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[G.R. No. 134767. February 20, 2002.]




The date or time of the commission of the rape need not be alleged with precision. It is enough for the information or complaint to state that the crime has been committed at a time as near as possible to the date of its actual commission. Failure to allege the exact date when the crime happened does not render the information defective, much less void.

The Case

On automatic review is the June 15, 1998 Decision 1 of the Regional Trial Court (RTC) of Masbate, Masbate (Branch 44) in Criminal Case Nos. 8324 and 8379, finding Rolly Espejon guilty of rape and sentencing him to death. The decretal portion of the Decision reads as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises considered, this court finds, viz:jgc:chanrobles.com.ph

"In Criminal Case No. 8324, the guilt of accused Rolly Espejon having been established by proof beyond reasonable doubt for the crime of RAPE committed by a father against his daughter Jovelyn A. Espejon who is under eighteen (18) years of age at the time of the commission of the crime, said accused is hereby sentenced to DEATH and to pay Jovelyn Espejon and her mother the sum of P50,000.00.

"In Criminal Case No. 8379, for lack of jurisdiction over the case against accused Rolly Espejon, the same is hereby ordered DISMISSED. 2

Two separate Informations dated January 29, 1997 and February 28, 1997 charged appellant with rape allegedly committed as follows:chanrob1es virtual 1aw library

Criminal Case No. 8324:jgc:chanrobles.com.ph

"That sometime in the year 1995 and subsequent thereto, at Sitio Matungao, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, being the father and with moral ascendancy, with lewd design, by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge [of] Jovelyn A. Espejon against her will and consent." 3

Criminal Case No. 8379:jgc:chanrobles.com.ph

"That sometime in the year 1982 and dates subsequent thereto, at Sitio Matungao, Barangay Tugbo, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, and by means of force and intimidation, did then and there wilfully, unlawfully and feloniously [have] sexual intercourse with his own daughter, Lilibeth A. Espejon, against her will." 4

Assisted by his counsel, 5 appellant pleaded not guilty during his arraignment on May 14, 1997. 6 After a joint trial, the court a quo rendered its now-appealed Decision finding him guilty of rape in Criminal Case No. 8324 and dismissing Criminal Case No. 8379 for lack of jurisdiction.chanrob1es virtua1 1aw 1ibrary

The Facts

Version of the Prosecution

The Office of the Solicitor General, in its Brief, 7 presents the factual incidents of the case in this manner:jgc:chanrobles.com.ph

"Appellant Rolly Espejon and his wife Elsie Abellar got married sometime in 1974. They were blessed with nine [9] children consisting of five [5] daughters and four [4] sons. This picture of a seemingly wholesome and happy family was shattered upon complaint of two [2] daughters, herein private complainants Jovelyn and Lilibeth Espejon, that appellant, their own father, had been sexually molesting them.

"Jovelyn recalls that appellant first raped her sometime in 1995 while she was only thirteen [13] years of age. At that time, her elder brother and sister were in Manila, and her mother was attending to the wake of her grandfather some 500 meters away from their house at Sitio Matungao, Tugbo, Masbate, Masbate. Appellant came home that night when Jovelyn’s younger brothers and sisters were already fast asleep. He approached Jovelyn who was sleeping near the east portion of the ‘gabay,’ about five [5] meters away from where her siblings were sleeping and ordered her to remove her panty. Appellant told Jovelyn not to make any noise or he [would] cut off her neck. He [lay] on top of her and inserted his penis inside her vagina. Jovelyn felt pain but cried silently as she was afraid of her father. The sexual abuse continued for about one [1] hour. Appellant only stopped after Jovelyn felt that a sticky substance came out of his penis. Thereafter[,] appellant told Jovelyn not to tell anybody about the incident and repeated his warning that he [would] cut off her neck if she disobeyed.

"Appellant repeated the sexual [abuse] against Jovelyn two [2] more times during that period when her mother was out of their house attending to the wake of their grandfather. The second sexual assault occurred barely four [4] days after the first. After the burial of her grandfather, when her mother had already returned home, appellant continued raping her [on] six [6] more occasions. These subsequent sexual assaults occurred during daytime. Appellant would bring Jovelyn to the bushes around seventy [70] meters from their house where he sexually molested [her].

"Sometime in November 1996, Jovelyn’s elder sister Lilibeth, the other complainant, arrived from Manila. Her mother was very happy and requested Lilibeth to stay home. However, Lilibeth refused and wanted to go back to Manila immediately. At this point, Lilibeth disclosed to her mother that appellant had raped her twice, the first was committed sometime in 1982 while she was still seven [7] years of age, and the second in 1989 when she was already fourteen [14] years old. And this was the reason why she had to leave for Manila in 1992.

"Lilibeth’s revelation gave Jovelyn the courage to disclose that she was likewise being sexually abused by their father. Upon learning of this, their mother brought both Jovelyn and Lilibeth to the Municipal Health Office of Masbate for medical examination on November 30, 1996. . . .

x       x       x

"Thereafter, private complainants executed their respective affidavits and complaints in support of the rape charges against the appellant." 8 (Citations omitted)

Version of the Defense

Appellant narrates his version of the facts in his Brief, 9 as follows:jgc:chanrobles.com.ph

"ROLLY ESPEJON testified that he did not sexually abuse [his] two (2) daughters, Lilibeth and Jovelyn Espejon. They were only instigated by their mother. From 1982 up to 1992, when Lilibeth was still staying with them at Matungao, Tugbo, there was no instance that he had a quarrel against his wife o[n] something related to Lilibeth. The only time he had a quarrel with his wife was when he caught his wife and her paramour engaged in a sexual act inside their house which prompted him to box his wife who lost consciousness. He was not able to take hold of the paramour because he jumped out of the window. He caught them having an illicit affair on 10 November 1996 even prior to [the] arrival of Lilibeth on 15 November 1996." 10

The Trial Court’s Ruling

The trial court gave credence to the testimony of the victim and rejected the denial put up by appellant. It explained its ruling as follows:jgc:chanrobles.com.ph

"This court [has] carefully analyzed the testimony of complainant Jovelyn who is the daughter of accused Rolly Espejon. She appears to be of tender age and definitely inexperienced in sexual matters to fabricate the charge against her own father for no reason at all. This court finds her testimony credible, natural and in accordance with the ordinary course of nature and the ordinary habits of life to such a degree that any minor inconsistencies in her testimony [may be] considered badges of veracity or manifestations of truthfulness on material points in the testimony.

"The claim of the defense that the cases were concocted by Rolly’s wife and children because Rolly caught his wife Elsie having sexual intercourse with her paramour Jaime Apaya in November 1995 is preposterous and obviously contrived. It appears to be his last ditch effort to save his neck for the grave injustice that the accused committed against his own family. It has to be rejected.

x       x       x

"In rape, force need not always produce physical injuries. The absence of external signs of physical injuries on the body of the victim Jovelyn and the latter’s failure to shout for help or her failure to immediately report it to her mother or the authorities do not negate rape. It is not necessary that force be employed. Intimidation is sufficient, and this includes the threat to kill her. Intimidation is addressed to the mind of the victim and, therefore, subjective. Its presence could not be treated by any hard and fast rule but must be viewed in the light of the victim’s perception and judgment at the time of the crime. Jovelyn Espejon was only then 13 years old and the offender was her own father who ha[d] moral influence on her. One cannot expect her to cry out in public her personal anguish, humiliation and pain. Jovelyn Espejon should be looked upon with pity for the bestiality she went through [at] the hands of no other than her own father. Her courage failed her until such time when she learned that her other sister suffered the same fate as her from her father’s hands." 11

The Issue

In this automatic review, 12 appellant submits the following assignment of errors for our consideration:chanrob1es virtual 1aw library


The court a quo gravely erred in convicting accused-appellant Rolly Espejon despite failure on the part of the prosecution to establish the actual date of the commission of the crime of rape.


The court a quo erred in imposing the capital punishment of death." 13

The Court’s Ruling

The appeal is partly meritorious. Appellant is guilty only of simple, not qualified, rape; thus, he should be sentenced to reclusion perpetua, not death.

First Issue:chanrob1es virtual 1aw library

Validity of the Information

At the outset, the Court notes that appellant does not contest the sufficiency of the prosecution evidence. Neither does he challenge the credibility of the victim and her testimony.chanrob1es virtua1 1aw 1ibrary

An appeal in a criminal case is a review de novo and is not limited to the assigned errors. Thus, the Court examined the circumstances of the plea and the trial, read the transcript of stenographic notes, pored over the documentary evidence especially the Medicolegal Report, and scrutinized the trial court records. Having done so, it has no doubt that appellant had carnal knowledge of the victim against her will.

Furthermore, the Supreme Court accords the highest respect, even finality, to the factual findings of the trial court absent any showing that it gravely abused its discretion or that it overlooked material facts or circumstances relevant to the resolution of the case. 14

Accordingly, we will no longer belabor these factual matters, but will instead discuss the specific legal issues raised in this appeal.

Appellant argues that because the Information had not specifically alleged the exact date of the commission of the crime, he was deprived of the opportunity to defend himself fully. On this premise, he claims that the Information should be considered fatally defective and void. According to him, such defect cannot be cured by evidence, without jeopardizing his right to be informed of the nature of the charge against him.

We are not persuaded. An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. 15 The exact date of the commission of a crime is not an essential element of it. 16 Thus, in a prosecution for rape, the material fact or circumstance to be considered is the occurrence of the rape, not the time of its commission. 17 The failure to specify the exact date or time when it was committed does not ipso facto make the information defective on its face. 18

In People v. Magbanua, 19 the Court had the occasion to rule on this matter thus:jgc:chanrobles.com.ph

"Although the information did not state with particularity the dates when the sexual attacks took place, we believe that the allegations therein that the acts were committed `[i]n the year 1991 and the days thereafter’ substantially apprised appellant of the crime he was charged with since all the essential elements of the crime of rape were stated in the information. As such, appellant cannot complain that he was deprived of the right to be informed of the case filed against him. An information can withstand the test of judicial scrutiny as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof." 20

Justifying the ruling, the Court continued:jgc:chanrobles.com.ph

". . . . The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. . . ." 21

Clearly then, the validity of the Information cannot be successfully assailed by appellant on the basis of the prosecution’s failure to allege the specific actual date of the rape. In fact, this Court has ruled that even a variance of a few months between the time indicated in the information and that established by the evidence during the trial does not constitute an error so serious as to warrant a reversal of a conviction solely on that score. 22

Having satisfactorily established the fact that appellant had sexual intercourse with his daughter against her will at or about the time alleged in the Information, the prosecution is entitled to a conviction. To reiterate, the exact date of the commission of the crime is not an essential element of rape, 23 for the gravamen of the offense is the fact of having had carnal knowledge of a woman by means of force or intimidation. 24

As an incident to this case, the solicitor general, in his Brief, asserts that the trial court should not have dismissed Criminal Case No. 8379 (jointly tried with the present appealed case) on the ground of lack of jurisdiction.

In this regard, we may well point out that an automatic review is a remedy provided by law for the benefit of the accused. Hence, the prosecution may not interpose any matter that would make the accused liable for a charge other than the one for which he has been convicted. Suffice it to say that such issue may be interposed only through a petition for certiorari alleging grave abuse of discretion on the part of the trial court. Considering the nature of an appeal, we shall not discuss any further the merits of this incidental matter.

Second Issue:chanrob1es virtual 1aw library

Proper Penalty

We agree with appellant that the trial court erred in imposing the death penalty on the ground that the minority of the victim had not been alleged in the Information.chanrob1es virtua1 1aw 1ibrary

This Court has consistently held that the minority of the victim must be alleged in the information and proven beyond reasonable doubt during the trial. 25 Failure to allege the age of the victim will preclude a conviction for qualified rape and will bar the imposition of the death penalty 26 under Article 335 of the Revised Penal Code, as amended by Section 11 (1) of RA 7.659, which provides as follows:jgc:chanrobles.com.ph

"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:chanrob1es virtual 1aw library

(1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim." (Emphasis supplied)

Being special qualifying circumstances, the minority of the victim and her relationship to the offender should be alleged in the information for death to be imposable. 27

We have repeatedly ruled that if the information alleged only the relationship of the offender as the father of the victim but failed to state her age, he can be convicted only of simple, not qualified, rape even if the latter type is proved. 28

Verily, it would be a denial of due process if he is charged with simple rape, on which he was arraigned, but convicted of qualified rape punishable by death. 29

Civil Liability

In People v. Catubig, 30 the Court granted P50,000 moral damages to the rape victim aside from the P50,000 civil indemnity. Such award rests on the "jural foundation that the crime of rape necessarily brings with it shame, mental anguish, besmirched reputation, moral shock and social humiliation to the offended party." In addition, the victim should be awarded exemplary damages of P25,000 in view of the presence of the aggravating circumstance of relationship.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the appealed Decision is MODIFIED. Appellant is found GUILTY of simple rape only and is sentenced to reclusion perpetua and to pay the victim P50,000 as indemnity ex delicto, P50,000 as moral damages plus P25,000 as exemplary damages. No pronouncement as to costs.


Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez and Carpio, JJ., concur.


1. Rollo, pp. 62-70; penned by Judge Felimon C. Abelita III.

2. RTC Decision, pp. 8-9; rollo, pp. 69-70; records, Vol. I, pp. 61-62.

3. Rollo, p. 6; records, Vol. I, p. 1.

4. Rollo, p. 7; records, Vol. II, p. 1.

5. Atty. Percival Castillo of the Public Attorney’s Office.

6. Records, Vol. 1, p. 15.

7. Rollo, pp. 85-88. This was signed by Assistant Solicitor General Carlos N. Ortega, Assistant Solicitor General Azucena R. Balanon-Corpuz and Solicitor John Emmanuel F. Madamba.

8. Ibid., pp. 85-88.

9. Rollo, pp. 45-60. This was signed by Attys. Arceli Rubin, Bartolome P. Reus and Pastor Archimedes P. Morales of the Public Attorney’s Office.

10. Ibid., p. 53.

11. Id., pp. 68-69; records, pp. 60-61.

12. This case was deemed submitted for resolution on September 8, 2000, upon receipt by this Court of appellant’s Reply Brief.

13. Appellant’s Brief, supra, p. 47.

14. People v. Villamin, 288 SCRA 569, April 1, 1998.

15. Cf. People v. Alba, 305 SCRA 811, April 14, 1999.

16. People v. Lim, 312 SCRA 550, August 17, 1999; People v. Malapo, 294 SCRA 579, August 25, 1998.

17. People v. Losano, 310 SCRA 707, July 20, 1999.

18. People v. Magbanua, 319 SCRA 719, December 3, 1999.

19. Ibid.

20 Id., p. 731, per Kapunan, J.

21. Id., p. 730.

22. People v. Bernaldez, 294 SCRA 317, August 17, 1998.

23. People v. Pagpaguitan, 315 SCRA 226, September 27, 1999.

24. People v. Narido, 316 SCRA 131, October 1, 1999.

25. Ibid.

26. People v. Nuñez, 310 SCRA 168, July 8, 1999.

27. People v. Narido, supra.

28. People v. Calayca, 301 SCRA 192, January 20, 1999.

29. People v. De la Cuesta, 304 SCRA 83, March 2, 1999.

30. G.R. No. 137842, August 23, 2001, per Vitug, J., citing People v. Nuñez, supra, and People v. Narido, supra.

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