Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 88582 March 5, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HEINRICH S. RITTER, accused-appellant,

The Solicitor General for plaintiff-appellee.

Esteban B. Bautista for accused-appellant.

GUTIERREZ, JR., J.:

The appellant challenges his conviction of the crime involving a young girl of about 12 years old who
had been allegedly raped and who later died because of a foreign object left inside her vaginal
canal.

Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which
reads:

That on or about the tenth (10th day of October, 1986 in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design and with intent to kill one Rosario Baluyot, a woman under twelve (12) years of age,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of said Rosario
Baluyot and inserted a foreign object into the vaginal canal of said Rosario Baluyot which
caused her death shortly thereafter, to the damage and prejudice of her relatives. (66)

When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the
merits.

To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1)
Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr.
Reino Rosete, (6) Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva Palencia, (9) Conrado
Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento, (14)
Patricia Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino
Z. Floresta, (22) Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.

On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1)
Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar Alcantara, (5) Dr.
Val Barcinal and (6) Dr. Pedro C. Solis.

The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt
are summarized in its decision, as follows:

The people's evidence show that on October 10, 1986 about midnight, accused Heinrich
Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his
hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2) children
were chosen from among a bunch of street children. Once inside the hotel room accused
told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and when
he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot
was inside the bathroom, accused Ritter took out some pictures depicting dressed up young
boys, and put them on top of the table. Other things which were taken out and placed on top
of a table were three (3) other objects which he described as like that of a vicks inhaler. One
of these objects the accused played with his hands and placed it on his palms. The color of
which is grayish blue which turned out later to be the foreign object which was inserted inside
the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal
inhalers against pollution purchased by the accused in Bangkok when he went there as a
tourist. While Rosario was in the bathroom, accused told Ramirez to lay down on bed, and
so did the accused. He then started masturbating the young boy and also guided the boy's
hand for him to be masturbated, so that they masturbated each other, while they were both
naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out of the
bathroom, she was told to remove her clothes by accused and to join him in bed. The
accused then placed himself between the two (2) children and accused started fingering
Rosario.

At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He
looked, and he saw accused placing his penis against the vagina of Rosario and that he was
trying to penetrate the vagina but it would not fit. After what he saw, Ramirez did not
anymore bother to look because he was sleepy and fell asleep.

The following morning, the accused, whom the juveniles described as an "American, paid
Ramirez alias "Egan" P200.00 and Rosario P300.00. He then left them in the hotel. After the
American left, they went downstairs, and Rosario told Egan that the American inserted
something in her vagina. But they could not do anything anymore, because the American
had already left, and neither did they report the matter to the police. Sometime the following
day, Jessie saw Rosario and he asked her whether the object was already removed from her
body and Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that
same date, he saw Rosario and she was complaining of pain in her vagina and when Egan
asked her, she said that the foreign object was not yet removed. Then there was another
occasion wherein Jessie was summoned and when he came he saw Rosario writhing in pain
and when he tried to talk to Rosario she scolded him with defamatory remarks. Thereafter,
he did not see Rosario anymore because he already went home to his aunt's house who
resided at Barrio Barretto and resumed his studies in the primary grades.

On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21,
near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake
Shop near Lot 21, being ogled by people because Rosario's skirt was bloodied and she was
unconscious and foul smelling. Since nobody helped Rosario, he took pity on her condition
and brought her to the Olongapo City General Hospital in an unconscious condition, via
jeepney. He went to the Information desk and he was the one who gave the personal
circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower
Kalaklan, and Gaspar Alcantara signed as "guardian" of Rosario, while Rosario was already
in the emergency room. Although Gaspar Alcantara denied that he did not know the name of
Rosario Baluyot when he brought her to the hospital, this is belied by the testimony of the
Information clerk Lorna Limos, who was then on duty. Limos testified that it was Alcantara
who supplied the personal circumstances of Rosario. The Court gives more credence to the
testimony of Miss Limos as against Gaspar Alcantara who became a defense witness, for
the reason that through his own testimony, Gaspar Alcantara claimed that even prior to May
14, 1987, he had already known Rosario Baluyot for more than one (1) year, because he has
seen the said girl go to the house of his twin brother, Melchor Alcantara, who is his
immediate neighbor. Rosario used to visit a girl by the name of "Nora" who was then in the
custody of his brother. His brother Melchor was also living with their mother, brother and
sister-in-law and their two (2) children in his house. Rosario as per Gaspar's testimony even
stays for one week or a few days at his brother's house when she visits Nora. So the Court
can safely assume that of all the more than one (1) year that he had regularly seen Rosario
at his brother's house, he must have already did come to know the name of Rosario Baluyot
including her age. In his testimony in Court he stated that he even asked Rosario for movie
and softdrinks money which can safely be concluded that he knows her very well. It is
against normal behavior especially to a Filipino who have a characteristic of curiosity not to
have found out the real name of the girl he claims to know only as "Tomboy".

While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was
attending to her since she is a street child, having stowed away from the custody of her
grandmother. Three (3) good samaritans who belong to religious and civic organizations, in
the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one of their missions in
the hospital chanced upon Rosario Baluyot who was all alone with no relatives attending to
her and after finding out that she was only 12 years old decided to help her. After a short
interview with Rosario, regarding her name and age only because she clamped up about her
residence and her relatives, they decided to help her by providing her the medicine she
needed during her confinement in readiness for an operation. It was Fe Israel who was able
to get the name and age of Rosario Baluyot from Rosario Baluyot herself when she saw her
for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor because
their program assisted only indigent patients from infants up to 13 years old.

Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement
and vomiting, which was first suspected as gastro-enteritis, but which came out later as
symptoms of peritonitis due to a massive infection in the abdominal cavity. Subsequently, on
May 17, 1987, after she was examined by the physicians at the hospital, it was found out that
there was a foreign object lodged in her vaginal canal and she had vaginal discharge tinged
with blood and foul smelling odor emanating from her body. One of the doctors who attended
to her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object by
means of a forceps, but several attempts proved futile because said object was deeply
embedded in the vaginal canal and was covered by tissues. Her abdomen was enlarged,
tender and distended, symptoms of peritonitis. The patient was feverish and incoherent when
she was scheduled for operation on May 19, 1987, after the first attempt for an operation on
May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the hospital director
was not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified
that Rosario had to be operated even in that condition in order to save her life. Her condition
was guarded. This was corroborated by Dr. Leo Cruz, the anesthesiologist during Rosario's
operation. It was in the evening of May 19 at about 7:00 p.m. when Dr. Rosete opened her
abdomen by making a 5 inch incision on her stomach. He found out that the fallopian tubes
were congested with pus and so with the peritonieum, and the pelvic cavity, and patches of
pus in the liver, although the gallbladder and kidney appeared to have septicemia, poisoning
of the blood. The peritonitis and septicemia were traced to have been caused through
infection by the foreign object which has been lodged in the intra-vaginal canal of Rosario.
The foreign object which was already agreed upon by both parties that it is a portion of a
sexual vibrator was extracted from the vagina of Rosario while under anesthesia. Said object
was coated with tissues, pus and blood. Dr. Rosete gave it to the assisting surgical nurse for
safekeeping and gave instructions to release it to the authorized person. This object was
shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the
patient was alive when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the
ward for about 30 minutes and thereafter he left. The following day, Rosario got serious and
it was Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May 20,
1987.

Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was
indicated therein that the cause of death was cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in the intra uteral vaginal canal of Rosario
Baluyot.

The foreign object was washed by nurse Obedina, then placed it in a transparent small jar
and labelled "Rosario Baluyot". Jessica Herrera asked the nurse for the foreign object, and it
was given to her under proper receipt. Herrera then showed the same to the persons who
helped financially Rosario's case, and afterwards she gave it to Sister Eva Palencia. Sis.
Palencia was in custody of the said object until Mr. Salonga came and asked her for the
object.

After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask
him in locating the relatives of Rosario. They were able to trace Rosario's grandmother, Mrs.
Maria Burgos Turla, and informed her that her granddaughter was already dead and lying in
state at St. Martin Funeral Parlor. Mrs. Turla went there with her son, who shouldered all the
burial expenses for Rosario.

Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita
and asked her if she was interested in filing a case against the person who caused the death
of her granddaughter. Of course she agreed. Hence, she was brought to the Fiscal's (City)
Office to file the same.

After the case was filed against the herein accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that the accused was willing to settle the case,
but that accused Ritter had only P15,000.00. The old woman did not accept it because she
knows that the accused is liable to pay damages anyway. After that, she received a letter
from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she can no longer
bear the situation, sent her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged
and told her that she will be paid at the office of Atty. Legaspi. On a date not clear in the
records, she went with her nephew Conrado Marcelo, and Roberto Sundiam, an assistant
barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter
left. After he left, Atty. Legaspi told Rosario's grandmother that they are willing to settle for
P20,000.00, but that Ritter left only P15,000.00, so she received the money with the
understanding that there was a balance of P5,000.00 yet. She was made to sign a
statement, and she was asked to change the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's messenger went to the Fiscal's office to have it
subscribed, and was subscribed before an assistant city fiscal. But the balance of P5,000.00
was not paid, because later on Atty. Legaspi became the OIC of Olongapo City and he could
no longer attend to it. Atty. Legaspi, during one of the hearings before the Court even
apologized to her.

As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was directed by
Col. Daos, Station Commander of the Olongapo Police Department to make a follow up of
the case of Rosario Baluyot. On the other hand, since the suspect who inserted the foreign
object inside Rosario's vagina was said to be an American, the NISRA Subic Naval Base
also conducted its investigation headed by criminal investigator Agent Conrado Salonga.
Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street
child at Magsaysay Drive, they rounded up about 43 street children and from some of them
they learned that Rosario Baluyot was with Jessie Ramirez with an American at the MGM
Hotel when the foreign object was inserted in her vagina. After finding Jessie Ramirez, they
asked him about Rosario Baluyot. They found out that indeed he was with Rosario Baluyot
sometime before Christmas of 1986 with an American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his
statement. Then he was brought to Mr. Edward Lee Bungarner, a cartographer, and out of
the description supplied by Ramirez, a composite drawing was photocopied and copies
thereof were distributed to the local police and to the sentries at the gate of the U.S. Naval
Base. Some American servicemen who had resemblance to the composite drawing were
photographed and these were shown to Jessie Ramirez, but the result was negative. Aside
from the physical description by Ramirez about the appearance of the suspect, he also
described him as having the mannerisms of a homo-sexual.

After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and thinking
that the so-called American may be European or Australian national, the team composed of
Agent Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and P/Cpl. Andres Montaon, Jessie
Ramirez and Michael Johnson, another juvenile, proceeded to Manila. They first went to the
Manila NISRA Office, and thereafter checked in a hotel. That was on September 23, 1987.
On the first night, they went to Luneta Park where foreign homo-sexuals were said to be
frequenting, but the result was negative. Then on September 25, at about 11:00 p.m., while
they were standing at the corner of A. Mabini and M.H. del Pilar Street, a male caucasian
who looked like a homo-sexual stopped by admiringly infront of the two (2) juveniles,
Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga that this foreigner had a
similarity with the American suspect, so the two minors were instructed to follow the foreigner
and to strike a conversation. They did, and when they returned, Jessie Ramirez told them
that indeed the said foreigner was the one who brought him and Rosario Baluyot to the MGM
Hotel. Bobby Salonga told Ramirez that this foreigner had no beard while the one previously
described by Ramirez had a beard. Jessie Ramirez told them that maybe he have just
shaved it off. The said caucasian then entered a bar, and after several minutes he came out,
and Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that the said
foreigner is the suspect, arrested Ritter and brought him to the Manila Western Police
District. It could be mentioned at this stage that in this operation they were accompanied by
two (2) policemen from the Western Police District. The foreigner was hand cuffed and was
told that he was a suspect for Rape with Homicide. After the arrest, they first went to the
pension house of the suspect in Ermita, Manila to get his shoulder bag which contained his
personal belongings, and from there they brought him to the Western Police Department. At
the said police headquarters, they were allowed a permissive search by the foreigner of his
clutch bag and his small shoulder bag and confiscated his passport, I.D., 3 inhalers, money
in the form of dollars and travellers checks amounting about $1,500.00 and about P100.00,
all duly receipted for. From the passport they learned that the suspect's name was Heinrich
Stefan Ritter, an Austrian national. During the questioning of Hitter, Salonga and his team
already left the headquarters and went to their hotel, because at this time Jessie Ramirez
was already shaking with fear after he identified the accused.

The following day, they brought the accused to Olongapo and was detained at the Olongapo
City Jail. The case for Rape with Homicide was filed against him at the City Fiscal of
Olongapo. At the preliminary investigation, accused was assisted by his own counsel. The
private complainant was Maria Burgos Turla because it was she who had custody of Rosario
Baluyot after her mother Anita Burgos died on January 12, 1982, and their father Policarpio
Baluyot had left them under her custody. When this case was filed, the father's whereabouts
was unknown, and he only appeared when the trial of this case before the Court was already
 in progress. And upon his (Policarpio Baluyot) own admission, he only learned about the
death of his daughter Rosario Baluyot from the newspaper, long after Rosario was already
gone.

The defense tried to dislodge the case by claiming that there could be no crime of Rape with
Homicide because the suspect was described as an American while Ritter is an Austrian.
Also advanced by the defense is that, it is a case of mistaken identity. That Rosario Baluyot
was at the time of the commission of the offense, already more than 13 years old, she having
been born on December 26, 1973 as per baptismal certificate, wherein it appears that
Rosario Baluyot was baptized on December 25, 1974 and was born on December 26, 1973
as testified to by Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal
Certificate, having custody and possession of the book of baptism for the year 1975, but
admitted that he had no personal knowledge about the matters or entries entered therein.
Likewise, the defense's stand is that the accused cannot be liable for Homicide because a
vibrator is not a weapon of death but it is a thing for the purpose of giving sexual pleasure,
and that the death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the
surgeon and Director of the Olongapo City General Hospital, who operated on her. (Rollo,
pp. 109-116)

On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads
as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution
has established the GUILT of the accused beyond reasonable doubt for the crime of Rape
with Homicide as defined and penalized in Art. 335 No. 3 of the Revised Penal Code, and
hereby sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION PERPETUA, to
indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS (P60,000.00)
Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to
the private prosecutors and to pay the costs. (Rollo, p. 126)

The accused now comes to this Court on the following assigned errors allegedly committed by the
court:

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING
THAT THE ALLEGED OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT
IT WAS ACCUSED-APPELLANT WHO COMMITTED IT.

II

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING
THAT ROSARIO BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE
ALLEGED OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE
WITH HOMICIDE.

III

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING
CREDENCE TO AND NOT REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT
UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of
the accused has been proved beyond reasonable doubt, it behooves us to exert the most
painstaking effort to examine the records in the light of the arguments of both parties if only to satisfy
judicial conscience that the appellant indeed committed the criminal act (See People v. Villapaña,
161 SCRA 73 [1988]).

The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who
died after the rape because of a foreign object, believed to be a sexual vibrator, left inside her
vagina.

As stated by the trial court one crucial issue in this case is the age of the victim—whether or not
Rosario Baluyot was less than twelve (12) years old at the time the alleged incident happened on
October 10, 1986. The age is important in determining whether or not there was statutory rape,
Article 335 of the Revised Penal Code defines the third type of rape as having carnal knowledge of a
woman under 12 years of age, in which case force, intimidation, deprivation of reason or
unconscious state do not have to be present.

The trial court found that Rosario was below 12 years old when she was sexually abused by the
accused and, therefore, rape was committed inspite of the absence of force or intimidation.

In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother
and father who testified that she was born on December 22, 1975. These oral declarations were
admitted pursuant to then Rule 130, Section 33 of the Rules of Court where, in the absence of a
birth certificate, the act or declaration about pedigree may be received in evidence on any notable
fact in the life of a member of the family. Since birth is a matter of pedigree within the rule which
permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of
birth (Decision, p. 54).

The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because
her brother died in Pampanga and her daughter, Anita (Rosario's mother) was the only one who
failed to attend the funeral because the latter has just given birth allegedly to Rosario (T.S.N. p. 8,
Jan. 13, 1988).

The father likewise testified that as far as he could remember, Rosario was born on December 22,
1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was more than one (1) year old
when she was baptized (T.S.N., p. 45, Jan. 27, 1988).

The trial court further added that their testimony is supported by the clinical record and the death
certificate indicating that she was 12 years old when she was admitted at the Olongapo City General
Hospital for treatment. The age was supplied by Rosario's alleged guardian, Gaspar Alcantara to the
hospital's clinical record clerk, Lorna Limos. Fe Israel, a social worker who interviewed Rosario
Baluyot also testified that she was told by Rosario that she was 12 years old. The trial court
accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in
this case declared that he was born on September 5, 1973 and that he was older than Rosario
Baluyot. Therefore, since he was 13 years old in 1986, Rosario must have been less than 12 yeas
old in 1986. (Decision, p. 55)

The trial court concluded that the oral declarations of the grandmother and father supported by other
independent evidence such as the clinical record, death certificate and the testimonies of Fe Israel
and Jessie Ramirez, rendered the baptismal certificate presented by the defense without any
probative or evidentiary value. (Decision, p. 55)
The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of
evidentiary rules.

The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised
Rules of Court).

For oral evidence to be admissible under this Rule, the requisites are:

(1) That the declarant must be dead or outside of the Philippines or unable to testify;

(2) That pedigree is in issue;

(3) That the person whose pedigree is in question must be related to the declarant by birth or
marriage;

(4) That the declaration must be made before the controversy occurred or ante litem motam;
and

(5) That the relationship between the declarant and the person whose pedigree is in question
must as a general rule be shown by evidence other than such act or declaration.

These requirements were not satisfied by the evidence for the prosecution nor do the declarations
fall within the purview of the rule.

The victim's grandmother and father whose declarations regarding Rosario's age were admitted by
the trial court are both alive, in the Philippines and able to testify as they both did testify in court.
Their declarations were made at the trial which is certainly not before the controversy arose. The
other witnesses who testified on Rosario's age are not members of the victim's family. The
testimonies of Rosario's relatives must be weighed according to their own personal knowledge of
what happened and not as hearsay evidence on matters of family history.

At this point, we find the evidence regarding Rosario's age of doubtful value.

The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid
down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the
mother that her daughter was 14 years old and 4 months old. The mother stated that she knew the
age because the child was born about the time of the cholera epidemic of 1889. This was not
hearsay, but came from one who had direct knowledge of the child's birth.

It is however, equally true that human memory on dates or days is frail and unless the day is an
extraordinary or unusual one for the witness, there is no reasonable assurance of its correctness.
(People v. Dasig 93 Phil. 618, 632 [1953])

With respect to the grandmother's testimony, the date of the brother's death or funeral was never
established, which indicates that the day was rather insignificant to be remembered. The father's
declaration is likewise not entirely reliable. His testimony in court does not at all show that he had
direct knowledge of his daughter's birth. He was certain though that she was more than one (1) year
old at the time she was baptized.

The other witnesses are not at all competent to testify on the victim's age, nor was there any basis
shown to establish their competence for the purpose. The clinical records were based on Gaspar
Alcantara's incompetent information given when he brought the victim to the hospital. Alcantara
came to know her only about a year before her death. He had absolutely no knowledge about the
circumstances of Rosario's birth. The death certificate relied upon by the trial court was merely
based on the clinical records. It is even less reliable as a record of birth.

All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years
old at the time of the alleged incident are not adequate to establish the exact date of birth, much less
offset a documentary record showing a different date.

The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being
hearsay and of no value. As against the oral declarations made by interested witnesses establishing
Rosario's age to be less than 12 years old, the evidence on record is more convincing and worthy of
belief. (See Filinvest Land, Inc. v. Court of Appeals, 183 SCRA 664, 673 [1990]).

By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St.
James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and
stated that he is the head of said parish. He brought with him Baptismal Register No. 9 entitled
"Liber Baptisnorum", a latin term for baptismal book or record. On page 151, No. 3 of the said
Registry Book, there appears the name of Rosario Baluyot who was baptized on December 25,
1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents
of Subic, Zambales. Edita R. Milan appears as the only sponsor with Olongapo City as her address.

In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:

xxx xxx xxx

In our jurisprudence, this Court has been more definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while baptismal and marriage certificates may be
considered public documents, they are evidence only to prove the administration of the
sacraments on the dates therein specified—but not the veracity of the status or declarations
made therein with respect to his kinsfolk and/or citizenship (Paa v. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court
held that a baptismal certificate is conclusive proof only of the baptism administered, in
conformity with the rites of the Catholic Church by the priest who baptized the child, but it
does not prove the veracity of the declarations and statements contained in the certificate
that concern the relationship of the person baptized. Such declarations and statements, in
order that their truth may be admitted, must indispensably be shown by proof recognized by
law. (At pp. 84-85)

In the same light, the entries made in the Registry Book may be considered as entries made in the
course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The
baptisms administered by the church are one of its transactions in the exercise of ecclesiastical
duties and recorded in a book of the church during the course of its business. (U.S. v. de Vera, 28
Phil. 105 [1914] Hence, the certificate (Exhibit "22") presented by the defense that Rosario Baluyot
was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio
Baluyot, the victim's father testified that he had in his possession a baptismal certificate different
from the one presented in court. However, no other baptismal record was ever presented to prove a
date different from that brought by the official custodian. Since the baptismal certificate states that
Rosario was baptized on December 25, 1974, it is therefore highly improbable that Rosario could
have been born on December 22, 1975. She could not have been baptized before she was born.
Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in
1975. With the father's assertion that Rosario was more than one (1) year old when she was
baptized, we are then more inclined to agree that Rosario was born in 1973 as stated in the
Baptismal Registry.

In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:

xxx xxx xxx

. . . Although no birth certificate was presented because her birth had allegedly not been
registered, her baptismal certificate, coupled by her mother's testimony, was sufficient to
establish that Mary Rose was below twelve years old when she was violated by Rebancos.
(At. p. 426)

Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document
as to Rosario's birth which could serve as sufficient proof that she was born on December 26, 1973.
Therefore, she was more than 12 years old at the time of the alleged incident on October 10, 1986.

Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on
the prosecution to prove that Rosario was less than 12 years old at the time of the alleged incident in
a charge of statutory rape. The prosecution failed in this respect.

Since Rosario was not established to have been under 12 years of age at the time of the alleged
sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that
there was force of intimidation or that she was deprived of reason or otherwise unconscious in
accordance with Article 335 of the Revised Penal Code.

We agree with the defense that there was no proof of such facts. On the contrary, the evidence
shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to
have consented to the act as she was paid P300.00 the next morning while her companion, Jessie
Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988). The environmental circumstances
coupled with the testimonies and evidence presented in court clearly give the impression that
Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life
may have forced her to submit to sex at such a young age but the circumstances do not come under
the purview of force or intimidation needed to convict for rape.

In view of these clear facts which the prosecution failed to refute, no rape was committed. But was
Ritter guilty of homicide?

The trial court justified its ruling by saying that the death of the victim was a consequence of the
insertion of the foreign object into the victim's vagina by the appellant.

We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which
led to her death?

The trial court convicted the accused based on circumstantial evidence. Unfortunately, the
circumstances are capable of varying interpretations and are not enough to justify conviction.

Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina.
Neither could he identify the object (Exhibit "C-2") taken from Rosario as the same object which the
appellant was holding at that time of the alleged incident.

In his sworn statement given to the police investigator on September 4, 1987, he answered that:
 xxx xxx xxx

T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng
kano sa kanyang daladalahan kung mayroon man?

S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may
inilabas siya sa kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang
nasa otel kami at pagkatapos niya ay inilapag niya sa lamiseta.

T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?

S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada.
Iyong takip ay bilog na patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang
hugis ng dulo ng bagay na may takip dahil natatakpan ng kamay at ilong ng Amerikano.

T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin
mo nga sa akin kung makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman
sa nakita mong kinuha ng Amerikano sa kanyang bag?

S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng
bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul
gayong ng makita ko ito ay kulay puti? (Exhibit "A", p. 2; Emphasis Supplied)

Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not
deny having possessed at that time. He was certain that the object was white. (T.S.N. p. 91, January
6, 1988)

Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue
(Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency
of the witness' testimony casts doubt as to the veracity of the statements made especially when he
answered on additional cross-examination that the reason why he concluded that Exhibit "C-2" was
the same object being held by Ritter was because it was the only one shown to him by the
prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the
sexual vibrator because he did not actually see it in the possession of the appellant.

What he merely remembers is the revelation made by Rosario the next morning that the foreigner
inserted something inside her vagina. The trial court admitted such statement as part of the res
gestae. In a strained effort to accept such statement as part of res gestae, the trial court focused the
test of admissibility on the lapse of time between the event and the utterance. For the average 13
years old, the insertion of a mechanical device or anything for that matter into the vagina of a young
girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to show
that the statement, given after a night's sleep had intervened, was given instinctively because the
event was so startling Res gestae does not apply. (Section 42, Rule 130, Rules of Court)

Even if it were established that the appellant did insert something inside Rosario's vagina, the
evidence is still not adequate to impute the death of Rosario to the appellant's alleged act.

Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We
quote:
 Q Now, you also stated on direct examination that later on Rosario even categorically
admitted to you that she was already able to remove the object allegedly inserted inside her
vagina, is that correct?

A Yes, sir.

xxx xxx xxx

ATTY. CARAAN:

Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later
on when you met her when you asked her and when she told you that she was already able
to remove that object from her vagina?

A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And
she answered, "Yes, it was removed." But the same night, she again complained of pain of
her stomach. She sent one of her friends to call for me. And as a matter of fact, Tomboy was
uttering defamatory words against me as she was groaning in pain. (TSN, Jan. 6,1988, pp.
72-73)

This encounter happened on the night of the day following the day after both children were invited by
the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so
we can just imagine the distress she was undergoing at this point in time. If the device inserted by
the appellant caused the pain, it is highly inconceivable how she was able to endure the pain and
discomfort until May, 1987, seven (7) months after the alleged incident. Evidence must not only
proceed from the mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances. (People
vs. Patog, 144 SCRA 429 [1986]).

At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for
the defense is considered an expert witness. (A Doctor of Medicine and a graduate of the State
University in 1940, a degree of Bachelor of Laws and member of the Bar 1949, and a graduate of
the Institute of Criminology University. He was awarded Post Graduate Diploma in Criminology in
1963, and also a graduate of United Nations Asia and Far East Asia Institute on the Prevention of
Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of
Investigation in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the
Deputy Director of the NBI up to 1984. He is at present a Professorial Lecturer on Legal Medicine at
the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal Consultant of the PGH Medical
Center, Makati Medical Center, UERM Medical Center, MCU Medical Center. He has been with the
NBI for 43 years. He has attended no less than 13 conferences abroad. He is the author of the
textbooks entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and
medical background, his testimony is too authoritative to ignore. We quote the pertinent portions of
his testimony:

Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2" which object was
described as a part of a sexual vibrator battery operated. Now, given this kind of object,
would you kindly tell us what would be the probable effect upon a 12 years old girl when it is
inserted into her vagina?

A Well, this vibrator must be considered a foreign body placed into a human being and as
such be considered a foreign object. As a foreign object, the tendency of the body may be:
No. 1—expel the foreign body—No. 2.—The tendency of the body is to react to that foreign
body. One of the reactions that maybe manifested by the person wherein such foreign body
is concerned is to cover the foreign body with human tissue, in a way to avoid its further
injury to the body.

Now, the second reaction is irritation thereby producing certain manifest symptoms and
changes in the area where the foreign body is located.

In severe cases, the symptoms manifestation might not only be localized but may be felt all
over the body, we call it systemic reaction. Now, considering the fact that this foreign body as
shown to me is already not complete, this shows exposure of its different parts for the body
to react. If there is mechanism to cause the foreign body to vibrate, there must be some sort
of power from within and that power must be a dry cell battery. [The] composition of the
battery are, manganese dioxide ammonium, salts, water and any substance that will cause
current flow. All of these substances are irritants including areas of the container and as
such, the primary reaction of the body is to cause irritation on the tissues, thereby
inflammatory changes develop and in all likelihood, aside from those inflammatory changes
would be a supervening infection in a way that the whole generative organ of the woman will
suffer from diseased process causing her the systemic reaction like fever, swelling of the
area, and other systemic symptoms. . . . . (TSN., pp. 13-15, October 19,1988)

xxx xxx xxx

Q Now, given this object, how long would it take, Doctor before any reaction such as an
infection would set in, how many days after the insertion of this object in the vagina of a 12
year old girl?

A In the example given to me, considering that one of the ends is exposed, in a way that
vaginal secretion has more chance to get in, well, liberation of this irritant chemicals would
be enhanced and therefore in a shorter period of time, there being this vaginal reaction.

Q How many days or weeks would you say would that follow after the insertion?

A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal
usually developed within, a period of two (2) weeks . . .

xxx xxx xxx

Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in
her vagina on October 10, 1986 and she was operated on, on May 19, 1987 the following
year, so it took more than 7 months before this was extracted, would you say that it will take
that long before any adverse infection could set in inside the vagina?

A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19,1988, p.
18)

xxx xxx xxx

Q When you said shorter, how long would that be, Doctor?
 A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women
usually, there are only about two (2) weeks time that the patient suffer some abnormal
symptoms.

Q Now, considering that this is a bigger object to the object that you mentioned, this object
has a shorter time?

A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)

The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein
infection sets in upon insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is
not more than 10 months, and this case is still within the said time frame."

A more generous time interval may be allowed in non-criminal cases. But where an accused is
facing a penalty of reclusion perpetua, the evidence against him cannot be based on probabilities
which are less likely than those probabilities which favor him.

It should be clarified that the time frame depends upon the kind of foreign body lodged inside the
body. An examination of the object gave the following results:

(1) Color: Blue

Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.

(2) The specimen can be electrically operated by means of a battery as per certification
dated 01 June 1988, signed by Mr. Rodolfo D. Mercuric, Shipboard Electrical Systems
Mechanics, Foreman II, SRF Shop 51, Subic (see attached certification).

(3) No comparative examination was made on specimen #1 and vibrator depicted in the
catalog because no actual physical dimensions and/or mechanical characteristics were
shown in the catalog. (Exhibit "LL")

The vibrator end was further subjected to a macro-photographic examination on the open end
portion which revealed the following:

Result of Examination

Macro-photographic examination on the open end portion of specimen #1 shows the

following inscription:

MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")

From the above results, the subject object is certainly not considered as inert and based on Dr. Solis'
testimony, it is more likely that infection should set in much earlier. Considering also that the object
was inserted inside the vagina which is part of the generative organ of a woman, an organ which is
lined with a very thin layer of membrane with plenty of blood supply, this part of the body is more
susceptible to infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no
reason why his opinions qualified by training and experience should not be controlling and binding
upon the Court in the determination of guilt beyond reasonable doubt. (People v. Tolentino, 166
SCRA 469 [1988]).

Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May
17, 1986 as a referral patient from the Department of Surgery to give an OB-GYN clearance to the
patient prior to operation. (T.S.N. p. 6, September 28, 1988)

Q And how many times did you examine this patient Rosario Baluyot on that day?

A I examined her twice on that day.

Q The first time that you examined her, what is the result of your findings, if any?

A My first examination, I examined the patient inside the delivery room. The patient was
brought to the delivery room wheel-chaired then from the wheel chair, the patient was
ambigatory (sic). She was able to walk from the door to the examining table. On
examination, the patient is conscious, she was fairly nourished, fairly developed, she had
fever, she was uncooperative at that time and examination deals more on the abdomen
which shows slightly distended abdomen with muscle guarding with tenderness all over, with
maximum tenderness over the hypogastric area. (T.S.N. p. 5, September 28, 1988)

xxx xxx xxx

Q What about your second examination to the patient, what was your findings, if any?

A In my second examination, I repeated the internal examination wherein I placed my index

finger and middle finger inside the vagina of the patient and was able to palpate a hard
object. After which, I made a speculum examination wherein I was able to visualize the inner
portion of the vaginal canal, there I saw purulent foul smelling, blood tints, discharge in the
vaginal canal and a foreign body invaded on the posterior part of the vaginal canal.

xxx xxx xxx

A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the
said foreign object by the use of forceps which I tried to do so also but I failed to extract the
same.

Q All this time that you were examining the patient Rosario Baluyot both in the first and
second instance, Rosario Baluyot was conscious and were you able to talk to her when you
were examining her?

A Yes, sir.

Q And did you ask her why there is a foreign object lodge inside her vagina?

A Yes, Sir I asked her.

Q And what did she tell you, if any?

 A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY
NITO."

Q Did she also tell you when, this Negro who used her and who inserted and placed the
foreign object on her vagina?

A Yes, Sir I asked her and she said he used me three (3) months ago from the time I
examined her.

Q Now, you said that you referred the patient to the ward, what happened next with your
patient?

A To my knowledge, the patient is already scheduled on operation on that date.

Q Meaning, May 17, 1987?

A Yes, Sir I was presuming that the patient would undergo surgery after that?

(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)

The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that time. It ruled
that it is inconceivable that she would be striking a normal conversation with the doctors and would
be sitting on the examination table since Gaspar Alcantara stated that when he brought Rosario
Baluyot to the hospital, she was unconscious and writhing in pain.

It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because
there were several instances testified to by different witnesses that she was still able to talk prior to
her operation:

(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic
Renewal Movement testified that as a member of this group she visits indigent children in the
hospital every Saturday and after office hours on working days.

On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario
Baluyot. In fact, one of her groupmates helped Rosario go to the comfort room to urinate. (T.S.N.,
pp. 16-19, May 25, 1988)

(2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope
John 23rd Community Center under Sister Eva Palencia. In one of her hospital visits, she
encountered Rosario Baluyot in the month of May, 1987. She actually saw a child who happened to
be Rosario Baluyot seated on the cement floor and when she asked why she was seated there, she
was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days successively.
(T.S.N. pp. 10-13, September 7, 1988)

(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was
conscious (T.S.N. p. 36, September 14, 1988) but writhing in pain. He took pity on her so he brought
her to the hospital (T.S.N. p. 12, September 14, 1988)

From the above testimonies, it is clear that Rosario was still conscious and could still answer
questions asked of her although she was complaining of stomach pains. Unfortunately, the medical
attention given to her failed to halt the aggravation of her condition. The operation on May 19 was
too late.

Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis,
which is massive infection, in the abdominal cavity caused by the foreign object or the cut sexual
vibrator lodged in the vagina of the victim. This led to the infection from the uterus to the fallopian
tubes and into the peritoneum and the abdominal cavity.

The trial court convicted the accused citing the rationale of Article 4 of the RPC

He who is the cause of the cause is the cause of the evil caused.

But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs.
Intermediate Appellate Court (157 SCRA 1 [1988]) to wit:

The rule is that the death of the victim must be the direct, natural and logical consequence of
the wounds inflicted upon him by the accused. And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must convince a rational
mind beyond reasonable doubt. (Emphasis supplied)

In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:

xxx xxx xxx

The basic principle in every criminal prosecution is that accusation is not synonymous with
guilt. The accused is presumed innocent until the contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner of speaking, he goes to bat with all the
bases loaded. The odds are heavily against him. It is important, therefore, to equalize the
positions of the prosecution and the defense by presuming the innocence of the accused
until the state is able to refute the presumption by proof of guilt beyond reasonable doubt.
(At. p. 592)

The evidence for the accused maybe numerically less as against the number of witnesses and
preponderance of evidence presented by the prosecution but there is no direct and convincing proof
that the accused was responsible for the vibrator left inside the victim's vagina which caused her
death seven (7) months after its insertion. What the prosecution managed to establish were mere
circumstances which were not sufficient to overcome the constitutional presumption of innocence.
While circumstantial evidence may suffice to support a conviction it is imperative, though, that the
following requisites should concur:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court)

For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial
evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the
crime (People v. Subano, 73 Phil. 692 [1942]; Emphasis supplied). It must fairly exclude every
reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In
this case the circumstantial evidence presented by the prosecution does not conclusively point to the
liability of the appellant for the crime charged. (People v. Tolentino, supra)

We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death
exemplified starkly the daily terrors that most street children encounter as they sell their bodies in
order to survive. At an age when innocence and youthful joys should preponderate in their lives, they
experience life in its most heartless and inhuman form. Instead of nothing more than gentle
disappointments occupying their young minds, they daily cope with tragedies that even adults should
never be made to carry.

It is with distressing reluctance that we have to seemingly set back the efforts of Government to
dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street
children. It would have meant a lot to social workers and prosecutors alike if one pedophile-killer
could be brought to justice so that his example would arouse public concern, sufficient for the
formulation and implementation of meaningful remedies. However, we cannot convict on anything
less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal
justice system are as much, if not more so, for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.

The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that
the accused did commit the offense has not been satisfied.

By way of emphasis, we reiterate some of the factors arousing reasonable doubt:

1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being
less than 12 years old when the carnal knowledge took place. If the evidence for the
prosecution is to be believed, she was not yet born on the date she was baptized.

2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the
prosecution has to prove force, intimidation, or deprivation of reason in order to convict for
rape. There is no such proof. In fact, the evidence shows a willingness to submit to the
sexual act for monetary considerations.

3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was
Jessie Ramirez. This witness did not see Ritter insert the vibrator. The morning after the
insertion, he was only told by Rosario about it. Two days later, he allegedly met Rosario who
informed him that she was able to remove the object. And yet, Ramirez testified that on the
night of that second encounter, he saw Rosario groaning because of pain in her stomach.
She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also
contradictory.

4. It was improbable, according to expert medical testimony, for a foreign object with active
properties to cause pain, discomfort, and serious infection only after seven months inside a
young girl's vaginal canal. Infection would have set in much earlier. Jessie Ramirez recalled
that the incident happened in December of 1986. (TSN., January 6, 1988, pp. 15-17) The
evidence, however shows that the appellant was not here in the Philippines that December.
As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter arrived
in the Philippines on October 7, 1986 and left on October 12, 1986. He never returned until
September 23, 1987 (Exhibits "DD" and "EE") The incident could have happened only in
 October, but then it would have been highly improbable for the sexual vibrator to stay inside
the vagina for seven (7) months with the kind of serious complications it creates.

5. The gynecologist who attended to Rosario during her hospital confinement testified that
she told him "Ginamit ako ng Negro at siya ang naglagay nito." The accused is not a black.

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident.
Considering Dr. Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months
prior to admission in the hospital and Rosario's unfortunate profession, there is always the possibility
that she could have allowed herself to be violated by this perverse kind of sexual behavior where a
vibrator or vibrators were inserted into her vagina between October, 1986 and May, 1987.

Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime
renders the evidence for the prosecution insufficient to establish appellant's guilty connection with
the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156 [1984]).

The established facts do not entirely rule out the possibility that the appellant could have inserted a
foreign object inside Rosario's vagina. This object may have caused her death. It is possible that the
appellant could be the guilty person. However, the Court cannot base an affirmance of conviction
upon mere possibilities. Suspicions and possibilities are not evidence and therefore should not be
taken against the accused. (People v. Tolentino, supra)

Well-established is the rule that every circumstance favorable to the accused should be duly taken
into account. This rule applies even to hardened criminals or those whose bizarre behaviour violates
the mores of civilized society. The evidence against the accused must survive the test of reason.
The strongest suspicion must not be allowed to sway judgment. (See Sacay v. Sandiganbayan, 142
SCRA 593 [1986]). As stated in the case of People v. Ng (142 SCRA 615 [1986]):

. . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt
in criminal cases must be resolved in favor of the accused. The requirement of proof beyond
reasonable doubt calls for moral certainty of guilt. It has been defined as meaning such proof
"to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes
every reasonable hypothesis except that which it is given to support. It is not sufficient for the
proof to establish a probability, even though strong, that the fact charged is more likely to be
true than the contrary. It must establish the truth of the fact to a reasonable and moral
certainty—a certainty that convinces and satisfies the reason and the conscience of those
who are to act upon it. (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S.
v. Reyes, 3 Phil. 3). . . .

In the instant case, since there are circumstances which prevent our being morally certain of the guilt
of the appellant, he is, therefore, entitled to an acquittal.

This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie
Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are
convinced that he comes to this country not to look at historical sights, enrich his intellect or indulge
in legitimate pleasures but in order to satisfy the urgings of a sick mind.

With the positive Identification and testimony by Jessie Ramirez that it was the appellant who picked
him and Rosario from among the children and invited them to the hotel; and that in the hotel he was
shown pictures of young boys like him and the two masturbated each other, such actuations clearly
show that the appellant is a pedophile. When apprehended in Ermita, he was sizing up young
children. Dr. Solis defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows:
 Pedophilia—A form of sexual perversion wherein a person has the compulsive desire to
have sexual intercourse with a child of either sex. Children of various ages participate in
sexual activities, like fellatio, cunnilingus, fondling with sex organs, or anal sexual
intercourse. Usually committed by a homosexual between a man and a boy the latter being a
passive partner.

Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself.
Pedophilia is clearly a behavior offensive to public morals and violative of the declared policy of the
state to promote and protect the physical, moral, spiritual and social well-being of our youth. (Article
II, Section 13, 1987 Constitution) (Harvey v. Defensor Santiago, 162 SCRA 840, 848 [1989]).
Pedophiles, especially thrill seeking aliens have no place in our country.

In this case, there is reasonable ground to believe that the appellant committed acts injurious not
only to Rosario Baluyot but also to the public good and domestic tranquility of the people. The state
has expressly committed itself to defend the right of children to assistance and special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has abused
Filipino children, enticing them with money. The appellant should be expelled from the country.

Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is
impliedly instituted with the criminal action. (Rule III, Section 1) The well-settled doctrine is that a
person while not criminally liable, may still be civilly liable. We reiterate what has been stated
in Urbano v. IAC, supra.

. . . While the guilt of the accused in a criminal prosecution must be established beyond
reasonable doubt, only a preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of
the accused only when it includes a declaration that the facts from which the civil liability
might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal
of the accused on the ground that his guilt has not been proved beyond reasonable doubt
does not necessarily exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him
from civil liability is one of the most serious flaws in the Philippine legal system. It has
given rise to numberless instances of miscarriage of justice, where the acquittal was
due to a reasonable doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is derived from the
criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of demarcation
between criminal liability and civil responsibility, and to determine the logical result of
the distinction. The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the punishment or
correction of the offender while the other is for the reparation of damages suffered by
the aggrieved party. The two responsibilities are so different from each other that
article 1813 of the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public action for the
imposition of the legal penalty shall not thereby be extinguished." It is just and proper
 that, for the purposes of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of indemnifying the
complaining party, why should the offense also be proved beyond reasonable doubt?
Is not the invasion or violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved person any less private
because the wrongful act is also punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under
discussion. It will correct a serious defect in our law. It will close up an inexhaustible
source of injustice—a cause for disillusionment on the part of the innumerable
persons injured or wronged.

Rosario Baluyot is a street child who ran away from her grandmother's house. Circumstances forced
1âwphi 1

her to succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs who
have certainly suffered mental anguish, anxiety and moral shock by her sudden and incredulous
death as reflected in the records of the case. Though we are acquitting the appellant for the crime of
rape with homicide, we emphasize that we are not ruling that he is innocent or blameless. It is only
the constitutional presumption of innocence and the failure of the prosecution to build an airtight
case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier
stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's
vaginal canal and that the vibrator may have caused her death. True, we cannot convict on
probabilities or possibilities but civil liability does not require proof beyond reasonable doubt. The
Court can order the payment of indemnity on the facts found in the records of this case.

The appellant certainly committed acts contrary to morals, good customs, public order or public
policy (see Article 21 Civil Code). As earlier mentioned, the appellant has abused Filipino children,
enticing them with money. We can not overstress the responsibility for proper behavior of all adults
in the Philippines, including the appellant towards young children. The sexual exploitation committed
by the appellant should not and can not be condoned. Thus, considering the circumstances of the
case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.

And finally, the Court deplores the lack of criminal laws which will adequately protect street children
from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from
the sale of young bodies. The provisions on statutory rape and other related offenses were never
intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among
the forgotten segments of our society. Newspaper and magazine articles, media exposes, college
dissertations, and other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them will continue
to advertise the availability of Filipino street children unless the Government acts and acts soon. We
have to acquit the appellant because the Bill of Rights commands us to do so. We, however,
express the Court's concern about the problem of street children and the evils committed against
them. Something must be done about it.

WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH
STEFAN RITTER is ACQUITTED on grounds of reasonable doubt. The appellant is ordered to pay
the amount of P30,000.00 by way of moral and exemplary damages to the heirs of Rosario Baluyot.
The Commissioner of Immigration and Deportation is hereby directed to institute proper deportation
proceedings against the appellant and to immediately expel him thereafter with prejudice to re-entry
into the country.

SO ORDERED.
G.R. No. 140420 February 15, 2001

SERGIO AMONOY, petitioner,

vs.
Spouses JOSE GUTIERREZ and ANGELA FORNIDA, respondents.

PANGANIBAN, J.:

Damnum absque injuria. Under this principle, the legitimate exercise of a person's rights, even if it
causes loss to another, does not automatically result in an actionable injury. The law does not
prescribe a remedy for the loss. This principle does not, however, apply when there is an abuse of a
person's right, or when the exercise of this right is suspended or extinguished pursuant to a court
order. Indeed, in the availment of one's rights, one must act with justice, give their due, and observe
honesty and good faith

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 21, 1999
Decision1 of the Court of Appeals (CA) in CA-GR CV No. 41451, which set aside the judgment2 of
the Regional Trial Court (RTC) of Tanay, Rizal. The RTC had earlier dismissed the Complaint for
damages filed by herein respondents against petitioner. The dispositive portion of the challenged CA
Decision reads as follows:

"WHEREFORE, the appealed Decision is SET ASIDE, and in its stead judgment is rendered
ordering the defendant-appellee Sergio Amonoy to pay the plaintiffs-appellants bruno and
Bernadina Gutierrez as actual damages the sum of [t]wo [h]undred [f]ifty [t]housand [p]esos
(P250,000.00)."3

Likewise assailed is the October 19, 1999 CA Resolution,4 which denied the Motion for
Reconsideration.

The Facts

The appellate court narrated the factual antecedents of this case as follows:

"This case had its roots in Special Proceedings No. 3103 of Branch I of the CFI of Pasig,
Rizal, for the settlement of the estate of the deceased Julio Cantolos, involving six(6) parcels
of land situated in Tanay Rizal. Amonoy was the counsel of therein Francisca Catolos,
Agnes Catolos, Asuncion Pasamba and Alfonso Formida. On 12 January 1965, the Project
of Partition submitted was approved and xxx two (2) of the said lots were adjudicated to
Asuncion Pasamba and Alfonso Formilda. The Attorney's fees charged by Amonoy was
P27,600.00 and on 20 January 1965 Asuncion Pasamba and Alfonso Formida executed a
deed of real estate mortgage on the said two (2) lots adjudicated to them, in favor of Amonoy
to secure the payment of his attorney's fees. But it was only on 6 August 1969 after the taxes
had been paid, the claims settled and the properties adjudicated, that the estate was
declared closed and terminated.

"Asuncion Pasamba died on 24 February 1969 while Alfonso Fornilda passsed away on 2
July 1969. Among the heirs of the latter was his daughter, plaintiff-appellant Angela
Gutierrez.
 "Because his Attorney's fess thus secured by the two lots were not paid, on 21 January 1970
Amonoy filed for their foreclosure in Civil Code4 No. 12726 entitled Sergio Amonoy vs. Heirs
of Asuncion Pasamba and Heirs of Alfonso Fornilda before the CFI of Pasig, Rizal, and this
was assigned to Branch VIII. The heirs opposed, contending that the attorney's fees charged
[were] unconscionable and that the attorney's fees charged [were] unconscionable and that
the agreed sum was only P11,695.92. But on 28 September 1972 judgment was rendered in
favor of Amonoy requiring the heirs to pay within 90 days the P27,600.00 secured by the
mortgage, P11,880.00 as value of the harvests, and P9,645.00 as another round of
attorney's fees. Failing in that, the two (2) lots would be sold at public auction.

"They failed to pay. On 6 February 1973, the said lots were foreclosed and on 23 March
1973 the auction sale was held where Amonoy was the highest bidder at P23,760.00. On 2
May 1973 his bid was judicially confirmed. A deficiency was claimed and to satisfy it another
execution sale was conducted, and again the highest bidder was Amonoy at P12,137.50.

"Included in those sold was the lot on which the Gutierrez spouses had their house.

"More than a year after the Decision in Civil Code No. 12726 was rendered, the said
decedent's heirs filed on 19 December 1973 before the CFI of Pasig, Rixal[,] Civil case No.
18731 entitled Maria Penano, et al vs. Sergio Amonoy, et al, a suit for the annulment thereof.
The case was dismissed by the CFI on 7 November 1977, and this was affirmed by the Court
of Appeals on 22 July 1981.

"Thereafter, the CFI on 25 July 1985 issued a Writ of Possession and pursuant to which a
notice to vacate was made on 26 August 1985. On Amonoy's motion of 24 April 1986, the
Orders of 25 April 1986 and 6 May 1986 were issued for the demolition of structures in the
said lots, including the house of the Gutierrez spouses.

"On 27 September 1985 the petition entitled David Fornilda, et al vs Branch 164 RTC Ivth
Pasig, Deputy Sheriff Joaquin Antonil and Atty. Sergio Amonoy, G.R. No. L-72306, was filed
before the Supreme Court. Among the petitioners was the plaintiff-appellant Angela
Gutierrez. On a twin musiyun (Mahigpit na Musiyon Para Papanagutin Kaugnay ng
Paglalapastangan) with full titles as fanciful and elongated as their Petisyung (Petisyung
Makapagsuri Taglay and Pagpigil ng Utos), a temporary restraining order was granted on 2
June 1986 enjoining the demolition of the petitioners' houses.

"Then on 5 October 1988 a Decision was rendered in the said G.R. No. L-72306 disposing
that:

"WHEREFORE, Certiorari is granted; the Order of respondent Trial Court, dated 25

July 1985, granting a Writ of Possession, as well as its Orderd, dated 25 April 1986
and 16 May 1986, directing and authorizing respondent Sheriff to demolish the
houses of petitioners Angela and Leocadia Fornilda are hereby ordered returned to
petitioners unless some of them have been conveyed to innocent third persons."5

But by the time the Supreme Court promulgated the abovementioned Decision, respondents' house
had already been destroyed, supposedly in accordance with a Writ of Demolition ordered by the
lower court.

Thus, a Complaint for damages in connection with the destruction of their house was filed by
respondents against petitioner before the RTC on December 15, 1989.
In its January 27, 1993 Decision, the RTC dismissed respondents' suit. On appeal, the CA set aside
the lower court's ruling and ordered petitioner to pay respondents P250,000 as actual damages.
Petitioner then filed a Motion for Reconsideration, which was also denied.

The Issue

In his Memorandum,7 petitioner submits this lone issue for our consideration:

"Whether or not the Court of Appeals was correct was correct in deciding that the petition
[was] liable to the respondents for damages."8

The Court's Ruling

The Petition has no merit.

Main Issue:

Petitioner's Liability

Well-settled is the maxim that damage resulting from the legitimate exercise of a person's rights is a
loss without injury- damnum absque injuria - for which the law gives no remedy.9 In other words, one
who merely exercises one's rights does no actionable injury and cannot be held liable for damages.

Petitioner invokes this legal precept in arguing that he is not liable for the demolition of respondents'
house. He maintains that he was merely acting in accordance with the Writ of Demolition ordered by
the RTC.

We reject this submission. Damnum absque injuria finds no application to this case.

True, petitioner commenced the demolition of respondents' house on May 30, 1986 under the
authority of a Writ of Demolition issued by the RTC. But the records show that a Temporary
Restraining Order (TRO), enjoining the demolition of respondents' house, was issued by the
Supreme Court on June 2, 1986. The CA also found, based on the Certificate of Service of the
Supreme Court process server, that a copy of the TRO was served on petitioner himself on June 4,
1986.

Petitioner, howeverm, did not heed the TRO of this Court. We agree with the CA that he unlawfully
pursued the demolition of respondents' house well until the middle of 1987. This is clear from
Respondent Angela Gutierrez's testimony. The appellate court quoted the following pertinent portion
thereof:10

"Q. On May 30, 1986, were they able to destroy your house?

"A. Not all, a certain portion only

xxx xxx xxx

"Q. Was your house completely demolished?

"A. No, sir.

 xxx xxx xxx

"Q. Until when[,] Mrs. Witness?

"A. Until 1987.

"Q. About what month of 1987?

"A. Middle of the year.

"Q. Can you tell the Honorable Court who completed the demolition?

A. The men of Fiscal Amonoy."11

The foregoing disproves the claim of petitioner that the demolition, which allegedly commenced only
on May 30, 1986, was completed the following day. It likewise belies his allegation that the
demolitions had already ceased when he received notice of the TRO.

Although the acts of petitioner may have been legally justified at the outsset, their continuation after
the issuance of the TRO amounted to an insidious abuse of his right. Indubitably, his actions were
tainted with bad faith. Had he not insisted on completing the demolition, respondents would not have
suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an
abuse of a right, but an invalid exercise of a right that had been suspended when he received thae
TRO from this Court on June 4, 1986. By then he was no longer entitled to proceed with the
demolition.

A commentator on this topic explains:

"The exercise of a right ends when the right disappears, and it disappears when it is abused,
especially to the prejudice of others. The mask of a right without the spirit of justcie which
gives it life, is repugnant to the modern concept of social law. It cannot be said that a person
exercises a right when he unnecessarily prejudices another xxx. Over and above the specific
precepts of postive law are the supreme norms of justice xxx; and he who violates them
violates the law. For this reason it is not permissible to abuse our rights to prejudice
others."12

Likewise, in Albenson Enterprises Corp. v. CA,13 the Court discussed the concept of abuse of rights
as follows:

"Artilce 19, known to contain what is commonly referred to as the principle of abuse of rights,
sets certain standards which may be observed not only in the exercise of one's rights but
also in the performance of one's duties.These standards are the following: to act with justice;
to give everyone his due; recognizes the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be held
responsible xxx."

Clearly then, the demolition of respondents' house by petitioner, despite his receipt of the TRO, was
not only an abuse but also an unlawful exercise of such right. In insisting on his alleged right, he
wantonly violated this Court's Order and wittingly caused the destruction of respondents; house. 1âwphi1.nêt
Obviously, petitioner cannot invoke damnum absque injuria, a principle premised on the valid
exercise of a right.14 Anything less or beyond such exercise will not give rise to the legal protection
that the principle accords. And when damage or prejudice to another is occasioned thereby, liability
cannot be obscured, much less abated.

In the ultimate analysis, petitioner's liability is premised on the obligation to repair or to make whole
the damage caused to another by reason of one's act or omission, whether done intentionally or
negligently and whether or not punishable by law.15

WHEREFORE, the Petition is DENIED and the appealed Decision AFFIRMED. Costs against
petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18630 December 17, 1966

APOLONIO TANJANCO, petitioner,

vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.

P. Carreon and G. O. Veneracion, Jr. for petitioner.

Antonio V. Bonoan for respondents.

REYES, J.B.L., J.:

Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the
Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support
and damages.

The essential allegations of the complaint are to the effect that, from December, 1957, the defendant
(appellee herein), Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age;
that "defendant expressed and professed his undying love and affection for plaintiff who also in due
time reciprocated the tender feelings"; that in consideration of defendant's promise of marriage
plaintiff consented and acceded to defendant's pleas for carnal knowledge; that regularly until
December 1959, through his protestations of love and promises of marriage, defendant succeeded
in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her
pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as
secretary in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff
became unable to support herself and her baby; that due to defendant's refusal to marry plaintiff, as
promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock,
and social humiliation. The prayer was for a decree compelling the defendant to recognize the
unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her support and
that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's
fees.

Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to
state a cause of action.

Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case,
holding with the lower court that no cause of action was shown to compel recognition of a child as
yet unborn, nor for its support, but decreed that the complaint did state a cause of action for
damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.

The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court
of origin to proceed with the case.

Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are
not permissible in this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, L-
14733, September 30, 1960; Hermosisima vs. Court of Appeals, L-14628, January 29, 1962; and De
Jesus vs. SyQuia, 58 Phil. 886.

We find this appeal meritorious.

In holding that the complaint stated a cause of action for damages, under Article 21 above
mentioned, the Court of Appeals relied upon and quoted from the memorandum submitted by the
Code Commission to the Legislature in 1949 to support the original draft of the Civil Code. Referring
to Article 23 of the draft (now Article 21 of the Code), the Commission stated:

But the Code Commission has gone farther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the following rule:

"ART. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage."

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year
old daughter of "X". A promise of marriage either has not been made, or can not be proved.
The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above
eighteen years of age. Neither can any civil action for breach of promise of marriage be filed.
Therefore, though the grievous moral wrong has been committed, and though the girl and
her family have suffered incalculable moral damage, she and her parents cannot bring any
action for damages. But under the proposed article, she and her parents would have such a
right of action.

The Court of Appeals seems to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who has been seduced. The essential
feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27
Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient promise or

inducement and the woman must yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is from mutual desire, there is no
seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path
of virtue by the use of some species of arts, persuasions and wiles, which are calculated to
have and do have that effect, and which result in her ultimately submitting her person to the
sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or deception is
the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recover.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of
the female, and the defendant merely affords her the needed opportunity for the commission
of the act. It has been emphasized that to allow a recovery in all such cases would tend to
the demoralization of the female sex, and would be a reward for unchastity by which a class
of adventuresses would be swift to profit." (47 Am. Jur. 662)

Bearing these principles in mind, let us examine the complaint. The material allegations there are as
follows:

I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City,
while defendant is also of legal age, single and residing at 525 Padre Faura, Manila, where
he may be served with summons;

II. That the plaintiff and the defendant became acquainted with each other sometime in
December, 1957 and soon thereafter, the defendant started visiting and courting the plaintiff;

III. That the defendant's visits were regular and frequent and in due time the defendant
expressed and professed his undying love and affection for the plaintiff who also in due time
reciprocated the tender feelings;

IV. That in the course of their engagement, the plaintiff and the defendant as are wont of
young people in love had frequent outings and dates, became very close and intimate to
each other and sometime in July, 1958, in consideration of the defendant's promises of
marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to
have carnal knowledge with him;

V. That subsequent thereto and regularly until about July, 1959 except for a short period in
December, 1958 when the defendant was out of the country, the defendant through his
protestations of love and promises of marriage succeeded in having carnal knowledge with
the plaintiff;
 VI. That as a result of their intimate relationship, the plaintiff started conceiving which was
confirmed by a doctor sometime in July, 1959;

VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant
and pleaded with him to make good his promises of marriage, but instead of honoring his
promises and righting his wrong, the defendant stopped and refrained from seeing the
plaintiff since about July, 1959 has not visited the plaintiff and to all intents and purposes has
broken their engagement and his promises.

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction.
Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without exacting early
fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon
finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made
under Article 21 of the Civil Code, and no other cause of action being alleged, no error was
committed by the Court of First Instance in dismissing the complaint.

Of course, the dismissal must be understood as without prejudice to whatever actions may
correspond to the child of the plaintiff against the defendant-appellant, if any. On that point, this
Court makes no pronouncement, since the child's own rights are not here involved.

FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the
Court of First Instance is affirmed. No costs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-17396 May 30, 1962

CECILIO PE, ET AL., plaintiffs-appellants,

vs.
ALFONSO PE, defendant-appellee.

Cecilio L. Pe for and in his own behalf as plaintiff-appellant.

Leodegario L. Mogol for defendant-appellee.

BAUTISTA ANGELO, J.:

Plaintiffs brought this action before the Court of First Instance of Manila to recover moral,
compensatory, exemplary and corrective damages in the amount of P94,000.00 exclusive of
attorney's fees and expenses of litigation.
Defendant, after denying some allegations contained in the complaint, set up as a defense that the
facts alleged therein, even if true, do not constitute a valid cause of action.

After trial, the lower court, after finding that defendant had carried on a love affair with one Lolita Pe,
an unmarried woman, being a married man himself, declared that defendant cannot be held liable for
moral damages it appearing that plaintiffs failed to prove that defendant, being aware of his marital
status, deliberately and in bad faith tried to win Lolita's affection. So it rendered decision dismissing
the complaint. 1äw phï1.ñët

Plaintiffs brought this case on appeal before this Court on the ground that the issues involved are
purely of law.

The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of one Lolita
Pe. At the time of her disappearance on April 14, 1957, Lolita was 24 years old and unmarried.
Defendant is a married man and works as agent of the La Perla Cigar and Cigarette Factory. He
used to stay in the town of Gasan, Marinduque, in connection with his aforesaid occupation. Lolita
was staying with her parents in the same town. Defendant was an adopted son of a Chinaman
named Pe Beco, a collateral relative of Lolita's father. Because of such fact and the similarity in their
family name, defendant became close to the plaintiffs who regarded him as a member of their family.
Sometime in 1952, defendant frequented the house of Lolita on the pretext that he wanted her to
teach him how to pray the rosary. The two eventually fell in love with each other and conducted
clandestine trysts not only in the town of Gasan but also in Boac where Lolita used to teach in a
barrio school. They exchanged love notes with each other the contents of which reveal not only their
infatuation for each other but also the extent to which they had carried their relationship. The rumors
about their love affairs reached the ears of Lolita's parents sometime, in 1955, and since then
defendant was forbidden from going to their house and from further seeing Lolita. The plaintiffs even
filed deportation proceedings against defendant who is a Chinese national. The affair between
defendant and Lolita continued nonetheless.

Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B
España Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she
left, her brothers and sisters checked up her thing and found that Lolita's clothes were gone.
However, plaintiffs found a note on a crumpled piece of paper inside Lolita's aparador. Said note,
written on a small slip of paper approximately 4" by 3" in size, was in a handwriting recognized to be
that of defendant's. In English it reads:

Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will have
a date on the 14th, that's Monday morning at 10 a.m.

Reply

Love

The disappearance of Lolita was reported to the police authorities and the NBI but up to the present
there is no news or trace of her whereabouts.

The present action is based on Article 21 of the New Civil Code which provides:

Any person who wilfully causes loss or injury to another in a manner which is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
There is no doubt that the claim of plaintiffs for damages is based on the fact that defendant, being a
married man, carried on a love affair with Lolita Pe thereby causing plaintiffs injury in a manner
contrary to morals, good customs and public policy. But in spite of the fact that plaintiffs have clearly
established that in illicit affair was carried on between defendant and Lolita which caused great
damage to the name and reputation of plaintiffs who are her parents, brothers and sisters, the trial
court considered their complaint not actionable for the reason that they failed to prove that defendant
deliberately and in bad faith tried to win Lolita's affection Thus, the trial court said: "In the absence of
proof on this point, the court may not presume that it was the defendant who deliberately induced
such relationship. We cannot be unmindful of the uncertainties and sometimes inexplicable
mysteries of the human emotions. It is a possibility that the defendant and Lolita simply fell in love
with each other, not only without any desire on their part, but also against their better judgment and
in full consciousness of what it will bring to both of them. This is specially so with respect to Lolita,
being an unmarried woman, falling in love with defendant who is a married man."

We disagree with this view. The circumstances under which defendant tried to win Lolita's affection
cannot lead, to any other conclusion than that it was he who, thru an ingenious scheme or trickery,
seduced the latter to the extent of making her fall in love with him. This is shown by the fact that
defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray
the rosary. Because of the frequency of his visits to the latter's family who was allowed free access
because he was a collateral relative and was considered as a member of her family, the two
eventually fell in love with each other and conducted clandestine love affairs not only in Gasan but
also in Boac where Lolita used to teach in a barrio school. When the rumors about their illicit affairs
reached the knowledge of her parents, defendant was forbidden from going to their house and even
from seeing Lolita. Plaintiffs even filed deportation proceedings against defendant who is a Chinese
national. Nevertheless, defendant continued his love affairs with Lolita until she disappeared from
the parental home. Indeed, no other conclusion can be drawn from this chain of events than that
defendant not only deliberately, but through a clever strategy, succeeded in winning the affection
and love of Lolita to the extent of having illicit relations with her. The wrong he has caused her and
her family is indeed immeasurable considering the fact that he is a married man. Verily, he has
committed an injury to Lolita's family in a manner contrary to morals, good customs and public policy
as contemplated in Article 21 of the new Civil Code.

WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced to pay the
plaintiffs the sum of P5,000.00 as damages and P2,000.00 as attorney's fees and expenses of
litigations. Costs against appellee.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside
the Decision1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in
toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of
Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not damages may be
recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the
Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid
trial court a complaint2 for damages against the petitioner for the alleged violation of their agreement
to get married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino
and a pretty lass of good moral character and reputation duly respected in her community; petitioner,
on the other hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and
is an exchange student taking a medical course at the Lyceum Northwestern Colleges in Dagupan
City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love on
the condition that they would get married; they therefore agreed to get married after the end of the
school semester, which was in October of that year; petitioner then visited the private respondent's
parents in Bañaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20
August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a virgin
before she began living with him; a week before the filing of the complaint, petitioner's attitude
towards her started to change; he maltreated and threatened to kill her; as a result of such
maltreatment, she sustained injuries; during a confrontation with a representative of the barangay
captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already married to
someone living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner
to pay her damages in the amount of not less than P45,000.00, reimbursement for actual expenses
amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as
may be just and equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim,3 petitioner admitted only the personal circumstances of the parties
as averred in the complaint and denied the rest of the allegations either for lack of knowledge or
information sufficient to form a belief as to the truth thereof or because the true facts are those
alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage
to or agreed to be married with the private respondent; he neither sought the consent and approval
of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his money and
passport; and finally, no confrontation took place with a representative of the barangay captain.
Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that as a result
thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered
mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous
expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order4embodying
the stipulated facts which the parties had agreed upon, to wit:
 1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan,
while the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment,
Guilig, Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City,

College of Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez

Avenue, Dagupan City since July, 1986 up to the present and a (sic) high school
graduate;

4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3,
1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16
October 1989 a decision5 favoring the private respondent. The petitioner was thus ordered to pay the
latter damages and attorney's fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor

of the plaintiff and against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic)
litigation expenses and to pay the costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private
respondent were lovers, (b) private respondent is not a woman of loose morals or questionable
virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit and false
pretenses, promised to marry private respondent, d) because of his persuasive promise to marry
her, she allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private
respondent and her parents — in accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and
chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his
promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused
Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The
trial court gave full credit to the private respondent's testimony because, inter alia, she would not
have had the temerity and courage to come to court and expose her honor and reputation to public
scrutiny and ridicule if her claim was false.7

The above findings and conclusions were culled from the detailed summary of the evidence for the
private respondent in the foregoing decision, digested by the respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she
never had a boyfriend before, defendant started courting her just a few days after
they first met. He later proposed marriage to her several times and she accepted his
 love as well as his proposal of marriage on August 20, 1987, on which same day he
went with her to her hometown of Bañaga, Bugallon, Pangasinan, as he wanted to
meet her parents and inform them of their relationship and their intention to get
married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with
members of plaintiff's family or with plaintiff, were taken that day. Also on that
occasion, defendant told plaintiffs parents and brothers and sisters that he intended
to marry her during the semestral break in October, 1987, and because plaintiff's
parents thought he was good and trusted him, they agreed to his proposal for him to
marry their daughter, and they likewise allowed him to stay in their house and sleep
with plaintiff during the few days that they were in Bugallon. When plaintiff and
defendant later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987, defendant
would tie plaintiff's hands and feet while he went to school, and he even gave her
medicine at 4 o'clock in the morning that made her sleep the whole day and night
until the following day. As a result of this live-in relationship, plaintiff became
pregnant, but defendant gave her some medicine to abort the fetus. Still plaintiff
continued to live with defendant and kept reminding him of his promise to marry her
until he told her that he could not do so because he was already married to a girl in
Bacolod City. That was the time plaintiff left defendant, went home to her parents,
and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the
barangay captain went to talk to defendant to still convince him to marry plaintiff, but
defendant insisted that he could not do so because he was already married to a girl
in Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that
defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed
them of his desire to marry Marilou, he already looked for sponsors for the wedding,
started preparing for the reception by looking for pigs and chickens, and even
already invited many relatives and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the
case as CA-G.R. CV No. 24256. In his Brief,9 he contended that the trial court erred (a) in not
dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral damages,
attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the
trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court
made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already
29 years old at the time, does not appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior to her unfortunate experience with
defendant and never had boyfriend. She is, as described by the lower court, a barrio
lass "not used and accustomed to trend of modern urban life", and certainly would
(sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made
by the defendant to marry her." In fact, we agree with the lower court that plaintiff and
defendant must have been sweethearts or so the plaintiff must have thought because
of the deception of defendant, for otherwise, she would not have allowed herself to
be photographed with defendant in public in so (sic) loving and tender poses as
those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore,
defendant's pretense that plaintiff was a nobody to him except a waitress at the
 restaurant where he usually ate. Defendant in fact admitted that he went to plaintiff's
hometown of Bañaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta
on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with
the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50,
tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told
him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan
City where he was involved in the serious study of medicine to go to plaintiff's
hometown in Bañaga, Bugallon, unless there was (sic) some kind of special
relationship between them? And this special relationship must indeed have led to
defendant's insincere proposal of marriage to plaintiff, communicated not only to her
but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where
plaintiff was working and where defendant first proposed marriage to her, also knew
of this love affair and defendant's proposal of marriage to plaintiff, which she
declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character
and must think so low and have so little respect and regard for Filipino women that
he openly admitted that when he studied in Bacolod City for several years where he
finished his B.S. Biology before he came to Dagupan City to study medicine, he had
a common-law wife in Bacolod City. In other words, he also lived with another
woman in Bacolod City but did not marry that woman, just like what he did to plaintiff.
It is not surprising, then, that he felt so little compunction or remorse in pretending to
love and promising to marry plaintiff, a young, innocent, trustful country girl, in order
to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's

fraudulent and deceptive protestations of love for and promise to marry plaintiff that
made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these
(sic) fraud and deception on appellant's part that made plaintiff's parents agree to
their daughter's living-in with him preparatory to their supposed marriage. And as
these acts of appellant are palpably and undoubtedly against morals, good customs,
and public policy, and are even gravely and deeply derogatory and insulting to our
women, coming as they do from a foreigner who has been enjoying the hospitality of
our people and taking advantage of the opportunity to study in one of our institutions
of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil
Code of the Philippines, to compensate for the moral damages and injury that he had
caused plaintiff, as the lower court ordered him to do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises
therein the single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral
wrong or injury or violated any good custom or public policy; he has not professed love or proposed
marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for
liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a
foreigner, he is not conversant with such Filipino customs, traditions and culture. As an Iranian
Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his
Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take
four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he does not
posses good moral character. Moreover, his controversial "common law life" is now his legal wife as
their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned
on him for the live-in relationship, the private respondent should also be faulted for consenting to an
illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he
had professed his love to the private respondent and had also promised to marry her, such acts
would not be actionable in view of the special circumstances of the case. The mere breach of
promise is not actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition and the
petitioner had filed his Reply thereto, this Court gave due course to the petition and required the
parties to submit their respective Memoranda, which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his
thesis, it is clear that questions of fact, which boil down to the issue of the credibility of witnesses,
are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's
findings as to the credibility of witnesses, the latter court having heard the witnesses and having had
the opportunity to observe closely their deportment and manner of testifying, unless the trial court
had plainly overlooked facts of substance or value which, if considered, might affect the result of the
case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked
any fact of substance or values which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or
weigh all over again the evidence introduced by the parties before the lower court. There are,
however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr., 16 this Court took the
time, again, to enumerate these exceptions:

xxx xxx xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made
is manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v.
Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellate and appellee (Evangelista v. Alto Surety and Insurance
Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia
v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners main and reply briefs are not disputed by the
respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised
on the supposed absence of evidence and is contradicted by the evidence on record
(Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions
in this case. Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have made it
so. The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil
Code, from which We quote:

The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The
history of breach of promise suits in the United States and in England has shown that
no other action lends itself more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to the abolition of rights of
action in the so-called Heart Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to specifically enumerate and
punish in the statute books. 20

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs helpless, even though they
have actually suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed Civil Code the
following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the
nineteen-year old daughter of "X". A promise of marriage either has not been made,
or can not be proved. The girl becomes pregnant. Under the present laws, there is no
crime, as the girl is above nineteen years of age. Neither can any civil action for
breach of promise of marriage be filed. Therefore, though the grievous moral wrong
has been committed, and though the girl and family have suffered incalculable moral
damage, she and her parents cannot bring action for damages. But under the
proposed article, she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible
for human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

 Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or

intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept
while torts is an Anglo-American or common law concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but international criminal acts as well such
as assault and battery, false imprisonment and deceit. In the general scheme of the
Philippine legal system envisioned by the Commission responsible for drafting the New Civil
Code, intentional and malicious acts, with certain exceptions, are to be governed by the
Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of
the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the
absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It
is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has
greatly broadened the scope of the law on civil wrongs; it has become much more supple
and adaptable than the Anglo-American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that
where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a
woman and his representation to fulfill that promise thereafter becomes the proximate cause of the
giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying
her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and
the willful injury to her honor and reputation which followed thereafter. It is essential, however, that
such injury should have been committed in a manner contrary to morals, good customs or public
policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive
protestations of love for and promise to marry plaintiff that made her surrender her virtue and
womanhood to him and to live with him on the honest and sincere belief that he would keep said
promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's
parents agree to their daughter's living-in with him preparatory to their supposed marriage." 24 In
short, the private respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction — the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable for criminal
seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age at the time of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to
marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of
Appeals,25 this Court denied recovery of damages to the woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not
only because he is approximately ten (10) years younger than the complainant —
who was around thirty-six (36) years of age, and as highly enlightened as a former
high school teacher and a life insurance agent are supposed to be — when she
became intimate with petitioner, then a mere apprentice pilot, but, also, because the
court of first instance found that, complainant "surrendered herself" to petitioner
 because, "overwhelmed by her love" for him, she "wanted to bind" him by having a
fruit of their engagement even before they had the benefit of clergy.

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had
been moral seduction, recovery was eventually denied because We were not convinced that such
seduction existed. The following enlightening disquisition and conclusion were made in the said
case:

The Court of Appeals seem to have overlooked that the example set forth in the
Code Commission's memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction, that in law is more than mere
sexual intercourse, or a breach of a promise of marriage; it connotes essentially the
idea of deceit, enticement, superior power or abuse of confidence on the part of the
seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S.
vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient

promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust
and the intercourse is from mutual desire, there is no seduction (43
Cent. Dig. tit. Seduction, par. 56) She must be induced to depart from
the path of virtue by the use of some species of arts, persuasions and
wiles, which are calculated to have and do have that effect, and
which result in her person to ultimately submitting her person to the
sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement,

persuasion or deception is the essence of the injury; and a mere
proof of intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of

sexual desire of curiosity of the female, and the defendant merely
affords her the needed opportunity for the commission of the act. It
has been emphasized that to allow a recovery in all such cases would
tend to the demoralization of the female sex, and would be a reward
for unchastity by which a class of adventuresses would be swift to
profit. (47 Am. Jur. 662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year,
from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate
sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and
mutual passion; for had the appellant been deceived, had she surrendered
exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without
exacting early fulfillment of the alleged promises of marriage, and would have cut
 short all sexual relations upon finding that defendant did not intend to fulfill his
defendant did not intend to fulfill his promise. Hence, we conclude that no case is
made under article 21 of the Civil Code, and no other cause of action being alleged,
no error was committed by the Court of First Instance in dismissing the complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from
this Court, opined that in a breach of promise to marry where there had been carnal knowledge,
moral damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to
mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra
vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan.
29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT
be the carnal knowledge, there is a chance that there was criminal or moral
seduction, hence recovery of moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages, because here mutual lust has
intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the
wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but
in the vulgar sense of deception. But when the sexual act is accomplished without
any deceit or qualifying circumstance of abuse of authority or influence, but the
woman, already of age, has knowingly given herself to a man, it cannot be said that
there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action
lies. The court, however, must weigh the degree of fraud, if it is sufficient to deceive
the woman under the circumstances, because an act which would deceive a girl
sixteen years of age may not constitute deceit as to an experienced woman thirty
years of age. But so long as there is a wrongful act and a resulting injury, there
should be civil liability, even if the act is not punishable under the criminal law and
there should have been an acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for
argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also
at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the
Civil Code and the doctrine laid down in Batarra vs.Marcos, 32 the private respondent cannot recover
damages from the petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her own doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner
or later. Take notice that she is a plain high school graduate and a mere employee . .
. (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and
without doubt, is in need of a man who can give her economic security. Her family is
in dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this
 predicament prompted her to accept a proposition that may have been offered by the
petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble
birth, inferior educational background, poverty and, as perceived by him, dishonorable employment.
Obviously then, from the very beginning, he was not at all moved by good faith and an honest
motive. Marrying with a woman so circumstances could not have even remotely occurred to him.
Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe,
entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want
her to be his life's partner. His was nothing but pure lust which he wanted satisfied by a Filipina who
honestly believed that by accepting his proffer of love and proposal of marriage, she would be able
to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of morality and
brazenly defied the traditional respect Filipinos have for their women. It can even be said that the
petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not
have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual
congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms
of conscience about the entire episode for as soon as she found out that the petitioner was not going
to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari
delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35 At most, it
could be conceded that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition of undue influence of the
party on whom the burden of the original wrong principally rests, or where his
consent to the transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action
by one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less,
equivalent. It does not apply where one party is literate or intelligent and the other
one is not. (c.f. Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be said that this
Court condones the deplorable behavior of her parents in letting her and the petitioner stay together
in the same room in their house after giving approval to their marriage. It is the solemn duty of
parents to protect the honor of their daughters and infuse upon them the higher values of morality
and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,

vs.
FRANCISCO X. VELEZ, defendant-appellant.

Jalandoni & Jamir for defendant-appellant.

Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete public
humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get
married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his
bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair
today.

Please do not ask too many people about the reason why — That would only create
a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE

MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced
evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered
ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and
exemplary damages; P2,500.00 as attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and
motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2,
1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at
this stage of the proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City — the latter's residence
— on the possibility of an amicable element. The court granted two weeks counted from August 25,
1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
September 8, 1955 but that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the
parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel
informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has
appealed to this Court. In his petition of June 21, 1955 in the court a quodefendant alleged
excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that
defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence,
must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3,
Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry
the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not
valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,
December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere
surplusage, because the judgment sought to be set aside was null and void, it having been based on
evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October
30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an
action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-
14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere
breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who
wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract
marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4,
1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were
purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn.,
6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard
from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question
is raised as to the award of actual damages. What defendant would really assert hereunder is that
the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in
the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that
the same could not be adjudged against him because under Article 2232 of the New Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of
this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's
opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral
and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is
hereby affirmed, with costs.