People vs Alegado

Facts:
The accused-appellant stands charged and convicted of two counts of rape by the Regional Trial Court of San Carlos City. The accused was allegedly raped CRISTINA DEANG y VILLAROSA, a girl below twelve (12) years of age, against her will and without her consent. The accused-appellant contends that the offended party's actual age at the time of the alleged incidents of rape was not establisher with certainty; hence, it was error on the part of the trial court to convict the accused-appellant of statutory rape.

Issue:
Whether the offended party was actually below 12 years old at the time of the incidents

Held:
The testimonies of the prosecution witnesses, the offended party herself and her maternal grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not constitute hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the hearsay rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. Under Section 40 of the said Rule, it is provided, in part, that:

SEC. 40. — Family reputation or tradition regading pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.

The word pedigree under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred and the names of the relatives.

In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the victim's age is beyond question. The said provision contains three requisites for its admissibility, namely: (1) that there is controversy in respect to the pedigree of any of the members of a family; (2) that the reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and (3) that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. All these preconditions are obtaining in the case at bar considering that the date of birth of the rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a child to school upon reaching the age of seven) existed long before the rape case was filed; and that the witness testifying to the said tradition is the maternal grandfather of the rape victim.