SUPREME COURT DECISIONS

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CONCURRING AND DISSENTING OPINION

CALLEJO, SR., J.:

I concur with the majority opinion in finding the appellant guilty beyond reasonable doubt of rape with the use of a deadly weapon, the imposable penalty for which is reclusion perpetua to death. However, I dissent from the majority opinion sentencing the appellant to reclusion perpetuasimply and merely because the alternative aggravating circumstance of relationship under Article 15 of the Revised Penal Code is not one of the aggravating circumstances listed in Article 14 of the Revised Penal Code. The opinion of the majority that only those aggravating circumstances enumerated in Article 14 of the Revised Penal Code are covered by Article 63 of the Revised Penal Code has no legal basis.

Article 14 of the Revised Penal Code is not the repository of all the aggravating circumstance covered by Article 63 of the Revised Penal Code. Absent any provision in Article 63 of the Revised Penal Code, excluding the alternative aggravating circumstances under Article 15 of the Revised Penal Code from the application thereof, such alternative aggravating circumstances must be considered in graduating the penalty for quasi-heinous crimes. It cannot be argued that simply because Article 14 of the Revised Penal Code does not contain any provision similar to Article 13, paragraph 10 of the Revised Penal Code, no other aggravating circumstances exist in the Revised Penal Code. Article 14 of the Revised Penal Code must be considered in relation to and not independent of Article 15 of the Revised Penal Code. Indeed, under Article 10, paragraph 1 of the Spanish Penal Code, relationship is listed as an alternative aggravating circumstance:

Son circunstancias agravantes:

1.Ser el agraviado cόnyuge o ascendiente, desdendiente, hermano legitimo, natural o adoptivo, o afin en mismos grados del ofensor.

Esta circunstancia la tomarn en considęracion los tribunals para aplicarla como agravante o atenuante, segn la naturaleza y los efectos del delito.¹

Article 10 of the Spanish Penal Code enumerates the aggravating circumstances including alternative circumstances. Article 81 of the Spanish Penal Code which is Article 63 of the Revised Penal Code applies to all the circumstances enumerated in Article 10 of the Spanish Penal Code.

The Philippines did not adopt, in toto, in the Revised Penal Code, Spanish Article 10 of the Spanish Penal Code but deviated from it by providing for a separate provision for alternative circumstances, which is Article 15 of the Revised Penal Code, precisely because: (a) aside from relationship, intoxication and lack of intention are considered either aggravating or mitigating as alternative circumstances; (b) there is a need to specify therein when such circumstances are aggravating or mitigating. The Philippines did not adopt the rather vague basis in Article 10, paragraph 1 of the Spanish Penal Code for determining whether relationship is aggravating or mitigating the nature and effects of the felony charged. Article 15 of the Revised Penal Code was never intended to exclude the alternative aggravating circumstances listed therein from the application of Article 63 of the Revised Penal Code but to complement the latter provision.

I disagree with the submission of the ponente that the aggravating circumstance is strictly interpreted against the prosecution only for the purpose of imposing the death penalty implying that the law may be liberally construed for the prosecution for the purpose of imposing lower penalties. Such as elastic application of the law, to my mind, has no legal basis. Article 63, paragraph 1 of the Revised Penal Code mandates the Court to impose the greater penalty, in this case, the death penalty, when in the commission of the deed there is present an aggravating circumstance. The use of the word shall in the law demonstrates the mandatory nature of the duty of the Court.

I vote to sentence the appellant to suffer the death penalty as mandated by law.

Endnotes:

¹ Supra.