SECOND DIVISION
[ G.R. No. 116599, September 27, 1999 ]PEOPLE v. DOMINGO PAGPAGUITAN +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DOMINGO PAGPAGUITAN, ALIAS "PINGKONG" AND ROBERTO SALAZAR ALIAS "OPAW", ACCUSED-APPELLANTS.
D E C I S I O N
PEOPLE v. DOMINGO PAGPAGUITAN +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DOMINGO PAGPAGUITAN, ALIAS "PINGKONG" AND ROBERTO SALAZAR ALIAS "OPAW", ACCUSED-APPELLANTS.
D E C I S I O N
QUISUMBING, J.:
On appeal is the Decision of the Regional Trial Court of Butuan City, Branch I, finding appellants Domingo Pagpaguitan and Roberto Salazar guilty beyond reasonable doubt of the crime of rape and sentencing them to suffer the penalty of reclusion
perpetua and to pay private complainant Evelyn Nalam, jointly and severally, the amount of P30,000.00 as moral damages.
Assisted by her father, Federico Nalam, complainant on March 24, 1992, filed before the Butuan City Prosecutor a complaint stating that:
"The undersigned complainant accuses DOMINGO PAGPAGUITAN alias Pingkong and ROBERTO SALAZAR alias Opaw of the crime of Rape committed as follows:
On February 10, 1992, complainant went to a doctor for a physical examination. The examination was conducted by Dr. Rowena T. Catipay, Medical Officer III of the Butuan City General Hospital and Medical Center. Her findings were as follows:
"Examined a patient who was conscious, coherent, ambulatory.
Pagpaguitan and Salazar were arrested on August 16, 1992.[4] They were arraigned on October 2, 1992. Both pleaded "Not Guilty." Thereafter, trial on the merits ensued.
Pagpaguitan admitted having sex with complainant, but insisted that it was consensual. He claimed they had eloped and that truly they were actually sweethearts.
As narrated by the trial court, his version of the facts follows:
Before us they raise the following errors:
Regarding the first error, it must be pointed out that in a prosecution for rape, the evaluation of the evidence presented during trial ultimately revolves around the credibility of the complaining witness.[7] If found positive and credible by the trial court, her testimony suffices to support a conviction.[8]
Complainant's testimony in the present case never "flip-flopped", contrary to the appellant's claim. On direct testimony, complainant categorically stated that she was boxed, mauled, and forced to submit to accused's carnal desire. She testified, thus:
On the second error, during the proceedings before the purok president and the barangay captain, elopement was indeed mentioned. However, Pagpaguitan's tale of elopement rang with far too many inconsistencies to be credible. If he and complainant had eloped and were never apart from January 6, 1992 to March 15, 1992, how would he explain the proceedings before the purok president and the barangay captain on February 2, 1992?[15] It is established that he and complainant, with their respective parents, appeared before their purok and barangay officials on February 2, 1992, and not, as he claimed, on March 16, 1992. If they were indeed living together and never separated for over two months, how would he explain the fact that complainant underwent medical examination on February 10, 1992,[16] and executed an affidavit before the police authorities of Butuan City on February 19, 1992,[17] without his knowledge? Pagpaguitan suggests that the hematoma on the complainant's thighs could have been due to the maltreatment inflicted by complainant's father upon her when she returned home on March 16, 1992. But where did complainant get the hematoma found by the doctor on her thighs when she was examined on February 10, 1992? Mere assertion of a "love relationship" would not necessarily rule out the use of force to consummate it.[18] Much more so where such relationship was denied by the victim, who resisted the brutal suitor.
In rape the prosecution must rule out the victim's consent to the sexual act.[19] Here, the testimony of private complainant was clear and convincing: she did not consent to penile invasion.
Again appellant Pagpaguitan sought to prove he and complainant were lovers by citing her testimony which ran as follows:
The findings of the examining physician, Dr. Rowena T. Catipay, support the accusation for rape. The medical certificate issued on February 10, 1992 noted hematoma on complainant's thighs. Her hymen was no longer intact and caruncula were noted. Both phenomena the cause of the hematoma and the caruncula appearance of complainant's hymen were explained by the examining physician, as follows:
Regarding the third error, Pagpaguitan faults the judge for arrogating unto himself the task of determining the genuineness of the handwriting at the back of the picture of the accused and the complainant together (Exhibit "1")[31] and the alleged letter of complainant to him (Exhibit "2")[32] submitted by the defense to prove that he and the victim were sweethearts. During the trial, the judge had ordered complainant to write a letter under his dictation which was subsequently marked as Exhibit "X" for the court.[33] The judge found this necessary in the interest of justice as the victim had denied having written either the letter or the dedication at the back of the picture.[34] It is of record that the handwriting at the back of the picture and in the letter were very different.[35] The trial court made the following findings after comparing Exhibit "X" with Exhibits "1" and "2", thus:
When a writing in issue is claimed on the one hand and denied upon the other to be the writing of a particular person, any other writing of that person may be admitted in evidence for the purpose of comparison with the writing in dispute.[37] It is also recognized that a comparison of writing is a rational method of investigation; similarities and dissimilarities thus disclosed have probative value in the search for truth.[38] Thus, it has been held that, where a comparison is permissible, it may be made by the court, with or without the aid of expert witnesses.[39] The court may, in the exercise of its sound discretion, order a party to write or sign his signature as a basis for comparison.[40] For, the handwriting of a person is characteristic of the person himself.[41] Once admitted, the genuineness of other offered writings alleged to be the work of the same writer becomes a question for the trier of fact who may, but need not, be assisted in this task by experts.[42] Our rules on evidence having been drawn mainly from American sources,[43] decisions of American courts have persuasive effect. The general rule is that where a local rule is patterned or copied from that of another country, then the decisions of the courts in such country construing the rule are entitled to great weight in interpreting the local rule.[44] Following cited precedents, we find no reversible error on this score.
Coming now to appellant Salazar, his defense claimed the trial court erred in convicting him since the private complainant's own testimony showed that he was a mere on-looker during the sexual attack. His defense averred he never lent a lending hand to Pagpaguitan to ensure the success of the latter's lewd designs on complainant.[45] But can we conclude that Salazar had no role in the rape of complainant? Note the trial court's findings regarding Salazar:
Article 335 of the Revised Penal Code, prior to its amendment by Republic Act No. 7659 and Republic Act No. 8353, provided that:
We take note, however, that the award by the trial court of P30,000.00 in moral damages is now inadequate. In accordance with prevailing jurisprudence,[56] such award ought to be increased to P50,000.00. Further, without need of additional proof, the victim should also be awarded the amount of P50,000.00 as civil indemnity. The award of the trial court is therefore modified accordingly in this respect.
WHEREFORE, the appealed Decision of the trial court finding appellants Domingo Pagpaguitan and Roberto Salazar guilty beyond reasonable doubt of the crime of rape and sentencing them to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the MODIFICATION that CIVIL INDEMNITY in the amount of FIFTY THOUSAND PESOS (P50,000.00) and MORAL DAMAGES also in the amount of FIFTY THOUSAND PESOS (P50,000.00) should be paid jointly and severally, by said appellants to private complainant, Evelyn Nalam.
Costs against appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.
[1] Records, p. 1.
[2] Rollo, pp. 17-19.
[3] Records, p. 34.
[4] Id. at 10.
[5] Rollo, pp. 20-22.
[6] Id. at 48-49.
[7] People v. Soriano, 272 SCRA 760, 766 (1997).
[8] People v. Apilo, 263 SCRA 582, 598 (1996).
[9] TSN, October 16, 1992, pp. 7-10.
[10] TSN, December 11, 1992, p. 10.
[11] People v. Abad, 268 SCRA 246, 255 (1997).
[12] People v. Garcia, 281 SCRA 463, 477 (1997).
[13] People v. Borja, 267 SCRA 370, 379 (1997).
[14] People v. Erardo, 277 SCRA 643, 656 (1997).
[15] Records, pp. 67-68.
[16] Supra note 3.
[17] Records, pp. 5-6.
[18] People v. Betonio, 279 SCRA 532, 550 (1997).
[19] People v. Sta. Ana, 291 SCRA 188, 214 (1997).
[20] Supra note 10 at 11.
[21] Rollo, p. 62.
[22] Id. at 127.
[23] People v. Cabel, 282 SCRA 410, 416 (1997).
[24] People v. Corea, 269 SCRA 76, 93 (1997).
[25] TSN, January 22, 1993, p.6.
[26] Id. at 16.
[27] People v. Edualino, 271 SCRA 189, 199 (1997).
[28] People v. De la Peña, 276 SCRA 558, 562 (1997).
[29] Supra note 26 at 7.
[30] People v. Bugarin, 273 SCRA 384, 397 (1997).
[31] Records, p. 64.
[32] Id. at 65.
[33] Records, p. 75.
[34] TSN, December 11, 1992, p. 2.
[35] Id. at 3.
[36] Rollo, p. 27.
[37] University of Illinois v. Spalding, 71 N.H. 163, 51 A. 731.
[38] 2 Jones, On Evidence 1038.
[39] Barnes v. US, 166 Fed. 113.
[40] Hickory v. US, 151 US 303, 14 S. Ct. 334, 28 L. Ed. 170; King v. Donahue, 110 Mass. 155, 14 Am. Rep. 589.
[41] Fenelon v. State, 195 Wis. 416, 217 N.W. 711.
[42] US v. Woodson, 526 F. 2d 550; Forte v. Schiebe, N.W. 145 Cal. App. 2d 296, 302 P. 2d. 336; State v. LeDuc, 306 N.C. 62, 291 S.E. 2d 607; and US v. Mangan, 575 F. 2d. 32, cert. denied. 439 US 931, 99 S. Ct. 320, 58 L. Ed. 2d. 324.
[43] Philippine National Bank v. Bondoc, 14 SCRA 770 (1965).
[44] US v. De Guzman, 30 Phil. 417 (1915); Kepner v. US, 11 Phil. 669 (1904).
[45] Supra note 37 at 63.
[46] Records, pp. 94-95.
[47] People v. Cawiling, 293 SCRA 267, 272 (1998).
[48] People v. Galapin, 293 SCRA 474, 476 (1998).
[49] TSN, October 16, 1992, pp. 4-6; p. 11.
[50] Id. at 6-7.
[51] Id. at 8.
[52] Id. at 10-11.
[53] Supra note 23.
[54] People v. Timple, 237 SCRA 52, 53 (1994).
[55] People v. Diadid, 236 SCRA 45 (1994).
[56] People v. Bañago, G.R. No. 128384, June 29, 1999; People v. Sardonido, G.R. Nos. 121205-09, June 29, 1999; People v. Prades, 293 SCRA 411 (1998); People v. Gementiza, 285 SCRA 478 (1998).
Assisted by her father, Federico Nalam, complainant on March 24, 1992, filed before the Butuan City Prosecutor a complaint stating that:
"The undersigned complainant accuses DOMINGO PAGPAGUITAN alias Pingkong and ROBERTO SALAZAR alias Opaw of the crime of Rape committed as follows:
"That on or about January 31, 1992 at Barangay Bitan-agan, Butuan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with the use of force and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with the undersigned complainant, who is 14 years old, against her will and consent, to her damage and prejudice.The complainant's relatives, meantime, had gone out looking for her. They found her with Pagpaguitan. A meeting was then held on February 2, 1992 before the purok president and the barangay captain between the parents of Pagpaguitan and the parents of the private complainant. Pagpaguitan and the complainant were both present. At the meeting, Pagpaguitan proposed marriage to the complainant, but the latter rejected the proposal.
"CONTRARY TO LAW (Art. 335 of the Revised Penal Code)."[1]The pertinent facts as found by the trial court are as follows:
"Roberto Salazar is Evelyn's neighbor at barangay Bitan-agan, Butuan City and Domingo Pagpaguitan is his gang mate. In the evening of January 30, 1992, both of them went to see Evelyn at her employer's house at Montilla Boulevard, Butuan City, and told her that they met her father who was very angry with her and swore to come and get her, if not kill her, if she will not go home to Bitan-agan. Although Evelyn wondered why her father should feel that way as she asked permission before she left home, she nevertheless went with the two accused boarding a jeep for San Vicente where the two accused left her things, then proceeded towards Bitan-agan. The accused told her that they would seek the assistance of Commander Coz to help pacify her father's anger. But instead of going to the residence of Commander Coz, the accused brought her to the uninhabited farmhouse of Roberto Salazar's grandfather. With knives in their hands, they threatened to kill her if she would not go with them up the mountain; they held her by her hands.
"Upon entering the house, Roberto stayed by the door and Domingo started embracing and kissing her several times; she pleaded with him but he answered that if she could not be taken "harmlessly", then it would have to be by force; she kicked Domingo and continued to plead with him, but the latter boxed him (sic) on her chest and thighs many times as she fought back, until she fell to the floor, whereupon Domingo removed his pants and her panties as she continued pleading and weeping telling Domingo not to do it as she considered him a brother; Domingo placed himself on top of her, spread her legs and inserted his penis into her vagina and she felt great pain for this was her first intercourse; he made the motions of pushing and pulling his penis within her vagina x x x. Her body was in pain and her vagina was bleeding. While Pagpaguitan was doing this to her, Salazar was watching them.
"The following morning the accused brought her to the house of Domingo in the mountain where his mother was. As Domingo and Roberto agreed that evening to bring her to Leyte, Domingo's mother left to sell a carabao to earn money for their fare to Leyte. In the absence of Domingo's mother and in the presence of Roberto Salazar, Domingo again forced himself upon her." [2]
On February 10, 1992, complainant went to a doctor for a physical examination. The examination was conducted by Dr. Rowena T. Catipay, Medical Officer III of the Butuan City General Hospital and Medical Center. Her findings were as follows:
"Examined a patient who was conscious, coherent, ambulatory.
"SKIN: Fair, Hematoma noted on both thighs, left lateral and right lateral portions.On February 19, 1992, complainant and her father executed affidavits at the police station, and later filed the complaint for rape with the Butuan City Prosecutor.
"x x x
"Genetalia (sic): No vaginal laceration noted on the mucosa
"HYMEN: Not intact; Caruncula in appearance.
"x x x
"Vaginal Smear taken for spermatozia Negative."[3]
Pagpaguitan and Salazar were arrested on August 16, 1992.[4] They were arraigned on October 2, 1992. Both pleaded "Not Guilty." Thereafter, trial on the merits ensued.
Pagpaguitan admitted having sex with complainant, but insisted that it was consensual. He claimed they had eloped and that truly they were actually sweethearts.
As narrated by the trial court, his version of the facts follows:
"[O]n January 3, 1992, [Evelyn] went to his and Roberto's place of work at RGS Bakery, Obrero, Butuan City, to tell him that his (sic) father was angry with her as somebody reported to him that she and Domingo often met at the plaza; he told Evelyn that her father would be angrier if he knew she came to his place of work, to which Evelyn charged that he did not love her; his pride was pricked so he invited her to his house at Bitan-agan; Roberto Salazar went with them; he and Evelyn lived together in his parent's house as husband and wife; on January 5, 1992, he told Evelyn to go home and he and his parents would follow to ask for her hand, but her parents did not entertain them; in the dawn of January 6, 1992, Evelyn went to his house which was one kilometer away from her house and from then on lived with him until March 15, 1992 when her parents went to his house and pulled their daughter and maltreated her in front of him and his parents; x x x they met again on March 16, 1992 before the purok president of Purok 2; from there they proceeded to the barangay captain of Bitan-agan; when they went out of the office of the barangay captain, Evelyn told him to bring her personal belongings because she would look for a way to follow him wherever he would go; Evelyn admonished him to leave Bitan-agan as her parents are looking for a way to kill him and his parents so he left for Leyte; while in Leyte, he and Evelyn exchanged letters (Exh. 2); he received three letters from Evelyn; he is willing to marry Evelyn because he loves her; x x x [F]rom January 3 to 5, he and Evelyn had sexual intercourse 4 times; from January 6 to March 15, 1992, he could no longer remember how many times he had sex with Evelyn x x x"[5]The trial court, however, disbelieved Pagpaguitan's version. Finding the prosecution's evidence convincing, the court convicted Pagpaguitan and Salazar and sentenced them to reclusion perpetua. Both appealed.
Before us they raise the following errors:
We find the appeal without merit.I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BEYOND REASONABLE DOUBT OF RAPE DESPITE UNTRUSTWORTHY AND FLIP-FLOPPING UNCORROBORATED TESTIMONY OF THE PRIVATE COMPLAINANT/VICITIM.
II
THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONIES OF THE PUROK PRESIDENT AND THE BARANGAY CAPTAIN THAT THE SUBJECT OF THE INSTANT COMPLAINT WAS INITIALLY ELOPEMENT.
III
THE TRIAL COURT ERRED IN ARROGATING UNTO ITSELF THE SPECIAL TASK OF DETERMINING THE GENUINESS OF THE HANDWRITING OF THE COMPLAINANT WHICH RESULT IT HEAVILY RELIED UPON IN ITS VERDICT AGAINST THE ACCUSED.[6]
Regarding the first error, it must be pointed out that in a prosecution for rape, the evaluation of the evidence presented during trial ultimately revolves around the credibility of the complaining witness.[7] If found positive and credible by the trial court, her testimony suffices to support a conviction.[8]
Complainant's testimony in the present case never "flip-flopped", contrary to the appellant's claim. On direct testimony, complainant categorically stated that she was boxed, mauled, and forced to submit to accused's carnal desire. She testified, thus:
"Q: In that house, what happened if any when you arrived there together with the two accused?Her testimony under cross-examination remained firm. She was mauled and boxed on her thighs and stomach, and "deflowered by Domingo Pagpaguitan" against her will.[10] The only difference in her account concerns where she was hit. On direct examination, she said in the chest; on cross-examination, she said in the stomach. We have ruled that the credibility of a rape victim is not destroyed by the few minor inconsistencies in her testimony.[11] After all, a victim of violent sexual abuse cannot and is not expected to keep an accurate account of her traumatic experience.[12] Here, complainant's account was straightforward and candid. It is settled doctrine that a victim who says she has been raped almost always says all there is to be said.[13] Given the candor of complainant's testimony and her lack of motive to testify falsely against the accused, the trial court could not be said to err in finding the Pagpaguitan guilty as charged. Moreover, we have ruled that the findings of the trial court are entitled to the highest respect by the appellate courts, particularly where the prosecution and the defense have contradictory versions of the facts.[14]
"A: Upon arriving there, they took me to the room while Roberto Salazar stayed at the door.
"Q: What happened, if any?
"A: Domingo Pagpaguitan embraced me and kissed me several times.
"Q: What did you do when you were embraced and kissed by Domingo Pagpaguitan?
"A: I pleaded with him not to do that because I considered him as my brother.
"Q: What was his reply, if any?
"A: He said that since I could not be taken harmlessly, he will get me by force.
"Q: What happened after that?
"A: When he tried to get near me and embrace me and kiss me, I tried to resist and kicked Domingo Pagpaguitan and pleaded (with him) not do that to me as I considered them as my brothers.
"Q: When you said you kicked him did you hit him?
"A: Yes, sir.
"Q: What was his reaction when you kicked him?
"A: Domingo Pagpaguitan again embraced me and kissed me.
"Q: And what was your reaction again?
"A: I resisted him but I could not overpower him because he mauled me.
"Q: When you said Domingo Pagpaguitan mauled you, where in particular, in relation to your body did he maul you?
"A: I was boxed here (witness indicating her chest) and also my thighs.
"Q: How many times were you boxed?
"A: Many times because I fought back.
"Q: What happened to you, if any, when you were boxed on the thighs by Domingo Pagpaguitan?
"A: I fell to (sic) a lying down position.
"x x x
Q: When you fell down upon being boxed at the thigh and chest by Domingo Pagpaguitan, what else did he do to you, if any?
"A: He removed his pants and also removed my panties.
"Q: When he was removing your panties, what did you do, if any?
"A: I continued pleading and weeping.
"x x x
"Q: After removing your panty, what else, if any, did Domingo Pagpaguitan do to you?
"A: He placed himself on top of me.
"Q: After that, what did he do when he was on top of you?
"A: He spread my legs.
"Q: Then what else happened if any?
"A: He inserted his penis into my vagina.
"Q: What did you feel when he inserted his penis into your vagina?
"A: Very painful.
"Q: You said it was very painful, did you have any experience before about sex?
"A: None, sir.
"Q: When he was on top of you and you said he inserted his penis into your vagina and you felt pain, what was he doing?
"Atty. Jalad:
"There is no answer, your honor, it is a very simple question.
"Court:
"If it is true that she has no experience, it will not be easy to answer that. The Court understands that. Answer.
"Witness:
"He made push and pull movements on top of me."[9]
On the second error, during the proceedings before the purok president and the barangay captain, elopement was indeed mentioned. However, Pagpaguitan's tale of elopement rang with far too many inconsistencies to be credible. If he and complainant had eloped and were never apart from January 6, 1992 to March 15, 1992, how would he explain the proceedings before the purok president and the barangay captain on February 2, 1992?[15] It is established that he and complainant, with their respective parents, appeared before their purok and barangay officials on February 2, 1992, and not, as he claimed, on March 16, 1992. If they were indeed living together and never separated for over two months, how would he explain the fact that complainant underwent medical examination on February 10, 1992,[16] and executed an affidavit before the police authorities of Butuan City on February 19, 1992,[17] without his knowledge? Pagpaguitan suggests that the hematoma on the complainant's thighs could have been due to the maltreatment inflicted by complainant's father upon her when she returned home on March 16, 1992. But where did complainant get the hematoma found by the doctor on her thighs when she was examined on February 10, 1992? Mere assertion of a "love relationship" would not necessarily rule out the use of force to consummate it.[18] Much more so where such relationship was denied by the victim, who resisted the brutal suitor.
In rape the prosecution must rule out the victim's consent to the sexual act.[19] Here, the testimony of private complainant was clear and convincing: she did not consent to penile invasion.
Again appellant Pagpaguitan sought to prove he and complainant were lovers by citing her testimony which ran as follows:
"Q: After Domingo Pagpaguitan was through with you, did you say anything to him?Pagpaguitan claimed the above dialogue clearly showed their "sweet" relationship with each other and revealed intimacy in their relationship even before the sexual act.[21] However, as correctly pointed out by the Solicitor General, the cited dialogue merely revealed familiarity rather than intimacy.[22] Even assuming for argument's sake, that they were sweethearts, nevertheless, rape was committed because by force, appellant had sex with the victim against her will.[23] The claim that they were sweethearts could not prove complainant's consent[24] nor undermine her complaint.
"A: Yes.
"Q: What did you say?
"A: I told him 'Why did you do this to me when I have not committed any wrong against you?'
:Q: What else, if any?
"A: When I said that, Domingo said that he would marry me.
"Q: What was your reply if any?
"A: I said, 'If you were going to marry me would you do an evil act first?'
"Q: What did he say if any?
"A: He asked me why I won't accept him and I answered. 'How could I accept you when I saw that a pig was taken from you and if I marry you, what will you feed me?'[20]
The findings of the examining physician, Dr. Rowena T. Catipay, support the accusation for rape. The medical certificate issued on February 10, 1992 noted hematoma on complainant's thighs. Her hymen was no longer intact and caruncula were noted. Both phenomena the cause of the hematoma and the caruncula appearance of complainant's hymen were explained by the examining physician, as follows:
"Q: As a doctor, will you please explain to this Honorable Court what could have caused the hematoma on both thighs of Evelyn Nalam?In response to clarificatory questions from the trial court, Dr. Catipay further explained that from the appearance of complainant's hymen, the only possible explanation for her non-virgin state was sexual intercourse and nothing else:
"A: It may have been caused by the application of a blunt instrument.
"Q: How about a hard blow like a hard fist, can it cause hematoma?
"A: Yes, Sir.
"Q: What else is (sic) your findings, Doctor?
"A: I examined the genitalia, the hymen was not intact; the hymen is no longer intact and the caruncula was noted. Caruncula means remnants of an intact hymen.
"Q: When you said that the hymen is no longer intact, what do you mean by that, Doctor?
"A: It means that there was penile entry to (sic) the vagina. It means there was an (sic) intercourse."[25]
"Q: And in this particular victim, how would you describe her hymen?It has been ruled that a medical examination is not an essential prerequisite to a prosecution for rape.[27] However, when the physician's finding of penile penetration is corroborated by the testimony of the victim that the accused's genitals touched her vagina, it is sufficient to establish the essential requisite of carnal knowledge.[28] Pagpaguitan tried to debunk the charge of complainant that he raped her on January 31, 1992, by claiming the examining physician had said that complainant told her the rape took place on another date, February 6, 1992.[29] It is settled, however, that the exact date of the commission of the rape is not an essential element of the crime.[30] The fact remains that the act took place on or about the date averred in the charge.
"A: Fimbriated hymen.
"Q: And in fimbriated hymen, if the remnants of a hymen which you call caruncula, upon examination, would that give you a sure conclusion that the cause of the breaking of the hymen was due to intercourse?
"A: Yes, Sir, because if the hymen was only broken by let us say jumping or bicycle riding, I don't think that the hymen would appear that loose.
"Q: So, in other words, by just examining the remnants of a broken hymen, the doctor can determine whether it was caused other than by intercourse or some other causes?
"A: Yes, Your Honor."[26]
Regarding the third error, Pagpaguitan faults the judge for arrogating unto himself the task of determining the genuineness of the handwriting at the back of the picture of the accused and the complainant together (Exhibit "1")[31] and the alleged letter of complainant to him (Exhibit "2")[32] submitted by the defense to prove that he and the victim were sweethearts. During the trial, the judge had ordered complainant to write a letter under his dictation which was subsequently marked as Exhibit "X" for the court.[33] The judge found this necessary in the interest of justice as the victim had denied having written either the letter or the dedication at the back of the picture.[34] It is of record that the handwriting at the back of the picture and in the letter were very different.[35] The trial court made the following findings after comparing Exhibit "X" with Exhibits "1" and "2", thus:
"…In a letter by letter comparison, the court found that the alphabets (sic) 'g'; 'k'; 'p' and 'y' in Exhibit 2 and Exhibit X have different writing characteristics which led the court to believe that Exhibit 2 was not written by the complainant."[36]Pagpaguitan now asks whether or not it is permissible or proper for the trial judge to receive and examine a specimen writing, written at his order by a party who alleged that she was not the writer of other documents submitted in evidence? He argues that the task of comparing the handwriting on the documents in question was one for experts and not the judge. On this point, we find the judge's comparison proper and permissible.
When a writing in issue is claimed on the one hand and denied upon the other to be the writing of a particular person, any other writing of that person may be admitted in evidence for the purpose of comparison with the writing in dispute.[37] It is also recognized that a comparison of writing is a rational method of investigation; similarities and dissimilarities thus disclosed have probative value in the search for truth.[38] Thus, it has been held that, where a comparison is permissible, it may be made by the court, with or without the aid of expert witnesses.[39] The court may, in the exercise of its sound discretion, order a party to write or sign his signature as a basis for comparison.[40] For, the handwriting of a person is characteristic of the person himself.[41] Once admitted, the genuineness of other offered writings alleged to be the work of the same writer becomes a question for the trier of fact who may, but need not, be assisted in this task by experts.[42] Our rules on evidence having been drawn mainly from American sources,[43] decisions of American courts have persuasive effect. The general rule is that where a local rule is patterned or copied from that of another country, then the decisions of the courts in such country construing the rule are entitled to great weight in interpreting the local rule.[44] Following cited precedents, we find no reversible error on this score.
Coming now to appellant Salazar, his defense claimed the trial court erred in convicting him since the private complainant's own testimony showed that he was a mere on-looker during the sexual attack. His defense averred he never lent a lending hand to Pagpaguitan to ensure the success of the latter's lewd designs on complainant.[45] But can we conclude that Salazar had no role in the rape of complainant? Note the trial court's findings regarding Salazar:
"And what about Roberto Salazar who is accused as co-conspirator? Evelyn said that he went with Domingo in fetching her and when the ravishment was done, he was watching. The farmhouse they brought her to is owned by Salazar's grandfather, and upon arrival at the foot of the mountain, the two accused threatened her with their knives and held her hands bringing her to the farmhouse. From the choice of the farmhouse of Salazar's grandfather as the place Evelyn will be brought to, a farmhouse in the mountain with no neighbor, is evidence that Salazar knew and agreed with Pagpaguitan beforehand concerning the latter's intent to rape the complainant. But because of the theory of the case formulated by the defense that an elopement occurred on January 3, 1992, and not a rape on January 31 Salazar's counsel saw no need for him to take the stand to pledge his innocence. Throughout the trial, the defense never attempted to extricate Salazar from the muddle his friend brought him into, who, surely, must be the proponent of the crime. In fact, the defense seemed to have forgotten that Salazar is accused as co-conspirator. He just sat smugly at the audience's bench passively watching the trial the same way he watched the rape with perverse passivity."[46]It must be pointed out that direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots.[47] Conspiracy may, nevertheless, be proven to exist where at the time of the commission of the crime, the accused had the same purpose and was united with his co-accused in its execution.[48] Complainant's testimony showed that Salazar was instrumental in helping to bring her to the isolated and uninhabited farmhouse of his grandparents where the rape occurred and in preventing her escape from the clutches of the accused. Neither did he act to prevent his co-accused Pagpaguitan from boxing complainant and ravishing her. In fact, he was a spectator during the rape scene.[49] Complainant's testimony as to Salazar's role does not exculpate but clearly implicates him, thus:
"Q: Where did they bring you to Malihao?As correctly pointed out by the Solicitor General, there was nothing unnatural regarding complainant's testimony that Salazar only stood by the door and watched them. It was precisely Salazar's role in the rape of complainant to stop the latter in the event that she tried to run away.[53] Thus, there was no error committed by the trial court in convicting Salazar as a co-conspirator of Pagpaguitan. It is now firmly settled that in a conspiracy, the act of one is the act of all.[54] One who joins in a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators and he can no longer repudiate the conspiracy after it had already materialized.[55]
"A: They brought me to the house of the grandparents of Roberto Salazar.
"Q: Is that house of the grandparents of Roberto Salazar inhabited?
"A: Uninhabited.
"Q: You mean to tell this Honorable Court that when you arrived there was nobody there?
"A: There was nobody living in that house.
"Q: In that house, what happened if any when you arrived in there together with with (sic) the two accused?
"A: Upon arriving there, they took me to the room while Roberto Salazar stayed at the door.[50]
"x x x
"Q: What happened to you, if any, when you were boxed on the thighs by Domingo Pagpaguitan?
"A: I fell to (sic) a lying down position.
"Q: When you were lying down did you notice where Roberto Salazar was?
"A: Roberto Salazar remained at the door.
"Q: You mean he was just there watching the two of you?
"A: Yes, sir.[51]
"x x x
"Pros. Macalawi:
"Q: Can you recall how many seconds or minutes did it take Domingo Pagpaguitan to do push and pull movements?
"Court:
"Let us correct that push and pull movement. Let us make it clear. When he was on top of me, he made motions of pushing it in and pulling it out.
"Pros. Macalawi:
"Q: Do you remember how many minutes or seconds did it take Domingo Pagpaguitan to do that movement?
"A: I do not recall how long.
"Q: When he was doing that have you noticed where was Roberto Salazar?
"A: He was watching us."[52]
Article 335 of the Revised Penal Code, prior to its amendment by Republic Act No. 7659 and Republic Act No. 8353, provided that:
"Rape is committed by having carnal knowledge of a woman under any of the following circumstances:After a thorough scrutiny of the records of this case, we find that the prosecution has adequately and satisfactorily proved the pertinent indispensable elements of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, namely: that the appellant Domingo Pagpaguitan had carnal knowledge of complainant and that the act was accomplished against her will and through the use of force. The prosecution has also proved beyond a doubt that Salazar was Pagpaguitan's confederate who ensured the success of Pagpaguitan's carnal plot. The trial court did not err at all in convicting both appellants for the outrage committed on complainant. We find no reason now to overturn their conviction.
"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 or demented.
x x x"
We take note, however, that the award by the trial court of P30,000.00 in moral damages is now inadequate. In accordance with prevailing jurisprudence,[56] such award ought to be increased to P50,000.00. Further, without need of additional proof, the victim should also be awarded the amount of P50,000.00 as civil indemnity. The award of the trial court is therefore modified accordingly in this respect.
WHEREFORE, the appealed Decision of the trial court finding appellants Domingo Pagpaguitan and Roberto Salazar guilty beyond reasonable doubt of the crime of rape and sentencing them to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the MODIFICATION that CIVIL INDEMNITY in the amount of FIFTY THOUSAND PESOS (P50,000.00) and MORAL DAMAGES also in the amount of FIFTY THOUSAND PESOS (P50,000.00) should be paid jointly and severally, by said appellants to private complainant, Evelyn Nalam.
Costs against appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.
[1] Records, p. 1.
[2] Rollo, pp. 17-19.
[3] Records, p. 34.
[4] Id. at 10.
[5] Rollo, pp. 20-22.
[6] Id. at 48-49.
[7] People v. Soriano, 272 SCRA 760, 766 (1997).
[8] People v. Apilo, 263 SCRA 582, 598 (1996).
[9] TSN, October 16, 1992, pp. 7-10.
[10] TSN, December 11, 1992, p. 10.
[11] People v. Abad, 268 SCRA 246, 255 (1997).
[12] People v. Garcia, 281 SCRA 463, 477 (1997).
[13] People v. Borja, 267 SCRA 370, 379 (1997).
[14] People v. Erardo, 277 SCRA 643, 656 (1997).
[15] Records, pp. 67-68.
[16] Supra note 3.
[17] Records, pp. 5-6.
[18] People v. Betonio, 279 SCRA 532, 550 (1997).
[19] People v. Sta. Ana, 291 SCRA 188, 214 (1997).
[20] Supra note 10 at 11.
[21] Rollo, p. 62.
[22] Id. at 127.
[23] People v. Cabel, 282 SCRA 410, 416 (1997).
[24] People v. Corea, 269 SCRA 76, 93 (1997).
[25] TSN, January 22, 1993, p.6.
[26] Id. at 16.
[27] People v. Edualino, 271 SCRA 189, 199 (1997).
[28] People v. De la Peña, 276 SCRA 558, 562 (1997).
[29] Supra note 26 at 7.
[30] People v. Bugarin, 273 SCRA 384, 397 (1997).
[31] Records, p. 64.
[32] Id. at 65.
[33] Records, p. 75.
[34] TSN, December 11, 1992, p. 2.
[35] Id. at 3.
[36] Rollo, p. 27.
[37] University of Illinois v. Spalding, 71 N.H. 163, 51 A. 731.
[38] 2 Jones, On Evidence 1038.
[39] Barnes v. US, 166 Fed. 113.
[40] Hickory v. US, 151 US 303, 14 S. Ct. 334, 28 L. Ed. 170; King v. Donahue, 110 Mass. 155, 14 Am. Rep. 589.
[41] Fenelon v. State, 195 Wis. 416, 217 N.W. 711.
[42] US v. Woodson, 526 F. 2d 550; Forte v. Schiebe, N.W. 145 Cal. App. 2d 296, 302 P. 2d. 336; State v. LeDuc, 306 N.C. 62, 291 S.E. 2d 607; and US v. Mangan, 575 F. 2d. 32, cert. denied. 439 US 931, 99 S. Ct. 320, 58 L. Ed. 2d. 324.
[43] Philippine National Bank v. Bondoc, 14 SCRA 770 (1965).
[44] US v. De Guzman, 30 Phil. 417 (1915); Kepner v. US, 11 Phil. 669 (1904).
[45] Supra note 37 at 63.
[46] Records, pp. 94-95.
[47] People v. Cawiling, 293 SCRA 267, 272 (1998).
[48] People v. Galapin, 293 SCRA 474, 476 (1998).
[49] TSN, October 16, 1992, pp. 4-6; p. 11.
[50] Id. at 6-7.
[51] Id. at 8.
[52] Id. at 10-11.
[53] Supra note 23.
[54] People v. Timple, 237 SCRA 52, 53 (1994).
[55] People v. Diadid, 236 SCRA 45 (1994).
[56] People v. Bañago, G.R. No. 128384, June 29, 1999; People v. Sardonido, G.R. Nos. 121205-09, June 29, 1999; People v. Prades, 293 SCRA 411 (1998); People v. Gementiza, 285 SCRA 478 (1998).