Republic of the Philippines

SUPREME COURT

EN BANC

G.R. No. 125542 October 25, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

MENDOZA, J.:

This case is here on appeal from the decision 1 of the Regional Trial Court, Branch 15, Ozamis City, finding accused-appellant Erlindo
Talo guilty of forcible abduction with rape and sentencing him to death and to pay complainant Doris Saguindang the amount of
P30,000.00 as moral damages and the costs of the suit.

The information against accused-appellant recited —

That on or about the 12th day of May, 1995, at about 2:00 o'clock dawn, in barangay Gata Daku, municipality of Clarin,
province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the said accused ERLINDO
TALO, entered the dwelling by destroying some portion of the toilet of the offended party, armed with a bolo and hunting knife,
and by means of force, violence, intimidation and threats, did then and there, with lewd and unchaste designs, willfully,
unlawfully and feloniously, take and carry away MISS DORIS SAGUINDANG against her will from the house of her parents,
and upon reaching the ricefield, by means of force, violence, intimidation and threats, did then and there willfully, unlawfully
and feloniously had carnal knowledge of her against her will. 2

The evidence presented by the prosecution shows the following:

At around 9 o'clock in the evening of May 11, 1995, complainant Doris Saguindang retired for the night in her family's house in Gata
Daku, Clarin, Misamis Occidental. At about 2 o'clock in the morning of the following day, she was awakened by the presence of an
intruder in her room, who identified himself as a rebel and claimed that his "commander" wanted to see complainant. The man poked a
knife at her and covered her mouth to prevent her from making an outcry. He was wearing briefs, her father's overseas cap, and her
sister's shirt. Complainant was led out of the house through the back door. Outside, the man twice called out, "Commander, we are
here," but no one responded. The man dragged Doris towards the ricefield about 800 meters from their house and there, at knife point,
forced Doris to have sexual intercourse with him. Doris tried to fight back but the man was too strong for her. Doris noticed that, aside
from a knife, the man had a bolo with him.3

As the man rolled to his side after consummating the sexual act, Doris immediately picked her clothes and ran naked as fast as she
could towards the nearby house of her uncle, Margarito Saguindang, who later brought her home. Complainant was then accompanied
by her parents to the Philippine National Police (PNP) station where she reported the incident. Complainant described to SPO2 Jesus
Macala her attacker. Seven suspects were presented to her but none was her assailant. For this reason, the incident was entered in the
police blotter of the PNP, but no complaint was filed in court. 4

Complainant and her mother also sought the help of their pastor, Ponciano Ayop, Sr., who arranged for the medical examination of
complainant by Dr. Daniel Medina, municipal health officer of Clarin. 5 Dr. Medina conducted the examination at around 2 o'clock that
afternoon and later issued the following report:

PHYSICAL FINDINGS:

— Vagina slightly hyperemic with whitish muco[u]s fluid at base of the vagina[.] [N]o more hymen found at the vagina.

— 3 cm. l[i]near abrasion at the right lower thigh 2 in numbers.

— 2 cm. hematoma at right postero lateral aspect of the chest posterior axillary line level 5th rib.

— 1.5 cm. hematoma at left posterior chest at med scapular line level 6th rib.

— 1 cm curve l[i]n[e]ar abrasion at right neck above scapula.

xxx xxx xxx

1). The above described physical injuries are found in the body of the subject, the age of which is compatible to the alleged
date of infliction.

Remarks:

6
5 slides negative for sperm determination . . .

Dr. Medina testified that the perforation of complainant's hymen could have been caused by sexual intercourse. As for the mucous
found in her genitalia, he said that although it did not contain any spermatozoa, it was a sign of recent sexual contact. He stated that the
absence of sperm in complainant's genitalia could be due to the fact that she took a bath after the incident. 7

With regard to his external examination of complainant, Dr. Medina said that the injury in her neck was caused by a fingernail and is
consistent with complainant's claim that she was choked. The abrasion on her right thigh, on the other hand, was caused by a rough
but not hard object, while the hematomas on it and on her chest were caused by a hard object.8

On cross-examination, Dr. Medina admitted that, although forcible sexual intercourse could produce lacerations in the vaginal orifice, he
did not find any in complainant. With regard to the perforation of complainant's hymen, he stated that the same could be caused by
other factors such as riding a bicycle, horse, or carabao, and that the perforation could have occurred earlier than May 12, 1995.9

Pastor Ayop and his family took complainant to Bukidnon for a vacation because she was having nightmares, coming back to Clarin
after three weeks, in May 1995.10

Then, at around seven o'clock in the morning of May 27, 1995, while Doris and her friends were walking along the road in Tinaclaan, a
neighboring barangay of Gata Daku, she saw accused-appellant in a nearby ricefield, distributing seedlings to farm workers. Because
accused-appellant was not facing her, complainant could not clearly make out his features but she could see that his body build
resembled that of her attacker. She asked one of her companions, a certain Enan Undag, accused-appellant's name.11

A week later, on June 3, 1995, at around 5 o'clock in the afternoon, while complainant and a friend, Grace Endab, were walking along
the road in Tinangay Sur, she again saw accused-appellant coming from the opposite direction. When accused-appellant saw them, he
hurriedly walked past them. Doris, thoroughly shaken, told Endab, who knew of the rape, that the man they had just encountered was
the one who raped her. The latter corroborated complainant on this matter . 12

After consulting Ayop and her parents, Doris, on the following Monday, June 5, 1995, filed a complaint for rape against accused-
appellant.13 She later amended her complaint to charge accused-appellant with forcible abduction with rape.

Doris positively identified accused-appellant in court as the man who, on May 12, 1995, abducted and later raped her. She said she
saw his face when she was awakened in her room and in the ricefield where the moon was bright. 14

Upon cross-examination by the defense, complainant stated that, although she was born in Gata Daku, she did not know everybody in
the barangay since she stayed in Iligan City for three years to study. Before May 12, 1995, she admitted she had seen accused-
appellant once but she did not know his name. She added that when she was in high school in Clarin, she had heard of a peeping tom
named Erlindo Talo.15

Accused-appellant, 50, denied the charge against him. He testified that he was a resident of Barangay Gata Daku and that he managed
a farm in the neighboring barangay Tinaclaan. He further stated that until he met complainant in court, he had never known her.16

As to his whereabouts at the time of the incident, accused-appellant said that at 9 o'clock in the evening of May 11, 1995, he was in the
house of Otelo Londera in Barangay Kinangay Sur, playing mahjong. Aside from Londera, the other mahjong players were Laureano
Basaya and Buena Narbay. He said that except for a few breaks, they played mahjong until 5 o'clock in the morning of May 12, 1995.
An hour later, accused-appellant allegedly went home to Barangay Gata Daku. Afterwards, at around 9:30 in the morning, he went to
Barangay Tinaclaan, to the house of Leonardo Fuentes, whose son, Celso, wanted him to procure a piglet. It was there that he
allegedly heard that someone had been raped in Gata Daku.17

Although he had a farm in Barangay Tinaclaan, accused-appellant denied that he went there at 7 o'clock in the morning of May 27,
1995, when complainant said she saw him. Accused-appellant said that at that time, he was in Barangay Kinangay Sur with Celso
Fuentes buying a piglet because the latter's son was celebrating his birthday. Accused-appellant said he went to his farm in Tinaclaan
only at around 11 o'clock to pay his workers.18

Accused-appellant likewise denied that he was in Kinangay Sur at around 5 o'clock in the afternoon of June 3, 1995, because at that
time he was allegedly in his farm in Barangay Tinaclaan gathering shells, locally called kuhol.19
On cross-examination, accused-appellant said that Londera's house, where he was allegedly playing mahjong in the morning of May
12, 1995, is about 500 meters from Gata Daku. He admitted he used to deliver rice to complainant's house.20

Corroborating accused-appellant's alibi were his three alleged mahjong playmates, Otelo Londera, Buena Narbay, and Laureano
Basaya. Londera stated that the distance between his house and Barangay Gata Daku could be negotiated in 10 minutes by foot.
Narbay, for her part, said she cannot remember whether she played mahjong in Londera's house on the dates in question. 21

Other witnesses were presented by the defense, namely, Celso Fuentes, Angel Saldana, and Flaviano Narbay, who corroborated
accused-appellant's testimony that he was not in his farm in Barangay Tinaclaan at 7 o'clock in the morning of May 27, 1995. On cross-
examination, Narbay, who had testified that he was in accused-appellant's farm on the date and time in question and that the accused-
appellant did not arrive therein until about 11 o'clock, admitted that he did not know the year when the events he testified to took place
and that the date May 27 was only supplied to him by the defense counsel. 22

The defense likewise presented the then incumbent barangay chairman of Gata Daku, Joven Japay. He said that at around 4:00 in the
morning of May 12, 1995, Cesar and Margarito Saguindang, complainant's father and uncle respectively, went to his house to report
that complainant had been raped at around 2 o'clock that morning. Thereafter, the three of them went to the house of Cesar
Saguindang where he and SPO2 Macala questioned complainant. She allegedly described her attacker to be around 30 years old, curly
haired, bearded, and with a big body build. On the basis of this alleged description, they did not include accused-appellant among the
possible suspects because, although the latter matches Doris' description as to body size and height, he is not curly haired nor
bearded.23

The prosecution recalled complainant to rebut Japay's testimony. She denied having told Japay that her attacker was curly haired
(kulot) because what she said was that his hair was close-cropped or kopkop. She also denied having said that her attacker was
bearded, because although she used the local term bangason, which, loosely translated, means bearded, what she really meant was
that the man had newly-grown facial hair.24

The prosecution also presented two other witnesses to refute accused-appellant's testimony that he had never been to complainant's
house and that there was an all-night mahjong session on May 11, 1995 in the house of Otelo Londera in Kinangay Sur. Cesar
Saguindang, father of complainant, testified that for three years, accused-appellant regularly delivered rice to their house in Gata Daku.
25 On the other hand, Antonina Mutia, whose house in Barangay Kinangay Sur is about 200 meters from that of Otelo Londera,
testified that at around 10 o'clock in the evening of May 11, 1995, she passed by the Londera residence on her way home from
Barangay Tinaclaan. She noticed that the house was very quiet and, although the adjoining nipa hut where the mahjong sessions were
usually played was lighted, there was no mahjong game being played therein. Before 11 o'clock that night, she again passed by
Londera's house on her way back to Barangay Tinaclaan to look for her husband who had gone there for the barangay fiesta. She
again noticed that Londera's house was quiet.26

As sur-rebuttal to Mutia's testimony, the defense presented Catalina Londera, wife of Otelo Londera, who said that at around 8 o'clock
in the evening of May 11, 1995, she met Mutia and her husband in the house of a certain Tagaloguin in Barangay Tinaclaan. The three
allegedly went back to Barangay Kinangay Sur on board the Mutia spouses' truck. After arriving home at around 9 o'clock, her husband,
Laureano Basaya, Buena Narbay, and accused-appellant allegedly started playing mahjong.27

The case was thereafter submitted for decision. On April 26, 1996, the trial court rendered its decision, finding accused-appellant guilty
of forcible abduction with rape. The dispositive portion of its decision reads:

WHEREFORE, this Court renders judgment finding accused guilty beyond reasonable doubt of forcible abduction with rape
aggravated by dwelling and nocturnity and qualified by use of a deadly weapon, sentencing him to DEATH and ordering him to
indemnify the complainant P30,000.00 as moral damages. With cost. 28

Hence this appeal.

First. Accused-appellant contends that he and complainant had a "previous understanding" and that their sexual intercourse was
consensual. This allegedly explains why (1) there was no commotion when he and complainant went out of the latter's house as shown
by the fact that not a member of the household was awakened when he dragged her out of her parent's house; and (2) when he
removed her pajamas and underwear, or when he undressed, she did not push him which would then have allegedly allowed her to
escape.29

This contention has no merit.

Accused-appellant never claimed that he and complainant had any relationship. In fact, he claimed he had never met her before. Thus
accused appellant testified:

Q Do you know the private offended party of this case, Doris Saguindang?

A I don't know her, sir, I have never met her, only here in Court.
 Q Do you still remember that time when did you first see or meet her in Court?

A The fourth time I attended the hearing, sir.

xxx xxx xxx

Q . . . [D]o you know the residence of the parents of Doris Saguindang?

A I don't know, sir.

Q You have not gone there ever since?

A Never, sir.30

Indeed, apart from his bare assertion that he and complainant were lovers, accused-appellant has shown no other evidence of such
relationship, such as love letters, photographs, or other tokens of endearment. On the contrary, complainant stoutly maintained that she
had never known accused-appellant before and that the latter, at knife point, forced her to go with him and molested her in a ricefield.
Complainant's testimony must be quoted to appreciate her claim:

Q Now, as you were awaken[ed] . . . by the accused, what happened?

A He choked me up.

Q What did he say?

A He ordered me to stand up because he has some questions to ask.

Q Now, what was your reaction?

A I was nervous and shocked.

xxx xxx xxx

Q Now, after the accused woke you up, choked you and commanded you to stand up, what happened?

A He covered my mouth.

Q Why did he cover your mouth?

A So that I could not shout.

Q Why, did you try to shout for help?

A I was trying to shout but no voice will come out.

Q So, what happened afterwards?

A He forced me to go outside.

Q How did he force you to go outside?

A He covered my mouth and the other hand has knife pointing near my chest.

xxx xxx xxx

Q Despite of the fact that you were led by that man outside you did not resist or make any noise in order your parents
to be awaken?

A I tried my best but he was so strong.

A. Yes, sir. Strong arms.31

Accused-appellant makes much of the fact that he was able to take complainant out of her parent's house without rousing the
household from their sleep. That was because complainant was alone in her room far from where the other members of her family were
sleeping. Her parents, her twin siblings, and her nephew were the other people in the house when accused-appellant broke in and
abducted complainant. Her parents slept in a separate room furthest from her room and, while her twin siblings and nephew slept in the
room adjoining hers, their rooms were separated by a concrete wall with an opening near the roof. Accused-appellant prevented
complainant from making an outcry by covering her mouth and poking a knife at her. She was resisting but she was overpowered. After
all, what could an 19-year old girl do to resist a 50-year old man? As complainant testified:

Q By that time when you were led to that dry ricefield he was no longer dragging you, am I correct?

A Still he drag me and he was holding me.

Q He was holding both of your hands?

A He was walking ahead of me and kept on pulling me.

(Witness keep on crying since the beginning of her testimony)

Q If you have resisted at that time when you were brought to the dry land or ricefield you could have escape him away
from the hold of that man?

A How can I escape from him he was holding me so tightly. It was so painful as if my arm will be broken.

Q But he did not twist your arms?

A I could not remember but that my shoulder was sprained.

xxx xxx xxx

PROS. MEDINA:

Q Now, when you reached to that ricefield which was harvested together with the accused Erlindo Talo, forcing you to
go there, threatening you, pointing a knife, did you try to escape?

A Yes, sir.

Q How did you do it?

(While answering, witness was crying.)

A I was trying to fight but he was very strong.

xxx xxx xxx

Q Upon reaching that place, what happened, upon reaching there, did you try to stop him?

A Yes, sir.

Q How did you do it?

(Witness burst into tears continuously)

A I kicked him because he was trying to remove my pajama.

Q And what happened?

Q How about your panty?

A Including my panty.

Q How about your blouse?

A After removing my panty, he was also removing my blouse.

Q What did you do?

A I was trying to grapple the knife because he kept on threatening to stop me.

Q Afterwards, what happened?

xxx xxx xxx

A He pushed me to lie down on the ground.

Q Did he remove your clothes when you were standing up or when you were already pushed down?

A While I was still standing up, he removed my pants, when I was lying, down, he removed my blouse.

Q All the while, when he was removing your pants, panty and blouse, what did you do?

A I slapped him.

Q You mean to say, you fought him?

A Yes, sir.

Q Now, when he successfully removed all your clothes and you were already down, what did he do next?

A He lowered his brief.

Q And what did he do to you?

A Then, he raped me.

xxx xxx xxx

Q You mean to say, he placed his penis inside your vagina?

A Yes, sir.

Q Did his penis penetrate your vagina?

A Yes, sir.

Q You mean to say, his penis stayed inside your vagina?

A Yes, sir.

xxx xxx xxx

Q At that time, did you fight him?

A Yes sir.
 Q How did you fight him?

A I kicked him.

Q When you kicked him, what did he do?

A Again, he attempted to stop me.32

It is settled that a rape victim is not required to resist her attacker unto death. 33 Force, as an element of rape, need not be irresistible, it
need only be present, and so long as it brings about the desired result, all considerations of whether it was more or less irresistible is
beside the point.34 Indeed, physical resistance need not be established in rape when, as in this case, intimidation was exercised upon
the victim and she submitted to the rapist's lust because of fear for her life or for her personal safety. 35

The findings of the medical examination conducted by Dr. Medina a day after the incident confirm complainant's claim that she had
been forced to have sexual intercourse by accused-appellant. Dr. Medina found abrasions on her neck and right thigh as well as
hematomas on her chest, in addition to the complete perforation of her hymen. These clearly establish that accused-appellant
employed force and intimidation to make complainant submit to him.

Finally, complainant's conduct after she had been abused negates any probability that she and accused-appellant had consented
sexual intercourse. After accused-appellant had finished ravishing her, she ran away naked. She fled to the house of her uncle to whom
she reported what had happened to her. This is not the natural reaction of one who had engaged in consensual sex. It has been
observed that the conduct of a woman following the alleged assault is of utmost importance as it tends to establish the truth or falsity of
her claim.36

Second. In a complete turnabout from his theory that he and complainant were lovers, accused-appellant contends that complainant's
failure to file the criminal complaint renders her claim of abduction with rape suspect. 37

This contention has no merit, either. Complainant filed this case less than three weeks after the incident. The delay was due to the fact
that accused-appellant's identity was not ascertained until June 3, 1995 when complainant came face to face with accused-appellant
and learned that his name was Erlindo Talo.

While it is true that Cesar Saguindang, complainant's father, testified that accused-appellant had been delivering rice to their house for
a period of three years, there is no evidence to show that complainant knew accused-appellant. Accused-appellant himself testified that
he stayed in Cebu City for sometime to study college, went back to Gata Daku, Clarin, Misamis Occidental in 1982, and decided to
work on the farm. It was probably then that he delivered rice for the barangay captain of Gata Daku, Japay. At that time, complainant
was only eight years old. Furthermore, complainant studied at the Clarin National High School in the poblacion of Clarin and went to
Iligan City for her college education. It is probable, therefore, she really did not know accused-appellant.

Moreover, the delay in the identification of accused-appellant was due mainly to the failure of the Gata Daku police, specifically of
SPO2 Jesus Macala, to include accused-appellant in the lineup of suspects presented to complainant on May 12, 1995. Macala
admitted that complainant's description of her attacker in fact matched that of accused-appellant, but he did not include the latter in the
lineup because he thought that accused-appellant, whom he admitted was a childhood friend, was innocent. 38

Accused-appellant points out the alleged inconsistencies in the testimony of complainant as to his age, type of hair, and whether he is
bearded or not. As complainant explained, however, she did not really say that accused-appellant was curly haired or that he had a
beard. She testified:

Q Miss Doris Saguindang, the Barangay Captain of Gata Daku, Joven Japay, have testified before this Honorable
Court that you specifically described to him the person responsible [for] raping you in the dawn of May 12, 1995, and he said
you specifically described . . . him to be curly hair[ed], and that his face was full of beard, what can you say to that statement?

A That's not true.

Q Why do you say that's [a] lie?

A Because what I told . . . the Barangay Captain is that, the hair of the rapist is short to the scalp. In fact, the Barangay
Captain asked, was it curly hair, I said "no", his hair is short and his head is somewhat bald because at that time he was
wearing my father's hat.

Q What about the beard?

Q Did you mention to the Barrio Captain that the person responsible in raping you that you were able to touch his face,
his mustach[e]?

A I did not tell him that he has mustach[e], I only told him a few beard newly grown in his face.

Q Did you also mention . . . the age . . . of the person responsible in raping you?

A No, sir. I did not mention to him the age, what I described to him only that the man was similar to the age of my
father.39

We find complainant's testimony to be credible. As earlier stated, her story is corroborated by the findings of the medical examination.
On the other hand, the defense has not shown any ill motive on the part of complainant to falsely implicate accused-appellant in a very
serious charge. As we have said in a number of cases, no woman would concoct a story of defloration, allow an examination of her
private parts and expose herself to the stigma and humiliation of a public trial if she is not motivated by a desire to seek justice against
the one who had defiled her.40

Third. Accused-appellant's defense is that on May 12, 1995, he was in the house of Otelo Londera in Barangay Kinangay Sur.
However, Londera himself said that Barangay Gata Daku could be reached in 10 minutes by foot from his house. For the defense of
alibi to prosper, it must be shown not only that accused-appellant was somewhere else at the time the crime was committed but also
that it was physically impossible for him to have been at the scene of the crime at the time it was committed.41

The same is true with regard to accused-appellant's claim that on May 27, 1995 and June 3, 1995, when complainant said she saw him
after the incident, he was in some other place and could not possibly have been seen by her. Defense witness Narbay, who was
supposed to corroborate accused-appellant's testimony that he was not in his farm in Barangay Tinaclaan at around 7 o'clock in the
morning of May 27, 1995, admitted on cross-examination that he did not know the year when the events he testified to took place and
that the date May 27 was just given to him by the counsel for the defense. On the other hand, accused-appellant's testimony that he
was in his farm in Barangay Tinaclaan and not in Barangay Kinangay Sur at about 5 o'clock in the afternoon of June 3, 1995 is not only
uncorroborated but also self-serving. It cannot prevail over the testimony of complainant which was corroborated by Grace Endab.

Fourth. The trial court correctly found accused-appellant guilty of the complex crime of forcible abduction with rape. As provided in Arts.
342 and 335, in relation to Art. 48, of the Revised Penal Code, the elements of this crime are: (1) that the person abducted is any
woman, regardless of her age, civil status or reputation; (2) that she is taken against her will; (3) that the abduction is with lewd design;
and (4) that the abducted woman is raped under any of the circumstance provided in Art. 335.42 The evidence shows that, at knifepoint,
accused-appellant forcibly took complainant from her parents' house and, in a ricefield about 800 meters away, forced her to have
sexual intercourse with him.

In the event of conviction in cases of complex crimes, the penalty for the most serious crime should be imposed, the same to be applied
in its maximum period.43 Forcible abduction is punishable by reclusion temporal, 44 while rape is punishable by reclusion perpetua,
unless it is committed with the use of deadly weapon, in which case the penalty is reclusion perpetua to death. 45 Thus, in this case, it is
the penalty for rape which should be imposed, the same to be applied in its maximum period. However, the use of deadly weapon,
being a qualifying circumstance, must be alleged in the information otherwise it should be treated only as a generic aggravating
circumstance and the lower penalty (reclusion perpetua) should be imposed.46

In the case at bar, the information alleged that "armed with a bolo and hunting knife, and by means of force, violence, intimidation and
threats," accused-appellant, "did then and there . . . with lewd and unchaste designs . . . take and carry away complainant" and that,
upon reaching the ricefield, by means of force, violence, intimidation and threats," he had carnal knowledge of her. The allegation of the
use of deadly weapon thus refers not to the rape but to the crime of forcible abduction. We have affirmed convictions for forcible
abduction with rape qualified by the use of deadly weapon in cases where the use of deadly weapon was alleged in the information with
respect to the crime of forcible abduction,47 or with respect to the complex crime of forcible abduction and rape,48 or to the portion
referring to the crime of rape.49 Accordingly, to justify the imposition of the death penalty in this case, the use of deadly weapon should
be alleged with respect to the rape or with respect to both the forcible abduction and rape. Since, in this case, this qualifying
circumstance was alleged only with respect to the commission of the forcible abduction, it cannot be taken to qualify the crime of rape.
The use of a deadly weapon can be appreciated only as a generic aggravating circumstance.

The trial court correctly appreciated other generic aggravating circumstances, namely, dwelling and nighttime. Dwelling was correctly
taken into account as an aggravating circumstance as the evidence shows that complainant was forcibly taken from the house of her
parents. Such was the ruling in People v. Lacanieta,50 where, similar to the case at bar, the complainant was forcibly taken from her
house, brought to a nearby barangay, and then raped by the accused.
The aggravating circumstance of nighttime was also correctly held to be present. Accused-appellant sought the cover of darkness to
facilitate the commission of the crime. In People v. Grefiel, 51 it was held that forcible abduction with rape, committed at 2 o'clock in the
morning, was attended by the aggravating circumstance of nighttime.

The crime was likewise attended by the aggravating circumstance of unlawful entry. The barangay chairman of Gata Daku, Joven
Japay, testified that when he went to the house of the victim the day after the rape incident, he noticed that a baluster in the ceiling at
the rear part of the house had been forcibly removed and that there was a ladder propped nearby.52 There was thus entry to
complainant's house through an opening which was one not intended for that purpose.

The foregoing notwithstanding, the penalty to be imposed on accused-appellant is reclusion perpetua. Under Art. 63, a single indivisible
penalty should be imposed regardless of any mitigating or aggravating circumstance which may have attended the commission of the
deed.

The damages awarded by the trial court should be modified. In accordance with recent rulings of this Court, 53complainant Doris
Saguindang must be paid P50,000.00 as civil indemnity, P50,000.00 as moral damages, and the additional amount of P25,000.00, as
exemplary damages, in view of the attendance of the aggravating circumstances, pursuant to Art. 2229 of the Civil Code. 54

WHEREFORE, the decision of the Regional Trial Court, Branch 15, Ozamis City, is AFFIRMED with theMODIFICATION that accused-
appellant is ordered to pay complainant Doris Saguindang the amounts of P50,000.00, as civil indemnity, P50,000.00, as moral
damages, and P25,000.00, as exemplary damages.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT

FIRST DIVISION

G.R. No. 143380. April 11, 2005

OLIMPIO PANGONOROM and METRO MANILA TRANSIT CORPORATION, Petitioners,

DECISION

CARPIO, J.:

The Case

This is a petition for review1 to annul the Decision2 dated 29 November 1999 of the Court of Appeals in CA-G.R. CR No. 14764, as well
as its Resolution3 dated 5 May 2000 denying the motion for reconsideration. The Court of Appeals affirmed in toto the 5 February 1993
Decision4 of the Regional Trial Court of Quezon City, Branch 79 in Criminal Case No. Q-90-11397.

The Charge

On 21 March 1990, Assistant City Prosecutor Rosario U. Barias filed an Information charging Olimpio Pangonorom ("Olimpio") with
reckless imprudence resulting in damage to property with multiple slight physical injuries, committed as follows:

That on or about the 10th day of July, 1989, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, being then the driver and person in charge of a motor vehicle (MMTC-passenger bus) with plate No. NVJ-999
TB Pil. ’89, did, then and there unlawfully and feloniously drive, manage and operate the same along E. de los Santos Ave., Quezon
Avenue – this City, in a careless, reckless and imprudent manner, by then and there driving the same without due regard to traffic laws
and regulations and without taking the necessary precautions to prevent accident to person and damage to property, causing by such
carelessness, recklessness and imprudence said motor vehicle so driven by him to strike and collide with an [I]suzu [G]emini car with
plate No. NAR-865 L Pil. ’89, belonging to Mary Berba and driven by Carlos Berba y Remulla, thereby causing damages in the total
amount of P42,600.00, Philippine Currency; as a consequence thereof said Carlos Berba sustained physical injuries for a period of less
than nine (9) days and incapacitated him from performing his customary labor for the same period of time and also his passengers
namely: Mary Berba y Matti and Amelia Berba y Mendoza sustained physical injuries for a period of less than nine (9) days and
incapacitated them from performing their customary labor for the same period of time, thereafter, abandoned said offended parties
without aiding them, to the damage and prejudice of the said offended parties in such amount as may be awarded to them under the
provisions of the Civil Code.

CONTRARY TO LAW.5

Arraignment and Plea

When arraigned on 26 June 1990, Olimpio, with the assistance of counsel, entered a plea of not guilty. 6

The Trial

The prosecution presented five witnesses: (1) Carlos R. Berba; (2) Mary M. Berba; (3) Amelia Berba; (4) Edward Campos; and (5)
Enrico B. Estupigan.

On the other hand, the defense presented three witnesses: (1) Olimpio himself; (2) Milagros Garbo; and (3) Nenita Amado.

The facts, as summarized by the trial court, are as follows:

The evidence of the prosecution shows that on July 10, 1989 at around 9:00 P.M. Carlos R. Berba was driving an Isuzu Gemini car
bearing Plate No. NAR-865 L Pil. ’89 belonging to his mother Mary Berba. With him inside the car were his mother Mary Berba who
was seated in front beside him and his auntie Amelia Berba who was at the back seat. They were cruising along EDSA coming from the
direction of Makati and headed towards the intersection of EDSA and Quezon Boulevard but upon nearing 680 Appliances along
EDSA, Quezon City, their car was bumped from behind by MMTC Passenger Bus bearing Plate No. NVJ-999 TB Pil. ’89 driven by
herein accused Olimpio Pangonorom thereby causing damages to their car which was estimated at P42,600.00 (Exhs. F, F-1). The
front and rear portions of their car incurred damages because by reason of the strong impact at the rear portion of their car, it was
pushed forward and bumped the car in front of it, then it rested near the island. The bus driven by the accused still travelled a distance
of 20 meters from the point of impact. The accused left his bus but they came to know his name is Olimpio Pangonorom. Their car was
a total wreck as shown in its photographs (Exhs. B and C).

Carlos Berba noticed this bus following them closely at Nepa Q-Mart up to the point of collision. His car was running along the second
lane of EDSA from the island. The MMTC bus driven by the accused was running very fast, kept on switching lane until it finally
occupied the second lane and bumped his car. Carlos Berba sustained cuts on his shoulder and back because of broken glasses and
was treated at East Avenue Medical Center. He incurred P1,000.00 for medication (Exhs. G to G-3). Mary Berba sustained contusion,
hematoma and abrasion (Exh. H). Amelia Berba sustained abrasion on his right elbow (Exh. K). Both were also treated at East Avenue
Medical Center.

Edward Campos and Enrico Bantique Estupigan, passengers of MMTC Bus driven by the accused explained that their bus was running
at 70-80 kph when it swerved to the right to avoid hitting a van stranded at the left side of the island but in the process it hit and bumped
an Isuzu Gemini car in front of it. The rear portion of the Isuzu Gemini car was smashed and the front part was also damaged as it hit
the Lancer car running ahead. The bus driver, herein accused, fled from the scene.

It was a rainy day, road was slippery, the rain had just stopped but was still drizzling.

The defense on the other hand presented accused Olimpio Pangonorom, Milagros Garbo, Nenita Amado and documents marked as
Exhs. 1 to 15 with sub-markings.

Accused Olimpio Pangonorom testified that he was a driver since 1976, having worked as a truck driver in Mindanao, then employed as
driver of Silangan Transit up to 1981 and from 1981 up to the present is a driver of Metro Manila Transit. He is a holder of professional
driver’s license with OR No. 15160307 (Exhs. 1, 1-A). On July 10, 1989 he drove MMTC bus from Monumento to Baclaran and vice-
versa. He was driving MMTC bus between 7:00 – 8:00 P.M. along EDSA headed towards Monumento when upon reaching infront of
680 Appliances his bus was involved in a vehicular accident. It was drizzling, his bus was running at a speed of 70 kph along the third
lane of EDSA going to Monumento and an Isuzu Gemini car ahead of him was on his left side running along the second lane of EDSA
at a distance of 30 meters away. When the car was at a distance of 20 meters away and before reaching the stalled vehicle, it swerved
to the right without signal light, so he blew his horn, stepped on his brakes, but since the street was downgrade, it was raining and
slippery, his brakes failed to control his bus, thus hit and bumped the Isuzu Gemini car. He identified the Isuzu Gemini car and
damages sustained by the car in the photograph marked as Exh. C. His bus slided after he applied his brakes because the street was
slippery. He reported at their garage after the accident, left his vehicle and went back at the scene with a wrecker. The passengers of
the Isuzu car were brought to the hospital.

The training officer of MMTC, Milagros Garbo, testified on the procedure of the company in hiring an applicant driver and the
requirements to be submitted by the applicant. An applicant for a driver of MMTC as what had been done to the accused before he was
admitted as company driver of MMTC must pass an interview, seminars, written examination, actual driving test, psycho-physical test,
road test, line familiarization test, defensive driving seminar, driver’s familiarization seminar, and traffic rules and environment seminar.
Documents they required to be submitted by an applicant driver were NBI Clearance, Residence Certificate, Professional Driver’s
License, and Official Receipts of payment of required fees for driver’s license (Exhs. 1 to 15).

The internal control relative to the supervision of their drivers was explained by witness Nenita Amado, a transport supervisor of MMTC.
She supervises and gives instructions and recommendations on bus rules and regulations to their drivers. They have ten (10)
comptrollers, thirty-six (36) dispatchers, seven (7) field supervisors, sixty (60) inspectors and four (4) service wreckers who helped in
the supervision of the drivers and conductors of MMTC. They have centralized radio that monitor the activities of their drivers during
their travel. Her instructions to the drivers were to avoid accident, obey traffic rules and regulations and to be courteous to passengers.7

On 5 February 1993, the trial court rendered its Decision with the following dispositive portion:

PREMISES CONSIDERED, the Court finds accused Olimpio Pangonorom guilty beyond reasonable doubt of the crime of reckless
imprudence resulting in multiple slight physical injuries and sentences him to suffer an imprisonment of thirty (30) days
of arresto menor, to indemnify the offended parties of the damages incurred by their Isuzu Gemini car in the sum of P42,600.00 and to
reimburse the medical expenses of Carlos R. Berba in the sum of P182.50, Amelia Berba in the sum of P217.50 and Mary Berba in the
sum of P45.00.

SO ORDERED.8

Petitioners appealed the trial court’s decision to the Court of Appeals. 9

The Ruling of the Court of Appeals

The Court of Appeals ruled that the finding that Olimpio drove the passenger bus in a negligent manner, considering the circumstances
of weather and road condition, is a finding of fact of the trial court that is entitled to respect. The Court of Appeals stated that it is a
settled rule that factual findings of trial courts are accorded great respect unless it can be shown that they overlooked some
circumstances of substance which, if considered, will probably alter the result. The Court of Appeals held that no such circumstance
was overlooked in this case.

The Court of Appeals ruled that even if it were true, as Olimpio claimed, that the car Carlos Berba ("Carlos") was then driving occupied
Olimpio’s lane while the car was 20 meters away, it is a safe distance for a vehicle to switch lanes. The Court of Appeals held that if
only Olimpio did not drive very fast and considered that the street was downgrade and slippery, he could have easily avoided the
accident by applying his brakes.

The Court of Appeals also ruled that the testimonies of Edward Campos ("Edward") and Enrico Bantigue, who were passengers of the
MMTC bus, are worthy of credence. The Court of Appeals stated that they are neutral witnesses who had no motive to testify against
Olimpio. They testified that: (1) the MMTC bus was running at 70-80 kilometers per hour; (2) the bus swerved to the right to avoid hitting
a van stranded at the left side of the island; and (3) in the process, the bus hit and bumped the Gemini car ahead of it. Edward further
testified that Olimpio earlier overtook another bus. Edward stated that it was for this reason that the MMTC bus went into the lane
where the stalled van was located. The Court of Appeals held that the MMTC bus was the one switching lanes.

The dispositive portion of the decision of the Court of Appeals reads:

WHEREFORE, the judgment herein appealed from is hereby AFFIRMED in toto.

SO ORDERED.10

On 28 December 1999, petitioners filed with the Court of Appeals a motion for reconsideration of the assailed decision. Petitioners
asserted that the Court of Appeals erred in finding Olimpio negligent in driving the subject bus. Petitioners also asserted that Carlos
was the one switching lanes and was therefore the one negligent in driving his car. Petitioners stated that the Court of Appeals erred in
not holding that the MMTC was not subsidiarily liable for Olimpio’s civil liability in the instant case. Petitioners stated that the testimonies
of witnesses Milagros Garbo and Nenita Amado, as well as Exhibits 1 to 15, proved that the MMTC exercised due diligence in the
selection and supervision of its drivers.11

On 5 May 2000, the Court of Appeals issued a Resolution 12 denying the motion for reconsideration. With the assailed decision having
"amply discussed, considered and ruled upon" the issues that petitioners raised in their motion for reconsideration, the Court of Appeals
held that there was no cogent reason for it to reverse the assailed decision. The Court of Appeals also held that the MMTC was already
estopped in assailing the trial court’s decision considering that the MMTC never appealed the decision within the reglementary period.

The Issues

Petitioners have presented the following for our consideration:

1. The Court of Appeals gravely abused its discretion in sustaining the trial court’s findings of facts instead of considering certain facts
and circumstance raised by petitioners that properly cast an element of reasonable doubt.

2. Whether Estoppel applies to MMTC.13

The Ruling of the Court

The petition is without merit.

In criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court’s decision based on grounds other than those that the parties
raised as errors.14

Petitioners fault the Court of Appeals for having sustained the trial court’s findings of fact. Petitioners assert that the Court of Appeals
failed to consider certain circumstances that would warrant a reversal of the factual findings of the trial court.

Petitioners claim that Carlos’ negligence in switching lanes to avoid hitting a stranded van caused the collision. Petitioners assert that
Carlos was negligent because he transferred to the lane where Olimpio was then driving along without first blinking his signal light and
with his car only 20 meters away from the bus. This being so, petitioners assert that they should not be held responsible for Carlos’
negligence.

Petitioners’ assertions have no merit. The issue of whether a person is negligent is a question of fact. 15 Findings of fact of the Court of
Appeals, when they affirm the findings of fact of the trial court, are binding on this Court, unless the findings of the trial and appellate
courts are palpably unsupported by the evidence on record or unless the judgment itself is based on misapprehension of facts.16 We
hold that the Court of Appeals committed no reversible error in upholding the factual findings of the trial court.
Article 365 of the Revised Penal Code states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do
an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to
perform such act, taking into consideration (1) his employment or occupation; (2) his degree of intelligence; (3) his physical condition;
and (4) other circumstances regarding persons, time and place.

Olimpio is a professional driver who has been in the employ of the MMTC since 1984.17 As a public utility driver, Olimpio should have
as his primary concern the safety not only of himself or of his passengers, but, also the safety of his fellow motorists. Considering that it
had just rained, it was still drizzling and the road was slippery when the subject incident took place, 18 Olimpio should have been more
cautious and prudent in driving his passenger bus.

Based on Olimpio’s testimonial admission, he was driving at 70 kilometers per hour. He testified he was familiar with the
road.19 Therefore, he ought to have known the downhill slope coming from the Nepa-Q Mart.20 As the bus was moving downhill, Olimpio
should have slowed down since a downhill drive would naturally cause his vehicle to accelerate. However, instead of slowing down,
Olimpio admitted he was "running very fast." Thus, Olimpio testified:

Atty. ANTONIO:

Q It was nighttime Mr. Witness, will you tell us whether you were able to see this vehicle you were following?

A Yes, sir.

Q Will you tell us how did you notice this vehicle?

A Because I saw its tail light, sir.

Q Before this vehicle you were following reached the place where this stalled vehicle was, do you know where was this vehicle
proceeded?

FISCAL:

I think he is incompetent, Your Honor.

COURT:

Sustained.

Atty. ANTONIO:

Q Before your vehicle reached the place where this stalled vehicle was, what did you notice if any?

A I noticed that the vehicle I was following Isuzu Gemini before reaching the stalled vehicle suddenly swerved to the right and I was
already approaching, sir.

Q Before this Isuzu Gemini car you were following suddenly swerved to the right, how far were you?

A About twenty (20) meters, sir. It suddenly swerved to the right and I was running very fast because it was downward.

Q And when you noticed this Isuzu Gemini suddenly swerved to the right, what if any did you do?

A I blew my horn and stepped on my brakes, sir. Considering that it was raining and slippery I cannot control.

Q And after your were not able to control your vehicle despite the precaution you made, what happened?

A I bumped him, sir.21 (Emphasis supplied)

The only conclusion that we can draw from the factual circumstances is that Olimpio was negligent. He was hurrying to his destination
and driving faster than he should have. The fact that after Olimpio stepped on the brake, the bus still traveled a distance of 20 meters
before it finally stopped, and the car, after it was hit, was thrown 10 to 15 meters away, 22 only prove that Olimpio’s bus was running very
fast.
Olimpio’s claim that Carlos suddenly transferred to his lane to avoid hitting a van stranded at the left side of the island could hardly
carry the day for him. Olimpio says that the distance between the car and the bus before the car allegedly swerved to the bus’ lane was
20 meters. Therefore, at that point, Olimpio still had the opportunity to avoid the collision by slowing down or by stepping on the brake.
However, what Olimpio did was to continue running very fast.

Another telling proof of Olimpio’s negligence is the testimony of Edward, a passenger of the MMTC bus who was seated at the right
front seat nearest to the door of the bus.23 Edward recounted the incident, thus:

Q You said that there was a van parked which the Metro Manila Transit tried to avoid. Where was that van parked?

A It was stranded above the middle island of the road, sir.

COURT:

Q When you said of the road you are referring to EDSA?

A Yes, Your Honor.

FISCAL:

Q So when it swerved to avoid hitting the parked van, what happened?

A It was too late, sir, when he noticed that there was a car slowly cruising EDSA so when he swerved he was very fast so it
was too late to avoid the car. He just braked, the road was slippery so he could not swerve because the bus might turn over.

xxx

Q Mr. Witness, did you notice this stalled vehicle before you reached the place where it was stalled?

A No, sir.

Q Even when the lights of the Metro Manila Transit were on, you did not notice it?

A Actually, sir, he was overtaking another bus so that’s why he did not notice this stalled van.

Q Who was overtaking another bus?

A MMTC bus, sir, because it stopped at the MMC office near Timog and then it overtook another moving bus. He went to the left side
overtaking that bus.

xxx

Atty. ANTONIO:

Q Are you a driver?

A Yes, sir.

Q And if circumstances similar to that incident that happened, it would be prudent for you to swerve also, is it not?

A At that condition, sir, I’d rather brake than swerve, it is slippery.

Q Mr. Witness, will you tell how far was this MMTC bus when it swerved in relation to the place where the stalled vehicle was?

A I guess, sir, it was a few seconds before too late because when it swerved the bus was already tilting, so it is a matter of
seconds.

Atty. ANTONIO:

Q It was a matter of seconds?

Q So if you were in this position stopping would not be sufficient precautionary measure, was it not?

A Before that, sir, he overtook that bus so if he did not overtake that bus he would have seen the parked van. Being a driver
myself the way he overtook was dangerous, it was so close that you could not see the other lane.

xxx

Q Will you please explain Mr. Witness, how this MMTC bus hit the car when you claimed that the car was running ahead of the bus?

A There was this stalled van and there was this bus, now this was the Gemini car, this slowed down to avoid also the stalled van, it
swerved so the bus was here running very fast and then noticed the van so it swerved also and the Gemini here was of course
slowed down to avoid that van, the bus was still running fast then after swerving it was too late for him to notice that there was this
car running slowly by the bus, he stepped on the brake.

Q Do you mean to say Mr. Witness, that both the Isuzu vehicle and the MMTC bus were running on the same course?

A Yes, sir.24 (Emphasis supplied).

Edward’s declarations that "the bus was running very fast" and that Olimpio did not see the stranded van because he earlier overtook
another bus are clear and categorical. There is no evidence of any ill or improper motive on Edward’s part that would discredit his
testimony. He was not in any way related to the complainants. Neither was the defense able to show that some form of consideration
induced Edward to testify for the prosecution. The defense did not even try to rebut Edward’s testimony.

When there is nothing to indicate that a witness was actuated by improper motives, his positive and categorical declarations on the
witness stand under solemn oath deserve full faith and credit. 25

Petitioners likewise fault the Court of Appeals for having ruled that the MMTC is already estopped from assailing the trial court’s
decision considering that the MMTC "never appealed the same within the reglementary period."

We have carefully gone over the records of this case and found that when petitioners filed their Notice of Appeal with the trial court on 8
March 1993, the MMTC already appealed the civil aspect of this case. We quote petitioners’ Notice of Appeal:

The ACCUSED and his employer, Metro Manila Transit Corporation, by their undersigned counsel, unto this Honorable Court, most
respectfully give notice that they are appealing, as they hereby appeal, the Decision dated February 5, 1993, which was received on
February 23, 1993, to the Court of Appeals on the ground that the Decision is contrary to the facts, law and settled jurisprudence.

Metro Manila Transit Corporation likewise interposes an appeal with respect to the civil aspect of this case because of its subsidiary
liability as employer of the accused under the Revised Penal Code. 26

It is therefore not correct for the Court of Appeals to state in its Resolution27 dated 5 May 2000 that the MMTC failed to appeal
seasonably the issue of its alleged "non-subsidiary liability"28 as Olimpio’s employer.

However, due diligence in the selection and supervision of employees is not a defense in the present case. The law involved in the
present case is Article 103 of the Revised Penal Code, in relation to Articles 100 29 and 10230of the same Code, which reads thus:

Art. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties.

Pursuant to Article 103, an employer may be subsidiarily liable for the employee’s civil liability in a criminal action when there is
adequate evidence establishing (1) that he is indeed the employer of the convicted employee; (2) that he is engaged in some kind of
industry; (3) that the employee committed the offense in the discharge of his duties; and (4) that the execution against the employee
has not been satisfied due to insolvency.31

The provisions of the Revised Penal Code on subsidiary liability – Articles 102 and 103 – are deemed written into the judgments in
cases to which they are applicable. Thus, in the dispositive portion of its decision, the trial court need not expressly pronounce the
subsidiary liability of the employer.32

The subsidiary liability of the employer arises only after conviction of the employee in the criminal action. 33 In the present case, there
exists an employer-employee relationship between petitioners, the MMTC is engaged in the transportation industry, 34 and Olimpio has
been adjudged guilty of a wrongful act and found to have committed the offense in the discharge of his duties. 35 However, there is no
proof here of Olimpio’s insolvency. The judgment of conviction against Olimpio has not attained finality. This being so, no writ of
execution can issue against him to satisfy his civil liability. Only after proof of the accused-employee’s insolvency may the subsidiary
liability of his employer be enforced.36

In short, there is as yet no occasion to speak of enforcing the employer’s subsidiary civil liability unless it appears that the accused-
employee’s primary liability cannot in the first instance be satisfied because of insolvency. This fact cannot be known until some time
after the verdict of conviction shall have become final. And even if it appearsprima facie that execution against the employee cannot be
satisfied, execution against the employer will not issue as a matter of course. 37 The procedure for the enforcement of a judgment will
have to be followed. Once the judgment of conviction against Olimpio becomes final and executory, and after the writ of execution
issued against him is returned unsatisfied because of his insolvency, only then can a subsidiary writ of execution be issued against the
MMTC after a hearing set for that precise purpose. It is still too early to hold the MMTC subsidiarily liable with its accused-employee
considering that there is no proof yet of Olimpio’s insolvency.

WHEREFORE, we DENY the instant petition. The Decision dated 29 November 1999 of the Court of Appeals in CA-G.R. CR No. 14764
finding petitioner Olimpio Pangonorom GUILTY beyond reasonable doubt of reckless imprudence resulting in multiple slight physical
injuries, as well as its Resolution dated 5 May 2000 denying the motion for reconsideration, are AFFIRMED. No pronouncement as to
costs.

SO ORDERED.