Accused appeals from a judgment of conviction for the crime of Rape in Criminal Case No. 5571 of Branch 44 of the Regional Trial Court (RTC) of Masbate, the dispositive portion of which reads:

"Wherefore, finding the accused to be guilty beyond reasonable doubt of the crime of rape the Court hereby finds him guilty without doubt (sic) and applying the aggravating circumstances (sic), hereby sentences him to serve a (sic) penalty of reclusion perpetua to be served at the National penitentiary, and to pay the victim in the form of moral damages the amount of P20,000.00 and to pay the cost of the suit. He is credited four fifths (4/5) of his preventive imprisonment."

The prosecution for rape was commenced by a complaint^[1] filed on 22 September 1988 by Corazon E. Collantes, mother of the offended party, Maria Pura, with the Municipal Trial Court (MTC) of Masbate which reads:

"The undersigned, Complainant under oath (sic), unto this Honorable Court, accuses MAXIMO ROSERO RASE JR., for (sic) the crime of RAPE committed as follows:

That on September 14, 1988 at about 10:00 o'clock in the morning more or less at Barangay F. Magallanes, Municipality of Masbate, Province of Masbate, Philippines and within the preliminary (sic) jurisdiction of this Honorable Court, the above-named accused, move (sic) by some evil motives, with leud (sic) design did then and there, willfully, unlawfully and feloniously and by means of abuse of confidence did lie and had (sic) carnal sexual intercourse of said (sic) Maria Pura, a woman of mute, deep and retarded (sic) against her will and consent."

Having found probable cause to exist after asking the witnesses searching questions, the Judge of the MTC issued on 6 October 1988 an order for the arrest of the accused.^[2]

On 10 November 1988, the MTC issued an order declaring that the accused had waived his right to a preliminary investigation and that "a prima facie case" exists against him. It then forwarded the records of the case to the Office of the Provincial Fiscal of Masbate.^[3]

On 29 November 1988, 2nd Assistant Provincial Prosecutor Iñigo D. Fontelar of the Provincial Prosecution Office of Masbate issued a resolution,^[4] duly approved by Provincial Prosecutor Hermenegildo F. Betonio, Jr., recommending that an information for the crime of rape be filed against the accused because "(t)he undisputed evidence on record as fully disclosed by the court and discussed in its order of November 10, 1988, (sic) which we agree, no doubt establishes a prima facie case and/or probable cause to hold the accused for trial." Accordingly, on 7 December 1988, said Assistant Provincial Prosecutor filed with the Regional Trial Court of Masbate an Information for rape,^[5] duly approved by the Provincial Prosecutor, which reads:

"The undersigned 2nd Assistant Provincial Prosecutor accuses Maximo Rosero Race, Jr. of the crime of Rape committed as follows:

That on or about September 14, 1988, in the morning thereof, at barangay Magallanes, Municipality of Masbate, Province of Masbate, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniosly (sic) have carnal knowledge of one Maria Pura, a deaf-mute, retarded and an embecile (sic) against the latter's will and consent."

Accused entered a plea of not guilty upon arraignment^[6] and trial proceeded thereafter on various dates with the prosecution presenting Dr. Artemio G. Capellan, Noel Abela and Elena Alim as its witnesses for its evidence in chief, and Elvira Collantes as its witness on rebuttal. The accused took the witness stand in his own defense.

On 15 December 1989, the trial court promulgated its decision^[7] convicting the accused of the crime of rape, the dispositive portion of which was quoted earlier. According to the court, rape was committed because Maria Pura, being deaf-mute and mentally retarded, cannot give consent; it was determined that moral compulsion, amounting to intimidation, was employed by the accused. Said the court:

"The victim being mentally retarded could not be asked questions as what (sic) happened to her although she sometimes understands (sic) some questions. The circumstances appearing as seen by Noel Abele shows (sic) that sexual intercourse was committed on the person of Maria Pura a mentally retarded, deaf-mute. Maria Pura being mentally retarded could not actually give consent in order that she could have sexual intercourse with the accused.

The Court could not even say as testified that force was employed upon the victim but the appearance of the woman alone and her physical condition could not stop any physical force. However, for the reason that the accused has been known to the woman who (sic) even slept, though outside of their house in an attachment, moral compulsion which is tantamount to intimidation was employed by the accused when the sexual intercourse happened. It is a sorry state that the victim could not testify. The Court however, is convinced that rape was committed.^[8]

x x x

The accused when confronted by the family of the victim denied having sexual intercourse with Maria Pura. However Maria Pura, although a deaf-mute when asked by Collantes and by Noel Abela, and by the sister Elena Alim pointed to the accused to have committed, (sic) such a dastardly act. She pointed to the accused when asked as to what happened. There is no reason for Maria Pura to tell a lie. Being (sic) of unsound mind and laughing (sic) at the time when she was investigated, only shows (sic) that there was sexual intercourse through moral compulsion which the court believes is intimidation. That she should give consent, such question when subjected to all doubts and understanding (sic) would show that this woman who is mentally retarded and a deaf-mute could never give consent to any sexual intercourse committed on her by the accused."^[9]

It also appreciated against the accused the aggravating circumstance of reiteracion^[10] because he admitted during cross?examination that he was previously convicted of the crime of homicide but was out on parole at the time of the rape.

From the said decision, accused came to this Court by filing a notice of appeal on 18 December 1989.^[11] He has only one assignment of error in the Brief for the Appellant,^[12] to wit:

"THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED."

In support of the alleged error, he contends that reasonable doubt exists in this case because: (a) the scene of the crime is well populated and inhabited; since it was daytime and there were many people outside the house when the incident occurred, it is possible that another man or a neighbor of the Puras, and not the accused, assaulted Maria Pura; (b) he is on parole and knew that if he violated the terms and conditions thereof, he would be rearrested to serve the unexpired portion of his sentence; it was, therefore, unlikely that he would commit another crime; (c) there is no reliable eyewitness to the crime; and (d) he manifested his honesty by not denying that he slapped Noel Abela after the lattermade fun of him (the accused) when he came out of the toilet.^[13]

The facts of this case as presented by the prosecution are faithfully summarized by the Solicitor General in the Brief for the Appellee^[14] as follows:

"In the morning of September 14, 1988, Elvira Collantes, left her forty-year old sister Maria Pura in their house located at Magallanes St., Masbate, Masbate to go to the market. Maria was cross-eyed, mute, retarded and a polio victim, standing less than four feet who could only nod her head and make signs to be able to communicate. She can crawl but cannot stand unsupported. (TSN, October 23, 1989, p. 4; TSN, April 26, 1989, p. 3; TSN, June 22, 1989, p. 9; TSN, October 10, 1989, pp. 3-4, 6).

Maria was left alone in the house with Maximo Race, Jr. also known as Jun, who during that time had asked Elvira for permission to use the toilet built outside the house. Since Race had been using the toilet in the past with their permission, she agreed. She knew Race because he often sleeps outside the extension of the Pura house, particularly in the Pura store which is attached to the house (TSN, October 23, 1989, pp. 3, 5; TSN, June 22, 1989, pp. 3, 8).

At around 10 a.m. of the same day, Noel Abila, son of Elena Alim both of whom lived in the Pura residence together with Maria, had just come home from school when he heard a voice. He immediately ran to the kitchen where the voice came from and saw Race putting his pants on (TSN, June 22, 1989, p. 4; TSN, October 20, 1989, p. 3).

Noel then saw his Aunt Maria in the dining room. She was laughing at Race. Noel let Maria sit on a chair. When Noel asked his Aunt Maria what Race did to her she moved her body forward and backward in a push-pull movement. Noel thereupon accused Race of raping Maria and threatened to report the incident. Race slapped Noel and went out of the house to the place where he drinks liquor (TSN, June 22, 1989, pp. 5,6; TSN, October 23, 1989, p. 4).

Noel afterwards informed his uncle Glen Collantes, husband of Elvira Collantes of the incident. Glen brought Race to Maria Pura, who pointed at Race. When Glen asked Maria what Race did to her she again made the push-pull movement. Maria was laughing (TSN, June 22, 1989, pp. 7, 8, 10).

Elena Collantes, who was working at D'SAN Restaurant, went home upon learning of the incident. Elena, together with their mother 'Azon', later went to the Municipal Hall to lodge a complaint (TSN, October 10, 1989, pp. 4-8).

After the complaint wasfiled, Maria was examined by Dr. Artemio Capellan, the Municipal health officer, in their house, the following day (TSN, October 10, 1989, p. 8; TSN, April 26, 1989, pp. 3, 5).

The results of the examination were stated in a medical certificate issued by Dr. Capellan (Exh. "A"). To wit:

'For External examination:

Fairly developed and fairly nourished, mentally retarded, mute, female, adult, Filipino. The breast (sic) are fully developed, hemispherical in shaped (sic) and slightly soft in consistency. The areola are pinkish brown in color with nipples are (sic) prominent and protruding.

Contusion, abrasion nor (sic) hematoma were not found in the body of the victim.

Genital examination:

Pubic hair not abundant, Labia majora and labia minora are coaptated. Hymenal opening originally linear in shaped (sic) showing old laceration, corresponding to 5:00, 7:00 o'clock position in the face of the watch. Hymenal orifice admits the vaginal speculum without resistance. Vaginal rugosities are present but obliterated. Vaginal canal is moderately tight.

Conclusion:

1. No extra genital injuries were noted on the person of Maria Pura.

Microscopic examination:

a) Presence of human semen and dead sperm were (sic) noted.?

Maria had sexual contact because the speculum can be inserted into her without difficulty. She had an old healed hymeneal laceration caused a day before. Some of the sperm found in her vagina were living at the time they were examined (TSN, April 26, 1989, p. 4)."

On the other hand, the accused denies the commission of the crime. He summarizes his story in his Brief as follows:

"x x x In the morning of September 14, 1988, he asked Elvira Pura-Collantes' permission to use their toilet. Elvira is a younger sister of Maria. Said toilet is outside the Puras' house. He did not go to their kitchen nor borrowed (sic) cellophane from Noel Abela. When he came out of the toilet Noel shouted at him and teased him. He got angry and slapped Noel and threw one of his slippers, to (sic) the latter. Noel ran away crying and called for his mother who is working in a restaurant. Noel's mother arrived home and scolded him (accused). It is not true that he raped Maria Pura. The Puras are just angry with him because he slapped Noel. The nearest house to the Puras is only a meter away. And there were many people around when he slapped Noel (TSN, pp. 2-7, October 20, 1989)."

We find no difficulty in agreeing with the trial court's conclusion that the accused had sexual intercourse with Maria Pura on the date as charged. Although there was no eyewitness to the act, the confluence of the facts and circumstances unerringly establishes the commission of the act. The Solicitor General correctly enumerates these facts and circumstances:

(1)   When witness Elvira Collantes left the house in the morning of 14 September 1988, only her sister Maria Pura and the appellant were left therein;

(2)   Witness Noel Abela, upon arriving home at 10:00 o'clock that morning, chanced upon the accused closing the zipper of his pants in the kitchen while Maria was at the adjacent dining room, laughing at the accused;

(3)   When Noel asked Maria what accused did to her, she moved her body forward and backward; she repeated this motion when asked by Glen Collantes, her brother-in-law, pointing at the same time to the accused;

(4)   Upon examining Maria the following day, Dr. Capellan, the Municipal Health Officer, noticed the presence of "human semen and dead sperm", thus indicating that she had sexual intercourse within the past twenty-four (24) hours.

There can be no doubt that if the carnal knowledge was accomplished under any of the circumstances enumerated in Article 335 of the Revised Penal Code, the foregoing circumstantial evidence would have been sufficient to support a conviction for such a crime pursuant to Section 4, Rule 133 of the Rules of Court which provides:

"SECTION 4. Circumstantial evidence, when sufficient. -- Circumstantial evidence is sufficient for conviction if:

(a)   There is more than one circumstance;

(b)   The facts from which the inferences are derived are proven; and

(c)   The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."

The foregoing disquisitions render utterly ineffectual and reduce to naught accused's assigned error and the arguments in support thereof. But did the act of the appellant constitute the crime of rape as defined under Article 335 of the Revised Penal Code? To arrive at the answer, the following crucial issues must be resolved:

1)   whether the information properly charges the accused with the commission of rape; and

2)   assuming that it does, whether the evidence for the prosecution established the guilt of the appellant beyond reasonable doubt

Article 335 of the Revised Penal Code pertinently provides:

"ARTICLE 335. When and how rape is committed. -- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1.      By using force or intimidation;

2.      When the woman is deprived of reason or otherwise unconscious; and

3.     When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.

The crime of rape shall be punished by reclusion perpetua."

x x x

The proper complaint and information for rape must clearly describe the specific circumstances which would make the carnal knowledge of a woman qualify as such under Article 335. Otherwise stated, the same must concretely describe the crime of rape in any of the specified forms to duly inform the accused of the nature of the accusation;^[15] the right to be informed of such accusation is one of his constitutional rights.^[16]

The accusatory portion of the information in this case reads:

"That on or about September 4, 1988, in the morning thereof, at barangay Magallanes, Municipality of Masbate, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniosly (sic) have carnal knowledge of one Maria Pura, a deaf-mute, retarded and an embecile (sic) against the latter's will and consent."

As can be readily seen, it does not specifically describe any of the circumstances under Article 335 of the Revised Penal Code. It is evident that the information was hurriedly and poorly crafted for aside from the deficiency abovementioned, the 2nd Assistant Provincial Prosecutor even wrongly spelled the words feloniously and imbecile. This notwithstanding, the allegation therein that the accused had sexual intercourse with a woman who is retarded and an imbecile implies that the victim was not in full possession and control of her moral reasoning faculty; this is sufficient enough to have alerted the accused that the charge against him is for rape under the circumstance that the woman is deprived of reason.^[17] An imbecile is "a mentally defective person of the second lowest order of intellectual potential (mental age between 3 and 7 years), usually requiring custodial and complete protective care."^[18] Imbecility is "(a) form of mental disease consisting in mental deficiency either congenital or resulting from an obstacle to the development of the faculties supervening in infancy. Idiocy. x x x For any process of reasoning, or any general observation or abstract ideas, imbeciles are totally incompetent. Of law, justice, morality, property, they have but a very imperfect notion, x x x."^[19]

And now on the second issue.

It may be recalled that the trial court convicted the accused based on two circumstances: (a) the use of intimidation and (b) the inability of the offended party to give consent because she is "a deaf-mute, retarded and an embecile (sic)".

The first is definitely without basis as no evidence was adduced to prove it. The trial court merely inferred this from what it describes as "moral compulsion" which it ascribes to the fact that "the accused has been known to the woman who (sic) even slept, although outside their house in an attachment." These are inferences running riot which elementary logic and common sense reject.

What has to be determined then is whether the offended party, Maria Pura, before, during and even after the sexual intercourse on 14 September 1988, suffers from mental retardation or imbecility which deprived her of reason at the time the appellant had carnal knowledge of her.

Without an admission by the accused, this Court's task of resolving this issue would have been difficult as it would be entirely dependent on: (a) the conclusion of the trial court that Maria Pura is "a deaf mute, retarded and an embecile (sic)"; this conclusion is principally anchored on exactly the same allegation in the information; (b) the finding by Dr. Capellan, entered in his physical and medical examination report, that she is mentally retarded; (c) the testimony of Noel Abela that when the victim was asked what the accused did to her, she demonstrated a push-pull movement and was laughing while looking at the accused; and (d) the court's view of the woman when she was brought to the court. On that occasion the following transpired:

"ELENA ALIM TESTIFYING UNDER SAME OATH

COURT:

Q    You were requested by the court to bring your elder sister and the court has seen you bringing a woman accompanied by a certain man, is that your elder sister, Maria Pura?

A     Yes, Your Honor.

Q    And that man is your younger brother?

A     Yes, Your Honor.

Q    Who (sic) is the name of your younger brother?

A     Gaspar.

Q    Gaspar, would you let her stand?

A     (Gaspar assisted the woman Maria Pura in standing up)

Q    How tall is she?

A     (Less than 4 feet and cross-eyed woman (sic))

Q    Could you talk?

A     (Woman is nodding)

Q    Who (sic) is your name?

A     (The woman when asked her name just nodded her head, she is telling something but could not talk)"^[20]

No expert witness was presented to testify on Maria Pura's imbecility.

Fortunately for the Prosecution, the appellant readily admitted that Maria Pura is mentally deficient:

Thus, in his Brief, he states:

"In the case at bar, the evidence for the prosecution was not scrutinized with extreme caution. To stress, there is no reliable eyewitness to the crime charged. The alleged rape victim is physically and mentally deficient being a deaf-mute, retarded and (sic) imbecile."^[21]

Maria Pura was then incapable of giving rational consent to the sexual act. In effect, she is deprived of reason. In People vs. Manlapaz,^[22] which involves a 13-year old girl with the mentality of a 5-year old child, this Court held:

"Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years of age is rape because she is incapable of givingrational consent to the carnal intercourse. 'Las mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero no es condicion precisa que la carencia de razon sea completa, basta la abnormalidad o deficiencia mental que solo la disminuye, sim embargo, la jurisprudence es discordante? (II Cuello Calon, Derecho Penal, 14th Ed., 1975, pp. 538-9).

?Comete violacion el que yace con mujer que no tiene normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales (11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo 1953); el yacimiento con oligofrenicas (mentally deficient persons) (28 abril, 24 octubre, 1956, 19 feb. 1958); x x x? (Ibid, note 3).

The same rule prevails in American jurisprudence. 'There can be no question but that a copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape' (State vs. Jewett, 192 At. 7).

'An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a female who was mentally incapable of validly consenting to or opposing the carnal act? (65 Am Jur 2nd 766 citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).

`In this species of rape neither force upon the part of the man nor resistance upon the part of the woman forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who by law is conclusively held incapable of legal consent. Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact x x x. It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not? (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44)."

This rule has been reiterated by this Court in the following decisions which upheld convictions for the crime of rape: People vs. Gallano,^[23] where the 31-year old victim had the mental level of a 7-year old child; People vs. Asturias,^[24] where the 17-year old victim had the mental level lower even than that of a 7-year old child; People vs. Sunga,^[25] where the 23-year old victim, had the mentality of an 8 to 9-year old child; and People vs. Palma,^[26] where the victim was a 14-year old retardate with an intellectual capacity described as "borderline mental deficiency".

In the Asturias case, this Court in effect held that if the mental level of a woman above twelve (12) years old is that of a child below twelve (12) years old, even if she voluntarily submitted to the bestial desires of the accused, or even if the circumstances of force or intimidation, or of the victim being deprived of reason or otherwise unconscious are absent, the accused would still be liable for rape under the third paragraph of Article 335. The reason for this is that if intercourse with a victim under twelve (12) years old is rape, then it should follow that carnal knowledge of a woman whose mental age is that of a child below twelve (12) years of age would also constitute rape.

Affirmance of the decision appealed from is thus inevitable. The accused cannot be permitted to escape from the wrath of the law. Having succumbed to his bestial instinct and desire to satisfy his animal greed by preying on a defenseless imbecile who ought to be the object of sympathy, he has become a two-legged beast which civilized society must hold in prison in order that he may answer for his evil deed. However, there is a need to modify both the amount of indemnity awarded to the offended party and the credit of four-fifths (4/5) of the accused's preventive imprisonment. Also, the appreciation of the aggravating circumstance of reiteracion should be set aside.

Pursuant to People vs. Arenas,^[27] which involves the rape of a mentally retarded woman, the indemnity to be paid should be increased to P40,000.00. The four-fifths (4/5) credit, on the other hand, is improper. Accused is entitled to be credited with the full time of his preventive imprisonment under the first paragraph of Article 29 of the Revised Penal Code and not under paragraph two, which prescribes the four-fifths (4/5) credit, since there is no evidence that he did not agree to abide by the same disciplinary rules imposed upon convicted prisoners.

The trial court likewise erred in appreciating the aggravating circumstance of reiteracion. This circumstance is not alleged in the information. The prosecution did not prove it. Upon cross-examination of the accused by the Prosecutor, over the objection of the defense counsel, the only information elicited is that the accused had earlier been convicted for the crime of homicide, had served the sentence and had later been released.^[28]

The fact of his being out on parole was brought out upon questioning by the court after the termination of the cross-­examination.^[29] It would thus be unfair to appreciate reiteracion against the accused. Besides, for the same to exist, it is necessary that "the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty."^[30] Appellant was earlier convicted for the crime of homicide which is punishable by reclusion temporal.^[31] That penalty is not equal or greater -- but is definitely lower -- than that provided for the crime of ordinary rape which is reclusion perpetua.

WHEREFORE, except as above modified, the decision of the Regional Trial Court of Masbate, Branch 44, in Criminal Case No. 5571 finding the accused appellant MAXIMO R. RACE, JR. guilty beyond reasonable doubt of the crime of rape, is hereby AFFIRMED in all other respects.

Costs against the accused-appellant.

SO ORDERED.

Gutierrez, Jr., (Chairman), Feliciano, Bidin, and Romero, JJ., concur.

---

^[1] Original Records, 3.

^[2] Original Records, 10.

^[3] Id., 11.

^[4] Id., 2.

^[5] Original Records, 1.

^[6] Id., 20.

^[7] Id., 57-61.

^[8] Original Records, 58, 59.

^[9] Original Records, 59.

^[10] Id., 61.

^[11] Id., 62.

^[12] Rollo, 27-34.

^[13] Rollo, 30-32.

^[14] Id., 44-59.

^[15] See People vs. Oso, 62 Phil. 271 [1935].

^[16] Section 14 (2), Article III [Bill of Rights], 1987 Constitution.

^[17] See People vs. Manlapaz, 88 SCRA 704 [1979].

^[18] MILLER and KEANE, Encyclopedia and Dictionary of Medicine and Nursing, W.B. Saunders Company, 1972, 470.

^[19] BOUVIER's Law Dictionary, Vol. I, Third Revision, 1492.

^[20] TSN, 10 October 1989, 6.

^[21] Brief for the Accused-Appellant, 6; Rollo, 32; Underscoring supplied for emphasis.

^[22] Supra.

^[23] 108 SCRA 405 [1981].

^[24] 134 SCRA 405 [1985].

^[25] 137 SCRA 130 [1985].

^[26] 144 SCRA 236 [1986].

^[27] 198 SCRA 172 [1991].

^[28] TSN, 20 October 1989, 5.

^[29] Id., 8.

^[30] Article 14 (10), Revised Penal Code.

^[31] Article 249, Id.