1. CRIMINAL LAW; RAPE; RELATIONSHIP. — Under the facts stated in the opinion of the court, it was Held: That the defendant was guilty of the crime of rape committed upon the person of his daughter, a girl under twelve years of age, with the aggravating circumstance of relationship in accordance with article 15 of the Revised Penal Code.

The defendant appeals from the following well-considered decision of Judge Conrado Barrios in the Court of First Instance of Iloilo:jgc:chanrobles.com.ph

"On the complaint first of Rose S. Segura and later of her daughter Sylvia Segura these proceedings were instituted.

"According to the prosecution, Sebastian G. Segura, married by a Roman Catholic priest in the church of Saint Francis, Portland, Oregon, U.S.A., on October 1, 1921, to Rosario Domenica Sandora (Exhibit B), had with her four children: Sylvia, who was born on July 3, 1922, in Portland (Exhibit C), Salvador, Estela, and Sebastian, Jr., the last named being seven years of age. These four children have been trained to dance and sing by their father, Sebastian G. Segura, who exhibited them in theatrical productions in public places, in order to receive as compensation from the spectators the money with which they supported themselves.

"On May 18, 1932, the spouses Segura-Sandora arrived in Manila, P. I., and there continued exhibiting their children in the same manner as they used to do in America. For the same purpose, they moved to Pasay, Rizal; and on April 7, 1933, they travelled through the municipalities of Iloilo, Jaro, Pavia, Oton, Pototan, and Lambunao, of this Province of Iloilo, and through the municipalities of Capiz and Calivo in the Province of Capiz, to return again to this Province of Iloilo, traveling through the municipalities of Maasin, Lambunao, Jaro, and Iloilo. During the last months of last year, 1933, they lived in the municipality of Lambunao in the house of Francisco Roncesvalles, godfather of the child Salvador Segura when the latter was baptized in America.

"On the night of December 9, 1933, after supper, Sebastian G. Segura, upon retiring, lay down as usual in a single bed. He called his daughter Sylvia to lie near him and scratch his back. Sylvia obeyed him. A little later, Sebastian G. Segura ordered Sylvia Segura to take off her bloomers, and afterwards have sexual intercourse with her. His wife saw him in the act of having sexual intercourse with his daughter. However, she kept silent, through fear, taking into consideration the cruelty of her husband. This was not the only incestuous act of the accused with his daughter Sylvia, inasmuch as he had done the same thing with her in the United States.

"The accused denies having committed the crime imputed to him. He tried to prove that, long before the night in question, his wife Rose. S. Segura had expressed to him her insistent desire that the family return to the United States, even if they had to obtain their fare by means of public charity. The accused did not pay any attention to this suggestion of his wife because he did not have the funds to defray the expenses of the trip and was not willing to solicit another’s charity for that purpose. Rose S. Segura received a letter, Exhibit 1, from one Seller, a friend of the family, who is in America, proposing to them that they return there they would find a better field for their children’s exhibitions in theaters and public places, with good financial prospects. The accused, however, was adamant in his opposition to his wife’s proposals. Whereupon, disappointed in this, she concocted the plot which culminated in imputing her husband alleged rape committed on the person of his own daughter, with which he Sebastian G. Segura, is now charged. Rose S. Segura was in the habit of introducing her finger into the genital organ of her daughter Sylvia Segura. On the night in question, she performed the said act while her four children Sylvia, Salvador, Estela, and Sebastian, Jr., were sleeping with her in a double bed, and in the execution thereof, Rose S. Segura unconsciously touched Salvador and Sebastian, Jr., who awoke and surprised their mother in the act.

"It is conclusively proved that on December 9, 1933, Sylvia Segura had not yet completed the age of eleven years; and upon being examined at the beginning of the year by Dr. Blancaflor, it was discovered that her hymen had been ruptured a long time previous thereto, which rupture might have been due to different causes, among them in the introduction of a man’s penis, according to the doctor.

"The court has heard and carefully observed all the witnesses who testified during the trial; and in weighing their testimony has found that the witnesses, Rose S. Segura and Sylvia Segura, have testified in so natural and simple a manner as to leave no room for doubt with respect to their credibility and sincerity. The excuse of the accused, that this charge is the result of a scheme formed by his wife upon being thwarted in her desire to return to America, does not constitute a sufficient motive for his wife, who, according to the accused himself, is loving and resigned to the extent of having followed him to the Philippines, suffering privations in life because the said accused does not have and never did have dependable means of support for which reason both husband and wife had to cooperate in the dancing and singing exhibitions of their children who were under age, to impute to him the commission of so horrible a crime as that of rape on the person of his own daughter, if such accusation were not justified. Neither can it be conceived that Sylvia Segura, a child less than twelve years of age, would have sufficient cause to make such a charge against her father, the herein accused, if it were not true that the latter really cohabited with her on the night in question and also prior to that occasion. The sincerity and simplicity of Sylvia Segura’s testimony convinces the court that nothing but the truth of the facts came from her lips, while testifying as a witness for the prosecution.

"The children Salvador Segura and Sebastian Segura, Jr., who testified in favor of their father, do not merit entire credit from this court, because it was noted that they related the facts under a certain extraneous influence which showed that they were not telling the truth. It was noted that these children testified with the idea impressed on their minds the they should state that they did not like their mother because she used to teach them bad things and that, on the contrary, they were fond of their father because he was good to them; and it was for this reason that from time to time in the course of their testimony and without being asked about it, they repeated the same expression that they did not like their mother and that they were fond of their father for the reasons above stated.

"Wherefore, the court finds that it is conclusively proved that the accused Sebastian G. Segura is guilty of the crime of rape, and applying the provisions of Act No. 4103, hereby sentences him to suffer the penalty of eight years and one day of prision mayor to fourteen years, eight months and one day of reclusion temporal, with the corresponding accessory penalties, to indemnify the offended party in the sum of five hundred pesos, and to pay the costs. So ordered."cralaw virtua1aw library

In support of their assignments of error that the lower court erred in finding the defendant guilty of the crime of rape beyond a reasonable doubt and in condemning him, appellant’s attorneys alleged: (1) That the evidence for the prosecution on concerning the supposed rape is unnatural and unworthy of belief; (2) that this case is very suspicious; accused; (4) that the evidence introduced to prove sexual intercourse was essentially based on mere conclusions and suspicions: (5) that the declarations of the two sons of the accused were not given due credit by the lower court.

We admit the apparent reasonableness of the first contention of the appellant. Under ordinary conditions it would be unnatural for a mother not to make an outcry on discovering her husband in carnal intercourse with his own daughter, but in the present case the conduct of the mother of the offended girl is to be judge in the light of her situation. She was far from her home and friends in the United States. She had no one to appeal to. At the time of the incident in question she and her husband and children were staying in the house of one of his friends. The husband had no employment. The family had to subsist upon the children’s meager and uncertain earnings from vaudeville performances as they wandered from place to place. The accused was cruel and domineering and easily angered. He had beat his wife in the United States and again in Jaro shortly before the incident in question. The unfortunate woman was helpless. When asked to explain why she did not intervene when she saw what the accused was doing to his daughter, she testified that she was overcome by fear; that she felt a throbbing in her heart and could not utter a word, but beat her breast (Yo tenia tanto miedo; you recibi una sacudida en el corazon y no puedo decir ni una palabra. Me golpeaba el pecho.) These circumstances satisfactorily account for her apparently unnatural conduct.

In the second place the attorneys for the appellant contend that this case is very suspicious. Great distress is laid upon the fact that although the offense was committed on December 9, 1933, the complaint was not filed until January 5, 1934, or nearly a month later. The evidence shows, however, that the crime was committed, not in the provincial capital, but in the municipality of Lambunao; that three days later, after pondering on what she should do, defendant’s wife wrote to Bishop McCloskey in Iloilo about the matter. On January 3, 1934, when the family had returned to Jaro, the wife of the defendant, taking advantage of the fact that he had gone to Iloilo with the three younger children, went to see Bishop McCloskey, who told her that he had sent her letter to Fiscal Blanco, and advised her to see the fiscal immediately. She followed the advice of the bishop. After the fiscal had investigated the facts of the case, the first complaint was sworn to by defendant’s wife before Judge Paredes and filed on January 4, 1934. The amended compliant signed by the offended girl, was filed on January 12th. The letter written by the defendant’s wife to Bishop McCloskey was not produced at the trial, but we cannot agree with the argument of appellant’s attorneys that since it was not produced it did not exist. Defendant’s attorneys did not ask for it during the trial.

The next contention of the appellant is that his wife had a grudge against him because he would not accede to her wish to return to the United States. This is a mere surmise wholly unjustified by the evidence. It is sated in appellant’s brief that for inexplicable reasons defendant’s wife desires to go back to the United States to join one Seller, an impresario, from whom she had received a letter in the early part of December, 1933; that she wishes to remove the children from the custody and influence of the accused father in order that she may take them back to the United States to be educated there; that she wants to leave the Philippine Islands even at the cost of her husband’s liberty and imprisonment. There is nothing in the record to sustain these statements. It is true that defendant’s wife received a letter from Seller, who appears to be a friend of the family, suggesting that they return to the United States where they would have better prospects of gain in their vaudeville performances. It is contended that the charges against the defendant are false; that they are merely the culmination of a plot of Rose S. Segura to get rid of her husband; that the offended girl was merely the tool of her mother’s avarice. Such contentions rest upon the uncorroborated testimony of the accused, and were rightly rejected by the trial judge.

The fourth argument advanced by the attorneys for the appellant is that the evidence introduced to prove the alleged sexual intercourse was essentially based on mere conclusions and suspicions. This contention, like the preceding ones, is not sustained by the record. Both the offended girl and her mother described in detail the commission of the act complained of. Their testimony was carefully weighed by the trial judge, and no good reason has been adduced for disturbing his findings.

Sylvia Segura, the offended girl, was examined by Dr. Cornelio T. Blancaflor on January 9. 1934. He found that her hymen had been ruptured long prior thereto, and that the vaginal opening when dilated would admit an object an inch in diameter. He could not state with certainty the cause of the rupture. The attorneys for the appellant state in their brief that they can only surmise the cause, but the defendant attempted to prove that his wife was accustomed to jab her finger at night into her daughter’s vagina. In our opinion such a contention is not only false, but is evidence of the depravity of the accused.

The attorneys for the appellant emphasize in capital letters the fact that according to the record Rose S. Segura in referring to her conversation with the accused on December 27th stated that she indicated to him her suspicions. It is argued therefrom that she did not see any act of carnal intercourse, and merely suspected that the accused had committed the offense imputed to him. In the first place we doubt if the idea of the witness is accurately expressed by the word "sospechas." It is apparent from the context that in her conversation with her husband on that date she gave him to understand that she knew what had taken place on the night of December 9th. This construction of what she intended to say is made clear by her testimony appearing on page 46 of the record where she said that her husband beat her when she accused him on having had carnal intercourse with Sylvia. Her testimony is as follows:jgc:chanrobles.com.ph

"P. Desde que ustedes llegaron a Iloilo,