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PHILIPPINE SUPREME COURT DECISIONS

THIRD DIVISION

[G.R. Nos. 101833-34. October 26, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALBERTO ARCE y BORROMEO, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Azcuna, Sarmiento, Arroyo & Chua for Accused-Appellant.


SYLLABUS


1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL COURT; RULE AND EXCEPTION. — In respect of appraisal of the credibility of witnesses, the firmly settled rule is that the findings of the trial court are to be accorded great respect and at times deemed final, that court having been in a position to observe and assess the behavior and demeanor of the witnesses while on the witness chair. Appellate magistrates will generally not disturb such findings of the trial court, unless the latter has patently overlooked facts of substance and value which, when considered, will affect the resolution of the case. Here, the Court finds no reason to depart from the general rule and no basis for reversing the trial court’s finding that complainant Perlita de Leon had in fact been assaulted and raped on the night of 30 January 1990.

2. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; MAY BE SUFFICIENT FOR CONVICTION; RULE. — It is true that no one at the scene of the crime had identified appellant as the assailant of Perlita de Leon, considering that the assault and rape had occurred in the dead of night and the place of the rape was unlighted. Complainant herself at the time of commencement of chase did not see appellant’s face because the latter’s face was, at least partly, covered with his T-shirt. Identification of the doer of a crime is not, however, exclusively limited to identification by visual or optical perception of the face and person of the accused. Under Section 4, Rule 133 of the Rules of Court, conviction may rest on indirect or circumstantial evidence when the proven circumstances, taken together, constitute an unbroken chain of events leading to one fair and reasonable conclusion that the accused was guilty beyond reasonable doubt of the charge against him. In the instant case, at least three (3) circumstances converged to sustain Arce’s guilt.

3. ID.; ID.; ID.; ID.; ID.; APPLICATION IN CASE AT BAR. — In the instant case, at least three (3) circumstances converged to sustain Arce’s guilt. First, there was the wet maong pants of appellant Arce. The prosecution had established that appellant was wearing maong pants when the latter, in making good his escape jumped into the nearby river and swam or waded away. When appellant was arrested at his house, a few hours after the incident at the ricemill, the arresting officers retrieved from appellant’s clothes hamper, and from among the other soiled dry clothes, a pair of wet maong pants, which admittedly belonged to appellant. No explanation was given by appellant regarding the wet condition of his denim pants, except that it, together with other clothes, was then due for washing. Second, appellant, at the time of his arrest, was found with bruises and other injuries on his person. The complainant had testified that in the ensuing assault on her person, she in the course of defending herself, inflicted bodily injuries, e.g., bruises and scratches, upon her assailant. Corporal Reyes, testifying on the circumstances surrounding the arrest of appellant Arce. Appellant Arce tried to explain away his injuries as having been caused by a bicycle fall just the day before his arrest. The trial court did not give his explanation much credit in view of, among other things, his failure to corroborate the same and in view of the next item of circumstantial evidence. Third, complainant Perlita A. de Leon identified appellant Arce as her assailant and rapist through his voice. In the course of assaulting and raping her, the assailant spoke to Perlita at least three (3) times. The verbal exchanges between complainant and appellant were not, of course, prolonged and extensive. The assailant’s words were, however, of such a deadly serious and threatening nature and conducted under such dramatic and stark circumstances as reasonably to have impressed themselves firmly on the consciousness and memory of complainant Perlita de Leon. The next day at the police station, the police authorities first showed three (3) persons who were potential suspects to complainant de Leon: one Guillermo, Boy Ursonio and Arturo Oliva. Complainant Perlita did not point to anyone of them as her assailant. Subsequently, however, appellant Arce was brought in together with other persons and complainant Perlita de Leon was once more asked to look them over. Perlita asked the potential suspects to speak. Appellant Arce spoke first and immediately upon hearing his voice, Perlita de Leon, without hesitation or qualification, identified Arce’s voice as the voice of the man who had uttered threats against her as he assaulted and raped her. Aggregating the above circumstances, we consider that appellant Arce was shown, beyond reasonable doubt, to be the person who had assaulted and raped Perlita de Leon on the night of 30 January 1990.

4. ID.; ID.; BURDEN OF PROOF IN CRIMINAL CASES; APPLICATION TO ILLEGAL POSSESSION OF FIREARM AND AMMUNITION. — In Criminal Case No. VIII-637 for illegal possession of firearm and ammunition. It is important to recall that the prosecution has the burden of proving beyond reasonable doubt that the accused did not have a license to possess a firearm and did not have any legal authority to carry a firearm outside of his residence. It is, of course, the constitutional presumption of innocence that lays that burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of a firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. In People v. Pajenado, the Court through Dizon, J. wrote: "It is true that People v. Lubo, 101 Phil. 179, and People v. Ramos, 8 SCRA 758, could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but We are of the considered opinion that under the provisions of Section 2, Rule 131 of the Revised Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if ‘it is an essential ingredient of the offense charged,’ the burden of proof was with the prosecution in this case to prove that the firearms used by appellant in committing the offense charge was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no ‘license or permit to possess’ the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution’s duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. v. Tria, 17 Phil. 303, the accused was charged with having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People v. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law, is an essential ingredient of the offense charged, the prosecution had the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only established a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows: ‘The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to case the onus upon him’ (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)" Here, the record is bereft of even a prima facie showing of the essential element of lack or absence of a license or legal authority to carry the firearm here involved. In other words, the prosecution, although it had shown at least prima facie that the seized firearm had been held or used by appellant Arce, failed to prove that appellant had no license or authority to possess that firearm and to carry it outside his residence. The very paucity of testimony and other evidence on this point is remarkable; it is also indicative of the casual way in which this charge was handled by the police and the public prosecutor.

5. CRIMINAL LAW; RAPE; SLIGHTEST DEGREE OF PENETRATION, SUFFICIENT FOR CONVICTION THEREOF. — As to the fact or extent of execution of the rape, it is sufficient to recall that the slightest degree of penetration of the pudenda by accused’s penis suffices to constitute the crime of rape. Thus, complete or even substantial introjection is not necessary, and Perlita did testify that Arce’s member did partially enter her private parts.


D E C I S I O N


FELICIANO, J.:


Alberto Arce y Borromeo was charged with rape and illegal possession of firearm and ammunition, in two (2) separate informations. In Criminal Case No. VIII-635, he was charged with rape committed as follows:chanrobles.com : virtual law library

"That on or about January 30, 1990, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Alberto Arce y Borromeo, together with one John Doe who was not identified, armed with a gun, conspiring together and helping each other, with lewd design and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with the offended party, Perlita Acio de Leon, against her will and consent." 1

In Criminal Case No. VIII-637, the information charging illegal possession of firearm and ammunition read as follows:jgc:chanrobles.com.ph

"That on or about January 30, 1990, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Alberto Arce y Borromeo, did then and there wilfully, unlawfully and feloniously [have] in his possession and under his control and custody one (1) cal .38 Rev. (Paltik) Smith and Wesson, with four (4) [rounds of] live ammunition, without first securing the necessary permit or license to possess the same from the corresponding government agency/agencies authorized to issue such permit or license; and which loose and/or unlicensed firearm was carried and brought by the accused outside of his residence without first obtaining a written authority to carry the same outside of his residence from the proper and lawful authorities." 2

Arce pleaded not guilty to each of the two (2) informations. On motion of the defense and with the consent of the prosecution, the trial court ordered the joint trial of the two (2) cases. 3

After trial, the court a quo convicted Arce of both crimes. The dispositive portions of the decision read in part as follows:jgc:chanrobles.com.ph

"WHEREFORE, prescinding from the foregoing, the Court in (1) Criminal Case No. VIII-635, finds the accused Alberto Arce y Borromeo guilty beyond reasonable doubt as principal, of the crime of rape as charged in the information and hereby sentences him to suffer the penalty of RECLUSION PERPETUA, with all the accessory penalties provided by law; to pay the offended party Perlita A. de Leon, the sum of P30,000.00 without subsidiary imprisonment in case of insolvency and for him to pay the costs.

(2) In Criminal Case No. VIII-637, the Court likewise finds the accused Alberto Arce y Borromeo guilty beyond reasonable doubt as principal of the crime of illegal possession of firearms as charged in the information, and there being an aggravating circumstance that the unlicensed firearm was used in the commission of a crime committed at night time and no mitigating circumstance to off-set the same, hereby sentences him to suffer the penalty of LIFE IMPRISONMENT, with all the accessory penalties provided by law; the gun, cal. 38 (Exhibit ‘C’) is ordered forfeited in favor of the government and for him to pay the costs.chanrobles law library

x       x       x" 4

Appellant Arce now urges:chanrob1es virtual 1aw library

(1) in respect of the rape case, that the trial court erred in finding him the assailant of Perlita A. de Leon; and assuming, without admitting, that he was her assailant, in holding that he had also raped Perlita A. de Leon; and

(2) in respect of his conviction for illegal possession of firearm and ammunition, that the trial court erred in holding Arce as the possessor of the unlicensed handgun found at or near the scene of the rape.

The trial court summarized the facts it found in the following manner:jgc:chanrobles.com.ph

"At about 2:15 in the early morning of January 30, 1990, the complainant Perlita Acio de Leon accompanied by one Rodalyn Medrano, a 10 year old girl, went to see her husband Bernard de Leon, alias Boyet, at the Double J Disco, Centro, Aparri, Cagayan. They were not able to see her husband thereat and on their way back home near the Metro Bank building, Perlita was accosted by a person from behind, later identified as the accused Alberto Arce, whose face was then covered by a T-shirt. Complainant ran towards the Double J disco to seek assistance but she stumbled, hence, she was overtaken by the accused and the latter brought her at the back of the Tana ricemill with a gun caliber 0.38 poked at her left temple. Meanwhile, her companion Rodalyn Medrano ran to report the incident to [her] father Rudy Medrano, and the latter together with others, immediately went to report the incident to the police authorities, who responded immediately.

When they reached the back of the ricemill, the accused [initially tore the front portion of the dress of Perlita, then] ordered [her] to remove her duster which she complied because of the poked gun on her temple. She was later dragged to a corner of the ricemill and was forced to lie down. The accused lowered his pants and underwear, then went on top of her, holding her tightly with his hands around her neck and kept on kissing her. She struggled but the person held her tightly then lowered the left side of her panty and inserted his penis. Not being successful to do the sexual intercourse, the accused again lowered her panty above her knees, but that was the time the policemen arrived focusing their flashlight. The accused hit her left eye with the gun telling her to hide, and not to shout, but she was able to take possession of the gun and shouted for help, as the accused was confused and probably shocked and afraid, even as she bumped her head on the cemented wall. After which, the accused ran away and jumped into the Apagonan river. The complainant surrendered the gun to the police team who rescued her. The policemen tried to pursue the accused but failed to overtake him despite warning shots. The following morning, the accused was picked up, and Perlita recognized him, [due to] his voice, as the real culprit.

At the scene of the crime, the gun which is unlicensed (Exhibit ‘C’) was recovered, and same was surrendered by complainant; the gray t-shirt (Exhibit ‘D’) which was used by the accused was likewise recovered; the duster (Exhibit ‘E’) and the green slippers (Exhibit ‘F’) were also recovered; and the maong pants (Exhibit ‘G’) used by the accused which was still wet when the policemen went to the house of the accused that same morning was likewise recovered.

The accused put up a defense of alibi . . ." 5

Appellant Arce’s view of the facts, insofar as the rape charge is concerned, was essentially the following:chanrob1es virtual 1aw library

On the night of 29 January 1990, Arce, together with his wife, his brother and mother, slept in their house in Minanga, Aparri, Cagayan. He made love with his "common law" wife Evelyn Vallejo that night, first at around 10:00 o’clock in the evening after which he slept, and then again at around 4:00 o’clock in the following early morning. He then slept until 6:00 o’clock a.m. At 7:00 o’clock that morning, he was picked up by three (3) policemen from his residence and brought to the PNP Headquarters where he was identified by complainant Perlita A. de Leon as her attacker and rapist.

Appellant stresses that no prosecution witness had asserted having actually seen him at the scene of the crime before, during or immediately after the assault. He avers that, therefore, the trial court could not reasonably conclude that he was the assailant of Perlita A. de Leon and that he was the possessor of the allegedly unlicensed firearm found at the scene of the rape. In respect of the rape charge, appellant Arce further argued that the trial court had erred in finding that rape had been committed against Perlita A. de Leon, considering the absence of medical evidence establishing the fact of rape and in view of Perlita’s admission that she had been "nearly raped" and not actually violated.

We have carefully gone over the record of this case and we consider the above arguments of appellant Arce bereft of merit. Rape is a crime that is normally witnessed only by the victim and her assailant; acquittal or conviction of the assailant would, therefore, frequently depend upon the victim’s testimony. The Court has consistently held that a person charged with the crime of rape may be convicted thereof on the testimony of the victim as lone witness, provided that testimony is credible and convincing. 6

Testifying on what happened on the night of the physical and sexual assault upon her, Perlita A. de Leon stated that: while running away from appellant, who was chasing her, she stumbled and fell on the road, hurting her hands and bruising her knees in the process; that appellant caught up with her when she fell to the ground and then forced her to stand up; that when appellant started assaulting her behind the ricemill, she was pushed to the ground; that although her assailant had already partially inserted his male member into her private part, she fought back and thereby bruising various parts of her assailant’s body; that her continuous struggle prevented her assailant from fully inserting his male organ into her; that her assailant pulled open the side of her underwear in a renewed attempt at full introjection; that her assailant again failed in his effort at full penetration because he became aware of the police approaching with lights and calling out complainant’s name and arriving at the scene of the crime; that the approach of the police caused the assailant to strike her in the face, hitting her left eye with the butt of his handgun in an attempt to silence her; that when she cried out for help, appellant repeatedly pounded her head against the cement wall of the ricemill; that she used her elbows to try to shield her head from injury; that before the police could lay their hands on appellant, despite the warning shots of the police, appellant ran away into the dark, stumbling towards the nearby river and plunging into it. 7

Perlita de Leon’s testimony was corroborated in its salient points by other prosecution witnesses.

Dr. Romulo A. de Rivera, the Municipal Health Officer and attending physician of complainant after the rape, corroborated her testimony concerning her injuries. The trial court summed up the testimony of Dr. Rivera in the following terms:jgc:chanrobles.com.ph

"Next to testify for the prosecution was Dr. Romulo de Rivera, Municipal Health Officer of Aparri, Cagayan. He declared that he examined Perlita de Leon and he issued a medical certificate to that effect marked as Exhibit ‘I’. Wound No. 1 located on the left eyelid must have been caused by a fingernail and the victim and the accused might have been face to face. It could also be possible that the injury was caused when the victim was pushed and the said portion hit a rough surface. Wound No. 2 located on the left eyebrow might have been caused when the victim was pushed and the said part struck a hard surface on the ground. Wound No. 3 located below the left eye might have been caused by a blunt instrument. It could also be caused by a fist blow. Wound No. 4 located on the upper right arm could be possibly caused by a fist blow, blunt instrument or hand handling tightly that part of the body. Wound No. 5 located on the left forearm could be possibly caused by a fingernail, an object with rough surface or maybe when the victim was pushed to the ground. Wound No. 6 located on the left right finger could be possibly caused when it came in contact with hard surface or when the victim was pushed to the ground. Wound No. 7 located on the right knee could be possibly caused when the victim stumbled forward with her knee hitting the ground. Wound No. 8 could be possibly caused when the victim was pushed. Wound No. 9 located on the middle part of the leg could be possibly caused similar to the injuries of the knee. All the wounds indicate that there was violence and these signs of violence might be the result of the victim’s resistance." 8 (Italics added)

The circumstance that no medical examination of the victim’s private parts was conducted, does not constitute a fatal hiatus in the prosecution’s evidence. The Court has previously held that in crimes against chastity, the medical examination of the victim’s genitalia is not an indispensable element for the successful prosecution of the crime, the purpose of the examination being commonly merely corroborative in nature. 9

Perlita de Leon’s testimony concerning the events preceding the assault and rape were also corroborated by Rodalyn Medrano, the 10-year old child-companion of the complainant on the night of the crime. Rodalyn Medrano testified to, e.g., the masked man with the gun chasing the complainant; the direction of the chase; and the complainant stumbling to the ground while fleeing and sustaining knee injuries and arm bruises. 10

Also on the record are the testimonies of Sgt. Pedro Adap, Rudy Medrano and Corporal Eddie Reyes, all of whom were at the scene of the crime and who corroborated complainant’s testimony on matters contemporaneous with and immediately after the assault, e.g., complainant’s physical condition and appellant’s manner and mode of escape. 11

In view thereof, the Court finds no basis for disregarding and overturning the credence given by the trial court to the testimony of the complainant. The observations of the trial court are worth noting:jgc:chanrobles.com.ph

". . . she related her testimony with a ring of truth and never faltered even during cross examination. There was no evidence presented or proved that she fabricated her story and there was no evidence adduced to show that she has reason to falsely accuse Alberto Arce. Settled is the rule that the lone testimony of the victim can be the basis of conviction if found worthy and credible. The manner, the demeanor and the way the complainant testified, lead to the inevitable conclusion that indeed she was raped by the accused. She will not dare come out in the open and stand the rigors and suffer humiliation during public trial, if her motive is not to obtain justice. She has no reason to fabricate (People v. Bravo, 180 SCRA 694) and considering the age and education of the complainant, she has no reason to fabricate her story. [sic] (People v. Reyes, 137 SCRA 99)." 12 (Italics supplied)

In respect of appraisal of the credibility of witnesses, the firmly settled rule is that the findings of the trial court are to be accorded great respect and at times deemed final, that court having been in a position to observe and assess the behavior and demeanor of the witnesses while on the witness chair. Appellate magistrates will generally not disturb such findings of the trial court, unless the latter has patently overlooked facts of substance and value which, when considered, will affect the resolution of the case. Here, the Court finds no reason to depart from the general rule and no basis for reversing the trial court’s finding that complainant Perlita de Leon had in fact been assaulted and raped on the night of 30 January 1990.

As to the fact or extent of execution of the rape, it is sufficient to recall that the slightest degree of penetration of the pudenda by accused’s penis suffices to constitute the crime of rape. Thus, complete or even substantial introjection is not necessary, and Perlita did testify that Arce’s member did partially enter her private parts.

It is true that no one at the scene of the crime had identified appellant as the assailant of Perlita de Leon, considering that the assault and rape had occurred in the dead of night and the place of the rape was unlighted. Complainant herself at the time of commencement of chase did not see appellant’s face because the latter’s face was, at least partly, covered with his T-shirt.

Identification of the doer of a crime is not, however, exclusively limited to identification by visual or optical perception of the face and person of the accused. Under Section 4, Rule 133 of the Rules of Court, conviction may rest on indirect or circumstantial evidence when the proven circumstances, taken together, constitute an unbroken chain of events leading to one fair and reasonable conclusion that the accused was guilty beyond reasonable doubt of the charge against him. In the instant case, at least three (3) circumstances converged to sustain Arce’s guilt.

First, there was the wet maong pants of appellant Arce. The prosecution had established that appellant was wearing maong pants when the latter, in making good his escape jumped into the nearby river and swam or waded away. When appellant was arrested at his house, a few hours after the incident at the ricemill, the arresting officers retrieved from appellant’s clothes hamper, and from among the other soiled dry clothes, a pair of wet maong pants, which admittedly belonged to appellant. 13 No explanation was given by appellant regarding the wet condition of his denim pants, except that it, together with other clothes, was then due for washing.

Second, appellant, at the time of his arrest, was found with bruises and other injuries on his person. The complainant had testified that in the ensuing assault on her person, she in the course of defending herself, inflicted bodily injuries, e.g., bruises and scratches, upon her assailant. 14 Corporal Reyes, testifying on the circumstances surrounding the arrest of appellant Arce, stated:jgc:chanrobles.com.ph

"Cpl. REYES:chanrob1es virtual 1aw library

At first there were three suspects, they were Guillermo, Boy Ursonio and Arturo Oliva, Sir.

COURT:chanrob1es virtual 1aw library

There were three suspects?

A Yes, Sir.

Q So, you have no definite idea of the culprit at the time you found the victim?

A Yes, Sir.

Q The victim did not reveal to you the person who molested her?

A No, Sir.

FISCAL:chanrob1es virtual 1aw library

By the time the victim did not know yet, Your Honor.

Q After presenting these three suspects what did you do with them?

A After presenting them to the victim she told us that they were not the ones so we took another person and we discovered that Arce sustained some injuries, Sir.

COURT:chanrob1es virtual 1aw library

Who is that suspect?

A Alberto Arce, Sir.

FISCAL:chanrob1es virtual 1aw library

How long have you known Alberto Arce?

A For a long time already, Sir.

Q How come that your were able to get him?

A Barangay Captain Oliva told us that it might be Arce and when we were going to see him, we met Alberto Arce, so we took him with us, Sir.

Q Where did you get him?

A In front of the house of Lao, Sir.

Q When you encountered Alberto Arce in that place, what did you do next?

A We brought him to the victim and presented him to her, Sir.

COURT:chanrob1es virtual 1aw library

Where did you present him?.

A Inside the Headquarters, Sir.

Q What transpired there?

A She pointed out that he was the one who dragged her to the back of Tana Ricemill, Sir." 15

In his direct testimony, Accused-appellant described his injuries as follows:jgc:chanrobles.com.ph

"FISCAL MIGUEL:chanrob1es virtual 1aw library

As a matter of fact, Brgy. Captain Orlando Oliva together with the policemen even saw the injuries that you sustained . . .

ATTY. MACADAEG: [Defense Counsel]

No basis, Your Honor.

COURT:chanrob1es virtual 1aw library

Witness may answer.

APPELLANT:chanrob1es virtual 1aw library

Yes, Sir.

FISCAL MIGUEL:chanrob1es virtual 1aw library

What part of your body?

[INTERPRETER]:chanrob1es virtual 1aw library

Witness pointed to his right upper lip; right check bone and right elbow." 16

(Italics added)

Appellant Arce tried to explain away his injuries as having been caused by a bicycle fall just the day before his arrest. The trial court did not give his explanation much credit in view of, among other things, his failure to corroborate the same and in view of the next item of circumstantial evidence.

Third, complainant Perlita A. de Leon identified appellant Arce as her assailant and rapist through his voice. In the course of assaulting and raping her, the assailant spoke to Perlita at least three (3) times. The relevant portions of Perlita’s testimony follow:jgc:chanrobles.com.ph

" [FISCAL MIGUEL TO COMPLAINANT PERLITA A. DE LEON]

Q And what happened when you were at the back of the ricemill?

A He stopped pushing me, sir.

Q And what did he do next when he stopped pushing you?

A When he stopped pushing me, he told me ‘do not shout I will kill you’ , sir.

Q And what did you say?

A Why, what do you want from me", sir. (bakit ano ba ang gusto mo sa akin).

Q What was his answer?

A Why don’t you know (bakit hindi mo ba alam) and he tore my duster, sir.

Q And what part of your duster was torn?

x       x       x"

Q Now after removing your panty, what did he do next?

A That was the time when [the] persons were flashing their flashlight, sir.

Q And what did you do when you observed that there were persons focusing their flashlight?

A When he noticed that persons were flashing their flashlights, he told me to hide, sir?

Q And did you hide?

A Yes, sir.

Q And what happened next after that?

A When he told me to hide, he also followed me, sir.

Q When he followed you, what did he do next?

A He again poked his gun to me, sir.

Q What part of your body?

A To my left temple sir.

Q And what did he do again when he poked that gun to the same portion of your body as you indicated?

A When he poked again, he said, ‘do not shout, I will kill you’, sir.

Q And what happened next?

A While he was telling me do not shout I will kill you, I slowly reached for the gun he was holding, Sir." 17 (Italics supplied)

The verbal exchanges between complainant and appellant were not, of course, prolonged and extensive. The assailant’s words, were, however, of such a deadly serious and threatening nature and conducted under such dramatic and stark circumstances as reasonably to have impressed themselves firmly on the consciousness and memory of complainant Perlita de Leon. The next day at the police station, the police authorities first showed three (3) persons who were potential suspects to complainant de Leon: one Guillermo, Boy Ursonio and Arturo Oliva. Complainant Perlita did not point to anyone of them as her assailant. Subsequently, however, appellant Arce was brought in together with other persons and complainant Perlita de Leon was once more asked to look them over. Perlita asked the potential suspects to speak. Appellant Arce spoke first and immediately upon hearing his voice, Perlita de Leon, without hesitation or qualification, identified Arce’s voice as the voice of the man who had uttered threats against her as he assaulted and raped her. The following portions of appellant’s own testimony are noteworthy:jgc:chanrobles.com.ph

"DEFENSE COUNSEL: Atty. Macadaeg.

Q Did you go with the policemen as requested by them?"

APPELLANT Alberto Arce.

A Yes, Sir.

Q Where did they bring you?

A At the police headquarters, Sir.

Q What happened at the headquarters?

A They let me sit down, Sir.

Q What happened next?

A After a while, Cpl. Adap went inside the office and brought out a woman [later identified as the complainant], then they asked me to talk and when I talked, the woman said ‘that is the voice.’

Q Is that all that the woman told Cpl. Adap?

A Yes, Sir."cralaw virtua1aw library

Q And that woman turned out to be Perlita de Leon?

A Yes, Sir." 18 (Italics added)

On cross-examination of appellant, the prosecution brought out the following facts:jgc:chanrobles.com.ph

"FISCAL MIGUEL:chanrob1es virtual 1aw library

When you were there together with this Roderick Guillermo, Jr., the woman whom they called came out and pointed to you that you were the one who abused her on the night of January 29, 1990 . . .

ATTY. MACADAEG:chanrob1es virtual 1aw library

Misleading, she said ‘that is the voice’.

FISCAL MIGUEL:chanrob1es virtual 1aw library

When she heard your voice she even pointed to you, is that correct?

APPELLANT:chanrob1es virtual 1aw library

They asked me to talk first then she pointed at me saying ‘that is the voice’.

Q And when that woman pointed to you, Roderick Guillermo, Jr. was there?

A Yes Sir and other persons who are from Minanga were also there, they were Arthur Oliva and Roderick; Brgy Captain Orlando Oliva even uttered that if they will point to his son they would rather kill each other." 19 (Italics added)

Aggregating the above circumstances, we consider that appellant Arce was shown, beyond reasonable doubt, to be the person who had assaulted and raped Perlita de Leon on the night of 30 January 1990.

We turn to Criminal Case No. VIII-637 for illegal possession of firearm and ammunition. It is important to recall that the prosecution has the burden of proving beyond reasonable doubt that the accused did not have a license to possess a firearm and did not have any legal authority to carry a firearm outside of his residence. It is, of course, the constitutional presumption of innocence that lays that burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of a firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. In People v. Pajenado, 20 the Court through Dizon, J. wrote:chanrobles law library

"It is true that People v. Lubo, 101 Phil. 179, and People v. Ramos, 8 SCRA 758, could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but We are of the considered opinion that under the provisions of Section 2, Rule 131 of the Revised Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if ‘it is an essential ingredient of the offense charged’, the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charge was not properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no ‘license or permit to possess’ the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution’s duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. v. Tria, 17 Phil. 303, the accused was charged with having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People v. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law, is an essential ingredient of the offense charged, the prosecution had the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this views as follows:chanrob1es virtual 1aw library

‘The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him’ (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)" (Italics added)

Here, the record is bereft of even a prima facie showing of the essential element of lack or absence of a license or legal authority to carry the firearm here involved. In other words, the prosecution, although it had shown at least prima facie that the seized firearm had been held or used by appellant Arce, failed to prove that appellant had no license or authority to possess that firearm and to carry it outside his residence. The very paucity of testimony and other evidence on this point is remarkable; it is also indicative of the casual way in which this charge was handled by the police and the public prosecutor. The only relevant testimony on this point is the following:jgc:chanrobles.com.ph

"WITNESS (Cpl. Reyes)

When we showed her the suspect, it was the time when she told us that he was the person from whom she grabbed the gun, Sir.

COURT:chanrob1es virtual 1aw library

Aside from the information given to you by the offended party, did you exert effort to verify as to whether or not there is another person who has the license with respect to this firearm?

A None, sir.

Q Did you go to the PC to verify who is the owner of that gun?

A No, Sir.

COURT:chanrob1es virtual 1aw library

That will be all." 21 (Italics supplied).

We are compelled to conclude that the guilt of appellant Arce in respect of the charge of illegal possession of firearm and ammunition was simply not established by the necessary quantum of proof.

WHEREFORE, for all the foregoing:chanrob1es virtual 1aw library

(1) the decision of the trial court in Criminal Case No. VIII-635 for rape is hereby AFFIRMED en toto;

(2) however, the decision in Criminal Case No. VIII-637 for illegal possession of firearm and ammunition is hereby REVERSED and appellant Alberto Arce ACQUITTED of such offense on ground of reasonable doubt.

No pronouncement as to costs.

SO ORDERED.chanrobles virtual lawlibrary

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

Endnotes:



1. Records of Criminal Case No. VIII-635, p. 3.

2. Records in Criminal Case No. VIII-637, p. 1.

3. Records in Criminal Case No. VIII-635, p. 48.

4. RTC Decision, p. 15; Rollo p. 30.

5. Id., p. 10-11; Rollo, pp. 25-26.

6. People v. Rabanes, 208 SCRA 768 (1992); People v. Villorente, 210 SCRA 647 (1992); People v. Alvarez, 213 SCRA 722 (1992); People v. Mabunga, 215 SCRA 694 (1992); People v. Biendo, 216 SCRA 626 (1992).

7. TSN, dated 7 June 1990, pp. 9-19.

8. RTC Decision, p. 5, Rollo, p. 20. See also People v. Estolano, 193 SCRA 730 (1991).

9. People v. Diaz, 212 SCRA 147 (1992); People v. Garcia, 187 SCRA 518 (1990).

10. TSN, dated 14 June 1990, pp. 24-30.

11. TSNs, dated 14 June 1990, pp. 37, 46; dated 24 July 1990, p. 24; dated 25 July 1990, p. 18, respectively.

12. RTC Decision, pp. 12-13; Rollo, pp. 27-28.

13. TSN, dated 28 February 1991, pp. 17-19.

14. TSN, dated 7 June 1990, pp. 15-16, et. seq.

15. TSN, dated 25 July 1990, pp. 12-14.

16. TSN, dated 28 February 1991, pp. 25-27.

17. TSN, dated 7 June 1990, pp. 11-17.

18. TSN, dated 28 February 1991, pp. 19-20, et seq.

19. Id., pp. 25-27.

20. 31 SCRA 812 (1970). Also People v. Tiozon, 198 SCRA 368 (1991).

21. TSN, dated 25 July 1990, p. 20.

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