People vs. Molero

A provisional dismissal expressly without prejudice to the filing of a new complaint to correct the alleged date of rape — time not being a material element of the offense — does not amount to an acquittal and does not bar subsequent prosecution, while rape is established by force, intimidation with a deadly weapon, and the moral ascendancy of a father over his minor daughter.

Pablo Molero was the father of Pacita Molero, the third among his seven children. Philippine law punishes rape under Art. 335 of the Revised Penal Code when carnal knowledge is committed through force or intimidation, with the paternal relationship constituting grave abuse of confidence and a source of moral ascendancy. Prosecution proceeds upon complaint, subject to the constitutional guarantee against double jeopardy and to rules permitting amendment of the complaint as to matters of form and provisional dismissal for correction of the charge.

Pablo Molero was the father of Pacita Molero, born November 11, 1958 and thus barely 17 years old on February 5, 1976, the third of seven children living with the family in Tamlang, Sta. Catalina, Negros Oriental. On the morning of February 5, 1976 at about 9:00 o'clock, Pablo told Pacita to go with him to the Siaton River about a kilometer from their house, ostensibly to catch shrimps and fish for viand. The riverbank was secluded.

While walking along the bank with Pacita ahead, Pablo suddenly hugged her from behind. She staggered and fell face up, with her left hand held behind her back and Pablo kneeling on her right arm. When she struggled, he unsheathed his harp bolo locally known as pinuti and placed it along her side. He pulled up her one-piece dress and removed her short pants and panty together. When she cried asking why he was doing this, he answered to shut up. He then unbuttoned his improvised short pants, lay on top of her, raised her dress to her stomach, forced her thighs open when she tried to keep them together, and performed push-and-pull movement. When she kicked during intercourse, he again seized the bolo at his side, and fearing harm she submitted and cried. After satisfying his lust, he stood up, she dressed, and he warned her not to tell her mother or he would kill all of them. He followed her home instead of fishing, and she remained silent until February 8, 1976, when, according to her, she decided to report whether he would kill them because she could no longer endure what he had been doing.

Her mother told her to keep quiet for the moment and they would report soon, fearing Pablo as a fierce, cruel husband and merciless father. On February 11, 1976, Pacita and her mother reported to the Station Commander of Pamplona, where father and daughter confronted each other and Pacita said this could not have happened if he had not abused her. Referred to PC Headquarters at barrio Palanas, Patrolman Arturo Adriatico, Sr. took statements. Investigated February 25, 1976, Pablo resisted continuation as their own problem, stating in Visayan that it was his own fault in family life and that he had committed a wrong against his daughter wherein he destroyed her virtue as a woman, embodied in his sworn statement marked Exhibit B. Dr. Enofreda Abordo-Sebul, who examined Pacita, found the vaginal opening admitted two fingers freely and easily with old hymenal lacerations at multiple clock positions, indicating several previous intercourses, though cervical smear showed no spermatozoa.

For his defense, Pablo denied the charge and claimed alibi that on February 5, 1976 he was already confined in the provincial jail since December 1975. He disclaimed knowledge of his sworn statement because he was illiterate, claimed denial during PC investigation, and asserted lack of counsel and warnings. Supervising Prison Guard Benjamin Alcorcon refuted the alibi from jail records, testifying Pablo was committed only on December 2, 1976 and definitely was not confined there on February 5, 1976. The trial court credited Pacita's vivid testimony over the bare denial, noting Pablo was bound by his own witness Pacita when presented for the defense confirming intercourse on February 5, 1976 at the river, and that confusion on dates was understandable for an illiterate complainant who signed with a thumbmark.

• Double Jeopardy: Petitioner argued that dismissal of Criminal Case No. 2148 barred the March 30, 1978 prosecution because the variance between the February 13, 1976 allegation and February 5, 1976 proof amounted to acquittal, invoking Sec. 1(h), Rule 112 and citing People vs. Opemia.
• Absence of Force and Intimidation: Petitioner maintained that the evidence failed to establish force and intimidation, pointing to Pacita's testimony of sexual intercourses since age thirteen without report to her mother, and argued that if any crime was committed it was qualified seduction, not rape.

• Double Jeopardy: Whether prosecution under the March 30, 1978 complaint for rape committed February 5, 1976 placed the accused twice in jeopardy after dismissal of the earlier complaint alleging February 13, 1976.
• Commission of Rape: Whether the accused committed rape through force and intimidation, or at most qualified seduction, in light of the delayed reporting and alleged prior intercourses.

• Double Jeopardy: No. Double jeopardy did not attach because the dismissal was expressly without prejudice and provisional, not an acquittal, to correct a formal variance in date.
• Commission of Rape: Yes. Rape was committed, force and intimidation having been proved by physical restraint, bolo threat, and paternal moral ascendancy over a 17-year-old illiterate daughter.

• Double Jeopardy: Dismissal bars reprosecution only when definite or unconditional and with the effect of acquittal after valid charge, competent court, and plea. Here the order expressly retained custody, directed filing of a new complaint for rape on or before February 5, 1976, and was intended solely to change on or about February 13 to on or about February 5. Because the first proceeding was not terminated, there was no second proceeding within the constitutional guarantee. Moreover, amendment should simply have been allowed: under Sections 10 and 13, Rule 110, precise time need not be stated except when material, and amendment as to form after plea is allowed by leave without prejudice. Time is not an essential element of rape, and an eight-day difference under on or about does not surprise or prejudice, unlike the five-year change disallowed in People vs. Opemia; People vs. Rivera and People vs. Borromeo permit such formal correction.
• Commission of Rape: The detailed narration showed restraint from behind, pinning of both arms, forcible removal of clothing, spreading of thighs, and repeated resort to the unsheathed bolo with death threats, overcoming resistance and struggle. Intimidation was reinforced by moral ascendancy as father over a 17-year-old illiterate daughter, his fierce and cruel character, and fear instilled in mother and daughter delaying report. Prior intercourses since age thirteen constitute distinct crimes and do not negate force in the February 5, 1976 act; an intimidated victim may later acquire courage to denounce repeated abuse. Credibility was sustained against bare denial, disproved alibi per jail records, admissions in Exhibit B, and corroboration by the accused's own presentation of Pacita confirming intercourse at the river.

• Double jeopardy; requisites and dismissal as bar — Protection requires prior conviction, acquittal, or dismissal without express consent by a competent court upon a valid charge after plea. Dismissal bars only if definite or unconditional terminating the case and having the effect of acquittal. Applied here, the order directing a new complaint within thirty days was provisional, retained custody, and therefore did not terminate jeopardy.
• Amendment of complaint as to time; time not material in rape — Under Sections 10 and 13, Rule 110, precise time need not be alleged except when material, and amendment as to form after plea may be allowed without prejudice. An on or about allegation permits proof of a near date unless so remote as to surprise. Applied here, changing February 13, 1976 to February 5, 1976 was mere form and properly allowable without dismissing and refiling.
• Rape through moral ascendancy and intimidation — Force and intimidation in rape may be established not only by physical violence and weapon threats but by the moral ascendancy of a father over a young, illiterate daughter, combined with fear of a cruel parent. Applied here, pinning, bolo threats, paternal dominance, and secretive fear sufficed to render the victim helpless, following People vs. Alcid.
• Credibility in rape; delay and prior acts — Failure to immediately report and confusion on dates do not impair credibility when explained by illiteracy, fear, threats, and continued intimidation, and prior intercourses are separate offenses. Applied here, three-day delay, reporting through the mother to police, and earlier abuse since age thirteen did not negate the distinct February 5, 1976 rape.

• "I have commited a wrong against my own daughter wherein I destroyed her virtue as a woman." — Records the accused's elaboration during PC investigation of his own fault, embodied in Exhibit B and relied upon as admission corroborating the complainant.
• "for dismissal to be a bar under the jeopardy clause of the Constitution, it must have the effect of acquittal." — States the controlling test for when dismissal triggers double jeopardy, applied to hold the provisional dismissal without prejudice no bar.
• "I just decided to report the matter to my mother whether he will kill all of us because I could no longer endure what he had been doing to me." — Captures the complainant's explanation for delayed disclosure after threats to kill the family, supporting credibility despite prior unreported acts.

• People vs. Opemia, 98 Phil. 698 — Distinguished; disallowed amendment changing 1947 to 1952 as material and prejudicial, unlike the eight-day correction here.
• People vs. Rivera, 33 SCRA 746 — Followed; amendment of date by one year held mere form, supporting allowance of the eight-day change.
• People vs. Borromeo, 123 SCRA 253 — Followed; two-month disparity allowed as approximation where on or about used, contrasted with five-year gap in People vs. Reyes.
• People vs. Bocar, 138 SCRA 166 — Followed; dismissal not amounting to acquittal does not ground double jeopardy.
• People vs. Alcid, 135 SCRA 280 — Followed; moral ascendancy and threats render victim helpless, applied to father-daughter rape.

• Art. 335, Revised Penal Code — Defines and penalizes rape; applied to convict upon proof of carnal knowledge through force and intimidation with grave abuse of confidence by the father.
• Sec. 22, Art. IV, 1973 Constitution — Provides no person shall be put twice in jeopardy for the same offense; held not violated because first case was not terminated by acquittal.
• Sec. 9, Rule 117, Revised Rules of Court (now Sec. 7, Rule 117, 1985 Rules) — States when conviction, acquittal, or dismissal bars another prosecution; applied to require unconditional dismissal with effect of acquittal.
• Sec. 12, Rule 119, Revised Rules of Court — Governs dismissal for mistake in charging proper offense with direction to file proper charge; invoked by trial court but deemed unnecessarily cumbersome for mere date correction.
• Secs. 10 and 13, Rule 110, Revised Rules of Court — Provide time need not be precisely stated unless material and amendment as to form may be allowed after plea without prejudice; applied to permit changing February 13 to February 5.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur. No separate concurring reasoning is set forth in the text.