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 antinasal 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:
I
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. Villapaa, 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 victimwhether 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.

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.

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

doubtful value.

xxx

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,

In the case of Macadangdang v. Court of appeals (100 SCRA

73 [1980]), we held that:
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
specifiedbut 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. 1expel the foreign bodyNo. 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 ashorter 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 ofreclusion
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) Circumference3.031
inches (b) Lengthapproximately
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")

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

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")

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

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

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?

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)

A Yes, sir.

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]).

A She said in her own words that "GINAMIT AKO NG NEGRO AT

SIYA ANG NAGLAGAY NITO."

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 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?

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.

He who is the cause of the cause is the cause of the evil

caused.

Q Meaning, May 17, 1987?

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:

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.

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

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

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.

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.

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.

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.

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

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.

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 certaintya 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:
PedophiliaA 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.1wphi1 Circumstances forced 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.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ, concur.