Allegations to Warrant Death Penalty
Pursuant to Section 11 of the amendatory statute (The Death Penalty Law), the death penalty may be imposed in rape cases under the last paragraph of Article 335 of the Revised Penal Code, when the rape is committed with any of the following attendant circumstances:
a. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.
b. When the victim is under the custody of the police or mili-tary authorities.
c. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consangguinity.
d. When the victim is a religious or a child below seven (7) years old.
e. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
f. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
g. When by reason on the occasion of the rape, the victim has suffered permanent physical mutilation.
The concurrence of the minority of the victim and her relationship of the offender is a special qualifying circumstance which should both be alleged and proved with certainty in order to warrant the imposition of the death penalty.
In these eight (8) cases, complainant never said she was below 18 years of age when she was allegedly raped by her father on any of the dates stated in the complaint.
R.A. No. 7659 (Death Penalty Law) Relationships which includes step-daughter and minority in incestuous rape are in the nature of qualifying circumstances, must be specifically alleged and proved to warrant imposition of death penalty.
Omission cannot be cured by evidence.
Hence, penalty should only be reclusion perpetual
The twin circumstances of minority and relationship under Article 335 of the Revised Penal Code, as amended by R.A. No.
7659, are in the nature of qualifying circumstances because they alter the nature of the crime of rape and increase the penalty.
As special qualifying circumstances they must be specifically pleaded or alleged with certainty in the information;
otherwise, the death penalty cannot be imposed.
The allegation that Irma is Nelson's niece is not specific enough to satisfy the special qualifying circumstance of relationship.
If the offender is merely a relation — not a parent, ascendant, stepparent, guardian, or common law spouse of the mother of the victim — the specific relationship must be alleged in the information, i.e., that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree."
The informations in these cases merely allege that Irma is the "niece" of Nelson.
She could be a niece beyond the third civil degree either of consanguinity or affinity.
Hence, the informations are fatally defective in this respect.
In People u. Nunez, the Court stressed: Strict application of the rule requiring the allegation of the qualifying circumstances mentioned in Section 11 of R.A. No. 7659 was further enunciated in People v. Dimapilis.
While the Information there alleged that the victim was the stepdaughter of the accused, it was not accepted as a proper allegation of the qualifying circumstance that the accused was the "common law spouse of the parent of the victim" and the death penalty imposed by the trial court was once again reduced to reclusion perpetua.
Taking into account the growing number of cases where qualified rape under Section 11 of R.A. No. 7659, although proven during trial, could still not be properly penalized because of defects in the Information,
We urge the prosecuting fiscals who are charged with the responsibility of preparing Informations to state with particularity the attendant circumstances provided for under Section 11 of R.A. No. 7659.
More specifically, in qualified rape, both the fact of minority of the victim and the actual relationship between the parties, as worded in R.A.
No. 7659, must be alleged in the Information.
Otherwise, We shall continue to fail both the law and the victims whom the law have sought to protect.
Hence, the formulation of the foregoing rules that mandate not only the qualifying but also the aggravating circumstances to be specified in the information
The Rule now requires aggravating circumstances must not only be proven but it must also be alleged, otherwise, it should not be considered.
Retroactive Application of Rule
The rule being remedial and favorable to the accused may be applied retroactively to pending cases.
Purpose of Rule
The factor that characterizes the charge is the actual recital of facts.
The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated they being conclusions of law but by the actual recital of facts in the complaint or information.
The purpose of the rule is to fully apprise the accused of the true charge against him.
The rule broadens the concept and scope of the right of the accused to be informed of the nature and cause of the accusation against him.
The life and liberty of the accused should not be left to the ability or inability of his counsel to promptly object against the admissibility of what the law or rule requires to be specifically alleged.
This was explained in U.S. v. Karelsen:
"The object of this written accusations was,
First: To furnish the accused with such a description of the charge against him as will enable him to make his defense; and
Second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and
Third to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had in order that this requirement may be satisfied, facts must be stated, not conclusions of law.
Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant) and circumstances.
In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged."
It is essential therefore, that the accused be informed of the facts that are imputed to them as "as he is presumed to have no independent knowledge of the facts that constitute the offense."
It imperative that the Information filed with the trial court be complete — to the end that the accused may suitably prepare his defense.
Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused.
The Court in People u. Mendez, cited the 1935 case of People v. Oso, that the allegation of the complaint that the accused had carnal intercourse with the offended woman
"against her will" or "without her consent" is insufficient to warrant a conviction for rape, although the evidence proves the commission of the crime and reiterated the importance of duly informing the accused of the accusation against him as a constitutional right that cannot be taken lightly, more so, if the penalty to be imposed is grave, such as the forfeiture of his life.
The essence of the constitutional right of the accused to be informed of the nature and cause of the accusation against him is that "every element of the offense must be alleged in the complaint or information" so as to "enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense."
In setting out the elements of a crime in the information or complaint, the pertinent provisions of the Rules on Criminal Procedure, specifically, Section 9 of Rule 110, provides the following guideline the cited provision is one of the many provisions in the Rules of Court that serves to implement the constitutional right of the accused to be informed of the charges against him.
Relevant to this case is the phrase "a person of common understanding," which has its origin in this jurisdiction in the phrase "a person of ordinary intelligence.""
The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged.
The raison d'etre of the rule is to enable the accused to suitably prepare his defense.
Without allegation of relationship in cases of statutory rape, proof alone of relationship unless specifically alleged in the information would not warrant imposition of the death penalty.
Under existing jurisprudence, in the absence of proof of aggravating circumstance, the penalty should be reclusion perpetua and not death.
Where there are two indivisible penalties if there is no aggravating circumstance the lesser penalty should be imposed.
The court may appreciate as an aggravating circumstance the victim's minority, which was pleaded in the informations and proved by her birth certificate.
In those cases, when either one of the twin special
qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded in the information and proved by the evidence, like the complainant's minority, may be considered as an aggravating.
Exact Relationship to be Alleged
For rape to be qualified as heinous, warranting the imposition of the death penalty, the circumstances of the minority of the victim and her relationship with the offender must be both alleged in the information for rape.
Although a husband is subject to punishment by death in case he commits rape against his wife's daughter, where the information alleged the accused, who is the stepfather of complainant, succeeded in having carnal knowledge of the latter who was then below eighteen years of age, but the evidence shows that the accused is not the complainant's stepfather because he and complainant's mother were not really married but only lived in common-law relationship or where the charge is that the victim is the daughter of the accused when the evidence shows that she is a mere stepdaughter or whether the relationship is by affinity or consanguinity in the third degree the death penalty cannot be imposed because the relationship alleged in the information is different from that actually proven
Where the informations alleged:
"[A]nd taking advantage of his superior strength over the person of his own daughter who is only thirteen years old.. ."
“[T]aking advantage of his superior strength over the person of his thirteen (13) year old (sic) daughter. . ."
the Court spared the life of the accused, despite the mention of the age of the victim and the word "daughter" in said informations, on the ground that the quoted informations failed to duly allege the special qualifying circumstances of the victim's minority and the relationship
between the victim and the accused because as phrased, they unduly lay stress on the generic aggravating circumstance of "taking advantage of superior strength."
The Court further explained that:
"Be it in terms of syntax or composition, the wording of the informations is unable to sufficiently notify the accused, a person of common understanding or ordinary intelligence, of the gravity or nature of the crime he had been charged with, especially considering that the generic aggravating circumstance of taking advantage of superior strength is not even an element of the attendant circumstances treated under number 1 of the last paragraph of Article 335.
The afore-quoted clauses in the informations can thus not be read nor understood as constituting a specific allegation of the special circumstances of relationship of father and daughter and that the daughter was less than 18 years of age at the time the crime of rape was committed."
Specific Allegation of Relationship and Minority
Even if the information alleged that the victim is the natural daughter of the accused, where there is a difference in their surname, the mere testimony of the victim that the accused is his father is not sufficient to establish the qualifying circumstance of relationship, even if such relationship was not denied by the accused.
Granting that the relationship within the third civil degree either of consanguinity or affinity was duly proved during the trial, still such proof cannot be appreciated to justify the imposition of the death penalty because he would thereby be denied of his constitutional and statutory right to be informed of the nature and cause of the accusation against him.
Accused cannot be charged with committing the crime of rape in its simple form and then be tried and convicted of rape in its qualified form.
Exact Age of Victim must be Alleged
The allegation in the information that complainant is the
"minor daughter" of accused-appellant is insufficient.
As held in People v. Puertollano, the information must state the exact age of the victim at the time of the commission of the crime.
To warrant the imposition of the death penalty, the qualifying circumstance of the rape victim being below seven years of age should be aptly alleged in the information.
Otherwise, the death penalty imposed by the trial court should be reduced to reclusion perpetua as provided for in the second paragraph of Art. 335 of the Revised Penal Code, as amended.
COMPARE:
It has, however, been held that where the information state that the offense was committed with the aggravating circumstances of insult or in disregard of the respect due the offended party on account of the fact the accused is the father of the complainant, properly plead the special circumstance of relationship of father and daughter that would enable a "person of sufficient understanding" to know what offense is intended to be charged.
The accused could not have been misled by the wording of the informations.
A person of ordinary intelligence could not plead with logic that he had no notice that he is being charged with the repeated rape of his fifteen-year-old daughter.
Rule on Exemplary Damages
In line with the ruling in People v. Catubig, the qualifying circumstances of minority and relationship, though not specified in the complaint, can serve as basis for awarding exemplary damages.
Although the rape was committed in 1997, before the Revised Rules on Criminal Procedure took effect, the court held that the retroactive application of the rules does not absolve accused from civil liability
Thus, the use of deadly weapon is a qualifying circumstance or when the crime is committed by two or more persons, the penalty is reclusion perpetua to death if the commission of the crime was attended by an aggravating circumstance.
The use of a deadly weapon was considered as qualifying and not aggravating for purposes of imposing the death penalty which was, however, considered as aggravating to award exemplary damages.
In People v. Caniezothe circumstance of deadly weapon was not alleged but proven and was considered as generic aggravating — but did not make any difference in the imposition of the penalty since under Article 63 where the penalty involved are two indivisible penalties of reclusion perpetua and there are no qualifying circumstances, the single indivisible penalty of reclusion perpetua shall be imposed regardless of the aggravating circumstance.
Exemplary damages was, however, awarded.
Thus an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of
exemplary damages within the context of Article 2230 of the New Civil Code, even if the information or criminal complaint has not alleged said circumstances as required by the rule.
In People v. Cachopero, the award of exemplary damages was deleted since the aggravating circumstances to justify the ward were not alleged and proved.
THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED NOT