Evidence Digested Cases

7/24/2019 Evidence Digested Cases

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Sec 44, Rule 130

G.R. No. 191972, January 26, 2015

HENRY ONG LY H!N,Petitioner, v."O#R$ O% &&ELS '2N( (!)!S!ON*, HON.

G+R!EL $. !NGLES, S &RES!(!NG J#(GE O% R$" +RN"H 5, "E+# "!$Y,N( $HE &EO&LE O% $HE &H!L!&&!NES,Respondents.

( E " ! S ! O N

LEONEN,J.-

(ocr/ne- The registry return card is the official . . . record evidencing service by mail. Itcarries the presumption that it was prepared in the course of official duties that have been

regularly performed [and, therefore,] it is presumed to be accurate, unless proven otherwise[.]

%ac-

On ebruary !, "###, the $T% of %ebu %ity convicted petitioner &enry Ong 'ay &in and

'eo Obsioma, (r. of the crime of estafa punishable under the $evised )enal %ode. * motion for

reconsideration of said decision was denied and the case had been further elevated to the %ourt

of *ppeals. The %ourt of *ppeals nevertheless affirmed the trial court+s ruling thereby

remanding the case to the latter for eecution. It was only after the lapse of si years when

petitioner Ong was arrested in )asay %ity and to which, he filed with the -upreme %ourt a

)etition for %ertiorari, )rohibition and andamus with application for preliminary and/or

mandatory in0unction alleging that he did not receive notice of the denial of his appeal and if

fault be attributed, such may be blamed upon his counsel+s negligence to inform him of the samethereby denying him of his right to due process. The )eople of the )hilippines commented that

the registry return card corresponding to the copy of the %ourt of *ppeal+s $esolution sent to

Ong+s former counsel indicated that his counsel received the resolution on *pril "1, "##2.

ailure therefore by the petitioner to appeal within the reglementary period rendered the

0udgment against him final and eecutory.

!ue-3hether the registry return card sent to Ong+s former counsel served as valid notice ofdenial of petitioner+s appeal.

Rul/n-

Ye. $e re/ry reurn car en o On orer counel / al/ an 8/n/n /e :e//oner.

The registry return card is the official . . . record evidencing service by mail.It carries

the presumption that it was prepared in the course of official duties that have been regularly

performed [and, therefore,] it is presumed to be accurate, unless proven otherwise[.]Prepared by:Domingo, Roxanne G.2011-015291


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)etitioner failed to rebut this presumption.

The affidavits of petitioner+s wife and mother4in4law, ary *nn Ong and 5ila apilit, stating

that petitioner+s former counsel told them that the law office never received a copy of the

$esolution, are inadmissible in evidence for being hearsay. oreover, contrary to petitioner+sfalse claim, his former counsel had notice that the %ourt of *ppeals denied the otion for

$econsideration as early as *pril "6, "##7 when his counsel received a copy of the trial court+sOrder directing the issuance of a warrant of arrest against petitioner.

3ith petitioner failing to rebut this presumption, it must be presumed that his former counselreceived a copy of the $esolution on *pril "1, "##2 as indicated in the registry return card. The

684day period to appeal commenced from this date.-ince petitioner did not file an *ppeal within

68 days from *pril "1, "##2, the 9ecision became final and eecutory on ay 68, "##2.

%onse:uently, the %ourt of *ppeals did not gravely abuse its discretion in issuing the ;ntry of

(udgment, which declared petitioner+s conviction final and eecutory as of ay 68, "##2.


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Sec/on 44, Rule 130

G.R. No. 207635, %e8ruary 1, 2015

&EO&LE O% $HE &H!L!&&!NES,Plaintiff-Appellee, v.(N$E (EL &E;1N(

(ENN!S (EL!


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Rul/n-

Ye, e :roecu/on eec/ely ea8l/e e eleen o e cr/e care.

The elements necessary for the prosecution of a charge for illegal sale of dangerous drugs under

-ection 8, *rticle II of $.*. 16@8 areF B6C the identities of the buyer and the seller, the ob0ect, andthe considerationG and B"C the delivery of the thing sold and the payment therefor.

On the other hand, the elements of the crime of illegal possession of dangerous drug areF BaC the

accused is in possession of an item or ob0ect that is identified to be a prohibited or dangerous

drugG BbC such possession is not authoriHed by lawG and BcC the accused freely and consciously

possessed the drug.

*ll the elements of the crimes of illegal sale and illegal possession ofshabu, a dangerous drug,

were clearly proven by the prosecution through the credible testimony of IO6 Dintanar. The

identity of the parties to the sale transaction B9ela )eAa and IO6 DintanarC involving the sub0ect

sachet ofshabu worth )2##.## and the consummation of the sale were duly established by IO6

Dintanar. IO6 Dintanar+s testimony li=ewise established the illegal possession of sachets

ofshabuby 9ela )eAa and 9elima. 5o ill4motive was shown by the defense for IO6 Dintanar to

un0ustly implicate 9ela )eAa and 9elima in the present cases. 3here there is no evidence that

the principal witness for the prosecution was actuated by improper motive, li=e IO6 Dintanar in

the present case, the presumption is that he was not actuated and his testimony is entitled to full

faith and credit.

The contents of the plastic sachet sold by 9ela )eAa to IO6 Dintanar and the four sachets foundin the former+s possession, as well as, the single sachet seiHed from 9elima, all tested positive for

Methamphetamine Hydrochlorideorshabu, a dangerous drug, upon the laboratory eamination

conducted by % -ahagun. &er findings are contained in %hemistry $eport 5o. 94@@24"##!, the

genuineness and due eecution of which was admitted by the defense. >erily, the report of a

government forensic chemist regarding a recovered prohibited drug en0oys the presumption of

regularity as to its preparation. ?eing an official record made in the performance of %

-ahagun+s official duty, the entries in %hemistry $eport 5o. 94@@24"##! areprima

facieevidence of the facts they state. 9ela )eAa and 9elima failed to overcome with competent

evidence the positive findings forshabuof the contents of the sub0ect sachets as contained in

%hemistry $eport 5o. 94@@24"##!.

Prepared by:Domingo, Roxanne G.2011-015291


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*t any rate, this %ourt finds nothing out of the ordinary nor irregular in the mailing of the

motion of respondents as would put in doubt the timeliness of its filing. The mailing of the

motion was done on the deadline for the filing and service of such, which was October "6, "##8,

as indicated by the post office on the envelopes as well as in the registry receipts sent to the

5'$%. Thus, the motion is considered filed on that date and the filing was on time. )etitioner

does not dispute but even admits the fact that the envelopes and registry receipts bear that date.

The rule is that whenever the filing of a motion or pleading is not done personally, the date of

mailing Bby registered mailC, as indicated by the post office on the envelope or the registry

receipt, is considered as the date of filing. The fact that the post office indicated October "6,

"##8 on the envelope and receipts as the mailing date, as eamined first4hand by the 5'$%

based on its records, entitles respondents to the presumption that the motion was indeed mailed

on said date. Official duties in this case, of a post office employee are presumed to be

regularly performed, unless there is an assertion otherwise and the one so asserting rebuts such

with affirmative evidence of irregularity or failure to perform a duty. In addition, the stamps and

mar=s made by the postal wor=er are considered entries in the regular course of duty which areconsidered accurate unless proven otherwise.



7/27

Sec/on 40 an 41, Rule 130

G.R. No. 212336, July 15, 2015

&EO&LE O% $HE &H!L!&&!NES,Plaintiff-Appellee, v.RSEN!O (.

Appellant.

( E " ! S ! O N

)!LLR


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be found guilty of simple rape because ***+s minority was not proven in evidence in accord

with 0urisprudence.

!ue- 3hether accused4appellant could only be charged of simple rape instead of statutory rapein relation to violation of $* E@6# because of the absence of ***+s %ertificate of 'ive ?irth to

the prosecution+s formal offer.

Rul/n-

ccue?a::ellan can only 8e care o /:le ra:e.

This %ourt has held that for minority to be considered as an element of a crime or a

:ualifying circumstance in the crime of rape, it must not only be alleged in the Information, but itmust also be established with moral certainty.


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@. The trial court should always ma=e a categorical finding as to the age of the victim. B%itations

omittedC

*bsent ***Js certificate of live birth and other means by which her age as alleged in the

Information could have been ascertained beyond doubt, this %ourt is constrained to agree withthe %* and deem the crime committed as simple rape.



10/27

Sec/on 42, Rule 130

G.R. No.179535 June 9, 2014

JOSE ES&!NEL! [email protected]. (N!LO ES&!NEL!,)etitioner,

vs.&EO&LE O% $HE &!(L!&&!NES,$espondent.

$ ; - O ' < T I O 5

(EL "S$!LLO,J.:

(ocr/ne- ;vidence is hearsay when its probative force depends in whole or in part on thecompetency and credibility of some persons other than the witness by whom it is sought toproduce. &owever, while the testimony of a witness regarding a statement made by another

person given for the purpose of establishing the truth of the fact asserted in the statement is

clearly hearsay evidence, it is otherwise if the purpose of placing the statement on the record ismerely to establish the fact that the statement, or the tenor of such statement, was made.

$egardless of the truth or falsity of a statement, when what is relevant is the fact that such

statement has been made, the hearsay rule does not apply and the statement may be shown. *s amatter of fact, evidence as to the ma=ing of the statement is not secondary but primary, for the

statement itself may constitute a fact in issue or is circumstantially relevant as to the eistence of

such a fact. This is =nown as the doctrine of independently relevant statements.

%ac-

In the early evening of 9ecember 68, 611@, *lberto ?erbon y 9ownie, a 714year old

-enior 9es= %oordinator of the radio station 9L, was shot in the head and different parts ofthe body in front of his house in Imus, %avite. eanwhile, the group of *tty. Orly 9iHon of the

5ational ?ureau of Investigation B5?IC arrested and too= into custody one $omeo $eyes for thecrime of Illegal )ossession of 9eadly 3eapon. $eyes confided to the group of *tty. 9iHon that

he was willing to give vital information regarding the ?erbon case. In due course, 5?I *gent

9ave -eguinal interviewed $eyes and reduced the latter+s statement into writing whereby $eyesclaimed that on 9ecember 68, 611@, he saw petitioner and -otero )aredes board a red car while

armed with a .78 caliber firearm and armalite respectivelyG and that petitioner told )aredes that

ayaw =o nang abutin pa ng bu=as yang si ?erbon. -ubse:uently, $eyes was released upon

posting bail but was never again heard of. 9uring trial, 5?I *gent -eguinal testified on thesefacts. The trial court convicted petitioner and others of the crime of murder considering the

aggravating circumstance of night time and abuse of authority which was modified by the %ourtof *ppeals to homicide.

!ue- 3hether the prosecution failed to prove the guilt of the petitioner beyond reasonabledoubt since it was only the 5?I *gent who testified on the fact that $eyes saw the accused on

the date of ?erbon+s assault.



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Rul/n-

$e :roecu/on a a8le o :roe :e//oner u/l 8eyon reaona8le ou8rou e c/rcuan/al e/ence a a/e e cae.

5?I *gent -egunial testified that he had investigated $eyes and reduced the latter+sstatement into writing declaring, among others, that in the morning of 9ecember 68, 611@, he

B$eyesC overheard petitioner telling -otero M*yaw =o nang abutin pa ng bu=as yang si ?erbonM

and saw them armed with .78 caliber pistol and an armalite, respectively, before boarding a redcar. The %* gave weight to $eyes+ sworn statement in this wiseF

The probative value of $omeo $eyes+s sworn statement as to the words spo=en by appellant to

his co4accused -otero )aredes in the morning of 9ecember 68, 611@ cannot be disputed.

The hearsay evidence rule as provided under -ection 2@, $ule 62# of the $ules of %ourt statesF

-ec. 2@. Testimony generally confined to personal =nowledgeG hearsay ecluded. * witness cantestify only to those facts which he =nows of his personal =nowledgeG that is, which are derived

from his own perception, ecept as otherwise provided in these rules.

;vidence is hearsay when its probative force depends in whole or in part on the competency and

credibility of some persons other than the witness by whom it is sought to produce. &owever,while the testimony of a witness regarding a statement made by another person given for the

purpose of establishing the truth of the fact asserted in the statement is clearly hearsay evidence,

it is otherwise if the purpose of placing the statement on the record is merely to establish the fact

that the statement, or the tenor of such statement, was made. $egardless of the truth or falsity ofa statement, when what is relevant is the fact that such statement has been made, the hearsay rule

does not apply and the statement may be shown. *s a matter of fact, evidence as to the ma=ing ofthe statement is not secondary but primary, for the statement itself may constitute a fact in issue

or is circumstantially relevant as to the eistence of such a fact. This is =nown as the doctrine of

independently relevant statements.

In the present case, the testimony of 5?I *gent -egunial that while he was investigating $eyes,the latter confided to him that he B$eyesC heard petitioner telling -otero M*yaw =o nang abutin pa

ng bu=as yang si ?erbonM and that he saw the two Bpetitioner and -oteroC armed with a .78

caliber pistol and an armalite, respectively, before boarding a red car, cannot be regarded as

hearsay evidence. This is considering that 5?I *gent -egunial+s testimony was not presented toprove the truth of such statement but only for the purpose of establishing that on ebruary 6#,

611E, $eyes eecuted a sworn statement containing such narration of facts. This is clear from the

offer of the witness+ oral testimony. oreover, 5?I *gent -egunial himself candidly admittedthat he is incompetent to testify on the truthfulness of $eyes+ statement. >erily then, what the

prosecution sought to be admitted was the fact that $eyes made such narration of facts in his

sworn statement and not necessarily to prove the truth thereof. Thus, the testimony of 5?I *gent



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-egunial is in the nature of an independently relevant statement where what is relevant is the fact

that $eyes made such statement and the truth and falsity thereof is immaterial. In such a case, the

statement of the witness is admissible as evidence and the hearsay rule does not apply.



13/27

Sec/on 44, Rule 130

G.R. No. 11459 June 9, 2014

"Ovs.


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15/27

Sec/on 42, Rule 130

G.R. No. 196735 appellants.

9 ; % I - I O 5

LEONEN,J.:

(ocr/ne- *s a general rule, M[a] witness can testify only to the facts he =nows of his personal=nowledgeG that is, which are derived from his own perception, .M *ll other =inds of

testimony are hearsay and are inadmissible as evidence. The $ules of %ourt, however, provideseveral eceptions to the general rule, and one of which is when the evidence is part of res

gestae, thusF

-ection 7". )art of res gestae. 4 -tatements made by a person while a starting occurrence is

ta=ing place or immediately prior or subse:uent thereto with respect to the circumstancesthereof, may be given in evidence as part of res gestae. -o, also, statements accompanying an

e:uivocal act material to the issue, and giving it a legal significance, may be received as part of

the res gestae.

In )eople v. $odrigo -alafranca, this court has previously discussed the admissibility of

testimony ta=en as part of res gestae, stating thatF

* declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence

as an eception to the hearsay rule when the following re:uisites concur, to witF BaC the principal

act, the res gestae, is a startling occurrenceG BbC the statements are made before the declarant hadtime to contrive or deviseG and BcC the statements must concern the occurrence in :uestion and its

immediately attending circumstances.

%ac-

On 9ecember !, 6117, at around 6"F2# to 6F## in the afternoon, seven BEC members of the

-igma $ho fraternity were eating lunch at the ?each &ouse %anteen, near the ain 'ibrary ofthe enturina, died from his in0uries. The

victims who survived the attac= reported the incident to the 5?I four days after the same too=

place. *fter the filing of the criminal information for murder, the trial court convicted the

accused4appellants of the same. *fter an automatic review with the %ourt of *ppeals, the case



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was elevated to the -upreme %ourt wherein one of the contentions of the accused4appellants in

order to obtain a reversal of the 0udgment is the fact that the testimonies of the


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contemporaneous with the main fact as to eclude the idea of deliberation and

fabrication. The rule on res gestae encompasses the eclamations and statements made by

either the participants, victims, or spectators to a crime immediately before, during, orimmediately after the commission of the crime when the circumstances are such that the

statements were made as a spontaneous reaction or utterance inspired by the ecitement

of the occasion and there was no opportunity for the declarant to deliberate and tofabricate a false statement. The test of admissibility of evidence as a part of the res gestae

is, therefore, whether the act, declaration, or eclamation is so intimately interwoven or

connected with the principal fact or event that it characteriHes as to be regarded as a partof the transaction itself, and also whether it clearly negatives any premeditation or

purpose to manufacture testimony.

There is no doubt that a sudden attac= on a group peacefully eating lunch on a school

campus is a startling occurrence. %onsidering that the statements of the bystanders were madeimmediately after the startling occurrence, they are, in fact, admissible as evidence given in res

gestae.

In )eople v. *lbarido, however, this court has stated that Min accord to ordinary human

eperienceFM

persons who witness an event perceive the same from their respective points of reference.Therefore, almost always, they have different accounts of how it happened. %ertainly, we cannot

epect the testimony of witnesses to a crime to be consistent in all aspects because different

persons have different impressions and recollections of the same incident.

B;mphasis suppliedC

The statements made by the bystanders, although admissible, have little persuasive valuesince the bystanders could have seen the events transpiring at different vantage points and at

different points in time. ;ven risco %apilo, one of the bystanders at the time of the attac=,testified that the attac=ers had their mas=s on at first, but later on, some remained mas=ed and

some were unmas=ed.

3hen the bystandersJ testimonies are weighed against those of the victims who witnessed

the entirety of the incident from beginning to end at close range, the former become merelycorroborative of the fact that an attac= occurred. Their account of the incident, therefore, must be

given considerably less weight than that of the victims.



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Sec/on 42, Rule 130

G.R. No. 19022 :r/l 7, 2014

&EO&LE O% $HE &H!L!&&!NES,)laintiff4*ppellee,

vs.SONNY G$R!N y "+LLERO FJY?RF an E(#R(O #!SYS, *ccused,

E(#R(O #!SYS,*ccused4*ppellant.

9 ; % I - I O 5

&ERL$,J.:

(ocr/ne- $es gestae refers to the circumstances, facts, and declarations that grow out of themain fact and serve to illustrate its character and are so spontaneous and contemporaneous with

the main fact as to eclude the idea of deliberation and fabrication. The test of admissibility ofevidence as a part of the res gestae is, therefore, whether the act, declaration, or eclamation, is

so interwoven or connected with the principal fact or event that it characteriHes as to be regardedas a part of the transaction itself, and also whether it clearly negates any premeditation or

purpose to manufacture testimony.

%ac-

On 5ovember 2, "##7 at ! o+cloc= in the evening,


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Rul/n-

6. $e aeen ae 8y Januar/o o S&O3 erily, the =illing of (anuario, perpetrated by appellant, is ade:uately proven by

the prosecution.

". $e cr/e o ro88ery / o/c/e a care /n e /nora/on oul no 8eu:el. !nea, e cr/e o urer :ro:erly u/ e cae.

It is, therefore, clear from the foregoing that the evidence presented to prove the robberyaspect of the special comple crime of robbery with homicide, does not show that robbery

actually too= place. The prosecution did not convincingly establish the corpus delicti of the

crime of robbery.

In this case, the element of ta=ing, as well as the eistence of the money alleged tohave been lost and stolen by appellant, was not ade:uately established. 3e find no sufficient

evidence to show either the amount of money stolen, or if any amount was in fact stolen from

(anuario. ;ven if we consider (anuario+s dying declaration, the same pertains only to thestabbing incident and not to the alleged robbery.

rom the evidence presented, we find that as alleged in the information, abuse of superior

strength attended the commission of the crime, and thus, :ualifies the offense to murder.

*buse of superior strength is considered whenever there is a notorious ine:uality of forcesbetween the victim and the aggressor, assessing a superiority of strength notoriously

advantageous for the aggressor which the latter selected or too= advantage of in the

commission of the crime.



20/27

Sec/on 44, Rule 130

G.R. No. 201011 January 27, 2014

$HERES!$, J#N, S#N"!ON, &$RO"!N!, R!"R(O, an GLOR!, all

urnae (!


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Rul/n-

*s to the hearsay rule, -ection 77 of $ule 62# of the $ules of %ourt similarly provides

that entries in official records are an eception to the rule. The rule provides that entries inofficial records made in the performance of the duty of a public officer of the )hilippines, or by a

person in the performance of a duty specially en0oined by law, are prima facie evidence of thefacts therein stated. The necessity of this rule consists in the inconvenience and difficulty of

re:uiring the officialJs attendance as a witness to testify to the innumerable transactions in thecourse of his duty. The documentJs trustworthiness consists in the presumption of regularity of

performance of official duty.

%adastral maps are the output of cadastral surveys. The 9;5$ is the department tas=edto eecute, supervise and manage the conduct of cadastral surveys. It is, therefore, clear that the

cadastral map and the corresponding list of claimants :ualify as entries in official records as they

were prepared by the 9;5$, as mandated by law. *s such, they are eceptions to the hearsay

rule and are prima facie evidence of the facts stated therein.



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Sec/on 40?41, Rule 130

GR. No. 212924 July 29, 2015

&EO&LE O% $HE &H!L!&&!NES,Plaintiff-Appellee,

-versus-

ENR!#E GL)E=,Accused-Appellant.

(E"!S!ON

VILLARAMA, JR., J.:

(ocr/ne-*s to the age of the victim as a component of the :ualifying circumstance, the case of

People v. Flores laid down the following guidelines on how to prove the age of the offended

partyF

2. If the certificate of live birth or authentic document is shown to have been lost or

destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim+smother or a member of the family either by affinity or consanguinity who is :ualified to

testify on matters respecting pedigree such as the eact age or date of birth of the

offended party pursuant to -ection 7#, $ule 62# of the $ules on ;vidence shall be

sufficient under the following circumstancesFa. If the victim is alleged to be below 2 years of age and what is sought to be

proved is that she is less that E years oldG

b. If the victim is alleged to be below E years of age and what is sought to beproved is that she is less than 6" years oldG

c. If the victim is alleged to be below 6" years of age and what is sought to be

proved is that she is less than 6! years old.

%ac-On four different dates, the accused4appellant had carnal =nowledge of the victim ***

who positively identified the former as her uncle and perpetrator of the crime. The $egional Trial

%ourt of Olongapo %ity convicted the accused of four counts of seual abuse under $* E@6# and

four counts of rape punishable under the $evised )enal %ode. The %ourt of *ppeals, uponappeal, affirmed with modifications the ruling of the trial court. The %* ruled that accused4

appellant can only be convicted of the crime of :ualified rape on the ground that he may not be

sub0ected to criminal liability twice for both seual abuse under -ec. 8BbC *rticle III, $* E@6#and rape under *rticle 228 of the $)% for the same act.

!ue- 3hether accused4appellant+s conviction of the crime of :ualified rape is proper.



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Rul/n-No, accue?a::ellan oul only 8e con/ce o /:le ra:e 8ecaue e

Iual/y/n c/rcuance o e /c/ 8e/n 8elo 1 year o ae cou:le / e ac ae oener / a rela/e o a/ /c/ a no 8een ully ea8l/e.

3ith respect to the element that ma=es the offense :ualified rape, that is, the minority ofthe victim coupled with the fact that the accused is related to her within the third civil degree, it

bears stressing that both minority and the third degree relationship must be established.

*s to the age of the victim as a component of the :ualifying circumstance, the case of

People v. Floreslaid down the following guidelines on how to prove the age of the offended

partyF

6. The best evidence to prove the age of the offended party is an original or certified

true copy of the certificate of live birth of such party.". In the absence of a certificate of live birth, similar authentic documents such as

baptismal certificate and school records which show the date of birth of the victim would suffice

to prove age.2. If the certificate of live birth or authentic document is shown to have been lost or

destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim+s mother or

a member of the family either by affinity or consanguinity who is :ualified to testify on mattersrespecting pedigree such as the eact age or date of birth of the offended party pursuant to

-ection 7#, $ule 62# of the $ules on ;vidence shall be sufficient under the following

circumstancesF

a. If the victim is alleged to be below 2 years of age and what is sought to beproved is that she is less than E years oldG

b. If the victim is alleged to be below E years of age and what is sought to be

proved is that she is less than 6" years oldGc. If the victim is alleged to be below 6" years of age and what is sought to be

proved is that she is less than 6! years old.

7. In the absence of a certificate of live birth, authentic document, or the testimony of the

victim+s mother or relatives concerning the victim+s age, the complainant+s testimony will suffice

provided that it is epressly and clearly admitted by the accused.8. It is the prosecution that has the burden of proving the age of the offended party. The

failure of the accused to ob0ect to the testimonial evidence regarding age shall not be ta=en

against him.

InPeople v. Ortega, we eplained how to resolve this doubt in the victim+s ageF

Niven the doubt as to ***+s eact age, the $T% properly convictedOrtega only of simple rape punishable by reclusion perpetua.

InPeople v. Alvarado, we did not apply the death penalty becausethe victim+s age was not satisfactorily established, thusF



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3e agree, however, that accused4appellant should not

have been meted the death penalty on the ground that the

age of complainant was not proven beyond reasonabledoubt. The information alleged that, on (uly "@, 611E, the

date of the rape, *rlene was 67 years old. In her testimony,

*rlene stated that she was 67 years old at the time of theincident. *ccused4appellant confirmed this during the

presentation of the defense evidence, but 'onelisa

*lvarado, complainant+s mother, testified that *rlene wasborn on 5ovember "2, 61!2, which would mean she was

only 62 years old on the date of the commission of the

crime. 5o other evidence was ever presented, such as her

certificate of live birth or any other document, to prove*rlene+s eact age at the time of the crime. /nor/y /a Iual/y/n c/rcuance, / u 8e :roe / eIualcera/ny an clearne a e cr/e /el. $ere u

8e /ne:enen e/ence :ro/n e ae o e /c/,oer an e e/on/e o e :roecu/on /neean e a8ence o en/al 8y accue?a::ellan. S/nceere / ou8 a o rlene eAac ae, accuea::ellan u 8e el u/ly o /:le ra:e only anenence o reclusion perpetua.

It must li=ewise be remembered that the minority of the victim must concur with thesecond component which is the third degree relationship between the victim and the offender. *s

to such second component of the :ualifying circumstance,People v. ibo-onteachesF

It is well4settled that this attendant circumstance, as well as the other

circumstances /nrouce 8y Re:u8l/c c No. 7659 and !712 are in the natureof :ualifying circumstances. These attendant circumstances are not ordinaryaggravating circumstances which merely increase the period of the penalty.

$ather, these are special :ualifying circumstances which u 8e :ec//cally:leae or allee / cera/ny /n e /nora/onG otherwise, the deathpenalty cannot be imposed. In this regard, we have previously held that if theoffender is merely a relation not a parent, ascendant, step4parent, or guardian or

common4law spouse of the mother of the victim it must be alleged in the

information that he is a relative by consanguinity or affinity Bas the case may beCwithin the third civil degree.

Thus, in the instant case, e allea/on a accue?a::ellan / e uncle o :r/aeco:la/nan / no :ec//c enou o a/y e :ec/al Iual/y/n c/rcuance orela/on/:. The relationship by consanguinity or affinity between appellant and complainant



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was not alleged in the information in this case. ;ven if it were so alleged, / a /ll necearyo :ec//cally allee a uc rela/on/: a //n e /r c//l eree.B%itations omittedG emphasis and underscoring suppliedC

-ince the Informations contained only a statement that the accused appellant was the

uncle of *** without stating that they were relatives within the third civil degree, the :ualifyingcircumstance of relationship cannot li=ewise be appreciated in the case at bar.



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