participation in the commission of the said three counts of rape citing as reasons his old age his physical, mental and health condition; the accused would also testify that in the years 1993, 1994, 1995 and in 1996, where the alleged rape incident happened, the accused was in Santiago, Agusan del Norte, the accused would testify to the matter in relation to the three counts of rape.
DIRECT EXAMINATION
Q�������� Mr. Lim, you are too old and weary, how old are you by the way?
A�������� 62 years old.
Q�������� Do you have a copy of your birth certificate to attest the fact of your age?
A�������� I can produce it, if it is needed.
. . . .
Q�������� Since when did your penis stop erecting?
A�������� In the year 1955.
Q�������� When you were 55 years old?
A�������� I mean, when I was still 55 years old.
Q�������� Since you said a while [ago], you are 62 years old now, and you stop[ped] [having an] erection since you were 55, it would mean that 7 years ago, you have not already encountered sexual intercourse?
A�������� Yes, sir.
. . . .
Q�������� But in 1955, how old are you?
A�������� At that time, I was still young, because I was born in 1935, I was still 20 years old in 1955.
Q�������� You mean, you got married with Vivian Cebrian what year was that when youlive together as husband and wife with your common law wife?
A�������� About 1985.
Q�������� 1985, you were only 50 years old?
A�������� Yes, because I was born in 1935.
Q�������� And so, in 1990, you were only 60 years old?
A�������� I was still 55 in 1990.
Q�������� You are very sure of that?
A�������� Yes. (Emphasis added)
That accused-appellant was born in 1935, which makes him 65 today, is corroborated by the certificate of fetal death (Exh. F)6 Records, p. 53. of Bb. Boy Cebrian Lim, where accused-appellant's age, as the father of the child, was listed as 59 years of age at the time of delivery on October 17, 1994. That clearly means he is today only 65 years of age.
WHEREFORE, accused-appellant's motion for leave to admit the incorporated second motion for reconsideration and the aforesaid second motion for reconsideration are DENIED for lack of merit. Pardo, J., is abroad on official business.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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