People of the Philippines vs. Edgardo Nescio

The discharge of an accused to become a state witness is valid upon satisfaction of the five requisites of Section 9, Rule 119 of the 1985 Rules on Criminal Procedure; and alibi, which is accepted only upon the clearest proof that the accused was not or could not have been at the crime scene, cannot prevail over positive identification by a prosecution witness.

Edgardo Nescio stood charged with the rape and killing of eleven-year-old Geraldine Cuevas in Antugan, Compostela, Alegria, Cebu, a crime committed on February 21, 1990. His co-accused, Pablo Bacalso, was the victim's cousin and lived about fifty meters from Nescio's house; Nescio himself lived about fifty arms-length from the victim's home. The prosecution's case depended on the testimony of a discharged co-accused, a procedure governed by Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, which permits the discharge of one of several accused so that he may be utilized as a witness for the state. The decision likewise opened by noting that rape with homicide was among the heinous crimes made punishable with a higher penalty by Republic Act No. 7659, effective December 31, 1993.

On February 21, 1990, at around two o'clock in the afternoon, eleven-year-old Geraldine Cuevas, accompanied by her younger brother Lindo and their young cousin Lino Lindio, went out into a sloping trail covered by bushes and madre de cacao trees not far from her house in Antugan, Compostela, Alegria, Cebu, to remove the bark gathered from a local tree known as "siapo," which they intended to sell as firewood. A few hours later, Lindo arrived home alone, and his mother Justina anxiously inquired about Geraldine, who was supposed to have left for home ahead of him. When Geraldine did not show up at seven o'clock in the evening, her alarmed mother solicited the help of several neighbors who promptly formed a search party headed by barangay councilman Cresente Homecillo. Using lamps and torches, the group scoured a wide area until about 4:30 the following morning but failed to find the missing girl.

Geraldine's lifeless body was found in the afternoon of February 22, 1990 amidst the bushes near a madre de cacao tree, lying on the sack where she kept the gathered "siapo" and bathed in her own blood, her face chopped and hacked. Dr. Samson de la Peña, who performed the autopsy and submitted a report thereon, found that Geraldine suffered multiple hack wounds which injured her brain and fractured her facial bones; that her hymen was ruptured with lacerations at the 9:00 o'clock position; and that there were contusions in the vulva indicative of sexual assault. He likewise noted some blood and fluid in the vaginal canal which, upon laboratory examination, were found positive for spermatozoa. Dr. de la Peña concluded that the girl was sexually assaulted before she was slain and that the injuries were inflicted with considerable force, with one wound almost splitting her face in two.

Investigation by the police led to the filing of an Information for rape with homicide against Pablo Bacalso and Edgardo Nescio, alleging that the two, conspiring and confederating together and mutually helping one another by means of force and violence, took turns in having carnal knowledge of Geraldine, a minor eleven years of age, and that on the occasion of the rape and in pursuance of their conspiracy, they attacked, assaulted, and used personal violence upon her, inflicting multiple hack wounds which directly caused her death. Upon arraignment, both accused pleaded not guilty.

On June 21, 1990, the trial prosecutor filed a motion to discharge co-accused Pablo Bacalso in order to utilize him as a state witness, attaching the proposed testimony in affidavit form. When required to comment thereon, Edgardo Nescio opposed the motion and filed his own, insisting that he should be the one to be discharged and used as a state witness, without however submitting a sworn statement in support of his motion. The court granted the prosecutor's motion and ordered the discharge of Bacalso. Trial proceeded against the only remaining accused, with Bacalso testifying for the prosecution.

The People's case rested on Bacalso's testimony that in the afternoon of February 21, 1990, he was in a farm in Antugan where he met his co-accused Nescio, Geraldine, her brother Lindo, and Lino Lindio; that the two young boys left shortly thereafter; that as soon as the boys headed homewards, Nescio suddenly held Geraldine's hands, forcibly pulled down her panty, quickly took off his pants, and laid on top of the girl; that Geraldine struggled to be free from Nescio's hold, shouting at the top of her voice, but her efforts proved futile because Nescio overpowered her and succeeded in having sexual congress with her; and that Bacalso took pity on his cousin but was helpless because Nescio threatened to kill him with a bolo and swore that should he report the incident to anyone, he would surely be dead. The prosecution also presented Dr. de la Peña, who testified on his autopsy findings, and Virgilio Cuevas, the victim's father, who testified on the funeral expenses incurred as well as the damages suffered on account of the brutal rape-slay of his daughter.

While denying involvement in the incident, the accused did not deny the acts imputed to him by the state witness. He admitted that at about noontime on his way to lunch, he spotted the brothers Pablo and Patrick Bacalso with their cousins Geraldine and Lindo and Lindo's young friend Lino Lindio gathering "siapo" about two kilometers farther; that instead of taking the short trail, he decided to negotiate the more circuitous and longer road to his house in order to pass through the trail where Geraldine's group was; and that he nonetheless proceeded home and did not tarry with the group still gathering "siapo" because Councilman Cresente Homecillo and a companion were waiting for him so that he could account for the proceeds of a benefit dance recently held in their place. He claimed that at around five o'clock in the afternoon of the same day, he noticed Pablo Bacalso, who lived about fifty meters away from his house, smeared with blood; that Justina Cuevas eventually came to inquire about her daughter Geraldine; and that he himself joined in the search for the young girl together with his co-accused Bacalso. Upon cross-examination, Nescio admitted that his farm in Samoyao, Compostela, where he worked in the morning of February 21, 1990, was less than half a kilometer from where he lived, and conceded that this was the same spot where the girl's cadaver was first found by Germano Homecillo, a member of the search party. He also explained that Geraldine's house was only about fifty arms-length away from his.

Defense witness Police Patrolman Carlito Homecillo testified that although he conducted an investigation of the incident, he did not reduce into writing the incriminating statements of both accused. His colleague, Pat. Juan Cordova, Jr., took the witness stand to identify the Joint Affidavit he executed with Pat. Homecillo, alleging that Bacalso told them that after the younger boys left for home, Edgardo Nescio, who was secretly admiring Geraldine while she was preoccupied with the task of gathering "siapo" bark, suddenly held her in both hands, threatening her with his bolo if she resisted, then pushed her to the ground; that as she lay there in shock, Nescio placed himself on top of her, quickly removed his pants, and succeeded in ravishing her; that after the rape, Geraldine rolled downwards, unconscious; and that Pablo Bacalso, in a fit of passion, then took his turn at raping his cousin, after which he heard Nescio shout "Kill her!" and, even as he hesitated, Nescio threatened to kill him, forcing Bacalso to hack the girl's face and neck instantaneously. It was, however, established during trial that the alleged verbal extrajudicial statements of Pablo Bacalso were made without the assistance of counsel. Other witnesses for the defense were Barangay Captain Arturo Jamio, Jr., who testified that he was the one who brought Bacalso's bolo, left in Cresente Homecillo's house, to the station commander, and Lino Lindio, who testified that he left the group ahead and that when he was homeward bound, Geraldine was still with Edgardo Nescio and Pablo Bacalso amongst the bushes.

The trial court credited Bacalso's testimony, noting that when he took the witness stand he testified in a straightforward, direct, and positive fashion without any trace of hesitance or indecision, and that he was only a lad of fourteen years at the time, definitely smaller and afraid to make any move to help his eleven-year-old cousin because his life was under threat by the accused, a burly twenty-two-year-old adult with a bolo. The trial court likewise discarded the Joint Affidavit of Pfc. Homecillo and Pat. Cordova, Jr. as inadmissible in evidence, the alleged extra-judicial confession of Bacalso having been given during custodial investigation without the assistance of counsel, and the statement not having been made while the startling occurrence was taking place or immediately subsequent thereto.

• Invalid Discharge of Co-Accused: Petitioner argued that the trial court erred in discharging Pablo Bacalso, who allegedly appears equally guilty, and that his subsequent discharge from the Information was invalid.
• Credibility of the State Witness: Petitioner argued that the trial court erred in giving credence to Bacalso's testimony, which he claimed is opposed to common human experience, in that Bacalso could have prevented the accused-appellant from pursuing his evil designs by brandishing his own bolo or stoning Nescio's head while he was pushing the victim down, thereby allowing her to escape.

• Validity of the Discharge of the Co-Accused as State Witness: Whether the trial court erred in discharging Pablo Bacalso as a state witness on the ground that he appears equally guilty and that his discharge from the Information was invalid.
• Credibility of the State Witness's Testimony: Whether the trial court erred in giving credence to Bacalso's testimony despite its being allegedly opposed to common human experience.

• Validity of the Discharge of the Co-Accused as State Witness: No. The discharge was valid, the trial prosecutor having satisfied the five conditions stipulated in Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended.
• Credibility of the State Witness's Testimony: No. Bacalso's testimony was straightforward, direct, and positive, and the appellant's alibi, which placed him only a short distance from the scene, was offset by the positive identification made by the prosecution's witness.

• Validity of the Discharge of the Co-Accused as State Witness: Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended, permits the discharge of one of several accused so that he may be utilized as a witness for the state, but only upon satisfaction of five conditions: (1) that there is absolute necessity for the testimony of the defendant whose discharge is requested; (2) that there is no direct evidence available for the proper prosecution of the offense committed, except the testimony of the defendant; (3) that the testimony of said defendant can be substantially corroborated in its material points; (4) that said defendant does not appear to be the most guilty; and (5) that said defendant has not at any time been convicted of any offense involving moral turpitude. The trial prosecutor, upon being satisfied with the presence of these conditions, asked the court to direct the discharge of one of the accused to become a witness for the state, thus in effect acquitting him. The Court found no merit in the appeal, the discharge having been ordered on the prosecutor's satisfaction of the enumerated requisites. The Court also sustained the trial court's rejection of the Joint Affidavit executed by Pfc. Homecillo and Pat. Cordova, Jr., which recounted Bacalso's alleged verbal extrajudicial statements. That affidavit was inadmissible because the alleged extra-judicial confession of Bacalso was given during custodial investigation where he was not granted the assistance of counsel. The statement was not merely verbal but was made five days after the date of the incident, and therefore was not made while the "startling occurrence" was taking place or immediately subsequent thereto; it could not be considered part of the res gestae, particularly as Bacalso was still labouring under Edgardo Nescio's threats.

• Credibility of the State Witness's Testimony: The Court was not persuaded by the appellant's argument that Bacalso's testimony was contrary to human experience because he could have prevented the accused-appellant from pursuing his evil designs by brandishing his own bolo or stoning Nescio's head while the latter was pushing the victim down. The trial court clearly noted that when Bacalso took the witness stand, he testified in a straightforward, direct, and positive fashion without any trace of hesitance or indecision. Being only a lad of fourteen years at the time, he was definitely smaller and afraid to make any move to help his eleven-year-old cousin because his life was under threat by the accused, who was a burly twenty-two-year-old adult with a bolo. On the substantive offense, the Court applied the settled doctrine that the gravamen of the offense of statutory rape is the carnal knowledge of a girl under twelve years of age, and that force or intimidation which negates consent need not even be proved. Moreover, the appellant did not categorically deny the acts imputed to him by Bacalso; instead of squarely refuting the latter's positive and clear testimony that Nescio raped and killed Geraldine Cuevas, Nescio's lame alibi was that he had left earlier. Alibi is not credible where the accused-appellant is only a short distance from the scene of the crime, and the defense of alibi is further offset by the positive identification made by the prosecution's witness. To reiterate a well-settled doctrine, alibi is accepted only upon the clearest proof that the accused-appellant was not or could not have been at the crime scene when it was committed. In this case, there was every possibility that the accused-appellant was present at the scene of the crime during the killing although, according to his own testimony, he was half a kilometer away. Finally, the Court noted that as the victim rolled unconscious after she was ravished, the appellant still hacked her, almost splitting her face in two; such bestiality is a form of cruelty and perversity which aggravated the crime, it being unnecessary to the commission thereof, and manifestly an outrage on the victim's person.

• Discharge of an Accused as a State Witness — Under Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended, an accused may be discharged and utilized as a witness for the state only upon satisfaction of five requisites: (1) absolute necessity for the testimony of the defendant whose discharge is requested; (2) no direct evidence available for the proper prosecution of the offense committed, except the testimony of the defendant; (3) the testimony of said defendant can be substantially corroborated in its material points; (4) said defendant does not appear to be the most guilty; and (5) said defendant has not at any time been convicted of any offense involving moral turpitude. In this case, the trial prosecutor moved for Bacalso's discharge upon being satisfied that these conditions were present, and the Court found no merit in the appellant's challenge to the validity of that discharge.

• Alibi — Alibi is accepted only upon the clearest proof that the accused was not or could not have been at the crime scene when it was committed. It is not credible where the accused is only a short distance from the scene of the crime, and it is further offset by the positive identification made by a prosecution witness. Nescio's claim that he had left earlier failed because his own testimony placed him half a kilometer away, leaving every possibility that he was present at the scene during the killing.

• Statutory Rape — The gravamen of the offense of statutory rape is the carnal knowledge of a girl under twelve years of age; force or intimidation which negates consent need not even be proved. The victim, Geraldine Cuevas, was eleven years old.

• Inadmissibility of an Extrajudicial Confession Taken Without Counsel; Res Gestae — An extrajudicial confession given during custodial investigation without the assistance of counsel is inadmissible in evidence. It is not part of the res gestae where it was made five days after the incident and not while the startling occurrence was taking place or immediately subsequent thereto, particularly where the declarant was still labouring under threats. The Joint Affidavit containing Bacalso's alleged verbal extrajudicial statements was thus properly discarded.

• Cruelty as an Aggravating Circumstance — Bestiality in the form of cruelty and perversity that is unnecessary to the commission of the crime and manifestly an outrage on the victim's person aggravates the offense. The Court noted that after the victim rolled unconscious from the ravishment, the appellant still hacked her, almost splitting her face in two.

• "It is settled doctrine that the gravamen of the offense of statutory rape is the carnal knowledge of a girl under twelve (12) years of age. Force or intimidation which negates consent need not even be proved." — This passage states the canonical formulation of the statutory rape doctrine, which the Court applied to the eleven-year-old victim and which is frequently cited in subsequent rape jurisprudence.
• "Alibi, to reiterate a well-settled doctrine, is accepted only upon the clearest proof that the accused-appellant was not or could not have been at the crime scene when it was committed." — This is the Court's restatement of the controlling standard for the defense of alibi, applied to reject Nescio's claim that he had left the scene earlier.
• "Alibi is not credible where the accused-appellant is only a short distance from the scene of the crime. The defenses of alibi is further offset by the positive identification made by the prosecution's witness." — This passage articulates the two-fold reason for rejecting the alibi: proximity to the locus criminis and the countervailing weight of positive identification.
• "We note that as the victim rolled unconscious after she was ravished, appellant still hacked her, almost splitting her face in two. Such bestiality is a form of cruelty and perversity which aggravated the crime, it being unnecessary to the commission thereof, and manifestly an outrage on the victim's person." — This passage characterizes the appellant's conduct as an aggravating circumstance of cruelty and perversity, and is cited for the principle that bestiality unnecessary to the commission of the crime aggravates it.

• People vs. Claveria, G.R. No. 94786, April 6, 1993, 221 SCRA 34 — Cited by the Court in support of its ruling rejecting the defense of alibi.
• People vs. Vergara, G.R. No. 103313, May 5, 1993, 221 SCRA 611 — Cited alongside Claveria in support of the same doctrine on alibi.

• Section 9, Rule 119, 1985 Rules on Criminal Procedure, as amended — Enumerates the five requisites for the discharge of one of several accused so that he may be utilized as a witness for the state. The trial prosecutor's motion to discharge Pablo Bacalso was grounded on satisfaction of these conditions, and the Court sustained the discharge on that basis.
• Republic Act No. 7659 — Referenced in the opening of the decision as having made rape with homicide, among other heinous crimes, punishable with a higher penalty effective December 31, 1993. The penalty imposed upon the appellant in this case was reclusion perpetua.

Bidin, Melo, and Vitug, JJ., concurred. Feliciano, J., was on leave.