600 SUPREME COURT REPORTS ANNOTATED

People vs. Fortich

*
G.R. Nos. 80399­404. November 13, 1997.

PEOPLE OF THE PHILIPPINES, plaintiff­appellee, vs.

PERMONETTE JOY FORTICH and RUDY GAID,
accused­appellants.

Constitutional Law; Extrajudicial Confessions; Trial court

correctly admitted the extra­judicial confession for there was at
that time no pronounced guidelines requiring that the waiver
of counsel by accused can be properly made only with the
presence and assistance of counsel.—The doctrine that an
uncounseled waiver of the right to counsel is not to be given
legal effect was first pronounced on April 26, 1983, in Morales
v. Enrile and reiterated in People v. Galit on March 20, 1985.
While the Morales­Galit doctrine eventually became part of
Section 12(1) of the 1987 Constitution, it affords no relief to
appellants, for the requirements and restrictions outlined
therein have no retroactive effect and do not affect waivers
made prior to April 26, 1983. In the instant case, the extra­
judicial confession and waiver were executed on April 4, 1983.
The trial court correctly admitted the same for “there was at
that time no pronounced guidelines requiring that the waiver
of counsel by accused can be properly made only with the
presence and assistance of counsel.” If indeed Fortich’s
confession was extracted from him as a result of coercion by
policemen at the police station, he could have informed
Deputy Clerk of Court Zaldivar and his counsel Atty. Leo Roa
of the maltreatment he suffered.
Same; Same; The extra­judicial confession and waiver
voluntarily and intelligently made by Fortich are admissible
in evidence.—Thus, the Court has ruled that where one who
has made a confession fails to present any evidence of
compulsion or duress or violence on his person for purposes of
extracting a confession; where he failed to complain to the
officers who administered the oaths, such as the fiscal in this
case; where he did not institute any criminal or
administrative action for maltreatment against his alleged
intimidators; where he did not have himself examined by a
reputable physician to buttress his claim of maltreatment;
and where the assailed confession is replete with details
which could not have been known to the police officers if they
had merely concocted the confession, since the statements
were inculpatory in character, the extrajudicial

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* THIRD DIVISION.

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People vs. Fortich

confession may be admitted, with the above circumstances

being considered as factors indicative of voluntariness.
Accordingly, the extra­judicial confession and waiver
voluntarily and intelligently made by Fortich are admissible
in evidence.
Criminal Law; Evidence; Denial; It is an established
doctrine that the defense of denial cannot prevail over the
positive identification of the accused.—It is an established
doctrine that the defense of denial cannot prevail over the
positive identification of the accused. The court is convinced
that Marilou did recognize the physical features of her
tormentors as she was in a supine position when appellants
successively mounted her. “The victim’s recognition of
appellant as her attacker cannot be doubted for she had
ample opportunity to see the face of the man who ravaged her
during the carnal act.” She was as close to the appellants as
was physically possible, for a man and a woman cannot be
physically closer to each other than during a sexual act.
Marilou had ample opportunity to observe appellants while
she was being terrorized and, subsequently raped. Thus, there
is no reason to doubt the veracity of her statement where she
declared that she recognized appellants as her transgressors.
Same; Same; Rape; In crimes of rape, conviction or
acquittal virtually depends entirely on the credibility of the
victim’s testimony because of the fact that usually only the
participant can testify to its occurrence.—It should be noted
that Maritess Nobleza, for unknown reasons, did not testify
for the prosecution. Marilou’s assertion that her sister was
simultaneously violated, however, supports a finding of
appellants’ guilt. Time and again, the Court has declared that
“in crimes of rape, conviction or acquittal virtually depends
entirely on the credibility of the victim’s testimony because of
the fact that usually only the participant can testify to its
occurrence.” The case at bar presents an unlikely situation
wherein two sisters were simultaneously ravaged in the
presence of, and in plain view, of the other. Accordingly, the
failure of one to declare in court her ordeal may be adequately
proved by the other. In light of this factual setting, there is,
therefore, no doubt that Maritess was likewise a victim of
multiple rapes.
Same; Robbery; There is no such crime as robbery with
frustrated homicide.—The trial court, however, erred in
designating the crime committed as robbery with frustrated
homicide. There is no such crime. There should have been two
separate informations: one

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602 SUPREME COURT REPORTS ANNOTATED

People vs. Fortich

for robbery and another for frustrated homicide.

Notwithstanding the erroneous charge in the information, the
Court finds no reason to overturn the conviction of appellants
for the crime of simple robbery.
Same; Same; Physical Injuries; When there is no evidence
of actual incapacity of the offended party for labor or of the
required medical attendance, it is only slight physical injuries.
—The asportation by appellants of the personal properties
was done by means of violence against or intimidation upon
the persons of Imperio and Tumang. It appears further that
Imperio suffered cranial injury which allegedly required three
stitches to repair. Inasmuch as the doctor who issued the
medical certificate did not testify thereon, said certificate is
hearsay evidence as to the nature of the injuries inflicted and,
therefore, inadmissible in evidence. In People v. Pesena, it was
ruled that when there is no evidence of actual incapacity of
the offended party for labor or of the required medical
attendance, it is only slight physical injuries.
Same; Frustrated Homicide; The intent to kill being an
essential element of the offense of frustrated or attempted
homicide, said element must be proved by clear and convincing
evidence and with the same degree of certainty as is required of
the other elements of the crime.—With respect to the charge of
frustrated homicide in Criminal Case No. 3977, the trial court
correctly observed that the element of intent to kill was not
present. It must be stressed that while Fortich was armed
with a handgun, he never shot Tumang but merely hit him on
the head with it. In Mondragon v. People, it was held that the
intent to kill being an essential element of the offense of
frustrated or attempted homicide, said element must be
proved by clear and convincing evidence and with the same
degree of certainty as is required of the other elements of the
crime. The inference of intent to kill should not be drawn in
the absence of circumstances sufficient to prove such intent
beyond reasonable doubt.
Same; Aggravating Circumstances; Nighttime; Fact that
the offense was committed at night will not suffice to sustain
nocturnidad.—Nocturnity is an aggravating circumstance
when it is deliberately sought to prevent the accused from
being recognized or to ensure his unmolested escape. There
must be proof that this was intentionally sought to insure the
commission of the crime and that appellants took advantage
thereof. In the instant case, there is paucity of evidence that
the peculiar advantage of nighttime was

603

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People vs. Fortich

purposely and deliberately sought by the accused; “the fact

that the offense was committed at night will not suffice to
sustain nocturnidad.”
Same; Same; Motor Vehicle; Use of a motor vehicle is not
aggravating where it was not used to facilitate the crime or
that the crime could not have been committed without it.
—Neither can the use of a motor vehicle be appreciated as an
aggravating circumstance. In the case at bar, the offenses of
robbery and forcible abduction with rape could have been
effected even without the aid of a motor vehicle. In the case of
People v. Mil, it was held that use of a motor vehicle is not
aggravating where it was not used to facilitate the crime or
that the crime could not have been committed without it. In
People v. Garcia, the use of motor vehicle was deemed
unaggravating if its use was merely incidental and was not
purposely sought to facilitate the commission of the offense or
to render the escape of the offender easier and his
apprehension difficult.
Same; Mitigating Circumstances; Intoxication; To be
mitigating, the accused’s state of intoxication must be proved.
—The lower court, however, erred in appreciating intoxication
as a generic mitigating circumstance. Under the Revised
Penal Code, intoxication is mitigating when it is not habitual
or delinquent, that is, not subsequent to the plan to commit
the crime. In People v. Apduhan, Jr., it was held that to be
mitigating, the accused’s state of intoxication must be proved.
Once intoxication is established by satisfactory evidence, in
the absence of proof to the contrary, it is presumed to be non­
habitual or unintentional. In the case at bar, appellants
merely alleged that when the offenses were committed, they
were already drunk. “This self­serving statement stands
uncorroborated. Obviously, it is devoid of any probative
value.”
Same; Evidence; Conspiracy; Conspiracy exists when two
or more persons come to an agreement concerning the
commission of a felony and decide to commit it.—The trial
court found ample evidence to support a finding of conspiracy.
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide
to commit it. Direct proof is not essential to show conspiracy
as its existence could be inferred from the conduct of the
accused before, during and after the commission of the crime,
showing that the accused had acted in unison with each other,
evincing a common purpose or design. It is not necessary to
show that two or more persons met together and entered into
an explicit

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604 SUPREME COURT REPORTS ANNOTATED

People vs. Fortich

agreement setting out the details of an unlawful scheme or
the details by which an illegal objective is to be carried out.
Conviction is proper upon evidence showing that appellants
acted in concert, each of them doing his part in the
commission of the offense. In People v. Gundran, it was held
that in such a case, the act of one becomes the act of all and
each of the accused will thereby be deemed equally guilty of
the crime committed.
Same; Forcible Abduction with Rape; Any act of
intercourse subsequent to the abduction would only be separate
acts of rape and can no longer be considered separate complex
crimes of forcible abduction with rape.—In the case of People
v. Julian, however, it was ruled that when the first act of rape
was committed by appellant, the complex crime of forcible
abduction with rape was then consummated. Any subsequent
acts of intercourse would be only separate acts of rape and can
no longer be considered separate complex crimes of forcible
abduction with rape. Accordingly, a modification of trial
court’s decision is in order.

APPEAL from a decision of the Regional Trial Court of

Cagayan de Oro City, Br. 18.

The facts are stated in the opinion of the Court.

     The Solicitor General for plaintiff­appellee.
     Public Attorney’s Office for accused­appellant.

ROMERO, J.:

Accused­appellants Permonette Joy Fortich and Rudy

Gaid were each charged
1
with two counts of forcible
abduction with rape, one count of robbery with
frustrated homi­

_______________

Case No. Complainant Accused

3809 Marilou Nobleza Permonette Joy Fortich
3877 Maritess Nobleza Permonette Joy Fortich
3878 Maritess Nobleza Rudy Gaid
3896 Marilou Nobleza Rudy Gaid

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VOL. 281, NOVEMBER 13, 1997 605

 VOL. 281, NOVEMBER 13, 1997 605
People vs. Fortich
2 3
cide and one count of robbery.

I. In Criminal Case No. 3809­Forcible Abduction

with Rape

“That on or about March 31, 1983 in the evening, in the City

of Cagayan de Oro, Philippines, and within the jurisdiction of
this Honorable Court, the above­named accused, with violence
and intimidation, and with the use of an unlicensed firearm,
conspiring, confederating together with one Rudy Gaid alias
Boy Gaid, who is presently at large, and mutually helping one
another, did then and there wilfully, unlawfully and
feloniously abduct the herein complainant, Marilou Nobleza
by then and there taking and carrying her away with her
sister, Maritess Nobleza, and loading said complainant on
board a stolen pick­up, against her will and consent and with
lewd designs, and brought her from Alta Tierra, Carmen Hill,
this city, to Malasag, this city, and while at Malasag, did then
and there wilfully, unlawfully and feloniously have carnal
knowledge (by accused Permonette Joy Fortich) of the herein
complainant, against her will and consent, to her great
damage and prejudice. Contrary to Article 342 in relation to
Article 335 of the Revised Penal Code.”

II. In Criminal Case No. 3877­Forcible Abduction

with Rape

“That on or about March 31, 1983, in the evening, in the City

of Cagayan de Oro, Philippines, and within the jurisdiction of
this Honorable Court, the above­named accused, with violence
and intimidation and with the use of an unlicensed firearm,
conspiring, confederating together and mutually helping one
another, did then and there wilfully, unlawfully and
feloniously abduct the complainant Maritess Nobleza, by then
and there taking and carrying her away with her sister,
Marilou Nobleza, and loading in a stolen pickup with her
sister, against her will and consent and and (sic) with lewd
designs, and brought her from Alta Tierra, Carmen Hill, this
City, to Malasag, this city, and while at Malasag, this city
(sic) did then and there wilfully, unlawfully and feloniously by
means of

________________
2

Case No. Complainant Accused

3977 Luis Tumang Rudy Gaid

Case No. Complainant Accused

4162 Rolly Imperio Permonette Joy Fortich

606

606 SUPREME COURT REPORTS ANNOTATED

People vs. Fortich

violence and intimidation have carnal knowledge (by accused

Permonette Joy Fortich) of the complainant, against her will
and consent, to her great damage and prejudice. Contrary to
Article 342 in relation to Article 335 of the Revised Penal
Code.”

III. In Criminal Case No. 3878­Forcible Abduction

with Rape

“That on or about March 31, 1983, in the evening, in the City

of Cagayan de Oro, Philippines, and within the jurisdiction of
this Honorable Court, the above­named (accused), with
violence and intimidation, and with the use of an unlicensed
firearm, and a motor vehicle, conspiring, confederating
together and mutually helping one another did then and there
wilfully, unlawfully and feloniously abduct the complainant
Maritess Nobleza, by then and there taking and carrying her
away with her sister, Marilou Nobleza, and loading in a stolen
pick­up with her sister, against her will and consent and with
lewd designs, and brought her from Alta Tierra, Carmen Hill,
this city, to Malasag, this city, and while at Malasag, this city
(sic), did then and there wilfully, unlawfully and feloniously
by means of violence and intimidation have carnal knowledge
(by accused Rudy Gaid alias Boy) of the said complainant,
against her will and consent, to her great damage and
prejudice. Contrary to Article 342 in relation to Article 335 of
the Revised Penal Code.”

IV. In Criminal Case No. 3896­Forcible Abduction

with Rape

“That on or about March 11, 1983 (sic), in the evening, in the

City of Cagayan de Oro, Philippines, and within the
jurisdiction of this Honorable Court, the above­named
accused, with violence and intimidation and with the use of an
unlicensed firearm, and motor vehicle, conspiring,
confederating together and mutually helping with (sic) one
another, did then and there wilfully, unlawfully and
feloniously abduct the complainant Marilou Nobleza, by then
and there taking and carrying her away with her sister,
Maritess Nobleza, and loading in a stolen pick­up with her
sister, against her will and consent and with lewd designs,
and brought her from Alta Tierra, Carmen Hill, this city to
Malasag, this city (sic), and while at Malasag, this city, did
then and there wilfully, unlawfully and feloniously by means
by violence and intimidation have carnal knowl­

607

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People vs. Fortich

edge (by accused Rudy Gaid alias ‘Boy’) of the complainant,

against her will and consent, to her great damage and
prejudice.
Contrary to Article 342 in relation to Article 335 of the
Revised Penal Code.”

V. In Criminal Case No. 3977­Robbery with

Frustrated Homicide

“That on or about March 31, 1983, at Carmen Hill, Cagayan

de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above­named accused, armed with
firearms, with violence and intimidation upon persons, with
intent of gain and against the will of the owner thereof,
conspiring, confederating together with one Rudy Gaid alias
‘Boy Gaid,’ and mutually helping one another, did then and
there wilfully, unlawfully and feloniously take, rob and carry
away a polo shirt, pants while being worn by Luis S. Tumang
and a cash worth P160.00, a wrist watch (Elgin) worth
P500.00, valued all in all in the total amount of P660.00, to
the damage and prejudice of the said owner in the aforesaid
sum; that on the occasion of the robbery and to enable them to
facilitate the taking and robbing (sic) the offended party, and
to carry out with ease the commission of the offense, accused
Permonette Joy Fortich with intent to kill, did then and there
wilfully, unlawfully and feloniously attacked and mauled the
said Luis S. Tumang, struck and hit him with a firearm,
thereby inflicting the following injuries, to wit: fracture
depressed type left perietat (sic) bone; contussion (sic)
hematoma left temporal area; abrasion behind left ear;
multiple linear abrasion both thigh and leg, which ordinarily
would cause the death of the said offended party, thus
performing all the acts of execution which would produce the
crime of Homicide, as a consequence, but nevertheless, did not
produce it by reason of some cause independent of his will,
that is, by the timely and able medical attendance rendered to