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THIRD DIVISION

G.R. No. 93143 August 4, 1992

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MAXIMO R. RACE, JR. accused-appellant.

DAVIDE, JR., J.:

Accused appeals from a judgment of conviction for the crime of Rape in Criminal Case No. 5571 of Branch 44 of the Regional Trial Court (RTC) of Masbate, the dispositive portion of which reads:

Wherefore, finding the accused to be guilty beyond reasonable doubt of the crime of rape the Court hereby finds him guilty without doubt (sic) and applying the aggravating circumstances (sic), hereby sentences him to serve a (sic) penalty of reclusion perpetua to be served at the National penitentiary, and to pay the victim in the form of moral damages the amount of P20,000.00 and to pay the cost of the suit. He is credited four fifth (4/5) of his preventive imprisonment.

The prosecution for rape was commenced by a complaint ¹filed on 22 September 1988 by Corazon E. Collantes, mother of the offended party, Maria Pura, with the Municipal Trial Court (MTC) of Masbate which reads:

The undersigned, Complainant under oath (sic), unto this Honorable Court, accuses MAXIMO ROSERO RASE, JR., for (sic) the crime of RAPE committed as follows:

That on September 14, 1988 at about 10:00 o'clock in the morning more or less at Barangay F. Magallanes, Municipality of Masbate, Province of Masbate, Philippines and within the preliminary (sic) jurisdiction of this Honorable Court, the above-named accused, move (sic) by some evil motives, with leud (sic) design did then and there, willfully, unlawfully and feloniously and by means of abuse of confidence did lie and had (sic) carnal sexual intercourse of said (sic) Maria Pura, a woman of mute, deep and retarded (sic) against her will and consent.

Having found probable cause to exist after asking the witnesses searching questions, the Judge of the MTC issued on 6 October 1988 an order for the arrest of the accused. ²chanrobles virtual law library

On 10 November 1988, the MTC issued an order declaring that the accused had waived his right to a preliminary investigation and that "a prima facie case" exists against him. It then forwarded the records of the case to the Office of the Provincial Fiscal of Masbate. ³chanrobles virtual law library

On 29 November 1988, 2nd Assistant Provincial Prosecutor Iñigo D. Fontelar of the Provincial Prosecution Office of Masbate issued a resolution, ⁴duly approved by Provincial Prosecutor Hermenegildo F. Betonio, Jr., recommending that an information for the crime of rape be filed against the accused because "(t)he undisputed evidence on record as fully disclosed by the court and discussed in its order of November 10, 1988, (sic) which we agree, no doubt establishes a prima facie case and/or probable cause to hold the accused for trial." Accordingly, on 7 December 1988, said Assistant Provincial Prosecutor filed with the Regional Trial Court of Masbate an Information for rape, ⁵duly approved by the Provincial Prosecutor, which reads:

The undersigned 2nd Assistant Provincial Prosecutor accuses Maximo Rosero Race, Jr. of the crime of Rape committed as follows:

That on or about September 14, 1988, in the morning thereof, at barangay Magallanes, Municipality of Masbate, Province of Masbate, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously (sic) have carnal knowledge of one Maria Pura, a deaf-mute, retarded and an embecile (sic) against the latter's will and consent.

Accused entered a plea of not guilty upon arraignment ⁶and trial proceeded thereafter on various dates with the prosecution presenting Dr. Artemio G. Capellan, Noel Abela and Elena Alim as its witnesses for its evidence in chief, and Elvira Collantes as its witnesses on rebuttal. The accused took the witness stand in his own defense.chanroblesvirtualawlibrarychanrobles virtual law library

On 15 December 1989, the trial court promulgated its decision, ⁷convicting the accused of the crime of rape, the dispositive portion of which was quoted earlier. According to the court, rape was committed because Maria Pura, being deaf-mute and mentally retarded, cannot give consent; it was determined that moral compulsion, amounting to intimidation, was employed by the accused. Said the court:

The victim being mentally retarded could not be asked questions as what (sic) happened to her although she sometimes understands (sic) some questions. The circumstances appearing as seen by Noel Abela shows (sic) that sexual intercourse was committed on the person of Maria Pura a mentally retarded, deaf-mute. Maria Pura being mentally retarded could not actually give consent in order that she could have sexual intercourse with the accused.chanroblesvirtualawlibrarychanrobles virtual law library

The Court could not even say as testified that force was employed upon the victim but the appearance of the woman alone and her physical condition could not stop any physical force. However, for the reason that the accused has been known to the woman who (sic) even slept, though outside of their house in an attachment, moral compulsion which is tantamount to intimidation was employed by the accused when the sexual intercourse happened. It is a sorry state that the victim could not testify. The Court however, is convinced that rape was committed. 8

xxx xxx xxxchanrobles virtual law library

The accused when confronted by the family of the victim denied having sexual intercourse with Maria Pura. However, Maria Pura, although a deaf-mute when asked by Collantes and by Noel Abela, and by the sister Elena Alim pointed to the accused to have committed, (sic) such a dastardly act. She pointed to the accused when asked as to what happened. There is no reason for Maria Pura to tell a lie. Being (sic) of unsound mind and laughing (sic) at the time when she was investigated, only shows (sic) that there was sexual intercourse through moral compulsion which the court believes is intimidation. That she should give consent, such question when subjected to all doubts and understanding (sic) would show that this woman who is mentally retarded and a deaf-mute could never give consent to any sexual intercourse committed on her by the accused. ⁹chanrobles virtual law library

It also appreciated against the accused the aggravating circumstance of reiteracion ¹⁰ because he admitted during cross-examination that he was previously, convicted of the crime of homicide but was out on parole at the time of the rape.chanroblesvirtualawlibrarychanrobles virtual law library

From the said decision, accused came to this Court by filing a notice of appeal on 18 December 1989. ¹¹He has only one assignment of error in the Brief for the Appellant, ¹²to wit:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.

In support of the alleged error, he contends that reasonable doubt exists in this case because: (a) the scene of the crime is well populated and inhabited; since it was daytime and there were many people outside the house when the incident occurred, it is possible that another man or a neighbor of the Puras, and not the accused, assaulted Maria Pura; (b) he is on parole and knew that if he violated the terms and conditions thereof, he would be rearrested to serve the unexpired portion of his sentence; it was, therefore, unlikely that he would commit another crime; (c) there is no reliable eyewitness to the crime; and (d) he manifested his honesty by not denying that he slapped Noel Abela after the latter made fun of him (the accused) when he came out of the toilet. ¹³

The facts of this case as presented by the prosecution are faithfully summarized by the Solicitor General in the Brief for the Appellee ¹⁴ as follows:

In the morning of September 14, 1988, Elvira Collantes, left her forty-year old sister Maria Pura in their house located at Magallanes St., Masbate, Masbate to go to the market. Maria was cross-eyed, mute, retarded, and a polio victim, standing less than four feet who could only nod her head and make signs to be able to communicate. She can crawl but cannot stand unsupported. (TSN, October 23, 1989, p. 4; TSN , April 26, 1989, p. 3; TSN, June 22, 1989, p. 9; TSN, October 10, 1989, pp. 3-4, 6).chanroblesvirtualawlibrarychanrobles virtual law library

Maria was left alone in the house with Maximo Race, Jr. also known as Jun, who during that time had asked Elvira for permission to use the toilet built outside the house. Since Race had been using the toilet in the past with their permission, she agreed. She knew Race because he often sleeps outside the extension of the Pura house, particularly in the Pura store which is attached to the house (TSN, October 23, 1989, pp. 3, 5; TSN, June 22, 1989, pp. 3, 8).chanroblesvirtualawlibrarychanrobles virtual law library

At around 10 a. m. of the same day, Noel Abila, son of Elena Alim both of whom lived in the Pura residence together with Maria, had just come home from school when he heard a voice. He immediately ran to the kitchen where the voice came from and saw Race putting his pants on (TSN, June 22, 1989, p. 4; TSN, October 20, 1989, p. 3).chanroblesvirtualawlibrarychanrobles virtual law library

Noel then saw his Aunt Maria in the dining room. She was laughing at Race. Noel let Maria sit on a chair. When Noel asked his Aunt Maria what Race did to her she moved her body forward and backward in a push-pull movement. Noel thereupon accused Race of raping Maria and threatened to report the incident. Race slapped Noel and went out of the house to the place where he drinks liquor (TSN, June 22, 1989, pp. 5, 6; TSN, October 23, 1989, p. 4).chanroblesvirtualawlibrarychanrobles virtual law library

Noel afterwards informed his uncle Glen Collantes, husband of Elvira Collantes of the incident. Glen brought Race to Maria Pura, who pointed at Race. When Glen asked Maria what Race did to her she again made the push-pull movement. Maria was laughing (TSN, June 22, 1989, pp. 7, 8, 10).chanroblesvirtualawlibrarychanrobles virtual law library

Elena Collantes, who was working at D'SAN Restaurant, went home upon learning of the incident. Elena, together with their mother "Azon", later went to the Municipal Hall to lodge a complaint (TSN, October 10, 1989, pp. 4-8).chanroblesvirtualawlibrarychanrobles virtual law library

After the complaint was filed, Maria was examined by Dr. Artemio Capellan, the Municipal health officer, in their house, the following day (TSN, October 10, 1989, p. 8; TSN, April 26, 1989, pp. 3, 5).chanroblesvirtualawlibrarychanrobles virtual law library

The results of the examination were stated in a medical certificate issued by Dr. Capellan (Exh. "A"). To wit:chanrobles virtual law library

For External examination:chanrobles virtual law library

Fairly developed and fairly nourished, mentally retarded, mute, female, adult, Filipino. The breast (sic) are fully developed, hemispherical in shaped (sic) and slightly soft in consistency. The areola are pinkish brown in color with nipples are (sic) prominent and protruding.chanroblesvirtualawlibrarychanrobles virtual law library

Contusion, abrasion nor (sic) hematoma were not found in the body of the victim.chanroblesvirtualawlibrary chanrobles virtual law library

Genital examination:chanrobles virtual law library

Pubic hair not abundant, Labia majora and labia minora are coaptated. Hymenal opening originally linear in shaped (sic) showing old laceration, corresponding to 5:00, 7:00 o'clock position in the face of the watch. Hymenal orifice admits the vaginal speculum without resistance. Vaginal rugosities are present but obliterated. Vaginal canal is moderately tight.chanroblesvirtualawlibrarychanrobles virtual law library

Conclusion:chanrobles virtual law library

1. No extra genital injuries were noted on the person of Maria Pura.chanroblesvirtualawlibrarychanrobles virtual law library

Microscopic examination:chanrobles virtual law library

a) Presence of human semen and dead sperm were (sic) noted.chanroblesvirtualawlibrarychanrobles virtual law library

Maria had sexual contact because the speculum can be inserted into her without difficulty. She had an old healed hymeneal laceration caused a day before. Some of the sperm found in her vagina were living at the time they were examined (TSN, April 26, 1989, p. 4).

On the other hand, the accused denies the commission of the crime. He summarizes his story in his Brief as follows:

. . . In the morning of September 14, 1988, he asked Elvira Pura-Collantes' permission to use their toilet. Elvira is a younger sister of Maria. Said toilet is outside the Puras' house. He did not go to their kitchen nor borrowed (sic) cellophane from Noel Abela. When he came out of the toilet Noel shouted at him and teased him. He got angry and slapped Noel and threw one of his slippers to (sic) the latter. Noel ran away crying and called for his mother who is working in a restaurant. Noel's mother arrived home and scolded him (accused). It is not true that he raped Maria Pura. The Puras are just angry with him because he slapped Noel. The nearest house to the Puras is only a meter away. And there were many people around when he slapped Noel (TSN, pp. 2-7, October 20, 1989).

We find no difficulty in agreeing with the trial court's conclusion that the accused had sexual intercourse with Maria Pura on the date as charged. Although there was no eyewitness to the act, the confluence of the facts and circumstances unerringly establishes the commission of the act. The Solicitor General correctly enumerates these facts and circumstances:

(1) When witness Elvira Collantes left the house in the morning of 14 September 1988, only her sister Maria Pura and the appellant were left therein;chanrobles virtual law library

(2) Witness Noel Abela, upon arriving home at 10:00 o'clock that morning, chanced upon the accused closing the zipper of his pants in the kitchen while Maria was at the adjacent dining room, laughing at the accused;chanrobles virtual law library

(3) When Noel asked Maria what accused did to her, she moved her body forward and backward; she repeated this motion when asked by Glen Collantes, her brother-in-law, pointing at the same time to the accused;chanrobles virtual law library

(4) Upon examining Maria the following day, Dr. Capellan, the Municipal Health Officer, noticed the presence of "human semen and dead sperm", thus indicating that she had sexual intercourse within the past twenty-four (24) hours.

There can be no doubt that if the carnal knowledge was accomplished under any of the circumstances enumerated in Article 335 of the Revised Penal Code, the foregoing circumstantial evidence would have been sufficient to support a conviction for such a crime pursuant to Section 4, Rule 133 of the Rules of Court which provides:

Sec. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence if sufficient for conviction if:chanrobles virtual law library

(a) There is more than one circumstance;chanrobles virtual law library

(b) The facts from which the inferences are derived are proven; andchanrobles virtual law library

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

The foregoing disquisitions render utterly ineffectual and reduce to naught accused's assigned error and the arguments in support thereof. But did the act of the appellant constitute the crime of rape as defined under Article 335 of the Revised Penal Code? To arrive at the answer, the following crucial issues must be resolved:

1) whether the information properly charges the accused with the commission of rape; andchanrobles virtual law library

2) assuming that it does, whether the evidence for the prosecution established the guilt of the appellant beyond reasonable doubt.

Article 335 of the Revised Penal Code pertinently provides:

Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:chanrobles virtual law library

1. By using force or intimidation;chanrobles virtual law library

2. When the woman is deprived of reason or otherwise unconscious; andchanrobles virtual law library

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.chanroblesvirtualawlibrarychanrobles virtual law library

This crime of rape shall be punished by reclusion perpetua.

xxx xxx xxx

The proper complaint and information for rape must clearly describe the specific circumstances which would make the carnal knowledge of a woman qualify as such under Article 335. Otherwise stated, the same must concretely describe the crime of rape in any of the specified forms to duly inform the accused of the nature of the accusation; ¹⁵the right to be informed of such accusation is one of his constitutional rights. ¹⁶chanrobles virtual law library

The accusatory portion of the information in this case reads:

That on or about September 4, 1988, in the morning thereof, at barangay Magallanes, Municipality of Masbate, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously (sic) have carnal knowledge of one Maria Pura, a deaf-mute, retarded and an embecile (sic) against the latter's will and consent.

As can be readily seen, it does not specifically describe any of the circumstances under Article 335 of the Revised Penal Code. It is evident that the information was hurriedly and poorly crafted for aside from the deficiency abovementioned, the 2nd Assistant Provincial Prosecutor even wrongly spelled the words feloniously and imbecile. This notwithstanding, the allegation therein that the accused had sexual intercourse with a woman who is retarded and an imbecile implies that the victim was not in full possession and control of her moral reasoning faculty; this is sufficient enough to have alerted the accused that the charge against him is for rape under the circumstance that the woman is deprived of reason. ¹⁷ An imbecile is "a mentally defective person of the second lowest order of intellectual potential (mental age between 3 and 7 years), usually requiring custodial and complete protective care." ¹⁸Imbecility is "(a) form of mental disease consisting in mental deficiency either congenital or resulting from an obstacle to the development of the faculties supervening in infancy. Idiocy . . . . For any process of reasoning, or any general observation or abstract ideas, imbeciles are totally incompetent. Of law, justice, morality, property, they have but a very imperfect notion, . . . . ¹⁹chanrobles virtual law library

And now on the second issue.chanroblesvirtualawlibrarychanrobles virtual law library

It may be recalled that the trial court convicted the accused based on two circumstances: (a) the use of intimidation and (b) the inability of the offended party to give consent because she is "a deaf-mute, retarded and an embecile (sic)".chanroblesvirtualawlibrarychanrobles virtual law library

The first is definitely without basis as no evidence was adduced to prove it. The trial court merely inferred this from what it describes as "moral compulsion" which it ascribes to the fact that "the accused has been known to the woman who (sic) even slept, although outside their house in an attachment." These are inferences running riot which elementary logic and common sense reject.chanroblesvirtualawlibrarychanrobles virtual law library

What has to be determined then is whether the offended party, Maria Pura, before, during and even after the sexual intercourse on 14 September 1988, suffers from mental retardation or, imbecility which deprived her of reason at the time the appellant had carnal knowledge of her.chanroblesvirtualawlibrarychanrobles virtual law library

Without an admission by the accused, this Court's task of resolving this issue would have been difficult as it would be entirely dependent on: (a) the conclusion of the trial court that Maria Pura is "a deaf mute, retarded and an embecile (sic)"; this conclusion is principally anchored on exactly the same allegation in the information; (b) the finding by Dr. Capellan, entered in his physical and medical examination report, that she is mentally retarded; (c) the testimony of Noel Abela that when the victim was asked what the accused did to her, she demonstrated a push-pull movement and was laughing while looking at the accused; and (d) the court's view of the woman when she was brought to the court. On that occasion the following transpired:chanrobles virtual law library

ELENA ALIM TESTIFYING UNDER SAME OATHchanrobles virtual law library

COURT:

Q You were requested by the court to bring your elder sister and the court has seen you bringing a woman accompanied by a certain man, is that your elder sister, Maria Pura?chanrobles virtual law library

A Yes, Your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

Q And that man is your younger brother?chanrobles virtual law library

A Yes, Your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who (sic) is the name of your younger brother?chanrobles virtual law library

A Gaspar.chanroblesvirtualawlibrarychanrobles virtual law library

Q Gaspar, would you let her stand?chanrobles virtual law library

A (Gaspar assisted the woman Maria Pura in standing up)chanrobles virtual law library

Q How tall is she?chanrobles virtual law library

A (Less than 4 feet and cross-eyed woman (sic))chanrobles virtual law library

Q Could you talk?chanrobles virtual law library

A (Woman is nodding)chanrobles virtual law library

Q Who (sic) is your name?chanrobles virtual law library

A (The woman when asked her name just nodded her head, she is telling something but could not talk) ²⁰

No expert witness was presented to testify on Maria Pura's imbecility.chanroblesvirtualawlibrarychanrobles virtual law library

Fortunately for the Prosecution, the appellant readily admitted that Maria Pura is mentally deficient:chanrobles virtual law library

Thus, in his Brief, he states:

In the case at bar, the evidence for the prosecution was not scrutinized with extreme caution. To stress, there is no reliable eyewitness to the crime charged. The alleged rape victim is physically and mentally deficient being a deaf-mute, retarded and (sic) imbecile. ²¹chanrobles virtual law library

Maria Pura was then incapable of giving rational consent to the sexual act. In effect, she is deprived of reason. In People vs. Manlapaz, ²²which involves a 13-year old girl with the mentality of a 5-year old child, this Court held:

Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years of age is rape because she is incapable of giving rational consent to the carnal intercourse. "Las mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero no es condicion precisa que la carencia de razon sea complete, basta la abnormalidad o deficiencia mental que solo la disminuye, sim embargo, la jurisprudence es discordante" (II Cuello Calon, Derecho Penal, 14th Ed., 1975, pp. 538-9).

Comete violacion el que yace can mujer que no tiene normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales (11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo 1953); el yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24 octubre, 1956, 19 feb. 1958); . . . (Ibid, note 3).chanroblesvirtualawlibrarychanrobles virtual law library

The same rule prevails in American jurisprudence. "There can be no question but that a copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape" (State vs. Jewett, 192 At. 7).chanroblesvirtualawlibrarychanrobles virtual law library

An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a female who was mentally incapable of validly consenting to or opposing the carnal act (65 Am Jur 2nd 766 citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).chanroblesvirtualawlibrarychanrobles virtual law library

In this species of rape neither force upon the part of the man nor resistance upon the part of the woman forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who by law is conclusively held incapable of legal consent. Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact . . . It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44).

This rule has been reiterated by this Court in the following decisions which upheld convictions for the crime of rape: People vs. Gallano, ²³where the 31-year old victim had the mental level of a 7-year old child; People vs. Asturias, ²⁴ where the 17-year old victim had the mental level lower even than that of a 7-year old child; People vs. Sunga, ²⁵where the 23-year old victim had the mentality of an 8 to 9-year old child; and People vs. Palma, ²⁶where the victim was a 14-year old retardate with an intellectual capacity described as ''borderline mental deficiency".chanroblesvirtualawlibrarychanrobles virtual law library

In the Asturias case, this Court in effect held that if the mental level of a woman above twelve (12) years old is that of a child below twelve (12) years old, even if she voluntarily submitted to the bestial desires of the accused, or even if the circumstances of force or intimidation, or of the victim being deprived of reason or otherwise unconscious are absent, the accused would still be liable for rape under the third paragraph of Article 335. The reason for this is that if intercourse with a victim under twelve (12) years old is rape, then it should follow that carnal knowledge of a woman whose mental age is that of a child below twelve (12) years of age would also constitute rape.chanroblesvirtualawlibrarychanrobles virtual law library

Affirmance of the decision appealed from is thus inevitable. The accused cannot be permitted to escape from the wrath of the law. Having succumbed to his bestial instinct and desire to satisfy his animal greed by preying on a defenseless imbecile who ought to be the object of sympathy, he has become a two-legged beast which civilized society must hold in prison in order that he may answer for his evil deed. However, there is in need to modify both the amount of indemnity awarded to the offended party and the credit of four-fifths (4/5) of the accused's preventive imprisonment. Also, the appreciation of the aggravating circumstance of reiteracion should be set aside.chanroblesvirtualawlibrarychanrobles virtual law library

Pursuant to People vs. Arenas, ²⁷which involves the rape of a mentally retarded woman, the indemnity to be paid should be increased to P40,000.00. The four-fifths (4/5) credit, on the other hand, is improper. Accused is entitled to be credited with the full time of his preventive imprisonment under the first paragraph of Article 29 of the Revised Penal Code and not under paragraph two, which prescribes the four-fifths (4/5) credit, since there is no evidence that he did not agree to abide by the same disciplinary rules imposed upon convicted prisoners.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court likewise erred in appreciating the aggravating circumstance of reiteracion. This circumstance is not alleged in the information. The prosecution did not prove it. Upon cross-examination of the accused by the Prosecutor, over the objection of the defense counsel, the only information elicited is that the accused had earlier been convicted for the crime of homicide, had served the sentence and had later been released. ²⁸chanrobles virtual law library

The fact of his being out on parole was brought out upon questioning by the court after the termination of the cross-examination. ²⁹It would thus be unfair to appreciate reiteracion against the accused. Besides, for the same to exist, it is necessary that "the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty." ³⁰Appellant was earlier convicted for the crime of homicide which is punishable by reclusion temporal. ³¹That penalty is not equal or greater - but is definitely lower - than that provided for the crime of ordinary rape which is reclusion perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, except as above modified, the decision of the Regional Trial Court of Masbate, Branch 44, in Criminal Case No. 5571 finding the accused-appellant MAXIMO R. RACE, JR. guilty beyond reasonable doubt of the crime of rape, is hereby AFFIRMED in all other respects.chanroblesvirtualawlibrarychanrobles virtual law library

Costs against the accused-appellant.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Endnotes:

1 Original Records, 3.chanrobles virtual law library

2 Original Records, 10.chanrobles virtual law library

3 Id., 11.chanrobles virtual law library

4 Id., 2.chanrobles virtual law library

5 Original Records, 1.chanrobles virtual law library

6 Id., 20.chanrobles virtual law library

7 Id., 57-61.chanrobles virtual law library

8 Original Records, 58, 59.chanrobles virtual law library

9 Original Records, 59.chanrobles virtual law library

10 Id., 61.chanrobles virtual law library

11 Id., 62.chanrobles virtual law library

12 Rollo, 27-34.chanrobles virtual law library

13 Rollo, 30-32.chanrobles virtual law library

14 Id., 44-59.chanrobles virtual law library

15 See People vs. Oso, 62 Phil. 271 [1935].chanrobles virtual law library

16 Section 14 (2), Article III [Bill of Rights], 1987 Constitution.chanrobles virtual law library

17 See People vs. Manlapaz, 88 SCRA 704 [1979].chanrobles virtual law library

18 MILLER and KEANE, Encyclopedia and Dictionary of Medicine and Nursing, W.B. Saunders Company, 1972, 470.chanrobles virtual law library

19 BOUVIER's Law Dictionary, Vol. I, Third Revision, 1492.chanrobles virtual law library

20 TSN, 10 October 1989, 6.chanrobles virtual law library

21 Brief for the Accused-Appellant, 6; Rollo, 32; Emphasis supplied.chanrobles virtual law library

22 Supra.chanrobles virtual law library

23 108 SCRA 405 [1981].chanrobles virtual law library

24 134 SCRA 405 [1985].chanrobles virtual law library

25 137 SCRA 130 [1985].chanrobles virtual law library

26 144 SCRA 236 [1986].chanrobles virtual law library

27 198 SCRA 172 [1991].chanrobles virtual law library

28 TSN, 20 October 1989, 5.chanrobles virtual law library

29 Id., 8.chanrobles virtual law library

30 Article 14 (10), Revised Penal Code.chanrobles virtual law library

31 Article 249, Id.