People vs Jovito Losano

Date: July 20, 1999

Ponente: Per Curiam

Facts:
On March 13, 1996 Jovito Losano was charged with raping his daughter Rowena. The Information alleges that the
offense happened sometime in May 1995, Rowena being only 6 years old when the incident happened.
Losano entered a plea of not guilty. Trial ensued. Prosecution presented as witness Veronica Losano, the
grandmother of Rowena and mother of Jovito.
Veronica testified that she discovered the rape incident when Rowena told her about it on September 25, 1995.
Veronica had Rowena examined by Dr. Ronald Bandonill, a medico-legal officer on October 3, 1995. Bandonill issued a
medical certificate which states that 1) at the time fo the examination, there were no extra-genital injuries on Rowena's
body; and 2) that her physical virginity was preserved. It did however state that: The presence of congestion and
inflammation at the vestibular mucosa and the hymenal area coupled with intense pain and tenderness indicates the
probability of attempted penetration of the area by the hard erect male organ which was not successful.
Rowena testified that the rape happened in their house. She remembers that her father took her clothes off,
fondled her breast, and got on top of her. She testified that it happened at night. She was sleeping with her older sister
and their grandmother Veronica when Jovito came in and carried her outside and raped her.
Jovito testified that case was filed to discredit him. He stated that his sister Priscilla and their mother Veronica
held a grudge against him for not selling some pieces of property to them. Jovito admitted that his other daughter, the
older sister of Rowena, filed a case against him for acts of lasciviousness. Jovito's counsel adopted the medical certifate of
Dr. Bandonill.
TC: Jovito guilty of rape. Imposed death penalty
Due to imposition of death penalty, automatic review to SC.

(Short story: The information alleges that rape was committed sometime in May 1995. The accused contends that based
on the evidence, no rape could have happened in May.)

Issues/Reasoning:
Issue: Whether Jovito was convicted of an offense not charged in the Information
- No
- The Information contained the phrase sometime in May 1995 in alleging the time of the offense. Jovito claims that
based on the medico-legal report the rape happened sometime in August 1995, and not in May as the Information alleges.
He claims that the congestion and inflammation in the hymenal area would not be present if the rape happened in May
1995, 4-5 months prior to the physical examination of Rowena. Jovito claims that he should not be convicted because it
was not proven that the incident happened in May.
- Sec 11 of Rule 110 provides that it is not necessary to state in the information the precise time of the offense except
when time is a material ingredient of the offense. Thus, since the date of the commission of the crime is not an essential
element of rape, and what is material is the occurrence of the rape, proof as to time of rape need not correspond to the
allegation in the information.
- Additionally, it is too late for the accused to object to his conviction on the basis of the erroneous date charged in the
information. Sec 1 of Rule 117 provides that the motion to quash the information must be done before the accused enters
his plea. Sec 8 of Rule 117 provides that the failure of the accused to move to quash before he pleads to the information
shall be deemed a waiver of a motion to quash.

Issue: Whether Rowena's testimony may be given weight considering that her answers were elicited through leading
questions and that there are inconsistencies in her testimony
- Yes
- As a general rule, leading questions are not allowed. When the witness is a child of tender years, however, it is proper for
the court to allow leading questions, as it is usually difficult for a child of tender years to state facts without prompting or
suggestion.
- Jovito points to certain inconsistencies in the testimony of Rowena. The inconsistencies, however, only pertain to minor
matters. The trial court found the testimony of Rowena to be credible; the findings of fact of the trial court is entitled to
he highest respect.
- It may also be observed that for his defense, Jovito could only deny having raped his daughter. Well-entrenched is the
rule that denial is inherently weak and easily fabricated.

Issue: Whether the trial court showed bias against the accused allegedly because it peremptorily ordered his defense
counsel to stipulate to the medico-legal report, depriving him of the chance to cross-examine the doctor on the correctness
of his findings.
- No
- It was the defense counsel who admitted to the existence of the medico-legal report. In fact, not only did defense
counsel admit the existence of such report, it would later on adopt the same as its own exhibit. Neither may accused
repudiate the actions of his counsel; whatever decision an attorney makes on procedural questions, even if it adversely
affects his client's case, will generally bind the client.

Issue: Whether the trial erred in finding that Jovito had the propensity to sexually abuse his children on the basis of the
pending acts of lasciviousness case filed against him by his other daughter.
- Yes the trial court erred.
- The case for acts of lasciviousness is still pending. It does not prove that Jovito has the propensity to crave for his children.

Dispositive:
Decision Affirmed.