ERNESTO
GARCES, G.R. No.
173858
Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
Chico-Nazario, and
Nachura, JJ.
PEOPLE OF THE
Respondent. Promulgated:
x
----------------------------------------------------------------------------------------
x
YNARES-SANTIAGO, J.:
This Petition for Review on
Certiorari assails the Decision[1]
dated
In an Information dated
That
on or about the 2nd day of August, 1992, in the evening, at x x x,
Province of Abra, Philippines and within the jurisdiction of this Honorable
Court, the said accused, conspiring,
confederating and mutually helping one another, with criminal and carnal
intent, with lewd design and by means of force, accused Rosendo Pacursa,
did, then and there, willfully, unlawfully and feloniously, after covering her
mouth, forcibly abduct, pull and take away one AAA while walking to the church
to the tobacco flue-curing barn and while inside the barn lie and succeeded in
having sexual intercourse and carnal knowledge of the offended party; that
accused Ernesto Garces later on covered
the mouth of AAA and take her out of the barn; that accused Senando Garces,
Antonio Pira, Jr. and Aurelio Pira stand guard outside the barn while Rosendo
Pacursa is raping AAA; to the damage and prejudice of the offended party.
CONTRARY
TO LAW with the aggravating circumstances of: (1) uninhabited place, and (2)
nighttime.[4] (Emphasis supplied)
All the accused, except Senando
Garces who is still at large, pleaded not guilty.
The prosecution’s version of the
incident is as follows:
On
Inside the barn, Pacursa started
kissing AAA. Private complainant fought
back but to no avail. Thereafter,
Pacursa succeeded in having carnal knowledge of her. After a while, they heard people shouting and
calling the name of AAA. At this point,
petitioner Ernesto Garces entered the barn, covered AAA’s mouth, then dragged
her outside. He also threatened to kill
her if she reports the incident.[6]
Upon reaching the house of Florentino
Garces, petitioner released AAA. Shortly
afterwards, AAA’s relatives found her crying, wearing only one slipper and her
hair was disheveled. They brought her
home but when asked what happened, AAA could not answer because she was in a
state of shock. After a while, she was able to recount the incident.[7]
Rosendo Pacursa denied that he raped
the victim, while his co-accused presented alibis as their defense.
Pacursa testified that he and AAA were
sweethearts for almost a year prior to the incident. On the night of
On the other hand, petitioner,
Antonio Pira, Jr., and Aurelio Pira, testified that they were watching a
televised basketball game at the house of Antonio Pira, Jr. at the time the
alleged rape transpired. They denied
seeing Pacursa that night.[10]
After trial on the merits, the trial
court rendered its decision finding Pacursa guilty of Forcible Abduction with
Rape while petitioner Garces was found guilty as an accessory to the
crime. Antonio Pira, Jr. and Aurelio
Pira were acquitted for insufficiency of evidence.[11]
The dispositive portion of the
decision reads:
WHEREFORE,
PREMISES CONSIDERED, accused ROSENDO PACURSA and ERNESTO GARCES are hereby
found guilty of the crime of Forcible Abduction With Rape punishable under the
Revised Penal Code committed upon the person of AAA. The other accused ANTONIO PIRA, JR. and
AURELIO PIRA are hereby ACQUITTED as accessory for the crime of Forcible
Abduction With Rape.
ROSENDO
PACURSA, the principal accused in this case is hereby sentenced to one degree
lower than that prescribed by law for the offense, for being 16 years old at
the time of the commission of the crime pursuant to Art. 68 of the Revised
Penal Code. Taking into consideration
the aggravating circumstances of uninhabited place and nighttime, he is hereby
sentenced to suffer an indeterminate penalty of 11 years of prision mayor as
minimum to 18 years of reclusion temporal as maximum.
Ernesto
Garces, being an accessory to the commission of the crime is hereby penalized
two degrees lower than that prescribed by law for the offense. Accordingly, he is hereby sentenced to suffer
an indeterminate penalty of 4 years of prision correccional as minimum to 8
years of prision mayor as maximum.
Both
accused are jointly and solidarily liable to pay the victim the amount of P50,000.00
as and by way of actual and moral damages plus the cost of this suit.
SO
ORDERED.[12]
Both Pacursa and petitioner appealed
the decision with the Court of Appeals.
However, Pacursa subsequently withdrew his appeal.
On
WHEREFORE,
premises considered, the appealed Decision convicting accused ROSENDO PACURSA as principal and
accused-appellant ERNESTO GARCES as
accessory of the crime of forcible abduction with rape is AFFIRMED.
However,
accused-appellant Ernesto Garces’ sentence is MODIFIED in that he is to suffer the indeterminate penalty of
imprisonment ranging from FOUR (4) YEARS of prision correccional, as
minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision
mayor, as maximum.
SO
ORDERED.[13]
Petitioner filed a motion for
reconsideration but same was denied. Hence, the instant petition for review on
certiorari.
Petitioner claims that no rape was
committed and that there is no evidence to show that he covered the mouth of
the complainant when he brought her out of the barn.
The petition lacks merit.
It has been established that Pacursa
forcibly took AAA against her will and by use of force and intimidation, had carnal
knowledge of her. The trial court found
complainant’s testimony to be credible, consistent and unwavering even during
cross-examination.
Regarding the letter she wrote to Pacursa
asking him to elope with her, she explained that she felt uncertain at that
time and was trying to avoid the possible trouble or scandal the incident might
bring upon her,[14] which
we find plausible. In pursuing the case,
she had to transfer to another school because of the threats of her assailants
and their persistence in settling the case.
Furthermore, no improper motive was shown why she would accuse and
testify against Pacursa who was her boyfriend, and the other accused, who are
her relatives.[15]
Prosecution witness Grace Liberto likewise
corroborated the testimony of complainant when she testified that she saw the latter
crying, wearing only one slipper, and her hair disheveled,[16]
immediately after the incident. The
medico-legal findings of Dr. Herminio Venus also showed that there was a
laceration in complainant’s private parts possibly caused by sexual contact.[17]
Pacursa, however, could not be
convicted of the crime of forcible abduction with rape because the crime
committed was only simple rape. Forcible abduction is absorbed in the crime of
rape if the real objective of the accused is to rape the victim.[18] Based on the evidence presented, the accused intended
to rape the victim when he took her to the tobacco barn. Hence, forcible
abduction is absorbed in the crime of rape.[19]
We also note that the trial court failed
to make any definitive finding as to the existence of aggravating circumstances.
However, we find that the aggravating
circumstances of nighttime and uninhabited place did not attend the commission
of the crime.
Nocturnity is aggravating when it is deliberately
sought to prevent the accused from being recognized or to ensure his unmolested
escape.[20] The mere fact that the rape was committed at
nighttime does not make nocturnity an aggravating circumstance.[21] In the instant case, other than the fact that
the crime was committed at night, there is no other evidence that the peculiar
advantage of nighttime was purposely and deliberately sought by the accused.
The aggravating circumstance of
uninhabited place cannot likewise be appreciated in the absence of evidence
that the accused actually sought an isolated place to better execute their
purpose.[22] The records do not show that solitude was
purposely sought or taken advantage of to facilitate the commission of the
crime.
Although Pacursa has withdrawn his
appeal, the Court’s ruling that the crime committed is simple rape and not
forcible abduction with rape, shall apply to him. Section 11 (a), Rule 122 of
the Rules of Court specifically provides that an appeal taken by one or more of
several accused shall not affect those who did not appeal, except insofar as
the judgment of the appellate court is favorable and applicable to the latter.
As regards petitioner’s complicity,
his defense of alibi cannot prevail over complainant’s positive identification
of her assailants. Denial and alibi are
inherently weak defenses and constitute self-serving negative evidence which
can not be accorded greater evidentiary weight than the positive declaration of
credible witnesses.[23]
For alibi to prosper, the accused must
establish by clear and convincing evidence (a) his presence at another place at
the time of the perpetration of the offense and (b) the physical impossibility
of his presence at the scene of the crime.[24] Petitioner alleged he was watching television
at Aurelio Pira’s house, which is about 20 meters away from the barn at the
time of the incident. However, it will
only take one minute for him to reach the barn from the house.[25] Thus, it was not physically impossible for him
to be at the scene of the crime at the time of its commission.
Contrary to petitioner’s contention,
there is proof that petitioner covered AAA’s mouth when he dragged her out of
the barn. Complainant executed a sworn
statement recounting her harrowing experience which she identified during her
direct examination and offered as Exhibits A, A-1, and A-2[26]
for the prosecution and admitted by the trial court.[27] In her sworn statement, AAA narrated thus:
Q
- Will you relate carefully the
manner by which Rosendo Pacursa raped you?
A
- x x x Then someone came inside the barn, shut-off
my mouth, then brought me out and away southward and when we reach the house of
Florentino Garces he released me and as I walked down the path my uncle
Bartolome Florendo was able to light me with his flashlight
x x x x
Q
- Who was that person who later came
inside the barn who brought you out shutting-off your mouth then took you away
southward?
A
- Ernesto Garces also from our
place, sir.
Q
- Why, has Rosendo Pacursa other
companions?
A
- He has, sir. They are Ernesto Garces, Senando Garces,
Antonio Pira, Jr. and Aurelio Pira.
Q
- What did these companions of
Rosendo Pacursa do?
A
- They stayed outside the barn but
it was Ernesto Garces who brought me out, sir.[28]
Complainant’s failure to testify
during her direct examination that her mouth was covered by petitioner when she
was pulled out of the barn does not preclude resort to her sworn statement to
provide the missing details, since said sworn statement forms part of her
testimony. As held in People v. Servano:[29]
Evidence
in criminal cases is not limited to the declarations made in open court; it
includes all documents, affidavits or sworn statements of the witnesses, and
other supporting evidence. It
comprehends something more than just the mere testimony of a witness. Thus,
when a sworn statement has been formally offered as evidence, it forms an
integral part of the prosecution evidence which should not be ignored for it
complements and completes the testimony on the witness stand. A sworn statement is a written declaration of
facts to which the declarant has sworn before an officer authorized to
administer oaths. This oath vests
credibility and trustworthiness on the document. The fact that a witness fails to reiterate,
during trial, the contents of his sworn statement should not affect his
credibility and render the sworn statement useless and insignificant, as long
as it is presented as evidence in open court.
This is not to say, however, that the sworn statement should be given
more probative value than the actual testimony.
Rather, the sworn statement and the open court declarations must be
evaluated and examined together in toto so that a full and thorough
determination of the merits of the case may be achieved. Giving weight to a witness’ oral testimony
during the trial should not mean being oblivious to the other pieces of
available evidence such as the sworn statement.
In like manner, the court cannot give probative value to the sworn
statement to the exclusion of the oral testimony. In every case, the court should review,
assess and weigh the totality of the evidence presented by the parties. It should not confine itself to oral
testimony during trial. x x x[30]
Petitioner also faults the court a
quo in finding that he threatened AAA while leading her out of the barn. He argues that complainant failed to
positively identify the person who issued the threats because she vaguely
referred to said person merely as “they”.
The contention lacks merit.
The use of the word “they” in referring
to the person who threatened complainant is of no moment. When the threats were issued, both Pacursa
and petitioner were inside the barn; thus, it is logical to conclude that the
threats came from both of them.
Petitioner likewise cannot take refuge
in the acquittal of Antonio and Aurelio Pira.
Both were acquitted because there was no evidence to show their
participation in the crime. Complainant
only testified that she heard their voices which the trial court considered
insufficient. However, in the case of
petitioner, complainant positively identified him as one of the companions of
Pacursa who remained outside the barn and who eventually entered upon noting the
presence of AAA’s relatives nearby. He
thereafter covered complainant’s mouth and led her out of the barn. All these circumstances demonstrate
petitioner’s complicity.
We
do not agree, however, that petitioner should be convicted as an accessory to
the crime.
It is a settled rule that an appeal
in a criminal proceeding throws the whole case open for review and it becomes
the duty of the Court to correct any error in the appealed judgment, whether it
is made the subject of an assignment of error or not. Such an appeal confers upon the appellate
court full jurisdiction and renders it competent to examine the records, revise
the judgment appealed from, increase the penalty and cite the proper provision
of the penal law.[31]
In finding petitioner guilty as an
accessory, the Court of Appeals found that his participation was after or subsequent
to the rape and that his acts were employed as a means of concealing the
commission of the crime and assisting Rosendo to escape.
We find otherwise. The facts show that petitioner participated
in the commission of the crime even before complainant was raped. He was present when Pacursa abducted
complainant and when he brought her to the barn. He positioned himself outside the barn together
with the other accused as a lookout.
When he heard the shouts of people looking for complainant, he entered
the barn and took complainant away from Pacursa.
Having known of the criminal design
and thereafter acting as a lookout, petitioner is liable as an accomplice,[32]
there being insufficient evidence to prove conspiracy,[33]
and not merely as an accessory. As
defined in the Revised Penal Code, accomplices are those who, not being
included in Article 17, cooperate in the execution of the offense by previous
or simultaneous acts.[34] The two elements necessary to hold petitioner
liable as an accomplice are present: (1)
community of criminal design, that is, knowing the criminal design of the
principal by direct participation, he concurs with the latter in his purpose;
and (2) performance of previous or simultaneous acts that are not indispensable
to the commission of the crime.[35]
The crime committed in the case at
bar is simple rape, the penalty for which under the Revised Penal Code is reclusion
perpetua. Since Pacursa was a minor
when the crime was committed, the penalty must be reduced by one degree, to reclusion
temporal.[36] Applying the Indeterminate Sentence Law and in
the absence of aggravating and mitigating circumstances, the maximum of the
penalty shall be within the medium range of reclusion temporal, or
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years
and four (4) months. The minimum of the
indeterminate penalty shall be within the range of the penalty next lower in
degree, which is prision mayor, ranging from six (6) years and one (1)
day to twelve (12) years.[37]
With respect to petitioner, the
penalty imposed upon accomplices in a consummated crime is the penalty next
lower in degree than that prescribed for the felony.[38] Since simple rape is punishable with reclusion perpetua, the penalty of
reclusion temporal should also be imposed on petitioner in its medium period in
the absence of any aggravating or mitigating circumstances. Applying the Indeterminate Sentence Law, the
imposable penalty should range from prision mayor, as minimum, to reclusion
temporal in its medium period, as maximum.
Every person criminally liable for a
felony is also civilly liable.[39] If there are two or more persons civilly
liable for a felony, as in this case, the court shall determine the amount for
which each must respond[40]
to be enforced in accordance with Article 110 of the Revised Penal Code. Thus, the amount of damages to be awarded must
be apportioned according to the respective responsibilities of the accused to
be paid by them solidarily within their respective class and subsidiarily for
the others.[41]
Consistent
with prevailing jurisprudence, the complainant in rape cases is entitled to an
award of P50,000.00 as civil indemnity ex delicto and another P50,000.00
as moral damages. Civil indemnity ex delicto is mandatory upon finding
of the fact of rape which is distinct from moral damages awarded upon such
finding without need of further proof because it is assumed that a rape victim
has actually suffered moral injuries entitling the victim to such award.[42]
In determining the civil liability of
petitioner, a clarification of the trial court’s decision is necessary. The dispositive portion of the trial court’s
decision held Pacursa and petitioner “jointly and solidarily liable to pay the
victim the amount of P50,000.00 as and by way of actual and moral
damages plus the cost of suit.” For our
purposes, we shall treat the amount of P50,000.00 awarded by the trial
court as the civil indemnity ex delicto for which, as an accomplice,
petitioner should be solidarily liable with Pacursa only for one-half of the
said amount, or P25,000.00, and is subsidiarily liable for the other P25,000.00
in case the principal is found insolvent.[43]
In addition, complainant must be
awarded another P50,000.00 as moral damages. However, this additional award should not
apply to Pacursa who has withdrawn his appeal as the same is not favorable to
him.[44] Hence, the additional monetary award can only
be imposed upon petitioner who pursued the present appeal.[45]
WHEREFORE, the petition is DENIED.
The Decision of the Court of Appeals finding Rosendo Pacursa guilty as
principal by direct participation, and petitioner Ernesto Garces as an
accessory, to the crime of Forcible Abduction with Rape, is MODIFIED. Accused Rosendo Pacursa is found GUILTY beyond reasonable doubt of the
crime of RAPE, and being a minor at
the time the crime was committed, is sentenced to suffer an indeterminate
penalty ranging from eight (8) years and one (1) day of prision mayor,
as minimum, to 15 years of reclusion temporal, as maximum. Petitioner Ernesto
Garces is found guilty as an accomplice to the crime of rape, and is also sentenced
to suffer an indeterminate penalty ranging from eight (8) years and one (1) day
of prision mayor, as minimum, to 15 years of reclusion temporal,
as maximum.
Rosendo Pacursa and Petitioner
Ernesto Garces are ORDERED to pay
complainant P50,000.00 as civil indemnity ex delicto. Being an accomplice, petitioner is held
solidarily liable with the principal only for half of the amount or P25,000.00
and their subsidiary liability shall be enforced in accordance with Article 110
of the Revised Penal Code. Petitioner is likewise ordered to pay complainant P50,000.00
as moral damages.
SO ORDERED.
CONSUELO
YNARES-SANTIAGO
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
MINITA V. CHICO-NAZARIO ANTONIO
EDUARDO B. NACHURA
Associate Justice Associate Justice
ATTESTATION
I
attest that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Rollo, pp. 64-75. Penned by Associate Justice Edgardo F.
Sundiam and concurred in by Associate Justices Martin S. Villarama, Jr. and
Japar B. Dimaampao.
[2]
[3]
[4]
Records, p. 1.
[5] Rollo, p. 147.
[6]
[7]
Exhibit “C,” records, pp. 14-15.
[8]
Exhibit “2,” records, p. 126;
[9]
[10]
[11] Rollo, pp. 28-37.
[12]
[13]
[14]
[15] See People v.
Domingo, G.R. No. 97921, September 8, 1993, 226 SCRA 156, 174.
[16]
Exhibit “C,” records, pp. 14-15;
[17]
Exhibt “B,” not found in the records; TSN, July 28, 1993, pp. 3-10.
[18] People
v. Almanzor, 433 Phil. 667, 700 (2002).
[19]
See People v. Lining, 433
Phil. 797 (2002), where accused were convicted for simple rape. In this case,
complainant was dragged towards the ricefield and was forcibly carried to an
unoccupied house where she was subsequently raped.
[20] People
v. Fortich, 346 Phil. 596, 617 (1997).
[21] People v. Lining, supra at 812.
[22] People
v. Fortich, supra at 618.
[23] People
v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 280, 297.
[24] People
v. Gonzales, G.R. No. 141599, June 29, 2004, 433 SCRA 102, 116.
[25]
[26]
[27]
Records, p. 92.
[28]
[29] People v. Servano, 454 Phil. 256 (2003).
[30]
[31] People v. Las Piñas, Jr., 427 Phil. 633,
641 (2002).
[32] Cf. People v. Corbes, 337 Phil. 190, 197
(1997).
[33]
See People v. Tulin, 416 Phil. 365
(2001). As a rule, if there is lack of complete evidence of conspiracy, the
liability is that of an accomplice and not as principal since any doubt as to
the participation of an individual in the commission of the crime is always
resolved in favor of lesser responsibility.
[34] Revised Penal Code, Art. 18.
[35] People v. De Vera, 371 Phil. 563, 584
(1999).
[36] People
v. Clores, Jr., G.R. No. 130488, June 8, 2004, 431 SCRA 210, 222.
[37] Reyes,
Jr. v. Court of Appeals, 424 Phil. 829 (2002).
[38] Revised Penal Code, Art. 52.
[39] Id., Art. 100.
[40] Id., Art. 109.
[41] People
v. Garcia, 424 Phil. 158, 194 (2002).
[42] People
v. Calongui, G.R. No. 170566, March 3, 2006, 484 SCRA 76, 88.
[43] People
v. Flores, 389 Phil. 532, 552 (2000).
[44]
RULES OF COURT, Rule 122, Sections 11-12.
See People v. Doctolero, G.R. No. 34386, February 7, 1991, 193
SCRA 632.
[45] People
v. Arondain, 418 Phil. 354 (2001).