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THIRD DIVISION

G.R. No. 109776 May 26, 1995

PEOPLE OF THE PHILIPPINES, plaintiff appellee, vs. ROQUE CABRESOS, accused-appellant.

FELICIANO, J.:

Roque Cabresos was charged with the crime of rape before the Regional Trial Court ("RTC"), Branch 26 of Medina, Misamis Oriental, in an information which alleged:

That on or about 29th day of June 1988 at about 2:00 early dawn, more or less, at Sitio Upper Anoling, Barangay Kabulakan, Municipality of Balingoan, Province of Misamis Oriental, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully and feloniously, by means of force and intimidation and with the use of a knife, have sexual intercourse with the offended party, Editha Pesidas, against her will and without her consent.chanroblesvirtualawlibrarychanrobles virtual law library

The crime was committed with the attendance of aggravating circumstance of abuse of confidence and obvious ungratefulness as accused was accommodated to live with the complainant's family.chanroblesvirtualawlibrarychanrobles virtual law library

Contrary to and in violation of Article 335, paragraph 1, in relation to Article 14, paragraph 4, all of the Revised Penal Code. ¹chanrobles virtual law library

At arraignment, he entered a plea of not guilty. After trial, he was found guilty and sentenced in a decision rendered in November 19, 1992. The dispositive portion of the decision reads:

WHEREFORE, premises considered, this court finds Roque Cabresos guilty beyond reasonable doubt of the crime of rape with the use of deadly weapon as defined and penalized under Article 335 of the Revised Penal Code with aggravating circumstances of abuse of confidence, obvious ungratefulness, blood relationship and with the use of deadly weapon; and, thereby sentences him to suffer an imprisonment under reclusion perpetua or thirty (30) years imprisonment, with full credit of the entire period of his detention from February 17, 1989 to the present or finality of this judgment. Accused Roque C. Cabresos is hereby declared as the father of the child Anthea Q. Pesidas and he is ordered to recognize and support said child in accordance with the provisions of the Family Code.chanroblesvirtualawlibrarychanrobles virtual law library

Accused Roque Cabresos is likewise ordered to pay Editha Pesidas the sum of P30,000.00 by way of moral damages and P20,000.00 by way of exemplary damages and to pay the costs. ²chanrobles virtual law library

Roque Cabresos appeals from his conviction assigning the following as errors allegedly committed by the trial court:

Ichanrobles virtual law library

The trial court gravely erred in giving full credence to the testimony of the prosecution witness which is highly incredible, inconsistent and unreliable.

IIchanrobles virtual law library

The trial court gravely erred in not giving credence to the defense interposed by accused-appellant.

IIIchanrobles virtual law library

The trial court gravely erred in convicting the accused-appellant despite failure of the prosecution to prove his guilt beyond reasonable doubt. ³chanrobles virtual law library

The trial court found that the evidence of the prosecution showed the relevant facts to be the following:

Complainant Editha Pesidas testified that she is 18 years old (at the time she testified), but she was 16 years old when she was raped by accused. She is single, housekeeper and a resident of Kabulakan, Balingoan, Misamis Oriental and has studied up to second year high school. She personally knows the accused Roque Cabresos whom she considers as her uncle because he is a cousin of her mother. She identified the accused in the courtroom by touching his shoulder.chanroblesvirtualawlibrarychanrobles virtual law library

Editha Pesidas declared that last June 28, and June 29, 1988, her mother and father were in Talisayan District Hospital. She was left in the house together with her brother and sister, who are 12 and 10 years old respectively. She slept alone in her room, while her brother and sister slept in the adjoining room. Roque Cabresos lived with them and in that particular night of June 29, 1988, Roque Cabresos slept in the sala. Then, at dawn, which was 2:00 o'clock in the morning, more or less, already June 29, 1988, she was awakened by accused Roque Cabresos who pointed a sharp pointed knife to her neck, squeezed her mouth and boxed her abdomen that she lost her strength.chanroblesvirtualawlibrarychanrobles virtual law library

There and then, Roque Cabresos took off her panty by tearing it. Then, accused placed himself on top of her and made a push and pull movement (kiyo-kiyo). Accused inserted his penis to her vagina that she felt severe pain which lasted about half an hour. The left hand of accused was holding the knife and was always pointing to her neck. She struggled, but accused is bigger and stronger that she lost her strength. Ultimately, accused succeeded in raping her. Something sticky came out from his penis; thereafter, Roque Cabresos threatened her; that, she would be killed if she would tell her parents. He uttered this threat about five (5) times. Then, Roque Cabresos left her room and returned to sleep in the sala.chanroblesvirtualawlibrarychanrobles virtual law library

After three days from the commission of the crime, her parents returned home from the hospital. She did not tell them about what happened because Roque Cabresos threatened to kill her.chanroblesvirtualawlibrarychanrobles virtual law library

Complainant testified that at the time accused raped her, she was fertile. In the succeeding months, she did not have monthly menstruation. When her pregnancy was noticeable, her parents inquired about it, and she told them the truth. She told also her grandfather Eufrocino Quejada some time last February 1989. She was accompanied to the house of a midwife for examination. Thereafter, accompanied by her parents and grandfather, they went to the police station of Balingoan, Misamis Oriental, and there, her affidavit was taken on February 14, 1989 which she subscribed on the following day before the prosecutor. ⁴chanrobles virtual law library

Appellant Cabresos' version of the facts was summarized by the trial court as follows:

On June 28, 1988 at 2:00 o'clock in the afternoon, accused appellant was at the house of Mr. Trapal in Upper Lapinig, Balingoan, Misamis Oriental together with his companions, namely: Anastacio Cabresos alias "Baloloy", Eddie Aragon, Rene Magallon, Dobby Magallon and Oloy Cabresos drinking one pocket size of Tanduay rhum. While they were drinking, they were conversing about their works, especially the gathering of coconuts. After staying there for an hour, they proceeded to the municipal building of Balingoan, Misamis Oriental. In the said store, they again drank one pocket size of Tanduay rhum. From the store of Beboy Pebular, at about 5:00 o'clock in the afternoon of the same day, they went to the house of Alding Itom. At Alding Itom's house, they butchered a dog, cooked the meat and ate the same as their sumsuman. After eating, at around 6:00 o'clock in the evening of the same day they proceeded to the house of his uncle Anastacio Cabresos. When they were already at the house of his uncle, they once more drank another one pocket size of Tanduay rhum. The accused went to sleep at around 11:30 o'clock in the evening of the same date at the latter's house and woke up at about 5:00 o'clock in the morning of the following day. That was June 29, 1988. ⁵chanrobles virtual law library

We are once again faced with the task of deciding who as between two (2) persons is worthy of belief and who is not. Private complainant Editha Pesidas claims that she was raped by the accused. The accused denies the accusation and interposes the defense of alibi contending that he could not have committed the rape because he was somewhere else at the time the alleged rape occurred. In support of his claim, Cabresos presented witnesses who vouched that he was with them on the night and hour in question, carousing on cheap rum and on dog-meat with great abandon.chanroblesvirtualawlibrarychanrobles virtual law library

After much consideration and upon careful examination of the record, we find no reason to overturn the findings of the trial court.chanroblesvirtualawlibrarychanrobles virtual law library

The issue to be resolved is, of course, whether or not the prosecution was able to establish from the testimony of the complainant the guilt of the accused beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library

We answer in the affirmative.chanroblesvirtualawlibrarychanrobles virtual law library

The question is essentially one of credibility and it is a well-settled rule reiterated in a long and still growing line of cases, that appellate courts will generally not disturb the factual findings of the trial court since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is convincingly shown that the trial court had plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. ⁶

In his appeal, appellant highlights certain points in complainant's testimony which he contends constitute inconsistencies or improbabilities which weaken the force of her accusation. However, going over those same points we come to a different conclusion.chanroblesvirtualawlibrarychanrobles virtual law library

On the night of the rape, the victim's parents were not at home. They were at a hospital in Talisayan where the victim's mother had to be brought ⁷ and they returned from the hospital only three (3) days later. ⁸ Complainant positively identified the accused as her assailant. There was a kerosene vigil lamp in the altar which illuminated her bedroom. ⁹Moreover, as found by the trial court, she was familiar (with) the persona of the accused being a relative who resided in their house. ¹⁰

Complainant was only able to cry out for help once because the accused threatened her with a knife which he pointed at her neck; ¹¹ he also squeezed her mouth and boxed her stomach, as a result of which her strength and vitality fled her. ¹²

The fact that her young brother (12 years of age) and sister (10 years old) who were sleeping in an adjoining room did not hear her outcry does not necessarily mean that the rape never occurred.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant stresses the fact that after the alleged rape, the complainant testified that she continued going to school and not once did she report the incident to her parents or the police although she passed by the police station everyday on her way to school. ¹³Furthermore, the complainant did not report the outrage on her person to a relative of hers who is a policewoman. ¹⁴

We have previously held in earlier cases that delay in prosecuting the rape is not an indication of fabricated charges. ¹⁵ In at least one case, we observed that "if the complainant did not become pregnant, she probably would never have revealed that she was raped by her uncle. Many victims of rape never complain or file criminal charges against their rapists. They prefer to bear the ignominy and pain rather than reveal their shame to the world or risk the rapists' making good their threats to kill or hurt their victims." ¹⁶This in fact was what happened here where the victim reported the incident to her parents only eight (8) months after she had been raped when her pregnancy became noticeable. Similarly, in the case of People v. Soterol, ¹⁷ where the appellant had contended that complainant's 6-month delay in filing the complaint and her silence after the alleged rape render her charge incredible, we ruled that the complainant's failure to report the rape incident earlier had been fully and satisfactorily explained. There, the complainant testified that she did not report the incident immediately because she believed her uncle's threat to kill her.chanroblesvirtualawlibrarychanrobles virtual law library

Editha's inaction for eight (8) months was sufficiently explained by her in open court. Thus:

(Direct Examination of Editha Pesidas)chanrobles virtual law library

Q: And when your father arrived in your house, did he know about the incident?chanrobles virtual law library

A: No, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Why?chanrobles virtual law library

A: I did not say anything because I was afraid of the warning of Roque Cabresos.

xxx xxx xxx

Q: What was the warning or threat of the accused during the incident?chanrobles virtual law library

A: He said that if I tell my parents he would kill me.chanroblesvirtualawlibrarychanrobles virtual law library

Q: How many times did he utter these words?chanrobles virtual law library

A: Five times. ¹⁸

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(Cross-examination of Editha Pesidas)chanrobles virtual law library

Q: When Roque Cabresos left your house, and your parents (were) already there, of course, your fear no longer existed because your parents were already there?chanrobles virtual law library

A: I was still afraid of him.

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A: I was still afraid for he might come back. ¹⁹

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Q: Did it not occur to your mind to tell your parents that you were already pregnant?chanrobles virtual law library

A: No, because of fear and shame.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Did it not occur to your mind that your parents would eventually discover you were pregnant and it was better to tell them earlier so that if there is a person answerable for that they would run after him?chanrobles virtual law library

A: No, because of my fear.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Did it not occur to your mind that your fear of being discovered will be useless because eventually your parents will discover it?chanrobles virtual law library

A: No, because of my fear and shame.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Did it not occur to your mind your shame will be useless because eventually your parents will know of your pregnancy?chanrobles virtual law library

A: No.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Why?chanrobles virtual law library

A: Because of my fear. ²⁰

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(Emphasis supplied)

While a mature woman would probably have acted differently, we are unable to conclude that Editha's continued fear of her violator and her failure to inform her parents of the rape meant that it had not occurred at all.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant Cabresos also assails the findings of the trial court concerning the delayed delivery of the child as not supported by evidence. The trial court found that the complainant Editha Pesidas "gave birth within 300 days or 10 months allowable in medical science from conception or fertilization, implantation, gestation and to birth of the child," ²¹ as a result of the sexual assault inflicted upon her by appellant. The trial court said on this point:

. . . this court has taken note of the testimony of Editha Pesidas; that the onset of her monthly menstruation was June 9, 1988 and ended after five days. So, it must be June 14, 1988. Medical science has shown that from the first day of menstruation, the first ten days thereafter is considered a safe period, meaning the woman is not fertile. This corresponds to June 10 to 19, 1988. Then, the period from the 11th day to 20th day from the first day of menstruation is fertility period where the ovum in matured and any time may be fertilized by a sperm. In the case of Editha Pesidas, [the] fertility period corresponds from June 20 to June 29, 1988, that is why, Editha Pesidas said that from the day she was raped, she did not have any monthly menstruation thereafter, except a little blood spotting on July 20, 1988.chanroblesvirtualawlibrarychanrobles virtual law library

Medical science has taught us the basics of fertilization, conception, gestation and delivery of a child. First, the basics: a baby is formed when the sperm cell from the man meets (or fertilizes) the woman's egg or ovum. An ovum, which is released by the woman's ovary only once in about 28 days, has a maximum life of 24 to 72 hours (3 days only). The sperm cell, on the other hand, may live for up to 6 days under very hospitable conditions, but usually lives for only about 24 hours. When the ovum is not fertilized, it dies, and the absence of fertilization is normally indicated by the arrival of menstruation. On the other hand when the ovum is fertilized, it attaches itself on the inner wall of the womb. This is sometimes known as implantation of fertilized ovum. The inner wall does not shed off, so menstruation does not occur during the entire period of pregnancy.chanroblesvirtualawlibrarychanrobles virtual law library

Somewhere in July 20, 1988 is the attachment of the fertilized ovum in the womb of Editha Pesidas. It is the date of the implantation of said fertilized ovum. That is why on said date, she had little blood spotting which is not considered as menstruation. Counting therefrom, the birth of Anthea Q. Pesidas on May 1, 1988, the child's coming to this world was within the 300 days or ten months, allowable in medical science from conception or fertilization, plantation, gestation, and to birth of the child. ²²chanrobles virtual law library

In computing the duration of pregnancy, "we should note that time is computed from the date of three different occurrences in the life of the mother: one is the first day of the last menstrual period, one is the time of intercourse, and one is the time of the fertilization of the ovum . . . . . " ²³ We find that the trial judge's computation in this case of the duration of complainant's pregnancy counted from the time of the fertilization of the ovum, is medically accepted and recognized.chanroblesvirtualawlibrarychanrobles virtual law library

Moreover, from complainant's testimony, the uncontroverted fact is that the complainant gave birth to a baby girl 307 days or 10 months after the date of her alleged rape. While the ordinary period of gestation is approximately 9 calendar months or 280 days, calculated from the first day of the last menstrual period, ²⁴there is nevertheless an abundance of medical authorities recording exceptions to this general rule. ²⁵ In fact, it has been held that length of pregnancy varies from 220 to 330 days from date of fruitful coitus. ²⁶ Thus, the 280-day rule is not a hard and fast one. ²⁷

On the other hand, as against the complainant's positive identification, the accused-appellant offers the defense of alibi. However, we have many times held that alibi is a weak defense and cannot prevail over the complainant's positive and clear identification of the accused as the perpetrator of the crime. ²⁸ Moreover, the defense of alibi in this case must be rejected because aside from a clear and positive identification made by the complainant, the possibility of the accused having gone to the scene of the crime at the time of its commission was not at all remote. Note the following statements of defense witnesses:

(Cross-examination of Rene Magallon)chanrobles virtual law library

Q: And this place of Balodoy to Kabulakan, Balingoan, Misamis Oriental is how many kilometers, according to your own estimate?chanrobles virtual law library

A: Three kilometers.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And ordinarily hiking we can negotiate three kilometers in less than one hour?chanrobles virtual law library

A: Yes, sir. ²⁹

xxx xxx xxx

(Cross-examination of Anastacio Cabresos)chanrobles virtual law library

Q: A healthy person like the accused can reach Barangay Kabulakan which is three kilometers only one hour because he is healthy?chanrobles virtual law library

A: Of course, if he is healthy.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Or maybe less than an hour?chanrobles virtual law library

A: Depending upon his speed in walking. ³⁰

xxx xxx xxx

(Cross-examination of accused Roque Cabresos)chanrobles virtual law library

Q: Anastacio Cabresos alias Baludo is living in what place?chanrobles virtual law library

A: At Upper Lapinig.chanroblesvirtualawlibrarychanrobles virtual law library

Q: What is the distance from Upper Lapinig to Kabulakan, particularly the place of Pesidas?chanrobles virtual law library

A: Three kilometer, more or less.chanroblesvirtualawlibrarychanrobles virtual law library

Q: By ordinary hiking you can negotiate three kilometers with an hour hike?chanrobles virtual law library

A: It depends how you walk.chanroblesvirtualawlibrarychanrobles virtual law library

Q: But natural walking?chanrobles virtual law library

A: More than an hour, more or less. ³¹

xxx xxx xxx

Q: You mean, by ordinary hike, you can negotiate one kilometer by one hour?chanrobles virtual law library

A: Less than (an) hour.chanroblesvirtualawlibrarychanrobles virtual law library

Q: Even in thirty minutes?chanrobles virtual law library

A: Yes sir. ³²

xxx xxx xxx

The settled rule is that, for alibi to be given credence, "an accused must not only prove satisfactorily that he was at another place at the time the crime happened; but more importantly, that it was physically impossible for him to be at the scene of the crime at the time of its commission." ³³

Of equal significance is the fact that the accused had the opportunity to commit the crime considering that none of his witnesses actually saw him at the hour in question because they were all already asleep at that time.

(Direct Examination of Rene Magallon)chanrobles virtual law library

Q: What time did Roque Cabresos go to sleep on June 29, 1988?chanrobles virtual law library

A: 1:20 in the morningchanrobles virtual law library

Q: About you, what time did you go to sleep?chanrobles virtual law library

A: 2:00 o'clock. ³⁴

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(Cross-examination of Anastacio Cabresos)chanrobles virtual law library

Q: So that at 9:00 o'clock you were already lying down and at 10:00 o'clock you were already sound asleep?chanrobles virtual law library

A: About that hour.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And you woke up the next morning at about 4:40?chanrobles virtual law library

A: 4:30 dawn.chanroblesvirtualawlibrarychanrobles virtual law library

Q: And the accused who was sleeping in your house was not sleeping with you in the same room that night?chanrobles virtual law library

A: He slept in another room.chanroblesvirtualawlibrarychanrobles virtual law library

Q: So that you cannot determine if Roque Cabresos was still in his room because you could not see him?chanrobles virtual law library

A: My house has three rooms and the room where they were sleeping I could pass by it.chanroblesvirtualawlibrarychanrobles virtual law library

Q: But you had no time to pass by the room where they were sleeping because you were sleeping at that time?chanrobles virtual law library

A: I woke up at 4:30.chanroblesvirtualawlibrarychanrobles virtual law library

Q: It was only at 4:30 when you passed by the room where the accused (was) sleeping?chanrobles virtual law library

A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: At 12:00 midnight you did not wake up?chanrobles virtual law library

A: No, sirchanrobles virtual law library

Q: You did not wake up at 1:00 o'clock?chanrobles virtual law library

A: I woke up to urinate in my bedpan.chanroblesvirtualawlibrarychanrobles virtual law library

Q: At 2:00 o'clock did you wake up?chanrobles virtual law library

A: No, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q: It was only 4:30 when you woke up again?chanrobles virtual law library

A: Yes, sir. ³⁵

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(Emphasis supplied)

Although we affirm the findings of the lower court with regard to the guilt of the accused and its appreciation of the aggravating circumstances of use of a deadly weapon, ³⁶ abuse of confidence and obvious ungratefulness, ³⁷ we must take exception to its appreciation of blood relationship as an aggravating circumstance in this case. We have held in earlier cases ³⁸that the relationship between uncle and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code. Nevertheless, the penalty imposed by the trial court need not be disturbed considering the presence of other aggravating circumstances.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the decision of the trial court finding appellant Roque Cabresos guilty of rape and sentencing him to reclusion perpetua and declaring him as the father of the child Anthea Q. Pesidas, ordering him to recognize and support said child, is hereby AFFIRMED. The award to the complainant of civil indemnity in the total amount of P50,000.00 (P30,000.00 as moral damages and P20,000.00 as exemplary damages) is likewise AFFIRMED.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Romero, Melo, Vitug and Francisco, JJ., concur.

1 Rollo, p. 4.chanrobles virtual law library

2 Judgment, p. 17; Rollo, p. 28.chanrobles virtual law library

3 Appellant's Brief, p. 1; Rollo, p. 66.chanrobles virtual law library

4 Judgment, pp. 2-3; Rollo, pp. 15-16.chanrobles virtual law library

5 Appellant's Brief, pp. 4-5; Rollo, pp. 69-70.chanrobles virtual law library

6 People v. Tismo, 204 SCRA 535, 552 (1991).chanrobles virtual law library

7 TSN, 4 July 1990, p. 3.chanrobles virtual law library

8 Id., p. 12.chanrobles virtual law library

9 Id., p. 9.chanrobles virtual law library

10 Judgment, p. 11; Rollo, p; 22.chanrobles virtual law library

11 TSN, 4 July, 1990, pp. 4 & 10.chanrobles virtual law library

12 Id., p. 4.chanrobles virtual law library

13 Id., p. 10.chanrobles virtual law library

14 Id., pp. 12-13.chanrobles virtual law library

15 People v. Silfavan, 151 SCRA 617, 629 (1987).chanrobles virtual law library

16 Id.chanrobles virtual law library

17 140 SCRA 401, 404-405 (1985).chanrobles virtual law library

18 TSN, 4 July 1990, pp. 5-6.chanrobles virtual law library

19 Id., p. 13.chanrobles virtual law library

20 TSN, 5 July 1990, p. 5.chanrobles virtual law library

21 Judgment, p. 14; Rollo, p. 25.chanrobles virtual law library

22 Judgment, p. 13; Rollo, p. 24.chanrobles virtual law library

23 S.B. Schatkin, Disputed Paternity Proceedings, 4th Ed. XXII, pp. 567-585 as cited in Leonard v. Couse, 372 N.Y.S. 2d 527, 568-569 [1975].chanrobles virtual law library

24 People v. Pamor G.R. No. 108599, 7 October 1994, p. 12 citing Danforth's Obstetrics and Gynecology, 161 (6th ed. 1990).chanrobles virtual law library

25 S.B. Schatkin, Disputed Paternity Proceedings, 350 (1947 ed.).chanrobles virtual law library

26 People v. Pamor, G.R. No. 108599, 7 October 1994, p. 12.chanrobles virtual law library

27 Id., p. 12.chanrobles virtual law library

28 E.g., People v. Rendoque, 205 SCRA 783, 789 (1992).chanrobles virtual law library

29 TSN, 10 October 1990, p. 16.chanrobles virtual law library

30 TSN, 3 September 1991, p. 8.chanrobles virtual law library

31 TSN, 24 October 1991, p. 20.chanrobles virtual law library

32 Id., p. 22.chanrobles virtual law library

33 People v. Dalanon, G.R. No. 107458, 14 October 1994, p. 14 citing People v. Dolar, G.R. No. 100805, 24 March 1994.chanrobles virtual law library

34 TSN, 10 October 1990, p. 7.chanrobles virtual law library

35 TSN, 3 September 1991, p. 8.chanrobles virtual law library

36 Article 335, Revised Penal Code.chanrobles virtual law library

37 Article 14(4), id.chanrobles virtual law library

38 U.S. v. Incierto, 15 Phil. 358, 360-361 (1910); People v. Balondo 30 SCRA 155, 161 (1969).