Victor Angeles appeals from a decision of the Regional Trial Court ("RTC") of Manila, Branch 25, convicting him of two (2) separate offenses: one of rape and the other of robbery against Analie Baltazar.

Angeles was charged with rape in a complaint filed by Analie Baltazar dated 28 February 1989; he was also accused of robbery in an inhabited place in an information filed by Assistant Prosecutor Eufrocino A. Sulla, also dated 28 February 1989. These two (2) documents read as follows:

"That on or about February 24, 1989, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously, by means of force, violence and intimidation, to wit: by poking an ice pick against her person, dragging her outside the house and bringing her to the Three Bird Lodge located at Sales St., Sta. Cruz, in said City, threatening to kill her should she resist and accused succeed (sic) in having carnal knowledge of the undersigned complainant, against her will and consent."^[1]

x x x                             x x x                               x x x

"That on or about February 24, 1989, in the City of Manila, Philippines, the said accused, conspiring and confederating with two others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously break into and enter House No. 652 (along) Algeciras St., Sampaloc, in said City, which was then occupied as a dwelling place of one ANALIE BALTAZAR Y CORDON and other members of her family, by destroying the screen of the door of the said house and by passing through the said door, and once inside, with intent of gain and without the knowledge and consent of the owner thereof, took, robbed and carried away one (1) Betamax Sony valued at P10,500.00 and one Typewriter Merit valued at P5,000.00, or all valued at P15,500.00, belonging to said Analie Baltazar y Cordon, to the damage and prejudice of said owner in the aforesaid sum of P15,500.00, Philippine currency."^[2]

The complaint and information were raffled off to two (2) different branches of the Manila RTC.^[3] Appellant Angeles entered a plea of not guilty to the complaint for rape before the Manila RTC, Branch 5, on 19 July 1989.^[4] A few months earlier, he had pleaded not guilty to the information for robbery before Branch 25 of the Manila RTC on 10 April 1989.^[5]

In an order dated 13 April 1989, Judge Felix B. Mintu of Branch 5, Manila RTC, upon the ground that the two (2) criminal cases were "intimately related," ordered that Criminal Case No. 89-70692 (the robbery case) be consolidated for joint trial with the lower numbered case (the rape case) then pending before his sala.^[6]

Earlier, on 12 April 1989, Angeles filed a motion to quash the rape complaint in Criminal Case No. 89-70961, upon the ground that the offense there charged was "the same offense" for which he had been arraigned just two (2) days earlier before Branch 25 of the Manila RTC in Criminal Case No. 89-70962, and that he would be exposed to "double jeopardy" if he were arraigned anew in Criminal Case No. 89-70961.^[7]

After hearing, Judge Mintu denied the motion to quash, holding that two (2) distinct crimes of rape and of robbery were alleged to have been committed by appellant.^[8] Appellant moved for reconsideration of that order, without success.

After joint trial of the rape and robbery cases, appellant was found guilty of both offenses in a decision dated 7 March 1991 of the Manila RTC, the dispositive portion of which states:

"WHEREFORE, the prosecution having proven the guilt of the accused VICTOR ANGELES Y RAMOS beyond reasonable doubt on both cases, sentences him to suffer the penalty of:

Criminal Case No. 89-70961, Rape LIFE IMPRISONMENT and pay as damages complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST;

Criminal Case No. 89-70962, Robbery LIFE IMPRISONMENT, the stolen articles being not recovered, to pay as damages complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST."^[9]

The basic facts as found and set out by the trial court in its decision are as follows:

"Analie Baltazar testified that on or about 1:30 in the morning of February 24, 1989, while she was sleeping at the sala of the second floor of their house in Ageceria (sic) Street, Sampaloc, Manila, she woke up to urinate. When she stood up, a person behind held and poked an icepick on her neck. According to her, she begged not to be killed; that she was dragged towards the rear door of their house. Aside from the person who dragged her, she also saw two persons on the ground floor carrying their typewriter and Sony Super betamax. The typewriter, according to her cost about P2,000.00, while the betamax cost about P10,000.00 to P11,000.00. She was dragged by the man at the railroad track towards Fermesa Street, (then) to de la Fuente Street, where she was made to board the (sic) taxi and brought to Dakota (St.) at Recto Avenue. That while she was being dragged by the person, whom she identified later as the accused Victor Angeles, the two other companions of the accused were on (sic) their back. According to her, when they alighted from the taxi, the two persons placed themselves on (sic) a dark place and she was told not to shout. That everytime she talked with a loud voice, she was being (sic) slapped. Later, the two companions of the accused left. Accused Angeles, while still poking the ice pick on her neck, covered by the blanket she was carrying then, brought her to the Three Bird Lodge Motel, a few steps from Dakota Recto going towards Evangelista Street, Quiapo, Manila. At the Three Bird Lodge, accused Angeles talked with the roomboy while at that time the icepick was still poked at her. She was brought to a room, where accused removed her t-shirt, short and underwear. Later, she was made to lie down on the bed and the accused removed also (sic) his clothes. The room, according to her, was well-lighted. The accused, after removing his clothes, started to kiss her on her neck, to her bust and her private parts. That the accused forced his penis to enter her private parts. That the penis, according to her, penetrated lightly on her private parts and thereafter, she was told to dress up and let (sic) her go home.

The following day, the accused was again seen in complainant Analie's neighborhood. The accused, according to her, was even rubbing his shoes on the ground and looking at the direction of their house. She immediately informed her father about the presence of the accused. Her father, according to her, immediately went to the place where the accused was, but accused has (sic) already left and thus, was able that time to escape the wrath of her father. On February 26, 1989, at about 10:00 o'clock in the morning, again (sic), complainant Analie saw the accused in front of their house. She immediately pointed the accused to her father, who in turn went down the house and confronted the accused. While talking, her father gave the accused a fist blow and the people in the neighborhood chased the accused. After a brief chase, the accused was apprehended and mauled by her neighbors. Later, the accused was brought to the police station, investigated, detained and charged for the present crime.

Dr. Marcial Cenido, Medico-Legal Officer, Western Police District, testified that he made a physical and genital examination on the person of Analie Baltazar y Cordon, thru the request of Lt. Generoso Javier, Western Police District, and found her hymen with deep healing laceration at 6:00 o'clock position extending to the base at the forchette right of midline and slightly bled upon examination, Exhibit '3' (sic). Its cause, according to him, was entry of a penis inside it."^[10]

Appellant submitted a different story to the trial court, which summed up his story in the following terms:

"Accused Victor Angeles denied emphatically the accusation against him. According to him, on February 23, 1989, at 9:00 in the evening, he was at his house asleep. He woke up at 6:30 in the morning of February 24, 1989. On said date, he was with his mother Isabel Ramos. The mother of the accused, Isabel Ramos Angeles, collaborated (sic) the testimony of the accused that on the night of February 24, 1989, the accused was in his house asleep. He claimed that on February 26, 1989, he was looking for Ree, a fellow electrician near complainant Analie's house. After a brief talk with Analie's father, about the robbery being committed in the neighborhood, the people in the neighborhood suddenly attacked him. He ran away, but after a brief chase, was apprehended, mauled and later brought to the police precint. Later, he was examined by Dr. Marcial Cenido, WPD Medico Legal Officer. Dr. Cenido admitted having examined the accused, but aside from having found scally wounds on the person of the accused, he did not elaborate on any injury suffered by the accused."^[11]

In this appeal, Victor Angeles claims that:

"1. The trial court erred in not holding that the arraignment of the accused-appellant in Criminal Case No.89-70962, for robbery, bars the second prosecution of the same accused-appellant in Criminal Case No. 89-70961, for rape.

2. The trial court erred in not holding that the testimony of the accused-appellant is more credible and logical than the testimony of Analie Baltazar.

3. The trial court erred in not acquitting the accused-appellant."^[12]

Two (2) principal issues are posed for the Court's consideration in this case: firstly, whether or not the trial court erred in holding that two (2) separate felonies of robbery and rape had been committed by appellant; and secondly, whether the trial court had erred in believing the testimony of Analie Baltazar to the effect that appellant Angeles had raped her.

In respect of the first issue, we note preliminarily that appellant's argument that the prosecution for rape was barred by appellant's prosecution and arraignment for robbery, under the doctrine of "double jeopardy," is bereft of merit. That doctrine, in general, prohibits a second prosecution for the same offense as that charged in the first prosecution. In the case at bar, robbery and rape cannot properly be considered the same offense; neither is one included in the other. What appellant was apparently trying to say was that he was properly chargeable, not for two (2) separate offenses of robbery and rape, but rather of the special complex crime of "robbery with rape." In other words, appellant was probably trying to say that the charge for robbery should have been a charge for "robbery with rape" such that the separate complaint for rape was, at least partially, a duplication of the first charge. Thus, the real issue is whether he was properly charged with and found guilty of two (2) separate offenses, or whether he should have been charged instead with "robbery with rape." In either case, of course, the prosecution must show the presence of all the elements of the crime of robbery, as well as all the elements of the crime of rape.

This issue, however, is not an entirely academic one. In its practical consequences, it relates to whether only one penalty should have been imposed upon appellant under Article 294, paragraph 2 of the Revised Penal Code; or whether two (2) penalties are appropriately imposable upon appellant, one for robbery in an inhabited house under Article 299 of the Revised Penal Code and another for rape under Article 335 of the Revised Penal Code as amended.

Appellant contends that the case at bar is controlled by U.S. V. Tiongco,^[13] where the Court held that the offense committed was the special complex crime of robbery with rape. Appellant cites the following passages from U.S. v. Tiongco:

"x x x                           x x x                               x x x

After the robbers had seized such things as they wished to carry off and when ready to go out, they took the three women below blindfolded. The band then headed for the river near by to embark in the banca in which they had come. When they left the house, Cristeto Ledesma and Narciso Castano compelled two of the women, Juaneza and Eusula, to accompany them, and while the band was on its way to the banca these two men separated from the rest, took these two women with them to a place near a marsh not far from the river bank, and there raped them, employing force and intimidation to accomplish their purpose. Cristeto Ledesma raped Rosario Juaneza, and Narciso Castano, Nieves Eusula, after which Cristeto and Narciso went to the banca, where the other robbers were waiting for them, and all left.

x x x                             x x x                               x x x

As the crime of robbery, with that of rape of said two women -- a crime against chastity committed on the occasion of the robbery -- was perpetrated by the malefactors in the said house of Catalino Balinon, both crimes should be punished as one single complex crime, as defined and qualified by paragraph 2 of article 503 of the Penal Code; for, besides the robbers seizing the money and the other effects they found in said house, two of them sullied the honor of the two women living therein, and the companions of the two men who committed the rape made no opposition nor prevented these latter from consummating this other crime, apparently unconnected with and unrelated to that robbery, but which, as well as sanguinary crimes, is often committed on such occasions, and it is for this reason that the penal law, in odium of such offenses against property and chastity, has considered them complex and punished them by one single penalty."^[14] (Underscoring supplied)

Close examination of the facts in Tiongco and of the facts in the case at bar lead us to believe that Tiongco does not control the case at bar. In the case at bar, the robbery carried out in the house where Analie Baltazar and her parents lived was consummated and completed; the taking of the goods from the house was completed and the three (3) robbers (including appellant Angeles) walked from Algeciras Street, Sampaloc, down the railroad track towards Fermesa Street and then to Dela Fuente Street where they boarded a taxi which brought them to Recto Avenue. At Recto Avenue, the three (3) men and the victim Analie Baltazar got off the taxi and the two (2) co-felons of Angeles left and went their own way while appellant Angeles proceeded to a motel located in Dakota Street not far away from Recto Avenue in the direction of Quiapo District.^[15] The acts constitutive of the robbery at the house of the Baltazars and the acts comprising the rape inflicted upon Analie Baltazar were separated both by time and space. The conspiracy between the three (3) malefactors clearly covering the robbery had come to an end with the departure of two (2) of the conspirators. The rape was carried out after the completion of the robbery and after the break up of the malefactors. The situs of the rape was far away from the situs of the robbery. We believe and so hold that under the circumstances of this case, appellant Angeles was properly charged with two (2) distinct offenses of robbery and of rape, rather than with the special complex crime of robbery with rape under Article 294, paragraph 2 of the Revised Penal Code. Conceptually, the robbery had not been "accompanied by rape," neither was the rape committed "by reason or on [the] occasion of such robbery;" rather, the robbery and the rape were committed successively or in sequence.

Appellant's next contention is that in respect of the conviction for rape, the trial court erred in finding Analie Baltazar to be a credible witness and that the trial court had misapprehended two (2) important facts of record which indicated that her testimony was incredible in itself. The two (2) facts submitted by appellant are: firstly, at the motel, Analie had failed to make an outcry which could have attracted intervention on the part of the roomboy; and secondly, Analie's declaration that appellant Angeles had returned to the vicinity of her family home a few hours after the robbery, at day break of 24 February 1989, was "highly suspicious" and improbable for then appellant would have been risking discovery, denunciation and arrest which in fact eventually came about.^[16]

Once more, the Court is not persuaded. Private complainant's failure to scream for help or otherwise make an outcry must be evaluated in the context of all the surrounding circumstances of this case. When Analie woke up at her house after midnight to go to the bathroom, appellant grabbed hold of her and her sleeping blanket and threatened her with an icepick on her neck. She was dragged from her family home, across the railroad tracks and across several streets by the appellant and his two (2) companions. Inside the taxi that the group boarded, Analie was put beside the driver, with appellant's arm on her shoulder while appellant and the other two (2) malefactors were on the rear seat. The taxi driver did not notice that underneath the blanket draped over Analie's shoulder, appellant's icepick remained threateningly poised at her. After alighting from the taxi at Dakota Street, Analie was brought to a dark and unlighted place where the three (3) malefactors slapped her on the face everytime she tried to raise her voice. At the motel, while talking to the roomboy, appellant continued to hold the icepick against her neck or side underneath the blanket.^[17] Inside the motel room, Analie, 17 years of age at the time of the trial, did not physically resist being disrobed by appellant Angeles who had placed his icepick nearby on top of the lavatory. She laid down on the bed when appellant threatened to kill her. She testified that she was then already weakened, tired and worn out and feared that she would be stabbed if she struggled with appellant. Neither could she seek to grab the icepick while appellant was on top of her on the bed, for appellant held her hands and continue to hold the icepick at her neck.^[18] This Court has many times held in the past that rape is committed when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapist's embrace because of fear for life and personal safety.^[19] The reality of continuing intimidation used against Analie Baltazar is evident all through the record of this case.

As to appellant's argument that Analie's testimony to the effect that he had returned to the scene of the robbery was improbable, it may be observed, firstly, that even if it be conceded (and it is not necessary so to concede) that this portion of Analie's testimony was improbable, that testimony did not relate to the material facts constitutive of the crime of rape. There is no rule of law which requires a court to disregard the entirety of the testimony of a witness because a portion thereof may be doubtful.^[20] Analie declared before the trial court that she saw the appellant in the vicinity of her house at least three (3) times after the robbery and rape and that she had immediately informed her father of appellant's appearance.^[21] On the third occasion, on 26 February 1989, Analie's father was able to chase down appellant Angeles and confront him about his daughter's violation. A false sense of security born out of his having successfully eluded Analie's father twice before, would account for appellant's imprudent third visit to the scene of the robbery.

Thus, appellant has failed to establish any significant fact which the trial court overlooked or misconstrued and which would change the result reached by the trial court. This Court is thus bound to affirm the factual conclusions of the trial court, more particularly on the credit worthiness of Analie's testimony,^[22] since the trial court had the opportunity to observe carefully her demeanor and deportment in court while testifying.^[23]

Appellant's defense of denial and alibi, it is firmly established doctrine, cannot prevail over the positive identification made by Analie Baltazar. Analie had expressly and positively stated that it was appellant Angeles who had dragged her from her house in the company of two (2) other men who were carrying away her family's typewriter and video cassette recorder, and that it was appellant Angeles who had disrobed her at the motel and then copulated with her, with an icepick poised at her neck or within easy reach of appellant.^[24] Finally, while appellant and his mother declared that appellant was sleeping at the latter's house at Araneta Street, Tatalon Estate, Quezon City, on the evening of 23-24 February 1989,^[25] the Court notes that this location is only a few kilometers away from the Baltazars' residence at Algeciras Street, Sampaloc, Manila, such that appellant could move from one location to the other within a short period of time, with public transportation. Appellant's defense of alibi cannot be sustained in view of his failure to show the physical impossibility of his being at the scene of the crime at or about the time of the commission thereof.^[26]

There are, however, two (2) errors on the part of the trial court which need to be addressed. The first error relates to the penalty properly imposable on appellant for the crime of robbery in Criminal Case No. 89-70962. Under Article 299 of the Revised Penal Code, the penalty imposable for robbery in an inhabited place is reclusion temporal. Taking into account the provisions of the Indeterminate Sentence Law, considering that no modifying circumstances were alleged and proved and exercising the discretion of this Court, the penalty properly imposable upon appellant Angeles for the robbery is an indeterminate sentence, the minimum of which shall be eight (8) years and one (1) day of prision mayor and the maximum of which shall be fourteen (14) years, eight (8) months and one (1) day of reclusion temporal.

The second error relates to the proper characterization of the offense with which appellant was charged and for which he was convicted in Criminal Case No. 89-70961. Analie had testified before the trial court that while at the motel, the appellant had told her that he and the other malefactors had been "tipped off that her family residence contained many appliances and that they had planned to carry away many of them but had changed their minds." Appellant decided to take her with him because she was "more important to (sic) these things."^[27] The information in Criminal Case No. 89-70961 had sufficiently alleged, and the prosecution had sufficiently shown at the trial, that before Analie was raped, she was taken from her home against her will and with lewd designs. Taking all these circumstances into account, it is clear to the Court that appellant Angeles had committed the complex crime of forcible abduction with rape, defined and penalized under Article 342 (forcible abduction) and Article 335 (rape) of the Revised Penal Code in relation to the second clause of Article 48 (complex crimes) of the same Code. The forcible abduction was, in the circumstances of this case, a necessary means to commit the rape.^[28] In case of variance between the caption of the information and the allegations set out in the body thereof, which allegations sufficiently described the offense(s) and its elements, the latter prevails over the former.^[29] Article 48 of the Revised Penal Code provides that in complex crimes, the penalty for the most serious crime shall be imposed in its maximum period. In the case at bar, the more serious of the two (2) crimes (forcible abduction and rape) established in Criminal Case No. 89-70961 was rape committed with a deadly weapon (here, the icepick) which is punishable with reclusion perpetua to death under paragraph 3 of Article 335 of the Revised Penal Code. Since no modifying circumstances were either alleged or proved in Criminal Case No. 89-70961,^[30] and considering the non-enforceability of the death penalty, the penalty properly imposable on appellant is reclusion perpetua. The trial court's reference to "life imprisonment" is, of course, wrong.

In line with recent case law, the indemnity for moral damages awarded to Analie Baltazar in Criminal Case No. 89-70961 should be increased to P30,000.00.^[31]

WHEREFORE, the Decision of the trial court dated 7 March 1991 is hereby MODIFIED so as to read as follows:

"Criminal Case No. 89-70961, Rape, Reclusion perpetua and pay as moral damages complainant ANALIE BALTAZAR Y CORDON the sum of THIRTY THOUSAND (P30,000.00) PESOS; WITH COSTS

Criminal Case No. 89-70962, Robbery, Imprisonment for an indeterminate period ranging from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, the stolen articles being not recovered, to pay complainant ANALIE BALTAZAR Y CORDON, by way of reparation, the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH COST."

As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant.

SO ORDERED.

Bidin, Davide, Jr., Romero, and Melo, JJ., concur.

---

^[1] Record, Criminal Case No. 89-70961, p. 1.

^[2] Id., Criminal Case No. 89-70962, p. 1.

^[3] Decision, p. 2; Rollo, p. 13.

^[4] Record, Criminal Case No. 89-70961, p. 96.

^[5] Id., Criminal Case No. 89-70962, p. 7.

^[6] Id., p. 22.

^[7] Decision, p. 2; Rollo, p. 13; Motion to Quash, p. 3; Record, Criminal Case No. 89-70961, p. 12.

^[8] Record, Criminal Case No. 70961, p. 64.

^[9] Decision, p. 6; Rollo, p. 17.

^[10] Id., pp. 3-4; Rollo, pp. 14-15.

^[11] Id., p. 5; Rollo, p. 16.

^[12] Appellant's Brief, p. 1; Rollo, p. 37.

^[13] 37 Phil. 951 (1918).

^[14] 37 Phil. at 953-954.

^[15] According to the prosecution, the motel was located in Sta. Cruz, Manila.

^[16] Appellant's Brief, pp. 7-8; Rollo, pp. 43-44.

^[17] TSN, 13 December 1989, pp. 6 and 10-12; TSN, 15 December 1989, pp. 4-5 and 7; while the trial court established that she was dragged along two streets, the private complainant did declare under cross-examination that she was dragged across four streets before the group boarded the taxi.

^[18] TSN, 15 December 1989, pp. 8-11; TSN, 18 December 1989, pp. 10-12; TSN, 13 December 1989, p. 18.

^[19] People. v. Arengo 181 SCRA 344, 348-349 (1990), reiterated in People. v. Generelao, G.R. No. 93141, 2 September 1992, p. 10; People v. Grefiel, G.R. No. 77228, 13 November 1992, p. 14.

^[20] See Angelo v. Court of Appeals, et. al., G.R. Nos. 88392 and 89978, 26 June 1992, p. 17.

^[21] TSN, 18 December 1989, pp. 17-18. Although the trial court established that appellant returned to the vicinity of the Baltazar residence twice, the record bears out that there were three such occasions, per declarations of Analie.

^[22] Decision, p. 6; Rollo, p.17.

^[23] People v. Bacalso, 210 SCRA 206, 211 (1992); People v. Rabanes, 208 SCRA 768, 777 (1992).

^[24] TSN, 13 December 1989, pp. 11 and 14-15; People v. Abuyan, Jr., 211 SCRA 662, 674 (1992).

^[25] TSN, 2 May 1990, pp. 2-3 and 14-15.

^[26] People v. Abuyan, Jr., 211 SCRA 662, 674 (1992); People v. Villanueva, 211 SCRA 651, 656 (1992).

^[27] TSN, 13 December 1989, p. 15.

^[28] People v. Grefiel, G.R. No. 77228, 13 November 1992, p. 17; People v. De Guzman, 51 Phil. 105, 113 (1927). See also People v. Alburo, 184 SCRA 655, 663 (1990); People v. Sunpongco, 163 SCRA 222, 230-234 (1988).

^[29] People v. Bacalso, 210 SCRA 206, 213 (1992).

^[30] Article 63 (2), Revised Penal Code.

^[31] People v. Bacalso, 210 SCRA 206, 214 (1992).