Você está na página 1de 90

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 143468-71

January 24, 2003

THE PEOPLE OF THE


PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE LIZADA @ FREDIE
LIZADA, accused-appellant.

"That sometime in August 1998 in the City of


Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing
her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis
into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA y
AGOO, against her will and consent.
Contrary to law.

xxx

xxx

xxx

That on or about October 22, 1998, in the City of


Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing
her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis
into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.

CALLEJO, SR., J.:


xxx
This is an automatic review of the Decision1 of the
Regional Trial Court of Manila, Branch 54, finding
accused-appellant Freddie Lizada guilty beyond
reasonable doubt of four (4) counts of qualified
rape and meting on him the death penalty for each
count.
I. The Charges
Accused-appellant2 was charged with four (4)
counts of qualified rape under four separate
Informations. The accusatory portion of each of the
four Informations reads:

xxx

xxx

That on or about November 5, 1998, in the City of


Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing
her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis
into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.
Contrary to law.

Contrary to law.
xxx

xxx

xxx

That on or about September 15, 1998, in the City of


Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully
and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing
her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis
into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.

Contrary to law."3
The four (4) Informations were docketed as
Criminal Cases Nos. 99-171390, 99-171391, 99171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15,
1999, assisted by counsel de parte and entered a
plea of not guilty to each of the charges.4 A joint
trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa,
natives of San Isidro, Bohol, had three (3) children,
namely: Analia, who was born on December 18,
1985;6 Jepsy, who was 11 years old, and Rossel,
who was nine years old. However, the couple
decided to part ways and live separately. Rose left
Bohol and settled in Manila with her young
children. She worked as a waitress to make both
ends meet.
In 1994, Rose met accused-appellant. They decided
to live together as husband and wife at No. 1252
Jose Abad Santos Street, Moriones, Tondo, Manila.
In 1996, Rose resigned from her job as a waitress.
She secured a loan, bought a truck and used it for
her business.

In the meantime, Rose secured a loan anew and


used the proceeds thereof to put up a video shop in
her house. She sold Avon products from house to
house to augment her income. Whenever she was
out of their house, Rossel and Analia took turns in
tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when
accused-appellant entered. He laid on top of her,
removed her T-shirt and underwear. He then
inserted his finger in her vagina. He removed his
finger and inserted his penis in her vagina.
Momentarily, she felt a sticky substance coming out
from his penis. She also felt pain in her sex organ.
Satiated, accused-appellant dismounted but
threatened to kill her if she divulged to anyone
what he did to her. Accused-appellant then returned
to his room. The incident lasted less than one hour.
Petrified by the threats on her life, Analia kept to
herself what happened to her.7
Sometime in August 1997, accused-appellant
entered again the room of Analia, placed himself on
top of her and held her legs and arms. He then
inserted his finger into her sex organ ("fininger
niya ako"). Satiated, accused-appellant left the
room. During the period from 1996 to 1998,
accused-appellant
sexually
abused
private
complainant two times a week.

On November 5, 1998, at about 3:00 p.m., Analia


was in the sala of their house studying her
assignments. Accused-appellant was also in the
sala. Rossel tended the video shop while his mother
was away. Analia went into her room and lay down
in bed. She did not lock the door of the room
because her brother might enter any time. She
wanted to sleep but found it difficult to do so.
Accused-appellant went to his room next to the
room of Analia. He, however, entered the room of
Analia. He was wearing a pair of short pants and
was naked from waist up. Analia did not mind
accused-appellant entering her room because she
knew that her brother, Rossel was around.
However, accused-appellant sat on the side of her
bed, placed himself on top of her, held her hands
and legs and fondled her breasts. She struggled to
extricate herself. Accused-appellant removed her
panty and touched her sex organ. Accusedappellant inserted his finger into her vagina,
extricated it and then inserted his penis into her
vagina. Accused-appellant ejaculated. Analia felt
pain in her sex organ. Momentarily, Rossel passed
by the room of Analia after drinking water from the
refrigerator, and peeped through the door. He saw
accused-appellant on top of Analia. Accusedappellant saw Rossel and dismounted. Accusedappellant berated Rossel and ordered him to go to
his room and sleep. Rossel did. Accused-appellant
then left the room. Analia likewise left the room,
went out of the house and stayed outside for one

hour. Rose arrived home at 6:00 p.m. However,


Analia did not divulge to her mother what accusedappellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left
the house. Accused-appellant was in the sala of the
house watching television. Analia tended the video
shop. However, accused-appellant told Analia to go
to the sala. She refused, as nobody would tend the
video shop. This infuriated accused-appellant who
threatened to slap and kick her.
Analia ignored the invectives and threats of
accused-appellant and stayed in the video shop.
When Rose returned, a heated argument ensued
between accused-appellant and Analia. Rose sided
with her paramour and hit Analia. This prompted
Analia to shout. "Ayoko na, ayoko na." Shortly
thereafter, Rose and Analia left the house on board
the motorcycle driven by her mother in going to
Don Bosco Street, Moriones, Tondo, Manila, to
retrieve some tapes which had not yet been
returned. When Rose inquired from her daughter
what she meant by her statement, "ayoko na, ayoko
na," she told her mother that accused-appellant had
been touching the sensitive parts of her body and
that he had been on top of her. Rose was shocked
and incensed. The two proceeded to Kagawad
Danilo Santos to have accused-appellant placed
under arrest. On November 10, 1998, the two
proceeded to the Western Police District where

Analia gave her Affidavit-Complaint to PO1


Carmelita Nocum in the presence of SPO2 Fe H.
Avindante. She related to the police investigator
that accused-appellant had touched her breasts and
arms in August, 1998, September 15, 1998, October
22, 1998 and on November 5, 1998, at 3:00 p.m.
Analia then submitted herself to genitalia
examination by Dr. Armie Umil, a medico-legal
officer of the NBI. The medico-legal officer
interviewed Analia, told him that she was raped in
May, 1997 at 3:00 p.m. and November 5, 1998 at
3:00 p.m.8
Dr. Umil prepared and signed a report on "Living
Case No. MO-98-1265" which contained her
findings during her examination on Analia, thus:
"xxx

xxx

xxx

Fairly nourished, conscious, coherent, cooperative,


ambulatory
subject.
Breasts,
developed,
hemispherical, firm. , brown, 3.0 cms. in
diameter. Nipples brown, protruding, 0.7 cms. in
diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora
and minora, coaptated. Fourchette, tense. Vetibular

mucosa, pinkish. Hymen, tall, thick, intact.


Hymenal orifice measures, 1.5 cms. in diameter.
Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries
noted on the body of the subject at the time of
examination.
2). Hymen, intact and its orifice small (1.5 cms. in
diameter) as to preclude complete penetration by an
average-sized adult Filipino male organ in full
erection without producing any genital injury."9
Subsequently, Analia told her mother that "mabuti
na lang iyong panghihipo lang ang sinabi ko."
When Rose inquired from her daughter what she
meant by her statement, Analia revealed to her
mother that accused-appellant had sexually abused
her. On December 15, 1998, Analia executed a
"Dagdag na Salaysay ng Paghahabla" and charged
accused-appellant with rape.10
III. The Defenses and Evidence of AccusedAppellant
Accused-appellant testified in his defense. He
declared that after a month of courtship, he and
Rose agreed in 1994 to live together as husband
and wife. He was then a utility worker with the

Navotas Branch of the Philippine Banking


Corporation. Rose, on the other hand, was a
waitress at the Golden Bird beer house at Rizal
Avenue, Manila.
Accused-appellant denied having raped Analia. He
claimed that he loved the children of Rose as if
they were his own children. He took care of them,
as in fact he cooked and prepared their food before
they arrived home from school. At times, he ironed
their school uniforms and bathed them, except
Analia who was already big. Analia was hardheaded because she disobeyed him whenever he
ordered her to do some errands. Because of Analia's
misbehavior,
accused-appellant
and
Rose
oftentimes quarreled. Rose even demanded that
accused-appellant leave their house. Another
irritant in his and Rose's lives were the frequent
visits of the relatives of her husband.
Sometime in 1997, accused-appellant was
retrenched from his employment and received a
separation pay of P9,000.00 which he used to put
up the VHS Rental and Karaoke from which he
earned a monthly income of P25,000.00. While
living together, accused-appellant and Rose
acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine,
one scooter motor, two VHS rewinders, one sala
set, one compact disc player and many other
properties.

Accused-appellant ventured that Rose coached her


children Analia and Rossel to testify against him
and used them to fabricate charges against him
because Rose wanted to manage their business and
take control of all the properties they acquired
during their coverture. Also, Rose was so
exasperated because he had no job.
IV. The Verdict

Accused-appellant assailed the decision of the court


a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN
NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A
REVERSIBLE ERROR."12
xxx

xxx

xxx

On May 29, 2000, the trial court rendered judgment


against accused-appellant finding him guilty
beyond reasonable doubt of four (4) counts of rape,
defined and penalized in the seventh paragraph, no.
1, Art. 335 of the Revised Penal Code, and meted
on him the death penalty for each count. The
dispositive portion of the decision reads:

"THE TRIAL COURT GRAVELY ERRED IN


CONVICTING ACCUSED-APPELLANT OF
FOUR (4) COUNTS OF RAPE DESPITE
FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.13

"From all the evidence submitted by the


prosecution, the Court concludes that the accused is
guilty beyond reasonable doubt of the crime
charged against him in these four (4) cases,
convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for
in the seventh paragraph, no. 1, Article 335 of the
Revised Penal Code.

On the first assignment of error, accused-appellant


contends that the decision of the trial court is null
and void as it failed to comply with the
requirements of Section 14, Article VIII of the 1987
Constitution and Section 1, Rule 36 of the 1997
Rules of Civil Procedure, as amended. He avers
that the court a quo made no findings of facts in its
decision. The trial court merely summarized the
testimonies of the witnesses of the prosecution and
those of accused-appellant and his witnesses, and
forthwith set forth the decretal portion of said
decision. The trial court even failed to state in said
decision the factual and legal basis for the

SO ORDERED."11
V. Assigned Errors of the Trial Court

VI. Findings of the Court

imposition of the supreme penalty of death on him.


The Solicitor General, on the other hand, argues
that there should be no mechanical reliance on the
constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering
that courts are harassed by crowded dockets and
time constraints. Even if the trial court did not
elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is
valid. In any event, the Solicitor General contends
that despite the infirmity of the decision, there is no
need to remand the case to the trial court for
compliance with the constitutional requirement as
the Court may resolve the case on its merits to
avoid delay in the final disposition of the case and
afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken.
Article VIII, paragraph 14 of the 1987 Constitution
provides that "no decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is
based." This requirement is reiterated and
implemented by Rule 120, Section 2 of the 1985
Rules on Criminal Procedure, as amended, which
reads:
"SEC. 2. Form and contents of judgment. The
judgment must be written in the official language,
personally and directly prepared by the judge and
signed by him and shall contain clearly and

distinctly a statement of the facts proved or


admitted by the accused and the law upon which
the judgment is based.
If it is of conviction, the judgment shall state (a) the
legal qualification of the offense constituted by the
acts committed by the accused, and the aggravating
or mitigating circumstances attending the
commission thereof, if there are any; (b) the
participation of the accused in the commission of
the offense, whether as principal, accomplice, or
accessory after the fact; (c) the penalty imposed
upon the accused; and (d) the civil liability or
damages caused by the wrongful act to be
recovered from the accused by the offended party,
if there is any, unless the enforcement of the civil
liability by a separate action has been reserved or
waived."14
The purpose of the provision is to inform the
parties and the person reading the decision on how
it was reached by the court after consideration of
the evidence of the parties and the relevant facts, of
the opinion it has formed on the issues, and of the
applicable laws. The parties must be assured from a
reading of the decision of the trial court that they
were accorded their rights to be heard by an
impartial and responsible judge.15 More substantial
reasons for the requirement are:

"For one thing, the losing party must be given an


opportunity to analyze the decision so that, if
permitted, he may elevate what he may consider its
errors for review by a higher tribunal. For another,
the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade
it to accept the verdict in good grace instead of
prolonging the litigation with a useless appeal. A
third reason is that decisions with a full exposition
of the facts and the law on which they are based,
especially those coming from the Supreme Court,
will constitute a valuable body of case law that can
serve as useful references and even as precedents in
the resolution of future controversies."16
The trial court is mandated to set out in its decision
the facts which had been proved and its conclusions
culled therefrom, as well as its resolution on the
issues and the factual and legal basis for its
resolution.17 Trial courts should not merely
reproduce the respective testimonies of witnesses of
both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the
requirements under the Constitution and the Rules
on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and
of accused-appellant on direct and cross
examinations and merely made referral to the
documentary evidence of the parties then concluded

that, on the basis of the evidence of the prosecution,


accused-appellant is guilty of four (4) counts of
rape and sentenced him to death, on each count.
The trial court even failed to specifically state the
facts proven by the prosecution based on their
evidence, the issues raised by the parties and its
resolution of the factual and legal issues, as well as
the legal and factual bases for convicting accusedappellant of each of the crimes charged. The trial
court rendered judgment against accused-appellant
with the court declaration in the decretal portion of
its decision that it did so based on the evidence of
the prosecution. The trial court swallowed hook,
line and sinker the evidence of the prosecution. It
failed to explain in its decision why it believed and
gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court,
one is apt to conclude that the trial court ignored
the evidence of accused-appellant. The trial court
did not even bother specifying the factual and legal
bases for its imposition of the supreme penalty of
death on accused-appellant for each count of rape.
The trial court merely cited seventh paragraph, no.
1, Article 335 of the Revised Penal Code. The
decision of the trial court is a good example of
what a decision, envisaged in the Constitution and
the Revised Rules of Criminal Procedure, should
not be.

The Court would normally remand the case to the


trial court because of the infirmity of the decision
of the trial court, for compliance with the
constitutional provision. However, to avert further
delay in the disposition of the cases, the Court
decided to resolve the cases on their merits
considering that all the records as well as the
evidence adduced during the trial had been elevated
to the Court.18 The parties filed their respective
briefs articulating their respective stances on the
factual and legal issues.

burden of proving the guilt of the accused beyond


cavil of doubt and hence, the accused is entitled to
an acquittal.

In reviewing rape cases, this Court is guided by the


following principles: (1) to accuse a man of rape is
easy but to disprove it is difficult though the
accused may be innocent; (2) considering the
nature of things, and only two persons are usually
involved in the crime of rape, the testimony of the
complainant should be scrutinized with great
caution; (3) the evidence for the prosecution must
stand or fall on its own merits and not be allowed to
draw strength from the weakness of the evidence of
the defense.19 By the very nature of the crime of
rape, conviction or acquittal depends almost
entirely on the credibility of the complainant's
testimony because of the fact that usually only the
participants can testify as to its occurrence.
However, if the accused raises a sufficient doubt as
to any material element of the crime, and the
prosecution is unable to overcome it with its
evidence, the prosecution has failed to discharge its

Accused-appellant avers that the prosecution failed


to adduce the requisite quantum of evidence that he
raped the private complainant precisely on
September 15, 1998 and October 22, 1998.
Moreover, the medical findings of Dr. Armie Umil
show that the hymen of the private complainant
was intact and its orifice so small as to preclude
complete penetration by an average size adult
Filipino male organ in full erection without
producing any genital injury. The physical evidence
belies private complainant's claim of having been
deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for
its part, contends that the prosecution through the
private complainant proved the guilt of accusedappellant for the crime charged on both counts.

Anent the second assignment of error, we will


resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99171393 (covering the crime of rape committed on
or about October 22, 1998 and on or about
September 15, 1998)

The contention of accused-appellant does not


persuade the Court. The private complainant

testified that since 1996, when she was only eleven


years old, until 1998, for two times a week,
accused-appellant used to place himself on top of
her and despite her tenacious resistance, touched
her arms, legs and sex organ and inserted his finger
and penis into her vagina. In the process, he
ejaculated. Accused-appellant threatened to kill her
if she divulged to anyone what he did to
her.20 Although private complainant did not testify
that she was raped on September 15, 1998 and
October 22, 1998, nevertheless accused-appellant
may be convicted for two counts of rape, in light of
the testimony of private complainant.
It bears stressing that under the two Informations,
the rape incidents are alleged to have been
committed "on or about September 15, 1998" and
"on or about October 22, 1998." The words "on or
about" envisage a period, months or even two or
four years before September 15, 1998 or October
22, 1998. The prosecution may prove that the crime
charged was committed on or about September 15,
1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the
conviction of accused-appellant of five (5) counts
of rape, four of which were committed in
December 1992 (two counts) and one each in
March and April, 1993 and in November, 1995 and
one count of acts of lasciviousness committed in

December 1992, on a criminal complaint for


multiple rape, viz:

which the offense was committed" as provided


under Rule 110, 11.

"That sometime in November 1995, and some


occasions prior and/or subsequent thereto, in the
Municipality of Dasmarias, Province of Cavite,
and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd designs,
taking advantage of his superior strength over the
person of his own twelve (12) year old daughter,
and by means of force, violence and intimidation,
did, then and there, willfully, unlawfully and
feloniously, have repeated carnal knowledge of
Myra M. Gianan, against her will and consent, to
her damage and prejudice."22

This contention is also untenable. In People v.


Garcia, this Court upheld a conviction for ten
counts of rape based on an information which
alleged that the accused committed multiple rape
"from November 1990 up to July 21, 1994," a time
difference of almost four years which is longer than
that involved in the case at bar. In any case, as
earlier stated, accused-appellant's failure to raise a
timely objection based on this ground constitutes a
waiver of his right to object."23

On the contention of accused-appellant in said case


that his conviction for rape in December 1992 was
so remote from the date (November 1995) alleged
in the Information, so that the latter could no longer
be considered as being "as near to the actual date at
which the offense was committed" as provided
under Section 11, Rule 110 of the Rules on
Criminal Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his
conviction for rape in December 1992 is so remote
from the date (November 1995) alleged in the
information, so that the latter could no longer be
considered as being "as near to the actual date at

Moreover, when the private complainant testified


on how accused-appellant defiled her two times a
week from 1996 until 1998, accused-appellant
raised nary a whimper of protest. Accusedappellant even rigorously cross-examined the
private complainant on her testimony on direct
examination. The presentation by the prosecution,
without objection on the part of accused-appellant,
of evidence of rape committed two times a week
from 1996 until 1998 (which includes September
15, 1998 and October 22, 1998) to prove the
charges lodged against him constituted a waiver by
accused-appellant of his right to object to any
perceived infirmity in, and in the amendment of,
the aforesaid Informations to conform to the
evidence adduced by the prosecution.

The barefaced fact that private complainant


remained a virgin up to 1998 does not preclude her
having been repeatedly sexually abused by
accused-appellant. The private complainant being
of tender age, it is possible that the penetration of
the male organ went only as deep as her labia.
Whether or not the hymen of private complainant
was still intact has no substantial bearing on
accused-appellant's
commission
of
the
24
crime. Even, the slightest penetration of
the labia by the male organ or the mere entry of the
penis into the aperture constitutes consummated
rape. It is sufficient that there be entrance of the
male
organ
within
the labia of
the pudendum.25 InPeople
vs.
Baculi,
cited
26
in People vs. Gabayron, we held that there could
be a finding of rape even if despite repeated
intercourse over a period of four years, the
complainant still retained an intact hymen without
injury. In these cases, the private complainant
testified that the penis of accused-appellant gained
entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused,
what happened next?
Witness:

He laid himself on top of me, sir.


Q

What did he do while he was on top of you?

A
He inserted his finger (Finenger nya ako,
ipinatong nya yong ano nya)
Q
Can you please describe more specifically
what is this and I quote "Pinatong nya yong ano
nya" and where did he place it?
A

His organ, sir.

Where did he place his organ?

In my organ, sir. (sa ari ko po.)

Q
At this very juncture madam witness, what
did you feel?
A
I felt pain, sir, and I also felt that there was a
sticky substance that was coming out,
sir."27(Emphasis supplied)
We agree with accused-appellant that he is guilty
only of two counts of simple rape, instead of
qualified rape. The evidence on record shows that
accused-appellant is the common-law husband of
Rose, the mother of private complainant. The
private complainant, as of October 1998, was still
13 years old, and under Article 335 as amended by

Republic Act 7659, the minority of the private


complainant, concurring with the fact that accusedappellant is the common-law husband of the
victim's mother, is a special qualifying
circumstance warranting the imposition of the death
penalty.28 However, said circumstance was not
alleged in the Informations as required by Section
8, Rule 110 of the Revised Rules on Criminal
Procedure which was given retroactive effect by
this Court because it is favorable to the
accused.29 Hence, even if the prosecution proved
the special qualifying circumstance of minority of
private complainant and relationship, the accusedappellant being the common-law husband of her
mother, accused-appellant is guilty only of simple
rape. Under the given law, the penalty for simple
rape is reclusion perpetua. Conformably with
current jurisprudence, accused-appellant is liable to
private complainant for civil indemnity in the
amount of P50,000.00 and moral damages in the
amount of P50,000.00 for each count of rape, or a
total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391
(covering the crime committed on or about August
1998 and November 5, 1998)
Accused-appellant avers that (a) the Information
in Criminal Case No. 99-171390 is defective
because the date of the offense "on or about August
1998" alleged therein is too indefinite, in violation

of Rule 110, Section 11 of the Revised Rules on


Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. It
is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material ingredient
of the offense. The offense may be alleged to have
been committed on a date as near as possible to the
actual date of its commission. (11a)"30
Accused-appellant further asserts that the
prosecution failed to prove that he raped private
complainant in August 1998. Hence, he argues, he
should be acquitted of said charge. The Office of
the Solicitor General, for its part, argued that the
date "on or about August 1998" is sufficiently
definite. After all, the date of the commission of the
crime of rape is not an essential element of the
crime. The prosecution adduced conclusive proof
that accused-appellant raped private complainant
on or about August 1998, as gleaned from her
testimony during the trial.
The Court does not agree with accused-appellant. It
bears stressing that the precise date of the
commission of the crime of rape is not an essential
element of the crime. Failure to specify the exact
date when the rape was committed does not render
the Information defective. The reason for this is
that the gravamen of the crime of rape is carnal

knowledge of the private complainant under any of


the circumstances enumerated under Article 335 of
the Revised Penal Code, as amended. Significantly,
accused-appellant did not even bother to file a
motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed,
accused-appellant was duly arraigned under the
Information and entered a plea of not guilty to the
charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his
evidence after the prosecution had rested its case. It
was only on appeal to this Court that accusedappellant questioned for the first time the
sufficiency of the Information filed against him. It
is now too late in the day for him to do so.
Moreover, inPeople vs. Salalima,31 this Court held
that:
"Failure to specify the exact dates or time when the
rapes occurred does not ipso facto make the
information defective on its face. The reason is
obvious. The precise date or time when the victim
was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal
knowledge under any of the circumstances
enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was
committed at any time as near to the actual date
when the offense was committed an information is
sufficient. In previous cases, we ruled that

allegations that rapes were committed "before and


until October 15, 1994," "sometime in the year
1991 and the days thereafter," "sometime in
November 1995 and some occasions prior and/or
subsequent thereto" and "on or about and
sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the
Revised Rules on Criminal Procedure.
In this case, although the indictments did not state
with particularity the dates when the sexual assaults
took place, we believe that the allegations therein
that the acts were committed "sometime during the
month of March 1996 or thereabout," "sometime
during the month of April 1996 or thereabout,"
"sometime during the month of May 1996 or
thereabout" substantially apprised appellant of the
crimes he was charged with since all the elements
of rape were stated in the informations. As such,
appellant cannot complain that he was deprived of
the right to be informed of the nature of the cases
filed against him. Accordingly, appellant's assertion
that he was deprived of the opportunity to prepare
for his defense has no leg to stand on."
The prosecution proved through the testimony of
private complainant that accused-appellant raped
her two times a week in 1998. As in Criminal Cases
Nos. 99-171392 and 99-171393, accused-appellant
is guilty only of simple rape.

As to the crime of rape subject of Criminal Case


No. 99-171391, accused-appellant avers that he is
not criminally liable of rape. We agree with
accused-appellant. The collective testimony of
private complainant and her younger brother Rossel
was that on November 5, 1998, accused-appellant
who was wearing a pair of short pants but naked
from waist up, entered the bedroom of private
complainant, went on top of her, held her hands,
removed her panty, mashed her breasts and touched
her sex organ. However, accused-appellant saw
Rossel peeping through the door and dismounted.
He berated Rossel for peeping and ordered him to
go back to his room and to sleep. Accusedappellant then left the room of the private
complainant. The testimony of private complainant
on direct examination reads:
"Fiscal Carisma:
Q

In between 1996 and August 1997?

Yes, sir, sometimes two (2) times a week.

Q
In November of 1998, do you recall of any
unusual experience that happened to you again?
A

Yes, sir.

What was this unusual experience of yours?

He laid himself on top of me, sir.

You said "he" whom are you referring to?

Same ruling. Let the complainant continue


considering that she is crying and still young.
Witness:

Freedie Lizada Jakosalem, sir.


None else, sir.

The same person you pointed to earlier?


Fiscal Carisma:

Yes, sir.

Q
You said he placed himself on top of you in
November, 1998, what did he do while he was on
top of you?
A
He's smashing my breast and he was also
touching my arms and my legs, sir.

With what part of his body did he touch your sex


organ?
Atty. Estorco:
Your Honor, that is
Court:

What else if any madam witness?


May answer.

He was also touching my sex organ, sir.


Fiscal Carisma:

What else, if any?


I will re-propound the question, your honor.

Atty. Estorco:
May we take note of the same objection your
honor, the prosecution

You said that he touched your sex organ, will you


tell the court with what part of his body, did he
touch your sex organ?

Court:

Witness:
With his hands, sir.

Q
What about after November 1998 was
this the last incident, this unusual thing that you
experienced from the hands of the accused was this
that last time, the one you narrated in November
1998?
A

Yes, sir."32

On cross-examination, the private complainant


testified, thus:

A
He was not wearing any shirt then, sir, he
was naked.
Q
When you realized that somebody was
entering the room were you not afraid?
A

Q
Do you mean to tell us that he was holding
your two arms and at the same time your legs, is
that what you are trying to tell us?
A
He held me first in my arms and then my
legs, sir.

No, sir, I was not afraid.

Q
What happened when you realized that
somebody entered the room, and the one who
entered was your stepfather, Freedie Lizada?

Q
He held you first by your arms, is that what
you are trying to tell us?
Fiscal Carisma:

"Atty. Balaba:
Q
room?

Who was that somebody who entered the

A
I did not mind him entering the room
because I know that my brother was around but
suddenly I felt that somebody was holding me.

Already answered your honor, he held the arms and


then the legs.
Court:

My stepfather Freedie Lizada, sir.

Q
He was holding you, where were you when
he held you?

Already answered.

Q
He was fully dressed at that time, during the
time, is that correct?

I was in the bed, sir, lying down.

Atty. Balaba:

Yes, sir, he was dressed then, sir.

You were lying down?

And he had his pants on, is that correct?

Yes, sir.

Court:

He was wearing a short pants, sir.

Q
What part of the body did the accused
Freedie Lizada touched you?

Q
Was it a T-shirt that he had, at that time or a
polo shirt?

Your honor, I am just trying to

Proceed.
Atty. Balaba:

My two arms, my legs and my breast, sir.


Q

He held your arms with his two hands?

Only with one hand, sir.

How long will it take you to finish your cross?

Which hand were you touched?

Atty. Balaba:

A
I did not ask for help, I was motioning to
resist him, so that he would go out, sir. I was
struggling to free myself from him, sir.

I do not know which hand, sir.

We will confront the witness with so many things


your honor.

Q
And you were not able to extricate yourself
from him?

Court:

Yes, that's why I am asking you how long will it


take you to finish your cross?

Q
You were struggling with one arm of Lizada
holding your arm, and the other hand was holding
your leg, is that what you are trying to tell us?

Q
Which arm of yours was held by Freedie
Lizada?
A

I could not recall, sir.

Q
Which side of your body was Freedie
Lizada at that time?

Atty. Balaba:

About another hour, sir.

A
I cannot recall, sir.

Q
What was the position of Freedie Lizada
when he held your arms?

I was not able to extricate myself, sir.

No, sir, it's not like that.

Q
Could you tell us, what happened, you did
not shout for help and you were trying to extricate
yourself, what happened?

Court:
So we will be finished by 11:15, proceed.

He was sitting on our bed, sir.

He suddenly went out of the room, sir.

Now, he went

Atty. Balaba:
Q
Which side of your bed was Freedie Lizada
sitting on?
A

You cannot also remember which leg was held by


Freedie Lizada?

Court:

You did not shout during that time?

I do not know, sir. I cannot recall.


I cannot recall, sir.

Atty. Balaba:
Can we take a recess your honor?
Court:

Q
help?

When this happened, did you not shout for

No, your honor."33

Rossel, the nine-year old brother of the private


complainant corroborated in part his sister's
testimony. He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q
Now, on November 2, 1998 do you recall
where you were at about 3:00 o'clock?
A

She was sleeping, sir.

Yes, sir.

Q
Now, on that date, time and place you said
you were outside your house, did you stay the
whole afternoon outside your house?

Will you point to him?

He is the one, sir.

No, sir.

Court Interpreter:

Where did you go next?

Witness pointing to a male person who when asked


answers to the name Freedie Lizada.

Inside, sir.

I was outside our house, sir.

Q
Where was your house again, Mr. witness,
at that time? Where was your house at that date,
time and place? At that date and time?

Q
For what purpose did you get inside your
house?

1252 Jose Abad Santos, Tondo, Manila, sir.

Court:
Q

Fiscal Carisma:

Q
water?

Q
On that date, time and place, do your recall
where your sister Anna Lea Orillosa was?

A
Yes, sir.

Yes, sir.

Fiscal Carisma:

So you went to the fridge to get some


I already got water then, sir.

The same address?


A

A.

Because I was thirsty, sir.

Q
This thing that your father was that your
stepfather did to your elder sister, did you see this
before or after you went to the fridge to get some
water?

Q
And what happened as you went inside your
house to get some water?
A
I saw my stepfather removing the panty of
my sister and he touched her and then he laid on
top of her, sir.

Q
What did you do as you saw this thing being
done by your stepfather to your elder sister?
A
sir.

I was just looking at them when he saw me,

Q
Who, you saw who? You are referring to the
accused Freedie Lizada?

Yes, sir.
Where was she?

Q
Do you see your stepfather inside the
courtroom now?

Yes, sir.

Q
So, what did you do as you were seen by
your stepfather?
A
He scolded me, he shouted at me, he told
me something and after that he went to the other
room and slept, sir."34

Yes, sir.

Q
And okay, you said your sister was
sleeping. What was the position of your sister when
you said the accused removed her panty?

Rossel testified on cross-examination, thus:

A
She was lying straight, but she was
resisting, sir.

"Q
So you got thirsty, is that correct, and went
inside the house?

Q
time?

Yes, sir.

Q
And you took a glass of water from the
refrigerator?

Q
time?

Yes, sir.

Q
And it was at this time that you saw the
accused Freedie Lizada touching your sister?
A

Yes, sir.

Where was this refrigerator located?

A
sir.

In front of the room where my sister sleeps,

So the door of your sister's room was open?

Q
So your sister was lying down when the
accused removed her panty, is that what you are
trying to tell us?
A

Yes, sir.

Q
And where was the and the accused saw
you when he was removing the panty of your
sister?

Were you noticed by your sister at that


A
Not yet, sir, but after a while he looked at
the refrigerator because he might be thirsty.
No, sir.
And your sister did not call for help at that
No, sir.

Q
So you said the accused was touching
your sister. What part of her body was touched by
the accused?
A

Here, sir.

Q
And all this time you saw the accused doing
this, from the refrigerator where you were taking a
glass of water?

Court Interpreter:

Yes, sir.

Atty. Balaba:

Did you not say something to the accused?

Q
You saw with what hand was the accused
touching your sister?

No, sir, I was just looking.

Witness pointing at the lower portion of the body.

Yes, sir.

What hand was he touching your sister?

This hand, sir.

Which hand, which hand?

Court Interpreter:

Fiscal Carisma:

Q
And your sister all the time was trying to
was struggling to get free, is that not correct?

Witness raising his right hand.

The question is vague, your honor.

Atty. Balaba:

Atty. Balaba:

Q
And which part of your sister's body was the
accused touching with his right hand? Your sister's
body was the accused touching with his right hand?

Because he said that removing the hand

He said removing the panty.

A
Yes, sir, she was resisting. (witness
demonstrating)
Q
She was struggling was the accused able
to remove the panty?

Fiscal Carisma:
A

Her right leg, sir.

Q
How about his left hand, what was the
accused doing with his left hand?
A

Yes, sir.

Yes, sir.

Atty. Balaba:

Q
And all the time you were there looking
with the glass of water in your hand?

Is that panty? I'm sorry.

In light of the evidence of the prosecution, there


was no introduction of the penis of accusedappellant
into
the
aperture
or
within
the pudendum of the vagina of private complainant.
Hence, accused-appellant is not criminally liable
for consummated rape.36

Yes, sir."35

Removing her panty, sir.

Removing her?

Q
So, the accused was touching with his right
hand the left thigh of your sister

Panty, sir.

Fiscal Carisma:

Q
Which hand of your sister was being
removed with the left hand of the accused?

The right thigh.


Atty. Balaba:

Court:
Which?
Atty. Balaba:

Q
Rather the right thigh of your sister and with
his left hand removing the panty, is that what you
are telling to tell us?

The issue that now comes to fore is whether or not


accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised
Penal Code or attempted rape under Article 335 of
the said Code, as amended in relation to the last
paragraph of Article 6 of the Revised Penal Code.

In light of the evidence on record, we believe that


accused-appellant is guilty of attempted rape and
not of acts of lasciviousness.

"Lewd" is defined as obscene, lustful, indecent,


lecherous. It signifies that form of immorality
which has relation to moral impurity; or that which
is carried on a wanton manner.39

The first requisite of an attempted felony consists


of two elements, namely:

The last paragraph of Article 6 of the Revised Penal


Code reads:

(2) Such external acts have direct connection with


the crime intended to be committed."41

"There is an attempt when the offender commences


the commission of a felony directly by overt acts,
and does not perform all the acts of execution
which should produce the felony by reason of some
cause or accident other than his own spontaneous
desistance."

An overt or external act is defined as some physical


activity or deed, indicating the intention to commit
a particular crime, more than a mere planning or
preparation, which if carried out to its complete
termination following its natural course, without
being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense.42 The raison d'etre for the law requiring a
direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and
this is necessarily so, irrespective of his declared
intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may
be said to be a commencement of the commission
of the crime, or an overt act or before any fragment
of the crime itself has been committed, and this is
so for the reason that so long as the equivocal
quality remains, no one can say with certainty what
the intent of the accused is.43 It is necessary that the
overt act should have been the ultimate step
towards the consummation of the design. It is

"(1) That there be external acts;

Article 336 of the Revised Penal Code reads:


"Art. 336. Acts of Lasciviousness. Any person
who shall commit any act of lasciviousness upon
other persons of either sex, under any of the
circumstances mentioned in the preceding article,
shall be punished by prision correccional."37
For an accused to be convicted of acts of
lasciviousness, the prosecution is burdened to prove
the confluence of the following essential elements:
"1. That the offender commits any act of
lasciviousness or lewdness.
2. That it is done under any of the following
circumstances:

The essential elements of an attempted felony are


as follows:
"1. The offender commences the commission of the
felony directly by overt acts;

a. By using force or intimidation; or

2. He does not perform all the acts of execution


which should produce the felony;

b. When the offended party is deprived of reason or


otherwise unconscious; or

3. The offender's act be not stopped by his own


spontaneous desistance;

c. When the offended party is under 12 years of


age."38

4. The non-performance of all acts of


execution was due to cause or accident other than
his spontaneous desistance."40

sufficient if it was the "first or some subsequent


step in a direct movement towards the commission
of the offense after the preparations are
made."44 The act done need not constitute the last
proximate one for completion. It is necessary,
however, that the attempt must have a causal
relation to the intended crime.45 In the words of
Viada, the overt acts must have an immediate and
necessary relation to the offense.46

exactly be ascertained but the same must be


inferred from the nature of the acts executed
(accion medio).50 Hence, it is necessary that the acts
of the accused must be such that, by their nature, by
the facts to which they are related, by
circumstances of the persons performing the same,
and b the things connected therewith, that they are
aimed at the consummation of the offense. This
Court emphasized in People vs. Lamahang51 that:

Acts constitutive of an attempt to commit a felony


should be distinguished from preparatory acts
which consist of devising means or measures
necessary for accomplishment of a desired object or
end.47 One perpetrating preparatory acts is not
guilty of an attempt to commit a felony. However,
if the preparatory acts constitute a consummated
felony under the law, the malefactor is guilty of
such consummated offense.48 The Supreme Court
of Spain, in its decision of March 21, 1892,
declared that for overt acts to constitute an
attempted offense, it is necessary that their
objective be known and established or such that
acts be of such nature that they themselves should
obviously disclose the criminal objective
necessarily intended, said objective and finality to
serve as ground for designation of the offense.49

"The relation existing between the facts submitted


for appreciation and the offense which said facts
are supposed to produce must be direct; the
intention must be ascertained from the facts and
therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be
able to cause a particular injury."52

There is persuasive authority that in offenses not


consummated as the material damage is wanting,
the nature of the action intended (accion fin) cannot

If the malefactor does not perform all the acts of


execution by reason of his spontaneous desistance,
he is not guilty of an attempted felony.53 The law
does not punish him for his attempt to commit a
felony.54 The rationale of the law, as explained by
Viada:
"La Ley, en efecto, no hiere sino a pesar suyo;
prefiere impedir el crimen que castigarlo. Si el
autor de la tentativa, despues de haber comenzado a
ejecutar el delito por actos exteriores, se detiene,
por un sentimiento libre y espontaneo, en el borde
del abismo, salvo esta. Es un llamamiento al

remordimiento, a la conciencia, una gracia un


perdon que concede la Ley al arrepentimiento
voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its
execution is voluntarily abandoned. There is no
conceivable overt act to which the abandoned
purpose could be attached. Secondly, the policy of
the law requires that the offender, so long as he is
capable of arresting an evil plan, should be
encouraged to do so, by saving him harmless in
case of such retreat before it is possible for any evil
consequences to ensue. Neither society, nor any
private person, has been injured by his act. There is
no damage, therefore, to redress. To punish him
after retreat and abandonment would be to destroy
the motive for retreat and abandonment."56
It must be borne in mind, however, that the
spontaneous desistance of a malefactor exempts
him from criminal liability for the intended crime
but it does not exempt him from the crime
committed by him before his desistance.57
In light of the facts established by the prosecution,
we believe that accused-appellant intended to have
carnal knowledge of private complainant. The overt
acts of accused-appellant proven by the prosecution
were not mere preparatory acts. By the series of his

overt acts, accused-appellant had commenced the


execution of rape which, if not for his spontaneous
desistance, will ripen into the crime of rape.
Although
accused-appellant
desisted
from
performing all the acts of execution however his
desistance was not spontaneous as he was impelled
to do so only because of the sudden and unexpected
arrival of Rossel. Hence, accused-appellant is
guilty only of attempted rape. 58 In a case of similar
factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking
into account Article 6 of the Revised Penal Code,
the appellant can only be convicted of attempted
rape. He commenced the commission of rape by
removing his clothes, undressing and kissing his
victim and lying on top of her. However, he failed
to perform all the acts of execution which should
produce the crime of rape by reason of a cause
other than his own spontaneous desistance, i.e., by
the timely arrival of the victim's brother. Thus, his
penis merely touched Mary Joy's private organ.
Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be
imposed on him should be an indeterminate prison
term of six (6) years of prision correccional as
minimum to twelve (12) years of prision mayor as
maximum."
The penalty for attempted rape is prision
mayor which is two degrees lower than reclusion

perpetua.59 Accused-appellant should be meted an


indeterminate penalty the minimum of which
should be taken from prision correccional which
has a range of from six months and one day to six
years and the maximum of which shall be taken
from the medium period of prision mayor which
has a range of from eight years and one day to ten
years, without any modifying circumstance.
Accused-appellant is also liable to private
complainant for moral damages in the amount of
P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the
Decision of the Regional Trial Court of Manila,
Branch 54, is SET ASIDE. Another judgment is
hereby rendered as follows:
1. In Criminal Case No. 99-171390, accusedappellant is hereby found guilty beyond reasonable
doubt of simple rape under Article 335 of the
Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua. Accusedappellant is also hereby ordered to pay private
complainant Analia Orillosa the amounts of
P50,000.00 by way of civil indemnity and
P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accusedappellant is hereby found guilty of attempted rape
under Article 335 of the Revised Penal Code as
amended in relation to Article 6 of the said Code

and is hereby meted an indeterminate penalty of


from six years of prision correccional in its
maximum period, as minimum to ten years
ofprision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to
pay private complainant Analia Orillosa the amount
of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99171393, accused-appellant is hereby found guilty
beyond reasonable doubt of two counts of simple
rape, defined in Article 335 of the Revised Penal
Code as amended and is hereby meted the penalty
of reclusion perpetua for each count. Accusedappellant is hereby ordered to pay to private
complainant Analia Orillosa the amount of
P50,000.00 by way of civil indemnity and the
amount of P50,000.00 by way of moral damages
for each count, or a total amount of P200,000.00.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138033

February 22, 2006

RENATO BALEROS, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner
Renato Baleros, Jr. assails and seeks the reversal of
the January 13, 1999 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution2 denying
petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision
of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3

The accusatory portion of the information 4 dated


December 17, 1991 charging petitioner with
attempted rape reads as follow:
That about 1:50 in the morning or sometime
thereafter of 13 December 1991 in Manila and
within the jurisdiction of this Honorable Court, the
above-named accused, by forcefully covering the
face of Martina Lourdes T. Albano with a piece of
cloth soaked in chemical with dizzying effects, did
then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top
of her with the intention to have carnal knowledge
with her but was unable to perform all the acts of
execution by reason of some cause or accident
other than his own spontaneous desistance, said
acts being committed against her will and consent
to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner,
assisted
by
counsel,
pleaded
"Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen
(13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and
her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala.
Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie


Building (hereafter "Building", ) along A.H.
Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou
Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307,
MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou,
slept on a folding bed.
Early morning of the following day, MALOU was
awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could
not move. Somebody was pinning her down on the
bed, holding her tightly. She wanted to scream for
help but the hands covering her mouth with cloth
wet with chemicals were very tight (TSN, July 5,
1993, p. 33). Still, MALOU continued fighting off
her attacker by kicking him until at last her right
hand got free. With this the opportunity
presented itself when she was able to grab hold of
his sex organ which she then squeezed.
The man let her go and MALOU went straight to
the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may
pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p.
8). Who it was she did not, however, know. The
only thing she had made out during their struggle

was the feel of her attackers clothes and weight.


His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like
(Ibid, p. 17). He was wearing a t-shirt and shorts
Original Records, p. 355).
To Room 310 of the Building where her classmates
Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying,
MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsyturvy. Her nightdress was stained with blue
(TSN, July 5, 1993, pp. 13-14). Aside from the
window with grills which she had originally left
opened, another window inside her bedroom was
now open. Her attacker had fled from her room
going through the left bedroom window (Ibid,
Answers to Question number 5; Id), the one
without iron grills which leads to Room 306 of the
Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with
CHITO, who was her classmate , was friendly
until a week prior to the attack. CHITO confided
his feelings for her, telling her: "Gusto kita, mahal
kita" (TSN, July 5, 1993, p. 22) and she rejected
him. . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was


on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a
white t-shirt with a marking on the front of the
T-shirt T M and a Greek letter (sic) and below
the quoted letters the word 1946 UST Medicine
and Surgery (TSN, October 9, 1992, p. 9) and
black shorts with the brand name Adidas (TSN,
October 16, 1992, p.7) and requested permission to
go up to Room 306. This Unit was being leased by
Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard
Africa was in the room.

That CHITO arrived at Room 306 at 1:30 A.M. of


December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), .

He asked CHITO to produce the required written


authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] . S/G
Ferolin made the following entry in the security
guards logbook :

Joseph noticed that CHITO was wearing darkcolored shorts and white T-shirt (Ibid., p. 23) when
he let the latter in. . It was at around 3 oclock in
the morning of December 13, 1991 when he woke
up again later to the sound of knocking at the door,
this time, by Bernard Baptista (Bernard), .

"0130H Baleros Renato Jr. is a visitor of Ansbert


Co who has not have (sic) a Request letter from our
tenant of Unit #-306 Ansbert, but still I let him inter
(sic) for the reason that he will be our tenant this
coming summer break as he said so I let him sign it
here

xxx xxx xxx


Joseph was already inside Room 306 at 9 oclock in
the evening of December 12, 1991. xxx by the time
CHITOs knocking on the door woke him up, .
He was able to fix the time of CHITOs arrival at
1:30 A.M. because he glanced at the alarm clock
beside the bed when he was awakened by the knock
at the door .

xxx. With Bernard, Joseph then went to MALOUs


room and thereat was shown by Bernard the open
window through which the intruder supposedly
passed.
xxx xxx xxx

(Sgd.) Baleros Renato Jr."


(Exhibit "A-2")

Later, at about 6 to 6:30 in the morning of


December 13, 1991, Joseph was finally able to talk
to CHITO . He mentioned to the latter that

something had happened and that they were not


being allowed to get out of the building. Joseph
also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to
Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.
People from the CIS came by before 8 oclock that
same morning . They likewise invited CHITO
and Joseph to go with them to Camp Crame where
the two (2) were questioned .
An occupant of Room 310 Christian Alcala
(Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and
his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were
asked by the CIS people to look for anything not
belonging to them in their Unit. While they were
outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of
his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella"
bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and
surrender the same to the investigators. When he
saw the gray bag, Christian knew right away that it
belonged to CHITO (Ibid, p. 55) as he had seen the

latter usually bringing it to school inside the


classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and
pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a
Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the
Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITOs
because CHITO had lent the very same one to him
. The t-shirt with CHITOs fraternity symbol,
CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in
December.

place inside the bedroom where Renato had seen


CHITO leave it. Not until later that night at past 9
oclock in Camp Crame, however, did Renato know
what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the
Philippine National Police Crime Laboratory in
Camp Crame, having acted in response to the
written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit
"C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated
and submitted. Her Chemistry Report No. C-48791 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:

That CHITO left his bag inside Room 310 in the


morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was
elongated to about 11/4 feet and appeared to be full
but was closed with a zipper when Renato saw it
then (Ibid, pp. 19-20). At that time Christian, Gary,
Bernard, and Renato went back to Room 310 at
around 3 to 4 oclock that afternoon along with
some CIS agents, they saw the bag at the same

xxx xxx xxx:


1) One (1) small white plastic bag marked
UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked
JONAS with the following:

Exh. D One (1) printed handkerchief.


Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked
ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), nonvolatile and/or metallic poison on the above stated
specimens.
FINDINGS:
Toxicological examination conducted on the above
stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for
chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for
further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile
poison."6 (Words in bracket added)
For its part, the defense presented, as its main
witness, the petitioner himself. He denied

committing the crime imputed to him or making at


any time amorous advances on Malou. Unfolding a
different version of the incident, the defense sought
to establish the following, as culled from the same
decision of the appellate court:
In December of 1991, CHITO was a medical
student of (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity . MALOU, , was known
to him being also a medical student at the UST at
the time.
From Room 306 of the Celestial Marie Building ,
CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their
Fraternity house located at Dos Castillas,
Sampaloc, Manila at about 7 oclock in the evening
of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members
scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at
No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the]
swimming pool . Soon after, the four (4)
presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the
pool. xxx.

xxx CHITO had anticipated his turn and was


thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, , offered each dry
clothes to change into and CHITO put on the white
t-shirt with the Fraternitys symbol and a pair of
black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong
tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and
shoes" (TSN, April 25, 1994, p. 15), CHITO left the
party with Robert Chan and Alberto at more or less
past 1 A.M. of December 13, 1991 and proceeded
to the Building which they reached at about 1:30
A.M. (Ibid., p. 19). He had left his gray traveling
bag containing "white t-shirt, sando, underwear,
socks, and toothbrush (Ibid., pp. 17-18) at room
306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and
, S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own
watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G
Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived
(Ibid., p. 25).

CHITO went up the floor, found the key left for


him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the
door until Rommel Montes, approached him and
even commented: "Okey ang suot mo ha, di mo
mabuksan ang pinto (Ibid., pp. 26-29). Rommel
tried to open the door of Unit 306 but was
likewise unsuccessful. CHITO then decided to just
call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and
knocking before Joseph, , at last answered the
door. Telling him, "Ikaw na ang bahala diyan"
Joseph immediately turned his back on CHITO and
went inside the bedroom. CHITO , changed to a
thinner shirt and went to bed. He still had on the
same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991,
CHITO woke up . He was already in his school
uniform when, around 6:30 A.M, Joseph came to
the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it,
Joseph told him that something had happened and
to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes
that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not


letting anybody out of the Building . When two
(2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked
him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the
windows. Joseph was told to dress up and the two
(2) of them, CHITO and Joseph, were brought to
Camp Crame.
When they arrived at Camp Crame , Col.
Managuelod asked Joseph inside his room and
talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor
Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital
.. At the hospital, CHITO and Joseph were
physically examined by a certain Dr. de Guzman
who told them to strip .
xxx xxx xxx

CHITO had left his gray bag containing, among


others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p.
345), inside Room 310 at more/less 6:30 to 7
oclock in the morning of December 13, 1991. The
next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal
Abesamis for inquest. One of the CIS agents had
taken it there and it was not opened up in his
presence but the contents of the bag were already
laid out on the table of Fiscal Abesamis who,
however, made no effort to ask CHITO if the items
thereat were his.
The black Adidas short pants purportedly found in
the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening
of December 12, 1991 before going to the fraternity
house. He likewise disavowed placing said black
Adidas short pants in his gray bag when he returned
to the apartment at past 1:00 oclock in the early
morning of December 13, 1991 (TSN, June 16,
1994, p. 24), nor when he dressed up at about 6
oclock in the morning to go to school and brought
his gray bag to Room 310 (Ibid. 25). In fact, at any
time on December 13, 1991, he was not aware that
his gray bag ever contained any black short Adidas
pants (Ibid). He only found out for the first time
that the black Adidas short pants was alluded to be
among the items inside his gray bag late in the
afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were


petitioners fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr.
Durans place at Greenhills, riding on the same car
going to and coming from the party and dropping
the petitioner off the Celestial Marie building after
the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted
after the party.7 Rommel Montes, a tenant of Room
310 of the said building, also testified seeing
CHITO between the hours of 1:30 and 2:00 A.M. of
December 13, 1991 trying to open the door of
Room 306 while clad in dark short pants and white
barong tagalog.
On the other hand, Perla Duran confirmed lending
the petitioner the pair of short pants with stripes
after the dunking party held in her fathers
house.8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor
whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty
(30) seconds without tearing nor staining the cloth
on which it is applied.9
On December 14, 1994, the trial court rendered its
decision10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and


prescinding from the foregoing, the Court finds the
accused Renato D. Baleros, Jr., alias "Chito", guilty
beyond reasonable doubt of the crime of attempted
rape as principal and as charged in the information
and hereby sentences him to suffer an
imprisonment ranging from FOUR (4) YEARS,
TWO (2) MONTHS AND ONE (1) DAY of Prision
Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the accessory
penalties provided by law, and for the accused to
pay the offended party Martina Lourdes T. Albano,
the sum of P50,000.00 by way of Moral and
exemplary damages, plus reasonable Attorneys
fees
of
P30,000.00,
without
subsidiary
imprisonment in case of insolvency, and to pay the
costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his
appellate recourse was docketed as CA-G.R. CR
No. 17271.
As stated at the threshold hereof, the CA, in its
assailed Decision dated January 13, 1999, affirmed
the trial courts judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law
to deviate from the findings of the court a quo, the

decision appealed from is hereby AFFIRMED in


toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his
motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention
that the CA erred 1. In not finding that it is improbable for petitioner
to have committed the attempted rape imputed to
him, absent sufficient, competent and convincing
evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the
basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for
conviction based thereon.
3. In not finding that the circumstances it relied on
to convict the petitioner are unreliable, inconclusive
and contradictory.
4. In not finding that proof of motive is miserably
wanting in his case.

5. In awarding damages in favor of the complainant


despite the fact that the award was improper and
unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the
constitutional presumption of innocence and that
moral certainty has not been met, hence, he should
be acquitted on the ground that the offense charged
against him has not been proved beyond reasonable
doubt.
Otherwise stated, the basic issue in this case turns
on the question on whether or not the CA erred in
affirming the ruling of the RTC finding petitioner
guilty beyond reasonable doubt of the crime of
attempted rape.
After a careful review of the facts and evidence on
record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioners acquittal,
but not necessarily because there is no direct
evidence pointing to him as the intruder holding a
chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof
of identity and not per se to that of being an
eyewitness to the very act of commission of the
crime. There are two types of positive
identification. A witness may identify a suspect or
accused as the offender as an eyewitness to the very

act of the commission of the crime. This constitutes


direct evidence. There may, however, be instances
where, although a witness may not have actually
witnessed the very act of commission of a crime, he
may still be able to positively identify a suspect or
accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the
persons last seen with the victim immediately
before and right after the commission of the crime.
This is the second type of positive identification,
which forms part of circumstantial evidence.13 In
the absence of direct evidence, the prosecution may
resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed
in secret and under condition where concealment is
highly probable. If direct evidence is insisted under
all circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh
impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court
provides the conditions when circumstantial
evidence may be sufficient for conviction. The
provision reads:
Sec. 4. Circumstantial evidence, when sufficient
Circumstantial evidence is sufficient for conviction
if
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.
In the present case, the positive identification of the
petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to
only fair and reasonable conclusion, which is that
petitioner was the intruder in question.
We quote with approval the CAs finding of the
circumstantial evidence that led to the identity of
the petitioner as such intruder:
Chito was in the Building when the attack on
MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night
over had a window which allowed ingress and
egress to Room 306 where MALOU stayed. Not
only the Building security guard, S/G Ferolin, but
Joseph Bernard Africa as well confirmed that
CHITO was wearing a black "Adidas" shorts and
fraternity T-shirt when he arrived at the
Building/Unit 307 at 1:30 in the morning of
December 13, 1991. Though it was dark during
their struggle, MALOU had made out the feel of
her intruders apparel to be something made of

cotton material on top and shorts that felt satinsmooth on the bottom.
From CHITOs bag which was found inside Room
310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the
most incriminating evidence: the handkerchief
stained with blue and wet with some kind of
chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO.
As it turned out, laboratory examination on these
items and on the beddings and clothes worn by
MALOU during the incident revealed that the
handkerchief and MALOUs night dress both
contained chloroform, a volatile poison which
causes first degree burn exactly like what MALOU
sustained on that part of her face where the
chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the
evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by
pressing on Malous face the piece of cloth soaked
in chemical while holding her body tightly under
the weight of his own, had commenced the
performance of an act indicative of an intent or

attempt to rape the victim. It is argued that


petitioners actuation thus described is an overt act
contemplated under the law, for there can not be
any other logical conclusion other than that the
petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The
Solicitor General, echoing what the CA said, adds
that if petitioners intention was otherwise, he
would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape
is committed by a man who has carnal knowledge
or intercourse with a woman under any of the
following circumstances: (1) By using force or
intimidation; (2) When the woman is deprived of
reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned
article of the same code, rape is attempted when the
offender commences the commission of rape
directly by overt acts and does not perform all the
acts of execution which should produce the crime
of rape by reason of some cause or accident other
than his own spontaneous desistance.16
Expounding on the nature of an attempted felony,
the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt
which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense;
that which is the beginning of the execution of the

offense by overt acts of the perpetrator, leading


directly to its realization and consummation."
Absent the unavoidable connection, like the logical
and natural relation of the cause and its effect, as
where the purpose of the offender in performing an
act is not certain, meaning the nature of the act in
relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the
standpoint of the Penal Code.18
There is absolutely no dispute about the absence of
sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to
the fore is whether or not the act of the petitioner,
i.e., the pressing of a chemical-soaked cloth while
on top of Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some
physical activity or deed, indicating the intention to
commit a particular crime, more than a mere
planning or preparation, which if carried out to its
complete termination following its natural course,
without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense.19
Harmonizing the above definition to the facts of
this case, it would be too strained to construe

petitioner's act of pressing a chemical-soaked cloth


in the mouth of Malou which would induce her to
sleep as an overt act that will logically and
necessarily ripen into rape. As it were, petitioner
did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to
undress Malou, let alone touch her private part. For
what reason petitioner wanted the complainant
unconscious, if that was really his immediate
intention, is anybodys guess. The CA maintained
that if the petitioner had no intention to rape, he
would not have lain on top of the complainant.
Plodding on, the appellate court even anticipated
the next step that the petitioner would have taken if
the victim had been rendered unconscious. Wrote
the CA:

rule on evidence in criminal cases. For, mere


speculations and probabilities cannot substitute for
proof required to establish the guilt of an accused
beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted
therein petitioner of the crime of attempted rape,
pointing out that:
xxx. In the crime of rape, penetration is an essential
act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must
have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause
or accident other than his own spontaneous
desistance, the penetration, however, slight, is not
completed.
xxx xxx xxx

The shedding of the clothes, both of the attacker


and his victim, will have to come later. His sexual
organ is not yet exposed because his intended
victim is still struggling. Where the intended victim
is an educated woman already mature in age, it is
very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has
to make her lose her guard first, or as in this case,
her unconsciousness.20
At bottom then, the appellate court indulges in
plain speculation, a practice disfavored under the

Petitioners act of lying on top of the complainant,


embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape
absent any showing that petitioner actually
commenced to force his penis into the
complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainants


feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that
mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying
that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed
against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece
of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face
of the chemical-soaked cloth and having struggled
after petitioner held her tightly and pinned her
down. Verily, while the series of acts committed by
the petitioner do not determine attempted rape, as
earlier discussed, they constitute unjust vexation
punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal
Code. In the context of the constitutional provision
assuring an accused of a crime the right to be
informed of the nature and cause of the
accusation,24 it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which he
was proceeded against. To be sure, the information
against petitioner contains sufficient details to
enable him to make his defense. As aptly observed
by then Justice Ramon C. Aquino, there is no need
to allege malice, restraint or compulsion in an
information for unjust vexation. As it were, unjust

vexation exists even without the element of


restraint or compulsion for the reason that this term
is broad enough to include any human conduct
which, although not productive of some physical or
material harm, would unjustly annoy or irritate an
innocent person.25 The paramount question is
whether the offenders act causes annoyance,
irritation, torment, distress or disturbance to the
mind of the person to whom it is directed. 26 That
Malou, after the incident in question, cried while
relating to her classmates what she perceived to be
a sexual attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second
paragraph of Article 287 of the Revised Penal Code
is arresto menor or a fine ranging from P5.00
to P200.00 or both.
WHEREFORE, the assailed Decision of the Court
of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET
ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for
attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a
fine of P200.00, with the accessory penalties
thereof and to pay the costs.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

In Criminal Case No. 2001-1555, appellant,


together with a certain Alias Balatong Barcenas and
Cristy Demapanag (Demapanag), was charged with
Murder with the Use of Unlicensed Firearm under
an Information3which reads:

SECOND DIVISION
G.R. No. 202867

July 15, 2013

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the
Decision1 dated 18 October 2011 of the Court of
Appeals-Cebu (CA-Cebu) in CA-G.R. CEB CRHC No. 01000. The CA-Cebu affirmed with
modification the Joint Decision2 dated 10 March
2008 of the Regional Trial Court of Barotac Viejo,
Iloilo, Branch 66 (RTC), in Criminal Case No.
2001-155) convicting Regie Labiaga alias "Banok"
(appellant) of murder and Criminal Case No. 20021777 convicting appellant of frustrated murder.
The Facts

That on or about December 23, 2000 in the


Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate
intent and decided purpose to kill, by means of
treachery and with evident premeditation, did then
and there willfully, unlawfully and feloniously
attack, assault and shoot JUDY CONDE alias
JOJO with said unlicensed firearm, hitting her and
inflicting gunshot wounds on the different parts of
her breast which caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated
Murder with the Use of Unlicensed Firearm in
Criminal Case No. 2002-1777, under an
Information4 which states:
That on or about December 23, 2000 in the
Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,

conspiring, confederating and helping one another,


armed with unlicensed firearm, with deliberate
intent and decided purpose to kill, by means of
treachery and with evident premeditation, did then
and there willfully, unlawfully and feloniously
attack, assault and shoot Gregorio Conde with said
unlicensed firearm, hitting him on the posterior
aspect, middle third right forearm 1 cm. In
diameter; thereby performing all the acts of
execution which would produce the crime of
Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the
will of the accused; that is by the timely and able
medical assistance rendered to said Gregorio Conde
which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both
appellant and Demapanag pled not guilty in both
cases and joint trial ensued thereafter. The
prosecution presented four witnesses: Gregorio
Conde, the victim in Criminal Case No. 2002-1777;
Glenelyn Conde, his daughter; and Dr. Jeremiah
Obaana and Dr. Edwin Jose Figura, the physicians
at the Sara District Hospital where the victims were
admitted. The defense, on the other hand, presented
appellant, Demapanag, and the latters brother,
Frederick.
Version of the prosecution

The prosecutions version of the facts is as follows:


At around 7:00 p.m. on 23 December 2000,
Gregorio Conde, and his two daughters, Judy and
Glenelyn Conde, were in their home at Barangay
Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio
stepped outside. Glenelyn was in their store, which
was part of their house.
Shortly
thereafter,
appellant,
who
was
approximately five meters away from Gregorio,
shot the latter. Gregorio called Judy for help. When
Judy and Glenelyn rushed to Gregorios aid,
appellant shot Judy in the abdomen. The two other
accused were standing behind the appellant.
Appellant said, "she is already dead," and the three
fled the crime scene.
Gregorio and Judy were rushed to the Sara District
Hospital. Judy was pronounced dead on arrival
while Gregorio made a full recovery after treatment
of his gunshot wound.

"abrasion wounds hematoma formation" in his right


shoulder.6
Version of the defense
Appellant admitted that he was present during the
shooting incident on 23 December 2000. He
claimed, however, that he acted in self-defense.
Gregorio, armed with a shotgun, challenged him to
a fight. He attempted to shoot appellant, but the
shotgun jammed. Appellant tried to wrest the
shotgun from Gregorio, and during the struggle, the
shotgun fired. He claimed that he did not know if
anyone was hit by that gunshot.
Demapanag claimed that at the time of the
shooting, he was in D&D Ricemill, which is
approximately 14 kilometers away from the crime
scene. This was corroborated by Frederick,
Demapanags brother.
The Ruling of the RTC

Dr. Jeremiah Obaana conducted the autopsy of


Judy. His report stated that her death was caused by
"cardiopulmonary arrest secondary to Cardiac
Tamponade due to gunshot wound."5
Dr. Jose Edwin Figura, on the other hand, examined
Gregorio after the incident. He found that Gregorio
sustained a gunshot wound measuring one
centimeter in diameter in his right forearm and

In its Joint Decision, the RTC acquitted


Demapanag due to insufficiency of evidence.
Appellant, however, was convicted of murder and
frustrated murder. The dispositive portion of the
Joint Decision reads:
WHEREFORE, in light of the foregoing, the court
hereby finds the accused Regie Labiaga @ "Banok"

GUILTY beyond reasonable doubt of the Crime of


Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua
together with accessory penalty provided by law, to
pay the heirs of Judy CondeP50,000.00 as civil
indemnity, without subsidiary imprisonment in case
of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds
accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Frustrated
Murder and hereby sentences the said accused to a
prison term ranging from six (6) years and one (1)
day of prision mayor as minimum to ten (10) years
and one (1) day of reclusion temporal as maximum,
together with the necessary penalty provided by
law and without subsidiary imprisonment in case of
insolvency and to pay the costs.
Accuseds entire period of detention shall be
deducted from the penalty herein imposed when the
accused serves his sentence.
For lack of sufficient evidence, accused Cristy
Demapanag is acquitted of the crimes charged in
both cases. The Provincial Warden, Iloilo
Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from
custody unless he is being held for some other valid
or lawful cause.

SO ORDERED.7

The dispositive portion of the Decision of the CACebu reads:

The Ruling of the CA-Cebu


Appellant impugned the RTCs Joint Decision,
claiming that "the RTC gravely erred in convicting
the appellant of the crime charged despite failure of
the prosecution to prove his guilt beyond
reasonable doubt."8 The CA-Cebu, however, upheld
the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by
imposing the payment of moral and exemplary
damages in both criminal cases. The CA-Cebu
made a distinction between the civil indemnity
awarded by the RTC in Criminal Case No. 20011555 and the moral damages. The CA-Cebu
pointed out that:
The trial court granted the amount of P50,000.00 as
civil indemnity in Criminal Case No. 2001-1555. It
did not award moral damages. Nonetheless, the trial
court should have awarded both, considering that
they are two different kinds of damages. For death
indemnity, the amount of P50,000.00 is fixed
"pursuant to the current judicial policy on the
matter, without need of any evidence or proof of
damages. Likewise, the mental anguish of the
surviving family should be assuaged by the award
of appropriate and reasonable moral damages."9

WHEREFORE, premises considered, the appeal is


DENIED. The Joint Decision dated March 10, 2008
of the Regional Trial Court, Branch 66, in Barotac
Viejo,
Iloilo
is
AFFIRMED
with
MODIFICATIONS. The dispositive portion of the
said Joint Decision should now read as follows:
WHEREFORE, in light of the foregoing, the court
hereby finds the accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of
Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua
together with the accessory penalty provided by
law, to pay the heirs of Judy Conde P50,000.00 as
civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and
to pay the costs.

Conde P25,000.00
as
moral
damages
andP25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and
to pay the costs Accused(s) entire period of
detention shall be deducted from the penalty herein
imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy
Demapanag is acquitted of the crime(s) charged in
both cases. The Provincial Warden, Iloilo
Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from
custody unless he is being held for some other valid
or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court

In Crim. Case No. 2002-1777 the court finds


accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Frustrated
Murder and hereby sentences the said accused to
suffer the indeterminate penalty of eight (8) years
and one (1) day of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of
reclusion temporal, as maximum, together with the
accessory penalty provided by law, to pay Gregorio

Our review of the records of Criminal Case No.


2002-1777 convinces us that appellant is guilty of
attempted murder and not frustrated murder. We
uphold appellants conviction in Criminal Case No.
2001-1555 for murder, but modify the civil
indemnity awarded in Criminal Case No. 20011555, as well as the award of moral and exemplary
damages in both cases.

Justifying circumstance of self-defense


Appellants feeble attempt to invoke self-defense in
both cases was correctly rejected by the RTC and
the CA-Cebu. This Court, in People v.
Damitan,11 explained that:
When the accused admits killing a person but
pleads self-defense, the burden of evidence shifts to
him to prove by clear and convincing evidence the
elements of his defense. However, appellants
version of the incident was uncorroborated. His
bare and self-serving assertions cannot prevail over
the positive identification of the two (2) principal
witnesses of the prosecution.12
Appellants failure to present any other eyewitness
to corroborate his testimony and his unconvincing
demonstration of the struggle between him and
Gregorio before the RTC lead us to reject his claim
of self-defense. Also, as correctly pointed out by
the CA-Cebu, appellants theory of self-defense is
belied by the fact that:
x x x The appellant did not even bother to report to
the police Gregorios alleged unlawful aggression
and that it was Gregorio who owned the gun, as
appellant claimed. And, when appellant was
arrested the following morning, he did not also
inform the police that what happened to Gregorio
was merely accidental.13

Appellants claim that he did not know whether


Gregorio was hit when the shotgun accidentally
fired is also implausible.

of relevant facts, the same must be sustained by this


Court.
Attempted and Frustrated Murder

In contrast, we find that the Condes account of the


incident is persuasive. Both the CA-Cebu and the
RTC found that the testimonies of the Condes were
credible and presented in a clear and convincing
manner. This Court has consistently put much
weight on the trial courts assessment of the
credibility of witnesses, especially when affirmed
by the appellate court.14 In People v. Mangune,15 we
stated that:
It is well settled that the evaluation of the
credibility of witnesses and their testimonies is a
matter best undertaken by the trial court because of
its unique opportunity to observe the witnesses first
hand and to note their demeanor, conduct, and
attitude under grilling examination. These are
important in determining the truthfulness of
witnesses and in unearthing the truth, especially in
the face of conflicting testimonies. For, indeed, the
emphasis, gesture, and inflection of the voice are
potent aids in ascertaining the witness credibility,
and the trial court has the opportunity to take
advantage of these aids.16
Since the conclusions made by the RTC regarding
the credibility of the witnesses were not tainted
with arbitrariness or oversight or misapprehension

Treachery was correctly appreciated by the RTC


and CA-Cebu. A treacherous attack is one in which
the victim was not afforded any opportunity to
defend himself or resist the attack.17 The existence
of treachery is not solely determined by the type of
weapon used. If it appears that the weapon was
deliberately chosen to insure the execution of the
crime, and to render the victim defenseless, then
treachery may be properly appreciated against the
accused.18
In the instant case, the Condes were unarmed when
they were shot by appellant. The use of a 12-gauge
shotgun against two unarmed victims is
undoubtedly treacherous, as it denies the victims
the chance to fend off the offender.
We note, however, that appellant should be
convicted of attempted murder, and not frustrated
murder in Criminal Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the
stages in the commission of felonies:

Art. 6. Consummated, frustrated, and attempted


felonies. Consummated felonies as well as those
which are frustrated and attempted, are punishable.
A felony is consummated when all the elements
necessary for its execution and accomplishment are
present; and it is frustrated when the offender
performs all the acts of execution which would
produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences
the commission of a felony directly by overt acts,
and does not perform all the acts of execution
which should produce the felony by reason of some
cause or accident other than his own spontaneous
desistance.
In Serrano v. People,19 we distinguished a frustrated
felony from an attempted felony in this manner:

independent of the will of the perpetrator; on the


other hand, in an attempted felony, the reason for
the non-fulfillment of the crime is a cause or
accident other than the offenders own spontaneous
desistance.20
In frustrated murder, there must be evidence
showing that the wound would have been fatal
were it not for timely medical intervention. 21 If the
evidence fails to convince the court that the wound
sustained would have caused the victims death
without timely medical attention, the accused
should be convicted of attempted murder and not
frustrated murder.
In the instant case, it does not appear that the
wound sustained by Gregorio Conde was mortal.
This was admitted by Dr. Edwin Figura, who
examined Gregorio after the shooting incident:
Prosecutor Con-El:

1.) In a frustrated felony, the offender has


performed all the acts of execution which should
produce the felony as a consequence; whereas in an
attempted felony, the offender merely commences
the commission of a felony directly by overt acts
and does not perform all the acts of execution.

Q: When you examined the person of Gregorio


Conde, can you tell the court what was the situation
of the patient when you examined him?

2.) In a frustrated felony, the reason for the nonaccomplishment of the crime is some cause

xxxx

A: He has a gunshot wound, but the patient was


actually ambulatory and not in distress.

Court (to the witness)


Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also
abrasion wounds hematoma formation at the
anterior aspect right shoulder.22
Since Gregorios gunshot wound was not mortal,
we hold that appellant should be convicted of
attempted murder and not frustrated murder. Under
Article 51 of the Revised Penal Code, the
corresponding penalty for attempted murder shall
be two degrees lower than that prescribed for
consummated murder under Article 248, that is,
prision correccional in its maximum period to
prision mayor in its medium period. Section 1 of
the Indeterminate Sentence Law provides:
x x x the court shall sentence the accused to an
indeterminate sentence the maximum term of which
shall be that which, in view of the attending
circumstances, could be properly imposed under
the rules of the Revised Penal Code, and the
minimum which shall be within the range of the
penalty next lower to that prescribed by the Code
for the offense.1wphi1
Thus, appellant should serve an indeterminate
sentence ranging from two (2) years, four (4)
months and one (1) day of prision correccional in

its medium period to eight (8) years and one (1)


day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper
to increase the amount of damages imposed by the
lower court in both cases. In Criminal Case No.
2001-1555, this Court hereby awards P75,000.00 as
civil indemnity23 andP30,000.00 as exemplary
damages.24 The award of P50,000.00 as moral
damages in the foregoing case is sustained.
Appellant is also liable to pay P40,000.00 as moral
damages and P30,000.00 as exemplary damages, in
relation to Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011
Decision of the Court of Appeals-Cebu in CA-G.R.
CEB CR-HC No. 01000 with MODIFICATIONS.
In Criminal Case No. 2002-1777, we find that
appellant Regie Labiaga is GUILTY of Attempted
Murder and shall suffer an indeterminate sentence
ranging from two (2) years, four (4) months and
one (1) day of prision correccional as minimum, to
eight (8) years and one (1) day of prision mayor as
maximum, and pay P40,000.00 as moral damages
and P30,000.00 as exemplary damages. In Criminal
Case
No.
2001-1555,
appellant
shall
pay P75,000.00 as civil indemnity, P50,000.00 as
moral damages, andP30,000.00 as exemplary
damages.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G. R. No. 160188

were found guilty. However, the rationale behind


the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court
extensively considered whether an accused was
guilty of frustrated or consummated theft was in
1918, in People v. Adiao.3 A more cursory

June 21, 2007

ARISTOTEL VALENZUELA y
NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON.
COURT OF APPEALS NACHURA, respondents.

treatment of the question was followed in 1929, in


People v. Sobrevilla,4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to
finally and fully measure if or how frustrated theft
is susceptible to commission under the Revised
Penal Code.

DECISION

I.

TINGA, J.:
This case aims for prime space in the firmament of
our criminal law jurisprudence. Petitioner
effectively concedes having performed the
felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty
of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The
proposition rests on a common theory expounded in
two well-known decisions1 rendered decades ago
by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases

The basic facts are no longer disputed before us.


The case stems from an Information6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19
May 1994, at around 4:30 p.m., petitioner and
Calderon were sighted outside the Super Sale Club,
a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a
security guard who was then manning his post at
the open parking area of the supermarket. Lago saw
petitioner, who was wearing an identification card
with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent
of the well-known "Tide" brand. Petitioner

unloaded these cases in an open parking space,


where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the
same area in the open parking space.7
Thereafter, petitioner left the parking area and
haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle.
All these acts were eyed by Lago, who proceeded
to stop the taxi as it was leaving the open parking
area. When Lago asked petitioner for a receipt of
the merchandise, petitioner and Calderon reacted
by fleeing on foot, but Lago fired a warning shot to
alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.8 The
filched items seized from the duo were four (4)
cases of Tide Ultramatic, one (1) case of Ultra 25
grams, and three (3) additional cases of detergent,
the goods with an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the
SM security office before they were transferred on
the same day to the Baler Station II of the
Philippine National Police, Quezon City, for
investigation. It appears from the police
investigation records that apart from petitioner and

Calderon, four (4) other persons were apprehended


by the security guards at the scene and delivered to
police custody at the Baler PNP Station in
connection with the incident. However, after the
matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were
charged with theft by the Assistant City Prosecutor,
in Informations prepared on 20 May 1994, the day
after the incident.10
After pleading not guilty on arraignment, at the
trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the
Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow
security guards after a commotion and brought to
the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account,
accompanied
by
his
neighbor,
Leoncio
11
Rosulada. As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were
eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check
what was
transpiring. As they were outside, they were
suddenly "grabbed" by a security guard, thus
commencing
their
detention.12 Meanwhile,
petitioner testified during trial that he and his

cousin, a Gregorio Valenzuela,13 had been at the


parking lot, walking beside the nearby BLISS
complex and headed to ride a tricycle going to Pagasa, when they saw the security guard Lago fire a
shot. The gunshot caused him and the other people
at the scene to start running, at which point he was
apprehended by Lago and brought to the security
office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which
time he and the others were brought to the Baler
Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the
prosecutors office where he was charged with
theft.14 During petitioners cross-examination, he
admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket"
though not at SM.15
In a Decision16 promulgated on 1 February 2000,
the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon
of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to
seven (7) years of prision mayor as
maximum.17 The RTC found credible the
testimonies of the prosecution witnesses and
established the convictions on the positive
identification of the accused as perpetrators of the
crime.

Both accused filed their respective Notices of


Appeal,18 but only petitioner filed a brief19 with the
Court of Appeals, causing the appellate court to
deem Calderons appeal as abandoned and
consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he
was apprehended, he was never placed in a position
to freely dispose of the articles stolen. 20 However,
in its Decision dated 19 June 2003,21 the Court of
Appeals rejected this contention and affirmed
petitioners conviction.22 Hence the present Petition
for Review,23 which expressly seeks that
petitioners conviction "be modified to only of
Frustrated Theft."24
Even in his appeal before the Court of Appeals,
petitioner effectively conceded both his felonious
intent and his actual participation in the theft of
several cases of detergent with a total value
of P12,090.00 of which he was charged.25 As such,
there is no cause for the Court to consider a factual
scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court
of Appeals. The only question to consider is
whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.

In arguing that he should only be convicted of


frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals:
People v. Dio27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they
modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court
of Appeals, yet the appellate court did not expressly
consider the import of the rulings when it affirmed
the conviction.
It is not necessary to fault the Court of Appeals for
giving short shrift to the Dio and Flores rulings
since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of
frustrated theft has not come to pass before us. Yet
despite the silence on our part, Dio and Flores
have attained a level of renown reached by very
few other appellate court rulings. They are
comprehensively discussed in the most popular of
our criminal law annotations,29 and studied in
criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated
theft.
More critically, the factual milieu in those cases is
hardly akin to the fanciful scenarios that populate

criminal law exams more than they actually occur


in real life. Indeed, if we finally say that Dio and
Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit
with the stolen property through a supervised
egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the
application of Dio and Flores. The fact that lower
courts have not hesitated to lay down convictions
for frustrated theft further validates that Dio and
Flores and the theories offered therein on frustrated
theft have borne some weight in our jurisprudential
system. The time is thus ripe for us to examine
whether those theories are correct and should
continue to influence prosecutors and judges in the
future.

present." It is frustrated "when the offender


performs all the acts of execution which would
produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally,
it is attempted "when the offender commences the
commission of a felony directly by overt acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than his own spontaneous
desistance."

To
delve
into
any
extended
analysis
of Dio and Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first
refer to the basic rules on the three stages of crimes
under our Revised Penal Code.30

Each felony under the Revised Penal Code has a


"subjective phase," or that portion of the acts
constituting the crime included between the act
which begins the commission of the crime and the
last act performed by the offender which, with prior
acts, should result in the consummated
crime.31 After that point has been breached, the
subjective phase ends and the objective phase
begins.32 It has been held that if the offender never
passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the
subjective phase is completely passed in case of
frustrated crimes, for in such instances,
"[s]ubjectively the crime is complete."34

Article 6 defines those three stages, namely the


consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements
necessary for its execution and accomplishment are

Truly, an easy distinction lies between


consummated and frustrated felonies on one hand,
and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution

III.

despite commencing the commission of a felony,


the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each
crime under the Revised Penal Code are generally
enumerated in the code itself, the task of
ascertaining whether a crime is attempted only
would need to compare the acts actually performed
by the accused as against the acts that constitute the
felony under the Revised Penal Code.
In contrast, the determination of whether a crime is
frustrated or consummated necessitates an initial
concession that all of the acts of execution have
been performed by the offender. The critical
distinction instead is whether the felony itself was
actually produced by the acts of execution. The
determination of whether the felony was
"produced" after all the acts of execution had been
performed hinges on the particular statutory
definition of the felony. It is the statutory definition
that generally furnishes the elements of each crime
under the Revised Penal Code, while the elements
in turn unravel the particular requisite acts of
execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit
reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent
must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime
when the criminal mind is wanting.35 Accepted in

this jurisdiction as material in crimes mala in


se,36 mens rea has been defined before as "a guilty
mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It
follows that the statutory definition of our mala in
se crimes must be able to supply what the mens rea
of the crime is, and indeed the U.S. Supreme Court
has comfortably held that "a criminal law that
contains no mens rea requirement infringes on
constitutionally protected rights."39 The criminal
statute must also provide for the overt acts that
constitute the crime. For a crime to exist in our
legal law, it is not enough that mens rea be shown;
there must also be an actus reus.40
It is from the actus reus and the mens rea, as they
find expression in the criminal statute, that the
felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law
expressly provide when the felony is produced.
Without such provision, disputes would inevitably
ensue on the elemental question whether or not a
crime was committed, thereby presaging the
undesirable and legally dubious set-up under which
the judiciary is assigned the legislative role of
defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive
passage or term is embedded which attests when
the felony is produced by the acts of execution. For

example, the statutory definition of murder or


homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is
produced by the death of the victim, and
conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft.
Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is
committed by any person who, with intent to gain
but without violence against or intimidation of
persons nor force upon things, shall take personal
property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local authorities
or to its owner;
2. Any person who, after having maliciously
damaged the property of another, shall remove or
make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or
a field where trespass is forbidden or which belongs
to another and without the consent of its owner,

shall hunt or fish upon the same or shall gather


cereals, or other forest or farm products.
Article 308 provides for a general definition of
theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the
present discussion, we need to concern ourselves
only with the general definition since it was under
it that the prosecution of the accused was
undertaken and sustained. On the face of the
definition, there is only one operative act of
execution by the actor involved in theft the
taking of personal property of another. It is also
clear from the provision that in order that such
taking may be qualified as theft, there must further
be present the descriptive circumstances that the
taking was with intent to gain; without force upon
things or violence against or intimidation of
persons; and it was without the consent of the
owner of the property.
Indeed, we have long recognized the following
elements of theft as provided for in Article 308 of
the Revised Penal Code, namely: (1) that there be
taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the


history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical
handling of property belonging to another against
the will of the owner,"43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the
property of another."44 However, with the Institutes
of Justinian, the idea had taken hold that more than
mere physical handling, there must further be an
intent of acquiring gain from the object, thus:
"[f]urtum est contrectatio rei fraudulosa, lucri
faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both
the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded
with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial
interpretation and application. Spanish law had
already discounted the belief that mere physical
taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to
appropriate the object in order to constitute
apoderamiento; and to appropriate means to
deprive the lawful owner of the thing."47 However,
a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be

permanency in the taking48 or an intent to


permanently deprive the owner of the stolen
property;49 or that there was no need for
permanency in the taking or in its intent, as the
mere temporary possession by the offender or
disturbance of the proprietary rights of the owner
already constituted apoderamiento.50 Ultimately, as
Justice Regalado notes, the Court adopted the latter
thought that there was no need of an intent to
permanently deprive the owner of his property to
constitute an unlawful taking.51
So long as the "descriptive" circumstances that
qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property
of another establishes, at least, that the
transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner
obtained physical possession of the cases of
detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed
without need to inflict violence or intimidation
against persons nor force upon things, and
accomplished without the consent of the SM Super
Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would
have afforded him.
On the critical question of whether it was
consummated or frustrated theft, we are obliged to

apply Article 6 of the Revised Penal Code to


ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the
will of the perpetrator." There are clearly two
determinative factors to consider: that the felony is
not "produced," and that such failure is due to
causes independent of the will of the perpetrator.
The second factor ultimately depends on the
evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not
produced," despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is
consummated or frustrated, it is necessary to
inquire as to how exactly is the felony of theft
"produced." Parsing through the statutory definition
of theft under Article 308, there is one apparent
answer provided in the language of the law that
theft is already "produced" upon the "tak[ing of]
personal property of another without the latters
consent."
U.S. v. Adiao53 apparently supports that notion.
Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage

of a foreign national and secreted the item in his


desk at the Custom House. At no time was the
accused able to "get the merchandise out of the
Custom House," and it appears that he "was under
observation during the entire transaction."54 Based
apparently on those two circumstances, the trial
court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither
circumstance was decisive, and holding instead that
the accused was guilty of consummated theft,
finding that "all the elements of the completed
crime of theft are present."55 In support of its
conclusion that the theft was consummated, the
Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we
replicate below:
The defendant was charged with the theft of some
fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman,
yet it did not appear that he was at that moment
caught by the policeman but sometime later. The
court said: "[x x x] The trial court did not err [x x
x ] in considering the crime as that of consummated
theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen
who saw the accused take the fruit from the
adjoining land arrested him in the act and thus
prevented him from taking full possession of the
thing stolen and even its utilization by him for an

interval of time." (Decision of the Supreme Court


of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party
while the latter was hearing mass in a church. The
latter on account of the solemnity of the act,
although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the
defendant was still inside the church, the offended
party got back the money from the defendant. The
court said that the defendant had performed all the
acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of
Spain, December 1, 1897.)
The defendant penetrated into a room of a certain
house and by means of a key opened up a case, and
from the case took a small box, which was also
opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and
then he placed the money over the cover of the
case; just at this moment he was caught by two
guards who were stationed in another room near-by.
The court considered this as consummated robbery,
and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the
moment he took it from the place where it had
been, and having taken it with his hands with intent
to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby
produced; only the act of making use of the thing

having been frustrated, which, however, does not


go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain,
June 13, 1882.)56
It is clear from the facts of Adiao itself, and the
three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to
obtain full possession of the personal property prior
to their apprehension. The interval between the
commission of the acts of theft and the
apprehension of the thieves did vary, from
"sometime later" in the 1898 decision; to the very
moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit
the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the
thefts in each of those cases was consummated by
the actual possession of the property belonging to
another.
In 1929, the Court was again confronted by a claim
that an accused was guilty only of frustrated rather
than consummated theft. The case is People v.
Sobrevilla,57 where the accused, while in the midst
of a crowd in a public market, was already able to
abstract a pocketbook from the trousers of the
victim when the latter, perceiving the theft, "caught

hold of the [accused]s shirt-front, at the same time


shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the
defendant, who was afterwards caught by a
policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply
said, without further comment or elaboration:
We believe that such a contention is groundless.
The [accused] succeeded in taking the pocket-book,
and that determines the crime of theft. If the
pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal
liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and
the Spanish Supreme Court cases cited in the latter,
in that the fact that the offender was able to succeed
in obtaining physical possession of the stolen item,
no matter how momentary, was able to consummate
the theft.
Adiao, Sobrevilla and the Spanish Supreme Court
decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without
further comment would be disingenuous, as there is
another school of thought on when theft is
consummated, as reflected in the Dio and Flores
decisions.

Dio was decided by the Court of Appeals in 1949,


some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into
the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he
was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The
accused later contended that he had been stopped
by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The
trial court convicted accused of consummated theft,
but the Court of Appeals modified the conviction,
holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the
evident intent of the accused was to let the boxes of
rifles "pass through the checkpoint, perhaps in the
belief that as the truck had already unloaded its
cargo inside the depot, it would be allowed to pass
through the check point without further
investigation or checking."60 This point was
deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of
consummation is the ability of the thief to dispose

freely of the articles stolen, even if it were more or


less momentary."61 Support for this proposition was
drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision),
which was quoted as follows:
Considerando que para que el apoderamiento de la
cosa sustraida sea determinate de la consumacion
del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la
libre disposicion de aquella, siquiera sea mas o
menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda
su extension, sin materializar demasiado el acto de
tomar la cosa ajena.62
Integrating these considerations, the Court of
Appeals then concluded:
This court is of the opinion that in the case at bar, in
order to make the booty subject to the control and
disposal of the culprits, the articles stolen must first
be passed through the M.P. check point, but since
the offense was opportunely discovered and the
articles seized after all the acts of execution had
been performed, but before the loot came under the
final control and disposal of the looters, the offense
can not be said to have been fully consummated, as
it was frustrated by the timely intervention of the

guard. The offense committed, therefore, is that of


frustrated theft.63
Dio thus laid down the theory that the ability of
the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether
the theft is consummated or frustrated. This theory
was applied again by the Court of Appeals some 15
years later, in Flores, a case which according to the
division of the court that decided it, bore "no
substantial variance between the circumstances
[herein] and in [Dio]."64 Such conclusion is borne
out by the facts in Flores. The accused therein, a
checker employed by the Luzon Stevedoring
Company, issued a delivery receipt for one empty
sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the
terminal of the stevedoring company. The truck
driver proceeded to show the delivery receipt to the
guard on duty at the gate of the terminal. However,
the guards insisted on inspecting the van, and
discovered that the "empty" sea van had actually
contained other merchandise as well.65The accused
was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the
consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty
only of attempted theft, but the appellate court
pointed out that there was no intervening act of
spontaneous desistance on the part of the accused
that "literally frustrated the theft." However, the

Court of Appeals, explicitly relying on Dio, did


find that the accused was guilty only of frustrated,
and not consummated, theft.
As noted earlier, the appellate court admitted it
found
"no
substantial
variance"
between Dio and Flores then before it. The
prosecution in Flores had sought to distinguish that
case from Dio, citing a "traditional ruling" which
unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out
that the said "traditional ruling" was qualified by
the words "is placed in a situation where [the actor]
could dispose of its contents at once."66 Pouncing
on this qualification, the appellate court noted that
"[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have
disposed of the goods at once." At the same time,
the Court of Appeals conceded that "[t]his is
entirely different from the case where a much less
bulk and more common thing as money was the
object of the crime, where freedom to dispose of or
make use of it is palpably less restricted," 67 though
no further qualification was offered what the effect
would have been had that alternative circumstance
been present instead.
Synthesis of the Dio and Flores rulings is in order.
The determinative characteristic as to whether the
crime of theft was produced is the ability of the
actor "to freely dispose of the articles stolen, even

if it were only momentary." Such conclusion was


drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso
que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos
momentaneamente." The qualifier "siquiera sea
mas o menos momentaneamente" proves another
important consideration, as it implies that if the
actor was in a capacity to freely dispose of the
stolen items before apprehension, then the theft
could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the
stolen items in both cases were retrieved from the
actor before they could be physically extracted
from the guarded compounds from which the items
were filched. However, as implied in Flores, the
character of the item stolen could lead to a different
conclusion as to whether there could have been
"free disposition," as in the case where the chattel
involved was of "much less bulk and more common
x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes
the following pointed observation on the import of
the Dio ruling:
There is a ruling of the Court of Appeals that theft
is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or
less momentary. Or as stated in another case[69 ],

theft is consummated upon the voluntary and


malicious taking of property belonging to another
which is realized by the material occupation of the
thing whereby the thief places it under his control
and in such a situation that he could dispose of it at
once. This ruling seems to have been based on
Viadas opinion that in order the theft may be
consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino,
concluding from Adiao and other cases, also states
that "[i]n theft or robbery the crime is
consummated after the accused had material
possession of the thing with intent to appropriate
the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals
rulings that are at seeming variance with the Dio
and Flores rulings. People v. Batoon73 involved an
accused who filled a container with gasoline from a
petrol pump within view of a police detective, who
followed the accused onto a passenger truck where
the arrest was made. While the trial court found the
accused guilty of frustrated qualified theft, the
Court of Appeals held that the accused was guilty
of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S.
v. Sobrevilla x x x indicate that actual taking with

intent to gain is enough to consummate the crime of


theft."74
In People v. Espiritu,75 the accused had removed
nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen
items were discovered by the Military Police
running the checkpoint. Even though those facts
clearly admit to similarity with those in Dio, the
Court of Appeals held that the accused were guilty
of consummated theft, as the accused "were able to
take or get hold of the hospital linen and that the
only thing that was frustrated, which does not
constitute any element of theft, is the use or benefit
that the thieves expected from the commission of
the offense."76
In pointing out the distinction between Dio and
Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the
stage of execution of that felony." 77 Indeed, we can
discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft
itself, the question can even be asked whether there
is really such a crime in the first place.
IV.

The Court in 1984 did finally rule directly that an


accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry,
we have to reckon with the import of this Courts
1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut
plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering
and tying some coconuts. The accused were
surprised by the owner within the plantation as they
were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently
arrested after the owner reported the incident to the
police. After trial, the accused were convicted of
qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal
Code,79 but further held that the accused were
guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that
the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What
does appear, though, is that the disposition of that
issue was contained in only two sentences, which
we reproduce in full:

However, the crime committed is only frustrated


qualified theft because petitioners were not able to
perform all the acts of execution which should have
produced the felony as a consequence. They were
not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this
averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the conclusion.
There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated
because the actors "were not able to perform all the
acts of execution which should have produced the
felon as a consequence."81 However, per Article 6
of the Revised Penal Code, the crime is frustrated
"when the offender performs all the acts of
execution," though not producing the felony as a
result. If the offender was not able to perform all
the acts of execution, the crime is attempted,
provided that the non-performance was by reason
of some cause or accident other than spontaneous
desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution
were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion
that the crime was only attempted, especially given

that the acts were not performed because of the


timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to
Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned
with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no
reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so
settled it required no further explication.
Notably, Empelis has not since been reaffirmed by
the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute
to our present debate, except for the bare fact that it
proves that the Court had once deliberately found
an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that
inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an
insurmountable given that frustrated theft is viable
in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft,

it cannot present any efficacious argument to


persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are
beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At the time our Revised Penal Code was enacted in
1930, the 1870 Codigo Penal de Espaa was then in
place. The definition of the crime of theft, as
provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o
intimidacin en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de
su dueo.
2. Los que encontrndose una cosa perdida y
sabiendo quin es su dueo se la apropriaren co
intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los
frutos u objeto del dao causado, salvo los casos
previstos en los artculos 606, nm. 1.0; 607, nms,
1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo
prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo


Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said
code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal
Espaol de 1995, the crime of theft is now simply
defined as "[e]l que, con nimo de lucro,

predicate occasioning the statement was apparently


very different from Dio, for it appears that the
1888 decision involved an accused who was
surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin,
and who then proceeded to throw away the garment
as he fled.84

tomare las cosas muebles ajenas sin la voluntad de


su dueo ser castigado"82

Nonetheless, Viada does not contest the notion of


frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that
effect.85 A few decades later, the esteemed Eugenio
Cuello Caln pointed out the inconsistent
application by the Spanish Supreme Court with
respect to frustrated theft.

Notice that in the 1870 and 1995 definition of theft


in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory
characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the
realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a questionanswer form in his 1926 commentaries on the
1870 Codigo Penal de Espaa. Therein, he raised
at least three questions for the reader whether the
crime of frustrated or consummated theft had
occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether
frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la
cosa ajena, vindose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Dio,
and was indeed derived from the 1888 decision of
the Supreme Court of Spain, that decisions factual

Hay frustracin cuando los reos fueron


sorprendidos por las guardias cuando llevaban los
sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervencin de la
policia situada en el local donde se realiz la
sustraccin que impidi pudieran los reos disponer
de lo sustrado, 30 de octubre 1950. Hay "por lo
menos" frustracin, si existe apoderamiento, pero el
culpale no llega a disponer de la cosa, 12 abril
1930; hay frustracin "muy prxima" cuando el
culpable es detenido por el perjudicado acto
seguido de cometer la sustraccin, 28 febrero 1931.
Algunos fallos han considerado la existencia de
frustracin cuando, perseguido el culpable o

sorprendido en el momento de llevar los efectos


hurtados, los abandona, 29 mayo 1889, 22 febrero
1913, 11 marzo 1921; esta doctrina no es
admissible, stos, conforme a lo antes expuesto,
son hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that
frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera
que el hurto se consuma cuando la cosa queda de
hecho a la disposicin del agente. Con este criterio
coincide la doctrina sentada ltimamente porla
jurisprudencia
espaola
que
generalmente
considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo
ms o menos duradero bajo su poder. El hecho de
que ste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta por
el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace
cuanto es necesario para la consumacin del hurto
no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara
hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly
ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions on

the matter, Cuello Caln actually set forth his own


thought that questioned whether theft could truly be
frustrated, since "pues es muy dificil que el que
hace cuanto es necesario para la consumacin del
hurto no lo consume efectivamente." Otherwise
put, it would be difficult to foresee how the
execution of all the acts necessary for the
completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least,
that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as
proposed in Dio and Flores. A final ruling by the
Court that there is no crime of frustrated theft in
this jurisdiction will not lead to scholastic pariah,
for such a submission is hardly heretical in light of
Cuello Calns position.
Accordingly, it would not be intellectually
disingenuous for the Court to look at the question
from a fresh perspective, as we are not bound by
the opinions of the respected Spanish
commentators, conflicting as they are, to accept
that theft is capable of commission in its frustrated
stage. Further, if we ask the question whether there
is a mandate of statute or precedent that must
compel us to adopt the Dio and Flores doctrines,
the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably
higher command, but from the exercise of the

function of statutory interpretation that comes as


part and parcel of judicial review, and a function
that allows breathing room for a variety of
theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we explore
the matter is that it lies in the province of the
legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It
is the legislature, as representatives of the sovereign
people, which determines which acts or
combination of acts are criminal in nature. Judicial
interpretation of penal laws should be aligned with
what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to
define a crime, and ordain its punishment.88 The
courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the
legislature, or redefine a crime in a manner that
does not hew to the statutory language. Due respect
for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from
a broad interpretation of penal laws where a
"narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids."89

With that in mind, a problem clearly emerges with


the Dio/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds
no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the
crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with intent
to gain, of personal property of another without the
latters consent. While the Dio/Flores dictum is
considerate to the mindset of the offender, the
statutory definition of theft considers only the
perspective of intent to gain on the part of the
offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft
produced? There would be all but certain unanimity

in the position that theft is produced when there is


deprivation of personal property due to its taking
by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the
felony that the offender, once having committed all
the acts of execution for theft, is able or unable to
freely dispose of the property stolen since the
deprivation from the owner alone has already
ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that "[i]n theft or
robbery the crime is consummated after the accused
had material possession of the thing with intent to
appropriate the same, although his act of making
use of the thing was frustrated."91
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be
no true taking until the actor obtains such degree of
control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime
to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have
not been completed, the "taking not having been
accomplished." Perhaps this point could serve as
fertile ground for future discussion, but our concern
now is whether there is indeed a crime of frustrated
theft, and such consideration proves ultimately
immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We

are satisfied beyond reasonable doubt that the


taking by the petitioner was completed in this case.
With intent to gain, he acquired physical possession
of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load
these onto a taxicab.
Indeed, we have, after all, held that unlawful
taking, or apoderamiento, is deemed complete from
the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of
the same.92 And long ago, we asserted in People v.
Avila:93
x x x [T]he most fundamental notion in the crime of
theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is
qualified by other conditions, such as that the
taking must be effectedanimo lucrandi and without
the consent of the owner; and it will be here noted
that the definition does not require that the taking
should be effected against the will of the owner but
merely that it should be without his consent, a
distinction of no slight importance.94
Insofar as we consider the present question,
"unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of ones
personal property, is the element which produces
the felony in its consummated stage. At the same

time, without unlawful taking as an act of


execution, the offense could only be attempted
theft, if at all.
With these considerations, we can only conclude
that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only
be attempted or consummated.
Neither Dio nor Flores can convince us otherwise.
Both fail to consider that once the offenders therein
obtained possession over the stolen items, the effect
of the felony has been produced as there has been
deprivation of property. The presumed inability of
the offenders to freely dispose of the stolen
property does not negate the fact that the owners
have already been deprived of their right to
possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of
the rule that the inability of the offender to freely
dispose of the stolen property frustrates the theft
would introduce a convenient defense for the
accused which does not reflect any legislated
intent,95 since the Court would have carved a viable
means for offenders to seek a mitigated penalty
under applied circumstances that do not admit of
easy classification. It is difficult to formulate
definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender

at the time of the commission of the crime, as


implied in Dio?
Or, more likely, the appreciation of several classes
of factual circumstances such as the size and
weight of the property, the location of the property,
the number and identity of people present at the
scene of the crime, the number and identity of
people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in
which the stolen item had been housed or stored;
and quite frankly, a whole lot more. Even the
fungibility or edibility of the stolen item would
come into account, relevant as that would be on
whether such property is capable of free disposal at
any stage, even after the taking has been
consummated.
All these complications will make us lose sight of
the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of
gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of
the acts of execution, including the taking, have
been completed. If the facts establish the noncompletion of the taking due to these peculiar
circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts
of execution have been performed. But once all
these acts have been executed, the taking has been

completed, causing the unlawful deprivation of


property, and ultimately the consummation of the
theft.
Maybe the Dio/Flores rulings are, in some degree,
grounded in common sense. Yet they do not align
with the legislated framework of the crime of theft.
The Revised Penal Code provisions on theft have
not been designed in such fashion as to
accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen"
is in any way determinative of whether the crime of
theft has been produced. Dio itself did not rely on
Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately
content in relying on Dio alone for legal support.
These cases do not enjoy the weight of stare
decisis, and even if they did, their erroneous
appreciation of our law on theft leave them
susceptible to reversal. The same holds true of
Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal
Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on
our acceptance of the Dio and Flores rulings, his
petition must be denied, for we decline to adopt
said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no

frustrated theft under the Revised Penal Code does


not detract from the correctness of this conclusion.
It will take considerable amendments to our
Revised Penal Code in order that frustrated theft
may be recognized. Our deference to Viada yields
to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs
against petitioner.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 126148 May 5, 1999


PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
AGAPITO QUIANOLA y ESCUADRO and
EDUARDO ESCUADRO y FLORO, accusedappellants.

VITUG, J.:
In People vs. Orita, 1 this Court has declared that
the crime of frustrated rape is non-existent. The
pronouncement, notwithstanding, on 01 March
1996, more than six years after the promulgation of
the decision in Orita, the Regional Trial Court
("RTC") of Cebu City, Branch 14, has convicted
accused Agapito Quianola y Escuadro and
Eduardo Escuadro y Floro, herein appellants, of the
crime of frustrated rape, principally on the strength

of People vs. Eriia 2 which this Court, in


the Orita decision, has considered to be a "stray"
decision. The 1st March 1996 decision of the RTC
of Cebu City imposing upon each of the accused
the penalty ofreclusion perpetua "of Forty (40)
Years," has been brought up by them to this Court.
The appeal opens up the whole case for review.
The information, dated 06 April 1994, charging the
two accused with the crime of rape reads:
That on or about the 5th day of March, 1994, at
about 11:30 o'clock in the evening, more or less, at
Barangay Tangil, Municipality of Dumanjug,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and
mutually helping one another, with lewd design and
by means of force and intimidation, did then and
there willfully, unlawfully and feloniously lie and
succeed in having carnal knowledge of the
offended party Catalina Carciller, fifteen (15) years
of age, against her will and consent.
CONTRARY TO LAW.

Already in force and effect at the time of the


averred commission of the crime are the provisions
of Republic Act No. 7659, amending the Revised
Penal Code, which define and penalize rape, as
follows:

Art. 335. When and how rape is committed.


Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or
is demented.
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the
use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to
death.
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the


crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or
affinity within the third civil degree, or the
common-law-spouse of the parent of the victim.
2. when the victim is under the custody of the
police or military authorities.
3. when the rape is committed in full view of the
husband, parent, any of the children or other
relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below
seven (7) years old.
5. when the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6. when committed by any member of the Armed
Forces of the Philippines or the Philippine National
Police or any law enforcement agency.
7. when by reason or on the occasion of the rape,
the victim has suffered permanent physical
mutilation.

Duty assisted by counsel the two accused pleaded


not guilty to the crime charged. During the trial that
ensued, the prosecution and the defense presented
respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller her cousin 15-year-old Rufo
Ginto and another male companion named Richard
Diaz, went to attend a dance at around ten o'clock
in the evening of 05 March 1994 in Sitio Bangag
Tangil, Dumanjug, Cebu. Catalina born on 09
November 1978, 4 was just then fifteen (15) years
and four (4) months old. She was a student at the
Bito-on National vocational School at Dumanjug
Cebu. About an hour later they left the party and
were soon on their way home. The three
unsuspecting youngsters stopped momentarily to
rest at a waiting shed beside the Tangil Elementary
School. Accused Agapito Quianola a.k.a. "Petoy"
and accused Eduardo Escuadro a.k.a. "Botiquil"
who were both armed with guns suddenly turned up
Quianola beaming his flashlight at the trio while
Escuadro stood by focused his attention on
Catalina. Quionala announced that he and
Escuardo were members of New People's Army
("NPA"). Quionala instructed Escuadro to take
care of the male companions of Catalina while he
(Quianola) held the latter at gunpoint.

Escuadro brought Diaz and Ginto outside the


waiting shed area. He ordered the duo to lie face
down on the ground and then urinated at them.
While Escuadro was fixing the zipper of his pants,
Diaz and Ginto were bale to escape and ran away.
Meanwhile Quianola with his gun pointed at
Catalina, forcibly brought her towards the nearby
school. Catalina heard a gunfire but Quianola
assured her that it was only an exploding
firecracker. When Escuadro again showed up,
Catalina asked about her two friends. Quianola
replied that he had ordered them to go home.
Catalina begged that she herself be allowed to
leave. Pretending to agree, they walked the path
towards the road behind the school. Then,
unsuspectingly, Quianola forced Catalina to sit on
the ground. She resisted but Quianola, pointing his
gun at her, warned her that if she would not accede
to what he wanted he would kill her. Catalina
started to cry. Quianola told Escuadro to remove
her denim pants. Catalina struggled to free herself
from Escuadro's hold but to no avail. Escuadro
ultimately succeeded in undressing her. Quianola
unzipped his pants and laid on top of her while
Escuadro held her legs Quianola "started to pump,
to push and pull" 5 even as Catalina still tried
desperately to free herself from him. She felt his
organ "on the lips of (her) genitalia." 6 When
Quianola had satisfied his lust, Escuadro took his
turn by placing himself on top of Catalina. Catalina
could feel the sex organ of Escuadro "on the lips of

(her) vulva" 7 while he made a push and pull


movement. Quianola, who stood by, kept on
smoking a cigarette.
Escuadro and Quianola scampered immediately
after Catalina's ordeal. Failing to find her pair of
pants and panty. Catalina was left wearing her Tshirt and brassieres. Catalina just then sat down, not
knowing what to do, until she finally started to run
home fearing that she might be followed. Upon
reaching home, Catalina went upstairs and, afraid
that the culprit would still come after her, hid
herself behind the door. Baffled by Catalina's
strange behavior, her mother and her elder sister
took turns interrogating her. Catalina finally said
that she was raped but she would not reveal the
names of the persons who had committed the
dastardly act because of their threat.1wphi1.nt
Guillermo Zozobrado learned from his wife,
Catalina's sister, that Catalina had been raped. He
promptly repaired to the municipal hall of
Dumanjug to report the crime. Policemen were
immediately dispatched to the Carcillers' residence.
Still in a state of shock, Catalina initially kept mum
about it; later, when the police officers returned at
daytime, she was able to respond to questions and
to disclose that "Petoy," referring to Agapito
Quianola, and "Botiquil," the other accused
Eduardo Escuadro, were the persons who ravished
her. The officers later invited her to the police

station to identify a suspect whom she positively


identified to be "Botiquil" or Eduardo Escuadro.
Living Case Report No. 94-MI-7, 8 prepared by Dr.
Tomas P. Refe, medico-legal officer of the National
Bureau of Investigation ("NBI") of Region 7,
Central Visayas, who conducted the physical
examination of Catalina on 07 March 1994, showed
that there was "no evidence of extragenital physical
injury noted on the body of the Subject." 9 The
genital examination yielded the following findings
on the victim:
Pubic hairs, fully grown, moderately dense. Labiae
mejora and minora, both coaptated. Fourchette,
tense. Vestibular mucosa, pinkish. Hymen,
moderately thick, wide, intact. Hymenal orifice,
annular, admits a tube 1.8 cms. in diameter with
moderate resistance. Vaginal walls, tight and
rogusities, prominent. 10 (Emphasis supplied.)
The report concluded that the hymenal orifice,
about 1.8 cms. in diameter, was "so small as to
preclude complete penetration of an average-size
adult penis in erection without producing
laceration." 11
Against the evidence submitted by the prosecution,
the accused, in their defense, interposed alibi, ill
motive on the part of an "uncle" of the complainant,
and insufficient identification.

Accused Agapito Quianola, a member of the


Philippine National Police stationed at Naga, Cebu,
testified that it was his day-off on 05 March 1994.
At about 8:30 a.m., he and his wife, Leticia, who
had just arrived in Naga from Cebu City, proceeded
to the house of his parents in Panla-an, Dumanjug,
to attend to the construction of their unfinished
house. Quianola helped Vidal Laojan and Nicasio
Arnaiz in cementing the kitchen floor of their
house. The work was finished at around 11:00
o'clock in the evening. After Vidal and Nicasio had
gone home, Quianola went to bed with his wife
around midnight until the following morning of 06
March 1994. He denied having been in the
company of his co-accused, Escuadro a.k.a.
"Botiquil," at any time during the whole day and
night of 05 March 1994. According to him,
Guillermo Zozobrado, Catalina's brother-in-law,
concocted the rape charge to get even with him
because of an incident in August 1993 at a fiesta
dance in upper Tangil, Panla-an, when George
Camaso, the husband of his sister Jinga, got into
trouble with Samuel Escuadro. Quianola tried to
pacify George Camaso who was then drunk but
Camaso suddenly hit him. He parried the blow and
slapped Camaso on the face. Zozobrado joined the
fray and tried to hit Quianola but because
Zozobrado was drunk, he stumbled when
Quianola had pushed him. 12 He admitted that he
had no misunderstanding of any kind with the
complainant and her parents themselves.

Leticia Quianola the wife of accused Agapito


Quianola, testified to attest to her husband's "good
moral character" and to corroborate his testimony.
Leticia said that after the workers had left their
house at around midnight she and appellant talked
for a while and then made love. Vidal Laojan the
carpenter was presented to state that Quianola was
at home helping the carpenters until past 11 o'clock
on the night of the incident. Nicasio Arnaiz a
farmer and store cutter added that work in the
Quianola's house had started late in the morning
of 05 March 1994 since they still waited for
Quianola and his wife Patsy to arrive. Work in the
house, he said had stopped at about 11 o'clock that
night.
Accused Eduardo Escuadro a.k.a. "Botiquil"
declared that at about seven o'clock in the evening
of 05 March 1994 he and Pablito Cuizon, Jr., went
fishing in Tangil Dumanjug Cebu until about ten
o'clock that evening. After partaking of supper at
around 11:30 p.m., they had a drinking spree and
went to bed at 12:00 midnight waking up at 6:30
a.m. the following day. He denied having been in
the company of Quianola and insisted that the
rape charge had been the result of a mere mistaken
identity. Pablito Cuizon, Jr., corroborated
Escuadro's story about their being together up until
they parted company after a drinking spree.

The defense also presented the two police officers,


PO2 William Beltran and SPO2 Liberato
Mascarinas, Jr., who took part in the investigation
of the crime, and Margarito Villaluna, a suspect at
the early stages of the police investigation who was
in the frequent company of the accused. According
to PO2 Beltran, barangay tanods Gilly and George
Zozobrado reported the rape incident to him at
midnight of 05 March 1994. He entered the report
in the "temporary blotter because the suspect was
unknown then." 13Accompanied by the two tanods,
he went to the residence of the victim and when he
asked Catalina if she was able to recognize the
malefactors, she kept silent and continued crying.
SPO2 Liberato Mascarinas, Jr., asserted that, in the
early morning of 06 March 1994, Gilly and George
Zozobrado went to the police station and named
"Pitoy Quianola, Margarito Villaluna and Batiquil
or Escuadro" as being the suspects in the rape
incident. While on their way to the latter's
respective residences, the team met Catalina
Carciller and party who were themselves about to
repair to the police headquarters. Mascarinas asked
Catalina about the identities of the rapists. She
named "Pitoy Quianola" but said she did not know
the names of "the other persons" although she could
recognize them by face. Botiquil was later brought
to the police station Pitoy Quianola by that time
had already gone to Naga. Margarito Villaluna
declared that he had been in Panla-an, Negros
Oriental, from 05 March 1994 until 09 March 1994

until harvesting corn. His sister, Mercy Villaluna


testified that, in the morning of 06 March 1994,
policemen in the company of barangay tanods
including Gilly Zozobrado and his son Marcelo,
came to their house looking for her brother
Margarito. Shortly after the group had left, another
policeman, in the company of one Erwin Quirante
also came looking for her brother. The arrival of the
policemen prompted her to verify from the Coast
Guard whether her brother had indeed left for
Negros Oriental. She was told that her brother was
in the boat that departed for Negros in early dawn
of 02 March 1994. Still unsatisfied with the result
of her queries, Mercy went to Guinholngan where
she met Margarito.
Following the trial and submission of the case for
decision,
the
court
14
a quo, on 01 March 1996, found the two accused
guilty beyond reasonable doubt of the crime of
"frustrated rape" and sentenced them accordingly;
thus:
WHEREFORE, premises considered, the Court
hereby finds guilty beyond reasonable doubt the
two accused Agapito "Petoy" Quianola and
Eduardo Escuadro, alias "Batiquil", as principals
by direct participation and indispensable
cooperation of the frustrated rape of the
complaining witness Catalina "Cathy" Carciller,
and considering the attendance in the commission

of the crime of the six (6) aggravating


circumstances aforementioned, not offset by any
mitigating circumstance, hereby sentences these
two accused individually toReclusion Perpetua of
Forty (40) Years, plus all the accessory penalties
prescribed by law, and to pay the offended party
civil indemnity in the amount of P50,000.00 each.
The Court also hereby recommends that under no
circumstance should the two accused be granted
parole or conditional or absolute pardon, in view of
the extreme moral turpitude and perversity which
they exhibited in the commission of the crime
not until they shall have served at least thirty (30)
years of the full range of forty (40) years
of reclusion perpetuameted out against them in this
case. They should be interdicted for that length of
time from the usual and normal liasons (sic) and
dealings with their fellowmen and their community
so as to protect the latter from their pernicious and
insidious examples. This is the most generous and
charitable recommendation that the Court can make
for these two malefactors, short of imposing upon
them the supreme penalty of death, which the Court
in other times and conditions might have been
compelled, as a matter of inexorable duty, to mete
out against them, in obedience to the implacable
and peremptory demands and dictates of retributive
justice.
Costs shall also be taxed against the two accused.

SO ORDERED. 15
The trial court ruled that the accused were liable for
the crime of frustrated rape "with an eye to
extending to the two accused the benefit of the
principle that in case of doubt criminal justice
naturally leans in favor of the milder form of
penalty" 16 but that, because of the existence of "at
least six (6) aggravating circumstances, 17 not offset
by any mitigating circumstance," 18the accused
should each be meted the penalty of reclusion
perpetua. It explained:
Now, the crime of rape had it been consummated
and had it been committed with the attendance of
the above-mentioned aggravating circumstances,
with
absolutely no offsetting
mitigating
circumstances, ought to be punished with the
mandatory penalty of death under the pertinent
provisions of Section 11 and 23 of Republic Act
No. 7659, which amended Article 335 of the
Revised Penal Code, and further amplified the
aggravating circumstances enumerated in Article 14
of the same code. But because the crime committed
here is "merely" frustrated rape for the reasons
heretofore
discussed,
attended
by
the
aforementioned six aggravating circumstances, not
offset by even one mitigating circumstance, the
proper penalty to be imposed upon the two
principals, the two accused herein, both coconspirators, by direct participation and

indispensable cooperation, of the frustrated rape,


should be one degree lower than the indivisible
afflictive penalty of death, which is also the
indivisible
afflictive
penalty
of reclusion
perpetua which, under Section 21 of the
amendatory statute, shall range from twenty years
and one day to forty years. 19
In their appeal to this court, the two convicted
accused interposed the following assignment of
errors:
I. THE COURT ERRED IN DISREGARDING
THE
INCONSISTENCIES
OF
THE
PROSECUTION WITNESSES WHICH IF
THOROUGHLY CONSIDERED COULD HAVE
ALTERED THE DECISION IN FAVOR OF THE
ACCUSED.
II. THE COURT ERRED IN BELIEVING THE
TESTIMONY OF COMPLAINING WITNESS
CARCILLER EVEN IF THE SAME WERE
CLOUDED WITH GRAVE INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING
THE TESTIMONIES OF ACCUSED AND BY
DISMISSING IT AS WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO
CONSIDER THE REBUTTAL EVIDENCE OF

DEFENSE WITNESSES EVEN IF THE SAME


WERE NOT CONTROVERTED.
V. THE COURT ERRED IN FAILING TO GIVE
WEIGHT TO THE TESTIMONIES OF THE
POLICEMEN
WHICH
WERE
UNCONTROVERTED
AND
WITH
PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTIES.
VI. THE COURT ERRED IN FINDING THE
ACCUSED GUILTY OF FRUSTRATED RAPE
AND SENTENCING THEM TO 40 YEARS
of RECLUSION PERPETUA. 20
In reviewing rape cases, this Court must again say
that it has been continually guided by the principles
(a) that an accusation of rape can be made with
facility; it is difficult to prove, but more difficult for
the person accused, though innocent, to disprove;
(b) that in view of the intrinsic nature of the crime
which usually involves only two persons, the
testimony of the complainant must be scrutinized
with extreme caution; and (c) that the evidence for
the prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the
weakness
of
the
evidence
of
the
defense. 21 Expectedly, courts would scrupulously
examine the testimony of the complainant with the
thought always in mind that the conviction of the
accused would have to depend heavily on the

credibility of the offended woman. It is not much


different in this instance for, at bottom, appellants
assail the credibility of the prosecution witnesses,
particularly that of the complainant, in seeking a
reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the
trial court on credibility are entitled to highest
respect and will not be disturbed on appeal in the
absence of any clear showing that the trial court has
"overlooked, misunderstood or misapplied facts or
circumstances of weight and substance" that could
have consequential effects. The stringency with
which appellate tribunals have observed this rule is
predicated on the undisputed vantage of the trial
court in the evaluation and appreciation of
testimonial evidence. 22
In assailing Catalina's credibility, as against the
assessment made by the trial court which has
described the victim's testimony to be impressed
with "candor, spontaneity and naturalness,"
appellants theorize that the sexual intercourse, if
indeed true, could have only been committed
against Catalina in a sitting position, contrary to her
declaration of having been made to lie on the
ground because her T-shirt, marked Exhibit E, is
"not tainted with mud at all especially the back if
she were made to lie down." 23The Court finds this
so-called
incongruity
committed
by
the
complainant to a feeble attempt to discredit her

testimony. The Court is convinced of the sexual


assault made against her. Here follows the
testimony of Catalina on this score.
Q You said that you were forced by Agapito
Quianola to sit down, where were you forced to sit
down, in what particular place or area?
A Just behind the back of the school.
Q You were forced to sit down on the ground?
A Yes.
Q In effect did you sit down as ordered by him?
A I resisted.
COURT:
Q How did you resist?
A I said I will not sit down.
TRIAL PROS. NAZARENO:
Q What did Agapito Quianola do, if any, when
you resisted?
A He pointed his gun to me.

Q When he pointed a gun at you, referring to


Agapito Quianola, what did he say?
A He said that if I will not accede to what he
wanted me to do and if I will shout, he will kill me.
Q What did you do when you heard those words
coming from Agapito Quianola?
A I cried.
Q When you cried what did Agapito Quianola do,
if any?
A He ordered Eduardo Escuadro to remove my
pants and panty.
COURT

Q Now, after Agapito Quianola ordered Eduardo


Escuadro to remove your pants and panty what did
Eduardo Escuadro do, if any?

Q Now, you said Agapito Quianola opened his fly


or unzipped his pants, when Agapito Quianola
already unzipped his pants, what did he do?

A He did what Agapito Quianola commanded


him.

A He approached me and lay on top of me.

COURT:
Q How about you, what (sic) were you doing at that
time?

Q When Agapito Quianola approached you and


laid on top of you, what did Eduardo Escuadro do?
A He was holding on to my legs.
Q Then what happened after that?

A I cried and tried to free myself.


TRIAL PROS. NAZARENO

A Agapito Quianola started to pump, to push and


pull.

Q Now, when Eduardo Escuadro removed your


pants and panty where was Agapito Quianola and
what did Agapito Quianola do?

Q What did you do when Agapito Quianola was


already on top of you and made a push and pull on
you?

A He unzipped his pants.

A I struggled to free myself.

Q After that what happened?

Q After that what happened when Agapito


Quianola was already on top of you and kept on
making a push and pull?

Q Why what were you wearing at that time?


A Pants.
Q What kind of pants?
A Denim.

In effect, were your pants and panty removed by


Eduardo Escuadro?

TRIAL PROS. NAZARENO

A Yes.

A Eduardo Escuadro took his turn.


Q What do you mean by took his turn, please
specify what did Escuadro do? He did what Agapito
had just done to you?

COURT:

A The same as Agapito did, he was doing the push


and pull movement.

Q What did Agapito Quianola do to you actually?


A He lay on top of me and did a push and pull
movement.

Q What did you feel when Eduardo Escuadro was


already on top of you and made a push and pull on
you?

TRIAL PROS. NAZARENO:

A I held my breath.

Q When Agapito Quianola lay on top of you and


made a push and pull movement, do you mean to
say that he inserted his penis into your vagina?

Q Did you see the penis Eduardo Escuadro?

A I felt something hard on the lips of my genitals.

Q Now, did you feel that the penis of Escuadro


inserted into your vagina?

Q What is this something hard that you felt that


touched the lips of your vagina or vulva?
A His organ or penis.
Q When Agapito Quianola unzipped his pants, did
you see his penis?

A No.

A I felt it on the lips of my vulva. 24


The fact that she must have been lying down when
violated has even more been made clear by the
defense on cross-examination. Thus:

A Yes.

Q Did you say any testimony in the direct that you


were on the ground at the time when you were
raped by these two accused?

Q You also said that Eduardo Escuadro took his


turn and laid on top of you and made a push and
pull on you, specifically what did Eduardo
Escuadro do?

A They pointed a gun at me and ordered me to lie


down.
Q Lie on the ground?

A Yes. 25
And on why her T-shirt was no longer soiled with
mud when presented in court, Catalina creditably
explained that when it was offered in evidence, she
had already dusted and rid it of grass particles. At
all events, whether appellants spent their lust on
Catalina in a sitting position or lying down would
not be of any real moment for what remained clear,
established rather convincingly by the prosecution,
was that appellants had forced carnal knowledge of
the victim.
The reliance being made by appellants on the
affidavit of Catalina in order to discredit her is
likewise futile. The Court has consistently ruled
that discrepancies between the statement of an
affiant in an affidavit and those made on the
witness stand do not necessary downgrade
testimonial evidence. Ex parte affidavits are usually
incomplete and frequently prepared by an
administrating officer and cast in the latter's
language and understanding of what the affiant has
said. Quite frequently, the affiant would simply sign
the affidavit after it has been read to him or to her. 26
Not much differently could be said of Catalina's
identification of appellants as being her ravishers.
On the witness stand, Catalina explained that while
she gave appellant Escuadro's nickname "Botiquil"
to the investigating police officer, the latter did not

mention that name in the affidavit because,


according to the officer, the affidavit was merely a
"shortcut". In her testimony, she was categorical
that she had known appellants even before the rape
incident. She knew that appellant Quianola was a
policeman and a "popular maldito" (nasty) in the
locality. 28 Catalina knew that appellant Escuadro, a
resident of Punla-an far from her own abode, was
commonly known as "Batiquil" (Botiquil). She
could not have been mistaken in the identification
of the culprits since appellants themselves held a
flashlight which they used that added to the
illumination shed by a fluorescent lamp and two
bulbs on the side of a house only some meters
away.
As regards the allegation of appellants that the
testimony of Catalina contradicted in certain
respects that of prosecution witness Rufo Ginto,
suffice it to say that the testimony of Rufo Ginto
(who was noted by the trial court not to be "an
intelligent witness" 29) was merely corroborative in
nature and neither dealt with the actual commission
of the crime nor delved on material points.
Catalina's candid and straightforward narration of
the two sexuals assaults perpetrated on her on the
night of the incident unmistakably deserves
credence. It is unbelievable that a young barrio lass
would concoct a tale of defloration publicly admit
having been ravished and her honor tainted allow

the examination of her private parts, and undergo


all the trouble and inconvenience not to mention
the trauma and scandal of a public trial had she not
in fact been raped and truly moved to protect and
preserve her honor as well as to obtain justice, for
the wicked acts committed against her. 30 There is
no plausible reason why Catalina should testify
against appellants, imputing upon them so grave a
crime as rape if it did not happen. This Court has
consistently held that where there is no evidence to
show any dubious reason or improper motive why a
prosecution witness should testify falsely against
the accused or implicate him in a serious offense,
the testimony deserves faith and credit. 31 So, also,
the Court has repeatedly said that the lone
testimony of the victim in a rape case, if credible, is
enough
to
sustain
a
conviction. 32
The positive identification of appellants as being
the perpetrators of the crime effectively effaces
their alibi. 33 The rule is that affirmative testimony
is far weightier than a mere denial, especially when
it comes from the mouth of a credible
witness. 34 Moreover, alibi might be aptly
considered only when an accused has been shown
to be in some other place at the crucial time and
that it would have been physically impossible for
him to be at the locus criminis or its immediate
vicinity at the time of the commission of the
crime. 35

In the context it is used in the Revised Penal Code,


"carnal knowledge" unlike its ordinary connotation
of sexual intercourse, does not necessarily require
that the vagina be penetrated or that the vagina be
penetrated or that the hymen be ruptured. 36 The
crime of rape is deemed consummated even when
the man's penis merely enters the labia or lips of the
female organ 37 or, as once so said in a case, by the
"mere touching of the external genitalia by a penis
capable
of
consummating
the
sexual
act." 38 In People vs. Escober, 39 in convicting a
father of having raped twice his 1l-year-old
daughter, the Court has said:
While the evidence may not show full penetration
on both occasions of rape the slightest penetration
is enough to consummate the offense in fact there
was vulva penetration in both cases. The fact that
the hymen was intact upon examination does not
belie rape for a broken hymen is not an essential
element of rape not does the fact that the victim has
remained a virgin negate the crime. What is
fundamental is that the entrance of at least the
introduction, of the male organ into the labia of the
pudendum is proved. As in the case at bar it can be
said that there was penetration although
incomplete, and it was sufficient to prove carnal
knowledge of a child under twelve years of age. A
medical examination is not an indispensable
element in a prosecution for rape. The accused may
be convicted on the sole basis of complainant's

testimony of credible and the findings of the


medico-legal officer do not disprove the
commission of rape.
There are half measures or even quarter measures
nor is their gravity graduated by the inches of entry.
Partial penile penetration is as serious as full
penetration. The rape is deemed consummated in
either case. In a manner of speaking, bombardment
of the drawbridge is invasion enough even if the
troops do not succeed in entering the
castle. 40(Emphasis supplied.)
In another case, People vs. Gabayton, 41 where the
accused has been found guilty of raping his
daughter then less than twelve years old, the Court
has observed:
Accused appellant draws attention to the fact that
based on the medico-legal findings, there is no
showing that his daughter's hymen was penetrated,
nor was there any evidence of injuries inflicted.
However, jurisprudence is well-settled to the effect
that for rape to be consummated, rupture of the
hymen is not necessary, nor is it necessary that the
vagina sustained a laceration especially if the
complainant is a young girl. The medical
examination merely stated that the smallness of the
vaginal orifice only precludes COMPLETE
penetration. This does not mean that rape has not
been committed. The fact that there was no deep

penetration of the victim's vagina and that her


hymen was intact does not negate rape, since this
crime is committed even with the slightest
penetration of a woman's sex organ. Presence of a
laceration in the vagina is not an essential
prerequisite to prove that a victim has been raped.
Research in medicine even points out that negative
findings are of no significance, since the hymen
may not be torn despite repeated coitus. In fact,
many cases of pregnancy have been reported in
women with unruptured hymen. Entry of the labia
or lips of the female organ merely, without rupture
of the hymen or laceration of the vagina, is
sufficient to warrant conviction. What must be
proven in the crime of rape is merely the
introduction of the male organ into the labia of the
pudendum and not the full penetration of the
complainant's private part. As we held in Baculi:
"there could still be a finding of rape even if despite
the repeated intercourse over a period of four years
the complainant still retained an intact hymen
without signs of injury." In the case at bench,
Summer's testimony has established without a
doubt that accused-appellants organ managed to
come into contact with her vagina, enough to cause
her pain. 42 (Emphasis supplied.)

entry into the victim's vagina is not required to


sustain a conviction."

In its recent holding in People vs. Echegaray, 43 the


Court has declared that "a mere knocking at the
doors of the pudenda, so to speak, by the accused's
penis suffices to constitute the crime of rape as full

A Yes.

The trial court appellants only frustrated rape, ruled


that there was no "conclusive evidence of
penetration of the genital organ of the offended
party 44 in the (a) Catalina had admitted that she did
not spread her legs and (b) the medico-legal
officer's findings showed she did not sustain any
extragenital injuries and her hymenal orifice was so
small that an erect average-size penis would not
have completely penetrated it would causing
laceration. It would seem that the trial court failed
to consider Catalina's testimony in its entirely she
testified:
Q And when he mounted on top of you Escuadro
was holding on to your two feet and all the time
that he Quianola, was making a push and pull on
you Escuadro was holding on to your two feet?
A Yes.
COURT:
Q Your two feet?

ATTY. CREEP:

Q Now in other words since your two feet were


held and Eduardo Escuadro was waving (sic
[moving]) slightly to your left as you demonstrated
your two feet became closer to each other, it could
not be spread?
A I was still struggling at that time to free myself
and I do not know whether my legs were speared
out or not.
Q Did you spread your legs?
A No.
Q Since you did not spread your legs and
Quianola was on top of you, did you not bother to
pull your legs, kick the one holding it and pushed
Quianola or do any harm to him?
A No, because I was already frightened considering
that there were two of them and they were armed. 45
This testimony would indicate that Catalina,
considering her struggle to free herself,
understandably failed to notice whether her legs
were spread apart or close together during her
ordeal. What she did distinctly recall, however, was
that Escuadro had kept holding both her legs when
Quianola took her. Thus

Q At that time when he unzipped and your hands


were free, did you not attempt to hold his penis
forcibly so that he will refrain from raping you?
A I was not able to think of that because of my fear
and besides that Eduardo Escuadro was holding on
to both my legs.
Q Now if Eduardo Escuadro was the one holding
on both your two legs how was Quianola able to
place himself on top of you?
A It was because Eduardo Escuadro had already
released my hands and Quianola was the one
holding on to it already, afterwards Eduardo
Escuadro transferred to hold both my legs. 46
Let it be said once again that, as the Revised Penal
Code presently so stands, there is no such crime as
frustrated rape. In People vs. Orita, 47 the Court has
explicitly pronounced:
Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim, he
actually attains his purpose and, from that moment
also all the essential elements of the offense have
been accomplished. Nothing more is left to be done
by the offender, because he has performed the last
act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People vs.
Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil.

980; People vs. Royeras, G.R. No. L-31886, April


29, 1974, 56 SCRA 666; People vs. Amores, G.R.
No. L-32996, August 21, 1974, 58 SCRA 505). We
have set the uniform rule that for the consummation
of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ
is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba,
62 Phil. 559, People vs. Rabadan, et al., 53 Phil.
694; Unites States vs. Garcia, 9 Phil. 434) because
not all acts of execution was performed. The
offender merely commenced the commission of a
felony directly by overt acts. Taking into account
the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape
can ever be committed.
Of course, We are aware of our earlier
pronouncement in the case of People vs. Eriia, 50
Phil. 998 [1927] where, We found the offender
guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the
offended party. However, it appears that this is a
"stray" decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise,
We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated

September 12, 1960) and Republic Act No. 4111


(dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a
homicide is committed by reason or on the
occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have
prompted the law-making body to include the crime
of frustrated rape in the amendments introduced by
said laws. 48
The Court is not unaware that Republic Act No.
7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing
with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of
an attempted or frustrated rape. Until Congress sees
it fit to define the term frustrated rape and thereby
penalize it, the Court will see its continued usage in
the statute book as being merely a persistent lapse
in language.
Each appellant is liable for two counts of
consummated rape on account of a clear conspiracy
between them shown by their obvious concerted
efforts to perpetrate, one after the other, the crime.
Each of them therefore is responsible not only for
the rape committed personally by him but also for
the rape committed by the other as well. 49

Under Article 335 of the Revised Penal Code as


amended by Republic Act No. 7659 when rape is
committed with the use of a deadly weapon or by
two persons, the crime is punishable by reclusion
perpetuata to death. Even while the information
has failed to allege the use of a deadly weapon in
the commission of the rape, appellants can,
nonetheless, be held accountable under that
provision since the information has likewise
averred that the "above-named accused," referring
to the two appellants, have conspiratorially
committed the crime.
Article 14 of the Revised Penal Code, 50 includes
among its enumeration of generic aggravating
circumstances the fact that the crime is committed
with the aid of armed men or persons who insure or
afford impunity. The fact alone, then, that a
malefactor has sported a firearm does not, by itself,
militate to aggravate crime. As regards appellant
Quianola, the aggravating circumstance of his
being a member of the Philippine National Police
would have exposed him to the penalty of
death 51under the amendatory provisions of Article
335 by Republic Act No. 7659, had this
circumstance been properly alleged in the
information. The description by the trial court of
appellants as being "powerfully, built, brawny and
mean-looking" as against the "short slender easily
cowed" 15-year-old victim would not here warrant
a finding that abuse of superior strength has

aggravated the commission of the crime. The law


should be deemed to have already considered this
circumstance in qualifying the crime to its
"heinous" character rendering in that context abuse
of superior strength has an inherent element
thereof. Neither may nighttime be considered an
aggravating circumstance in the absence of proof of
its having been deliberately sought out by
appellants to by appellants to facilitate the
commission of the offense. 52 Craft fraud or
disguise 53 is a species of aggravating circumstance
that denotes intellectual trickery or cunning
resorted to by an accused to aid in the execution of
his criminal design or to lure the victim into a trap
and to conceal the identity of the accused. The fact
that one of the appellants has pretended to be a
member of the New People's Army does not
necessarily imply the use of craft, fraud or disguise,
in the commission of the crime Finally, the Court
does not subscribe to the view of the trial court that
accused-appellants have employed means which
added ignominy to the natural effects of the crime,
particularly in "stripp(ing) the victim of her denim
parts and panties and then sending her home in this
humiliating and distressing condition. 54 There is
nothing on record that even remotely suggests that
accused-appellants so deliberately sought to leave
Catalina with bottoms bare that she might be left
alone in shame with only her T-shirt and brassieres
on.

The absence of any aggravating circumstance in the


commission of a crime punishable by two (2)
indivisible penalties, such as reclusion perpetua to
death would justify even without any mitigating
circumstance, the imposition of the lesser penalty
of reclusion perpetua.
The trial court has ordered appellants to each pay
the offended party and indemnity in the amount of
P50,000.00. Prevailing jurisprudence 55 likewise
allows the victim is have an award of moral
damages for having evidently undergone mental
physical and psychological sufferings. The
availability of appellants being on delict is
solidary. 56
WHEREFORE, appellants Agapito Quianola y
Escuadro and Eduardo Escuadro y Floro are each
found guilty beyond reasonable doubt of two (2)
counts of consummated rape and accordingly,
sentenced to the penalty of reclusion perpetua in
each case. Said appellants are ordered to pay jointly
and severally Catalina Carciller the sum of
P100,000.00 by way of indemnity ex delictu for the
two counts of consummated rape plus P60,000.00
moral
damages.
Costs
against
appellants.1wphi1.nt
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 141724-27

November 12, 2003

PEOPLE OF THE PHILIPPINES, Appellee,


vs.
ARNULFO ORANDE y CHAVEZ, Appellant.

November 1996. The informations filed against


appellant by the City Prosecutor read:
In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of
Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by
means of force and intimidation, that is, by
threatening to kill said Jessica Castro, had carnal
knowledge of the latter against her will.

That on or about March 12, 1995, in the City of


Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by
means of force and intimidation, that is, by
threatening Jessica Castro y de la Cruz of death
should she resist or report the matter to anybody,
had carnal knowledge of said Jessica C. Castro, a
minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187-

CONTRARY TO LAW.
DECISION
In Criminal Case No. 97-159185CORONA, J.:
1

This is an appeal from the decision of the Regional


Trial Court of Manila, Branch 18, in Criminal Case
Nos. 97-159184, 97-159185, 97-159186 and 97159187, convicting appellant for two counts of
simple rape, one count of statutory rape and one
count of frustrated rape, and sentencing him to
suffer three counts of reclusion perpetua for the
simple and statutory rapes, and an indeterminate
penalty of 8 years to 14 years and 8 months of
imprisonment for the frustrated rape.
Complainant Jessica Castro charged appellant with
raping her four times between January 1994 and

That on or about April 15, 1994, in the City of


Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by
means of force and intimidation, that is, by
threatening JESSICA CASTRO Y DE LA CRUZ of
death should she resist or report the matter to
anybody, had carnal knowledge of said Jessica C.
Castro, a minor, under 12 years of age, against her
will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 -

That on or about November 17, 1996, in the City of


Manila, Philippines, the said accused did then and
there willfully, unlawfully and feloniously, by
means of force and intimidation, that is, by
threatening to kill said Jessica Castro, had carnal
knowledge of the latter against her will.
CONTRARY TO LAW.2
Arraigned on September 5, 1997, appellant pleaded
not guilty.3 Thereafter, trial on the merits ensued.
However, the trial was subsequently postponed for
eight months as Jessica was suffering from
psychological and emotional trauma from her
horrifying ordeal.4 The lower court ordered the
suspension of the trial to enable her to undergo
psychological therapy at the Child Protection Unit
of the Philippine General Hospital. Trial resumed in

November 1998 with the prosecution presenting


Jessica as its first witness.
Incidentally, prior to the filing of the
aforementioned cases, Jessica also filed a criminal
case against her mother, Girlie de la Cruz Castro,
and the appellant for child abuse.
The evidence of the prosecution showed that
appellant was the common law husband of Jessicas
mother Girlie. Appellant, a pedicab driver, started
living with Girlie and her three children sometime
in 1993 in a two-storey house in Paco, Manila
owned by Girlies mother. They occupied a room
on the ground floor which served as their bedroom,
kitchen and living room. The adjacent room was
occupied by Girlies brother and his family while
the room on the second floor was occupied by
Girlies sister and her family.
Girlie gave birth to two more children by appellant.
To earn a living, Girlie sold fish at the Paco Market,
buying her stock from the Navotas fish market late
at night and sometimes in the early hours of the
morning.
The first incident of rape, subject of Criminal Case
No. 97-159185, happened sometime in April 1994
when Girlie was at the fish market. Appellant was
left in the house with Jessica, her siblings and
appellants two children with Girlie. Jessica was

then watching television while her brothers and


sisters were sleeping beside her. Appellant grabbed
Jessicas right hand and lasciviously jabbed her
palm with his finger. He ordered her to undress
which she obeyed out of fear as appellant was
armed with a knife. Appellant then removed his
pants, placed himself on top of complainant and
succeeded in partially penetrating her. Jessica felt
pain in her vagina and saw it smeared with blood
and semen. She tried to leave the room but
appellant locked the door and threatened to kill her
if she told her mother what happened. Jessica was
then only nine years and four months old, having
been born on December 19, 1983.5
The second rape, subject of Criminal Case No. 97159186, occurred on March 14, 1995 at around
11:00 a.m. when Jessica was 11 years and 3 months
old. Girlie was in the market while Jessica and her
siblings were left in the house watching television.
Soon after, appellant arrived and sent the children,
except Jessica, to play outside. Left alone with
Jessica, appellant removed his clothes, pulled out a
balisong and ordered Jessica to undress. He then
held her by the shoulder and made her lie down.
Then he mounted her. Appellant reached his orgasm
shortly after penetrating her slightly. He stood up
with semen still dripping from his penis.
Apparently still not satisfied, he knelt down, kissed
and fingered Jessicas vagina, then mashed her
breasts. He only stopped what he was doing when

someone knocked at the door. Appellant and Jessica


hurriedly put on their clothes and, as appellant
opened the door, Jessica went to the bathroom to
wash herself.
The third rape, subject of Criminal Case No. 97159184, occurred on January 14, 1996, when
Jessica was 12 years and 6 months old. She arrived
from school at around 11:00 a.m. While she was
changing her clothes, appellant ordered Jessicas
brother and sister to visit their mother at the Paco
Market and sent his children to play outside the
house. When appellant and Jessica were alone, he
removed his pants, got his knife and ordered her to
undress. Since she was afraid, Jessica was forced to
remove her clothes. Appellant then told her they
would do what they did before, pulled her towards
him and made her lie down on the floor. While
holding the knife, he kissed and fingered her
vagina, then mashed her breasts. Thereafter, he
placed himself on top of her, partially penetrated
her until he ejaculated. When Jessicas brother and
sister arrived, appellant hurriedly put on his clothes.
Jessica did the same. She then went to the bathroom
to wash herself and change her bloodstained
underwear.
The last rape, subject of Criminal Case No. 97159187, occurred sometime in November 1996, at
around 11:00 p.m. Girlie was again in the public
market while Jessica was at home with her siblings

who were all asleep. Appellant told Jessica that


they would again do what they did before but she
refused, saying that she might get pregnant.
Appellant brandished his balisong and threatened to
kill her. He then covered himself and Jessica with a
blanket, removed his pants and her shorts, and
placed himself on top of her. His penis slightly
penetrated her vagina. He mashed her breasts,
inserted his finger into her vagina and kissed it.
Jessica pushed him away and told him she wanted
to sleep. Then she put on her shorts. Appellant also
put on his pants and told Jessica not to tell her
mother what he did to her. He assured her that she
would not get pregnant because she was not yet
menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs.
Adoracion Mojica, noticed the unusual treatment of
Jessica by appellant. When confronted by Mrs.
Mojica, Jessica admitted that appellant had raped
her several times. Mrs. Mojica called up Jessicas
aunt, Mrs. Antonina de la Cruz, and narrated to her
what Jessica had confessed. Mrs. De la Cruz then
accompanied Jessica to the police station to file a
complaint and to the Philippine General Hospital
(PGH), Child Protection Unit, to be examined. Dr.
Bernadette J. Madrid, Director of the Child
Protection Unit, examined Jessica and the findings
revealed the following:
Genital Examination:

Hymen: Estrogenized,
Attenuated from 1 oclock position to 4 o clock
position

her mothers relatives were in the same house,


made her story of rape unbelievable.
The trial court gave credence to the testimony of
Jessica and convicted the appellant:

and from 6 o clock to 12 o clock position


Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus: Normal rectal tone, no pigmentation, no
scars, normal rugae6
For his defense, appellant advanced denial and
alibi. He denied ever raping Jessica and testified
that, during the alleged second rape incident, he
was driving his pedicab. His live-in partner Girlie
testified that, during the purported first and second
incidents of rape, appellant was with her to buy fish
in Navotas and sell them in Paco market. Appellant
argued that since Jessica disapproved of his
relationship with her mother, she had the motive to
falsely accuse him of raping her. Further, he
pointed out the improbability of the alleged first
and fourth incidents of rape inasmuch as the makeup of the room made it impossible for Jessicas
siblings not to wake up during the commission of
the crime. Appellant further contended that
Jessicas failure to cry out for help, knowing that

WHEREFORE, in Criminal Case No. 97-159184,


Accused Arnulfo Orande y Chavez is convicted of
simple rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties
provided by law.
In Criminal Case No. 97-159185, the accused is
also convicted of simple rape under Article 335 of
the Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua with all the accessory
penalties provided by law.
In Criminal Case No. 97-159186, the accused is
likewise convicted of statutory rape under Article
335 of the Revised Penal Code and sentenced to
suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law.
In Criminal Case No. 97-159187, the accused is
convicted of frustrated rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor
as minimum to 14 years and 8 months of reclusion
temporal as maximum, and to pay the costs.

On the civil liability of the accused in the four


cases, he is ordered to pay the victim, Jessica
Castro, moral, nominal and exemplary damages in
the respective sums of P400,000.00, P200,000.00
and P100,000.00.
SO ORDERED.

In this appeal, appellant assigns the following


errors:
I. THE COURT A QUO GRAVELY ERRED IN
FINDING
THE
ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF
ONE COUNT OF STATUTORY RAPE, ONE
COUNT OF FRUSTRATED RAPE AND TWO
COUNTS OF SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
OF FRUSTRATED RAPE DESPITE THE FACT
THAT UNDER PREVAILING JURISPRUDENCE
THERE IS NO SUCH CRIME.8
The Office of the Solicitor General argues that
appellants convictions should be upheld as the
prosecution was able to prove his guilt beyond
reasonable doubt.
The appeal is partly meritorious. This Court finds
that the prosecution was able to prove beyond

reasonable doubt appellants guilt for two counts of


statutory rape and two counts of simple rape, there
being no such crime as frustrated rape in this
jurisdiction.
After a thorough review of the records, we find no
reason to deviate from the well-established rule that
the credibility of witnesses is a matter best assessed
by the trial court because of its unique opportunity
to observe them firsthand and to note their
demeanor, conduct and attitude.9 In the present
case, the trial court found Jessicas testimony
convincing, logical and credible. Moreover, the
court a quo:
xxx discerned from her demeanor the intense
mental torture, embarrassment, emotional pain and
bitterness she suffered whenever she was asked to
recall and narrate the humiliating sexual ordeals she
had gone through, and her ... desire for justice and
the punishment of her defiler. She was continually
in tears while testifying and the proceeding was
interrupted several times to calm her down.10
No young woman would allow an examination of
her private part and subject herself to the
humiliation and rigor of a public trial if the
accusations were not true, or if her motive were
other than a fervent desire to seek justice.11

We do not subscribe to appellants theory that the


filing of the rape charges was motivated by
Jessicas dislike for him. To charge appellant with
rape for the sole purpose of exacting revenge, as
appellant implies in his brief, takes a certain kind of
psychiatric depravity which this Court does not see
in Jessica. The fact that Jessica had to undergo
psychological treatment12 after her first testimony
in February 1998 belies appellants defense. The
need for such counseling came about after the
defilement she suffered in the hands of appellant. In
fact, it was the incidents of rape that caused her
psychological and emotional imbalance which
required therapy at the Child Protection Unit of the
Philippine General Hospital.
The alleged inconsistencies and improbabilities in
Jessicas testimony did not discredit her nor reveal
any fabrication. Inconsistencies regarding minor
details were attributable to the fact that she was
recalling details of incidents that happened three
years before, not to mention the fact that these
details pertained to something she had very little
knowledge of, being then only nine years and three
months old when the first rape was committed. We
have consistently ruled that errorless recollection of
a harrowing experience cannot be expected of a
witness (a very young one at that) specially when
she is recounting details of an occurrence so
humiliating, so painful and, in this case, so alien as
rape.13

Appellant makes much of the fact that two


incidents of rape happened inside the room where
the other children were sleeping. This Court has
repeatedly held that rape can be committed in the
same room where other members of the family are
also sleeping, in a house where there are other
occupants or even in places which to many might
appear unlikely and high-risk venues for its
commission.14
Also, the failure of Jessica to cry out for help
during the incidents in question, inspite of the
physical proximity of her relatives, or to report to
them what happened, did not at all make her
testimony improbable inasmuch as it is not
uncommon for a young girl of tender age to be
easily intimidated into silence and conceal for
sometime the violation of her honor, even by the
mildest threat to her life.15 Besides, Girlie, Jessicas
mother, had a rift with her siblings who lived in the
same house and forbade Jessica to socialize with
them. It was likewise highly probable that the
strained relations between Jessicas mother, uncle
and aunt prevented Jessica from confiding in them.
In a number of cases, this Court has likewise ruled
that delay, even of three years, in reporting the
crime does not necessarily detract from the witness
credibility as long as it is satisfactorily
explained.16 Jessica was threatened by appellant
that he would kill her mother and relatives if she

reported the rape. A young girl like Jessica can


easily be mesmerized by fear of bodily harm and,
unlike a mature woman, cannot be expected to have
the courage or confidence to immediately report a
sexual assault on her, specially when a death threat
hangs over her head.17
In view of the credible testimony of Jessica,
appellants defenses of denial and alibi deserve no
consideration. These weak defenses cannot stand
against the positive identification and categorical
testimony of a rape victim.18
The court a quo convicted appellant of one count of
frustrated rape in Criminal Case No. 97-151987,
the dispositive portion of which read:
xxx

xxx

xxx

In Criminal Case No. 97-159187, the accused is


convicted of frustrated rape under Article 335 of
the Revised Penal Code and sentenced to suffer the
indeterminate penalty of 8 years of prision mayor
as minimum, and to pay the costs.
xxx

xxx

xxx

SO ORDERED.19
However, we agree with the observation of the
Solicitor General that the court a quo was referring

to Criminal Case No. 97-159185, and not Criminal


Case No. 97-159187, in convicting appellant of
frustrated rape:
The trial court convicted appellant of simple rape in
Criminal Case No. 97-159185. However, the
factual basis thereof in the body of the decision
reads:
With regard to Criminal Case No. 97-159185, the
Court has gathered that sometime in April, 1994, at
around 11:00 p.m., Jessica and her two siblings
together with the accused were in their house, while
their mother, Girlie, was in Navotas buying fish.
Jessica was watching TV in a lying position beside
her two sleeping siblings, when the accused held
Jessicas right hand and jabbed her palm with his
finger. Then he told her to remove her short pants,
panty and T-shirt, after which the accused removed
his pants and with a balisong in his hand, he began
kissing the sensitive parts of her body. Then he
placed himself on top of her and tried to have
sexual intercourse with her. He succeeded in
nudging her sex organ with the tip of his penis, but
was unable to accomplish penetration, due to the
resistance offered by her by struggling and kicking
him. Nonetheless, the accused had orgasm and
Jessicas sex organ was smeared with his semen.
(emphasis supplied, p. 2, Decision)

Such was the only rape incident where the trial


court concluded there was no penetration.
On the other hand, the factual basis for the
conviction in Criminal Case No. 97-159187 in the
body of the trial courts decision reads:
Anent Criminal Case No. 97-159187, the records
further show that in November, 1996, at around
11:00 p.m., Jessica was watching TV while the
other siblings were asleep and her mother was
away, when accused again made sexual advances to
her. She resisted and told accused she might
become pregnant, but the accused persisted and
threatened to kill her at that very moment if she
would not submit to his lust. As in the previous
occasions, he again succeeded in having carnal
knowledge of the helpless and scared victim. After
her defilement, the victim continually cried and the
accused tried to calm her down by assuring her that
she would not be impregnated, because she has not
yet began to have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape
should pertain to the incident in April 1994
described in Criminal Case No. 97-159185 and not
Criminal Case No. 97-159187 since this case refers
to the November 1996 rape incident where the
findings of the trial court was that there was carnal
knowledge.20

Moreover, the oversight of the court a quo in


interchanging Criminal Case Nos. 97-159185 and
97-159187 is further evidenced by the following
paragraph found in page four of the trial court
decision:
In Criminal Case 97-159185 and 97-159184, the
acts of the accused in having carnal knowledge of
the victim by intimidation on two separate
occasions in [the] early or middle part [of] 1996,
and in November of the same year, constitute two
separate crimes of qualified rape under R.A. 7659
and the penalty prescribed therefore is death by
lethal injection.21 (Emphasis Ours)
The rape incidents which occurred in 1996 were
designated as Criminal Case Nos. 97-159184 and
97-159187, as borne out by the informations filed
by the City Prosecutor.22 Thus, the conviction for
frustrated rape should pertain to Criminal Case No.
97-159185 and not Criminal Case No. 97-159187.
Regarding Criminal Case No. 97-159185 (the April
1994 rape incident), the Court sustains appellants
contention that there is no such crime as frustrated
rape, as we have ruled in a long line of
cases.23 Recently, in People vs. Quinanola,24 we
again reiterated the rule:
Let it be said once again that, as the Revised Penal
Code presently so stands, there is no such crime as

frustrated rape. In People vs. Orita, the Court has


explicitly pronounced:
Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim, he
actually attains his purpose and, from that moment
also all the essential elements of the offense have
been accomplished. Nothing more is left to be done
by the offender, because he has performed the last
act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People vs.
Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil.
980; People vs. Royeras, G.R. No. L-31886, April
29, 1974, 56 SCRA 666; People vs. Amores, G.R.
No. L-32996, August 21, 1974, 58 SCRA 505), We
have set the uniform rule that for the consummation
of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ
is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba,
62 Phil. 559; People vs. Rabadan, et al., 53 Phil.
694; United States vs. Garcia, 9 Phil. 434) because
not all acts of execution was performed. The
offender merely commenced the commission of a
felony directly by overt acts. Taking into account
the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is

hardly conceivable how the frustrated stage in rape


can ever be committed.
Of course, We are aware of our earlier
pronouncement in the case of People vs. Eriia, 50
Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the
offended party. However, it appears that this is a
stray decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise,
We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a
homicide is committed by reason or on the
occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have
prompted the law-making body to include the crime
of frustrated rape in the amendments introduced by
said laws.
The Court is not unaware that Republic Act No.
7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing with
reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of
an attempted or frustrated rape. Until Congress sees

it fit to define the term frustrated rape and thereby


penalize it, the Court will see its continued usage in
the statute book as being merely a persistent lapse
in language. (emphasis ours)

merely stroked the external surface thereof. Thus,


the appellant should be found guilty of
(consummated) rape and not merely frustrated or
attempted rape.

Thus, it was error for the trial court to convict


appellant of frustrated rape. Besides, after a careful
review of the records, we find that the rape was in
fact consummated. Jessica initially testified that,
although appellant did not succeed in inserting his
penis in her vagina, she felt his sex organ touch
hers and she saw and felt semen come out of his
penis and smear her vagina.25 In response to the
clarificatory questions asked by the prosecutor,
Jessica testified that the appellant was able to
slightly penetrate her because she felt pain and her
vagina bled.26It has been held that, to be convicted
of rape, there must be convincing and sufficient
proof that the penis indeed touched the labia or slid
into the female organ, and not merely stroked the
external surface thereof.27Nevertheless, we have
also ruled in cases where penetration is not
established that the rape is deemed consummated if
the victim felt pain, or the medico-legal
examination finds discoloration in the inner lips of
the vagina, or the labia minora is already gaping
with redness, or the hymenal tags are no longer
visible.28 In the present case, the victim testified
that she felt pain and her vagina bled, indisputable
indications of slight penetration or, at the very least,
that the penis indeed touched the labia and not

Pursuant to Section 11 of RA 7659 or the Heinous


Crimes Law, the penalty of death is imposed if rape
is committed when the victim is under 18 years of
age and the offender is the common-law spouse of
the parent of the victim. However, the trial court
was correct in not imposing the death penalty in
Criminal Case Nos. 97-159184 and 97-159187
because the qualifying circumstances of age and
relationship of the victim to the appellant were not
alleged in the information.29 Thus, appellant can
only be convicted of simple rape punishable by
reclusion perpetua under Article 335 of the Revised
Penal Code. However, in Criminal Case Nos. 97159185 and 97-159186, the appellant can be
convicted of statutory rape also punishable by
reclusion perpetua under Article 335 of the Revised
Penal Code inasmuch as the age of Jessica was
alleged in the information30 and duly proven during
the trial by the presentation of her birth certificate.31
We award moral damages of P50,000 for each
count of rape as moral damages are automatically
awarded to rape victims without need of pleading
or proof.32 We also award civil indemnity ex delicto
of P50,000 for each count of rape in the light of the
ruling that civil indemnity, which is distinct from

moral damages, is mandatory upon the finding of


the fact of rape.33 We likewise award exemplary
damages of P25,000 for each count of rape
consistent with the prevailing jurisprudence on the
matter.34

For each count of rape, appellant is ordered to pay


complainant Jessica Castro P50,000 as moral
damages, P50,000 as civil indemnity and P25,000
as exemplary damages, or a total of P500,000.
Costs against appellant.

WHEREFORE, the decision of the Regional Trial


Court of Manila, Branch 18, in Criminal Case Nos.
97-159 184 to 87 is AFFIRMED with the following
MODIFICATIONS:

SO ORDERED.

1. In Criminal Case No. 97-159 184, appellant is


convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is
convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is
convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is
convicted of simple rape under Article 335 of the
Revised Penal Code and sentenced to suffer the
penalty of reclusion perpetua.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 202122

January 15, 2014

PEOPLE OF THE PHILIPPINES, PlaintiffAppellee,


vs.
BERNABE PAREJA y CRUZ, AccusedAppellant.
DECISION

I. For the two counts of Rape:

Criminal Case No. 04-1558-CFM

Criminal Case No. 04-15 5 6-CFM

That on or about the 27th day of March, 2004, in


Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the abovenamed accused, BERNABE PAREJA Y CRUZ,
being the common law spouse of minor victims
mother by means of force, threats and intimidation,
did then and there willfully, unlawfully and
feloniously commence the commission of the crime
of Rape against the person of minor, [AAA], a13
years old minor by then and there crawling towards
her direction where she was sleeping, putting off
her skirt, but did not perform all the acts of
execution which would have produce[d] the crime
of rape for the reason other than his own
spontaneous desistance, that is the timely arrival of
minor victims mother who confronted the accused,
and which acts of child abuse debased, degraded
and demeaned the intrinsic worth and dignity of
said minor complainant as a human being.6

That on or about and sometime in the month of


February, 2004, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
Bernabe Pareja y Cruz, being the common law
spouse of the minor victims mother, through force,
threats and intimidation, did then and there
willfully, unlawfully and feloniously commit an act
of sexual assault upon the person of [AAA3], a
minor 13 years of age, by then and there mashing
her breast and inserting his finger inside her vagina
against her will.4

LEOANRDO-DE CASTRO, J.:

Criminal Case No. 04-1557-CFM

The accused-appellant Bernabe Pareja y Cruz


(Pareja) is appealing the January 19, 2012
Decision1 of the Court of Appeals in CA-G.R. CR.H.C. No. 03794, which affirmed in toto the
conviction for Rape and Acts of Lasciviousness
meted out by Branch 113, Regional Trial Court
(RTC) of Pasay City in Criminal Case Nos. 041556-CFM and 04-1557-CFM.2

That on or about and sometime in the month of


December, 2003, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
Bernabe Pareja y Cruz, being the stepfather of
[AAA], a minor 13 years of age, through force,
threats and intimidation, did then and there
willfully, unlawfully and feloniously have carnal
knowledge of said minor against her will.5

On May 5, 2004, Pareja was charged with two


counts of Rape and one Attempted Rape. The
Informations for the three charges read as follows:

II. For the charge of Attempted Rape:

On June 17, 2004, Pareja, during his arraignment,


pleaded not guilty to the charges filed against
him.7 After the completion of the pre-trial
conference on September 16, 2004,8 trial on the
merits ensued.
The antecedents of this case, as narrated by the
Court of Appeals, are as follows:

AAA was thirteen (13) years of age when the


alleged acts of lasciviousness and sexual abuse took
place on three (3) different dates, particularly [in
December 2003], February 2004, and March 27,
2004.
AAAs parents separated when she was [only eight
years old9]. At the time of the commission of the
aforementioned crimes, AAA was living with her
mother and with herein accused-appellant Bernabe
Pareja who, by then, was cohabiting with her
mother, together with three (3) of their children,
aged twelve (12), eleven (11) and nine (9), in x x x,
Pasay City.
The first incident took place [i]n December 2003
[the December 2003 incident]. AAAs mother was
not in the house and was with her relatives in
Laguna. Taking advantage of the situation, [Pareja],
while AAA was asleep, placed himself on top of
[her]. Then, [Pareja], who was already naked,
begun to undress AAA. [Pareja] then started to suck
the breasts of [AAA]. Not satisfied, [Pareja]
likewise inserted his penis into AAAs anus.
Because of the excruciating pain that she felt, AAA
immediately stood up and rushed outside of their
house.
Despite such traumatic experience, AAA never told
anyone about the [December 2003] incident for fear
that [Pareja] might kill her. [Pareja] threatened to

kill AAA in the event that she would expose the


incident to anyone.

Hymen: Tanner Stage 3, hymenal remnant from 5-7


oclock area, Type of hymen: Crescentic

AAA further narrated that the [December 2003]


incident had happened more than once. According
to AAA, in February 2004 [the February 2004
incident], she had again been molested by [Pareja].
Under the same circumstances as the [December
2003 incident], with her mother not around while
she and her half-siblings were asleep, [Pareja]
again laid on top of her and started to suck her
breasts. But this time, [Pareja] caressed [her] and
held her vagina and inserted his finger [i]n it.

xxxx

With regard to the last incident, on March 27, 2004


[the March 2004 incident], it was AAAs mother
who saw [Pareja] in the act of lifting the skirt of her
daughter AAA while the latter was asleep.
Outraged, AAAs mother immediately brought
AAA to the barangay officers to report the said
incident. AAA then narrated to the barangay
officials that she had been sexually abused by
[Pareja] x x x many times x x x.
Subsequently, AAA, together with her mother,
proceeded to the Child Protection Unit of the
Philippine General Hospital for a medical and
genital examination. On March 29, 2004, Dr. Tan
issued Provisional Medico-Legal Report Number
2004-03-0091. Her medico-legal report stated the
following conclusion:

Genital findings show Clear Evidence of Blunt


Force or Penetrating Trauma.
After the results of the medico-legal report
confirmed that AAA was indeed raped, AAAs
mother then filed a complaint for rape before the
Pasay City Police Station.
To exculpate himself from liability, [Pareja] offered
both denial and ill motive of AAA against him as
his defense. He denied raping [AAA] but admitted
that he knew her as she is the daughter of his live-in
partner and that they all stay in the same house.
Contrary to AAAs allegations, [Pareja] averred that
it would have been impossible that the alleged
incidents happened. To justify the same, [Pareja]
described the layout of their house and argued that
there was no way that the alleged sexual abuses
could have happened.
According to [Pareja], the house was made of
wood, only about four (4) meters wide by ten (10)
meters, and was so small that they all have to sit to
be able to fit inside the house. Further, the vicinity
where their house is located was thickly populated

with houses constructed side by side. Allegedly,


AAA also had no choice but to sleep beside her
siblings.
All taken into account, [Pareja] asseverated that it
was hard to imagine how he could possibly still go
about with his plan without AAAs siblings nor
their neighbors noticing the same.
Verily, [Pareja] was adamant and claimed
innocence as to the imputations hurled against him
by AAA. He contended that AAA filed these
charges against him only as an act of revenge
because AAA was mad at [him] for being the
reason behind her parents separation.10
Ruling of the RTC

In Crim. Case No. 04-1556, the said accused is


CONVICTED with Acts of Lasciviousness and he
is meted out the penalty of imprisonment, ranging
from 2 years, 4 months and 1 day as minimum to 4
years and 2 months of prision [correccional] as
maximum.
In Crim. Case No. 04-1557, the said accused is
CONVICTED as charged with rape, and he is
meted the penalty of reclusion perpetua.
The accused shall be credited in full for the period
of his preventive imprisonment.
The accused is ordered to indemnify the offended
party [AAA], the sum of P50,000.00, without
subsidiary imprisonment, in case of insolvency.12

Ruling of the Court of Appeals


Wanting to reverse his two convictions, Pareja
appealed13 to the Court of Appeals, which on
January 19, 2012, affirmed in toto the judgment of
the RTC in Criminal Case Nos. 04-1556 and 041557, to wit:
WHEREFORE, in view of the foregoing premises,
the instant appeal is hereby DENIED and,
consequently,
DISMISSED.
The
appealed
Decisions rendered by Branch 113 of the Regional
Trial Court of the National Capital Judicial Region
in Pasay City on January 16, 2009 in Criminal
Cases Nos. 04-1556 to 04-1557 are hereby
AFFIRMED in toto.14
Issues

On January 16, 2009, the RTC acquitted Pareja


from the charge of attempted rape but convicted
him of the crimes of rape and acts of lasciviousness
in the December 2003 and February 2004 incidents,
respectively. The dispositive portion of the
Decision11 reads as follows:
WHEREFORE, the herein accused Bernabe Pareja
y Cruz is hereby acquitted from the charge of
attempted rape in Crim. Case No. 04-1558, for
want of evidence.

The RTC, in convicting Pareja of the crime of Rape


and Acts of Lasciviousness, gave more weight to
the prosecutions evidence as against Parejas
baseless denial and imputation of ill motive.
However, due to the failure of the prosecution to
present AAAs mother to testify about what she had
witnessed in March 2004, the RTC had to acquit
Pareja of the crime of Attempted Rape in the March
2004 incident for lack of evidence. The RTC could
not convict Pareja on the basis of AAAs testimony
for being hearsay evidence as she had no personal
knowledge of what happened on March 27, 2004
because she was sleeping at that time.

Aggrieved, Pareja elevated his case to this


Court15 and posited before us the following errors
as he did before the Court of Appeals:
I
THE TRIAL COURT SERIOUSLY ERRED IN
CONVICTING [PAREJA] OF THE CRIMES
CHARGED NOTWITHSTANDING THAT HIS
GUILT HAS NOT BEEN PROVEN BEYOND
REASONABLE DOUBT.

II
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING [PAREJA] BASED SOLELY ON
THE PROSECUTION WITNESS TESTIMONY.16
In his Supplemental Brief17 Pareja added the
following argument:
The private complainants actuations after the
incident negate the possibility that she was raped.18
Parejas main bone of contention is the reliance of
the lower courts on the testimony of AAA in
convicting him for rape and acts of lasciviousness.
Simply put, Pareja is attacking the credibility of
AAA for being inconsistent. Moreover, he claimed,
AAA acted as if nothing happened after the alleged
sexual abuse.
Ruling of this Court
This Court finds no reason to reverse Parejas
conviction.
Core Issue: Credibility of AAA
Pareja claims that AAAs testimony cannot be the
lone basis of his conviction as it was riddled with
inconsistencies.19

We find such argument untenable.


When the issue of credibility of witnesses is
presented before this Court, we follow certain
guidelines that have overtime been established in
jurisprudence. In People v. Sanchez,20 we
enumerated them as follows:
First, the Court gives the highest respect to the
RTCs evaluation of the testimony of the witnesses,
considering its unique position in directly
observing the demeanor of a witness on the stand.
From its vantage point, the trial court is in the best
position to determine the truthfulness of witnesses.
Second, absent any substantial reason which would
justify the reversal of the RTCs assessments and
conclusions, the reviewing court is generally bound
by the lower courts findings, particularly when no
significant facts and circumstances, affecting the
outcome of the case, are shown to have been
overlooked or disregarded.
And third, the rule is even more stringently applied
if the CA concurred with the RTC. (Citations
omitted.)
The recognized rule in this jurisdiction is that the
"assessment of the credibility of witnesses is a
domain best left to the trial court judge because of
his unique opportunity to observe their deportment

and demeanor on the witness stand; a vantage point


denied appellate courts-and when his findings have
been affirmed by the Court of Appeals, these are
generally binding and conclusive upon this
Court."21 While there are recognized exceptions to
the rule, this Court has found no substantial reason
to overturn the identical conclusions of the trial and
appellate courts on the matter of AAAs credibility.
Besides, inaccuracies and inconsistencies in a rape
victims testimony are generally expected.22 As this
Court stated in People v. Saludo23:
Rape is a painful experience which is oftentimes
not remembered in detail. For such an offense is not
analogous to a persons achievement or
accomplishment as to be worth recalling or
reliving; rather, it is something which causes deep
psychological wounds and casts a stigma upon the
victim, scarring her psyche for life and which her
conscious and subconscious mind would opt to
forget. Thus, a rape victim cannot be expected to
mechanically keep and then give an accurate
account of the traumatic and horrifying experience
she had undergone. (Citation omitted.)
Since human memory is fickle and prone to the
stresses of emotions, accuracy in a testimonial
account has never been used as a standard in testing
the credibility of a witness.24 The inconsistencies
mentioned by Pareja are trivial and non-

consequential matters that merely caused AAA


confusion when she was being questioned. The
inconsistency regarding the year of the December
incident is not even a matter pertaining to AAAs
ordeal.25 The date and time of the commission of
the crime of rape becomes important only when it
creates serious doubt as to the commission of the
rape itself or the sufficiency of the evidence for
purposes of conviction. In other words, the "date of
the commission of the rape becomes relevant only
when the accuracy and truthfulness of the
complainants narration practically hinge on the
date of the commission of the crime." 26 Moreover,
the date of the commission of the rape is not an
essential element of the crime.27
In this connection, Pareja repeatedly invokes our
ruling in People v. Ladrillo,28 implying that our
rulings therein are applicable to his case. However,
the factual circumstances in Ladrillo are
prominently missing in Parejas case. In particular,
the main factor for Ladrillos acquittal in that case
was because his constitutional right to be informed
of the nature and cause of the accusation against
him was violated when the Information against him
only stated that the crime was committed "on or
about the year 1992." We said:

commission of the offense must be alleged as near


to the actual date as the information or complaint
will permit. More importantly, it runs afoul of the
constitutionally protected right of the accused to be
informed of the nature and cause of the accusation
against him. The Information is not sufficiently
explicit and certain as to time to inform accusedappellant of the date on which the criminal act is
alleged to have been committed.

raped complainant in 1992 manifestly shows that


the date of the commission of the offense as alleged
was based merely on speculation and conjecture,
and a conviction anchored mainly thereon cannot
satisfy the quantum of evidence required for a
pronouncement of guilt, that is, proof beyond
reasonable doubt that the crime was committed on
the date and place indicated in the
Information.29 (Citation omitted.)

The phrase "on or about the year 1992"


encompasses not only the twelve (12) months of
1992 but includes the years prior and subsequent to
1992, e.g., 1991 and 1993, for which accusedappellant has to virtually account for his
whereabouts. Hence, the failure of the prosecution
to allege with particularity the date of the
commission of the offense and, worse, its failure to
prove during the trial the date of the commission of
the offense as alleged in the Information, deprived
accused-appellant of his right to intelligently
prepare for his defense and convincingly refute the
charges against him. At most, accused-appellant
could only establish his place of residence in the
year indicated in the Information and not for the
particular time he supposedly committed the rape.

In this case, although the dates of the December


2003 and February 2004 incidents were not
specified, the period of time Pareja had to account
for was fairly short, unlike "on or about the year
1992." Moreover, Ladrillo was able to prove that he
had only moved in the house where the rape
supposedly happened, in 1993, therefore negating
the allegation that he raped the victim in that house
in 1992.30

xxxx
The peculiar designation of time in the Information
clearly violates Sec. 11, Rule 110, of the Rules
Court which requires that the time of the

Indeed, the failure of the prosecution to prove its


allegation in the Information that accused-appellant

While it may be true that the inconsistencies in the


testimony of the victim in Ladrillo contributed to
his eventual acquittal, this Court said that they
alone were not enough to reverse Ladrillos
conviction, viz:
Moreover, there are discernible defects in the
complaining witness testimony that militates
heavily against its being accorded the full credit it
was given by the trial court. Considered
independently, the defects might not suffice to

overturn the trial courts judgment of conviction,


but assessed and weighed in its totality, and in
relation to the testimonies of other witnesses, as
logic and fairness dictate, they exert a powerful
compulsion towards reversal of the assailed
judgment.31 (Emphasis supplied.)
It is worthy to note that Ladrillo also offered more
than just a mere denial of the crime charged against
him to exculpate him from liability. He also had an
alibi, which, together with the other evidence,
produced reasonable doubt that he committed the
crime as charged. In contrast, Pareja merely denied
the accusations against him and even imputed ill
motive on AAA.
As regards Parejas concern about AAAs lone
testimony being the basis of his conviction, this
Court has held:
Furthermore, settled is the rule that the testimony of
a single witness may be sufficient to produce a
conviction, if the same appears to be trustworthy
and reliable. If credible and convincing, that alone
would be sufficient to convict the accused. No law
or rule requires the corroboration of the testimony
of a single witness in a rape case.32 (Citations
omitted.)

Improbability of sexual abuse


in their small house and in the
presence of AAAs sleeping siblings
Pareja argues that it was improbable for him to
have sexually abused AAA, considering that their
house was so small that they had to sleep beside
each other, that in fact, when the alleged incidents
happened, AAA was sleeping beside her younger
siblings, who would have noticed if anything
unusual was happening.33
This Court is not convinced. Parejas living
conditions could have prevented him from acting
out on his beastly desires, but they did not. This
Court has observed that many of the rape cases
appealed to us were not always committed in
seclusion. Lust is no respecter of time or
place,34 and rape defies constraints of time and
space. In People v. Sangil, Sr., 35 we expounded on
such occurrence in this wise:
In People v. Ignacio, we took judicial notice of the
interesting fact that among poor couples with big
families living in small quarters, copulation does
not seem to be a problem despite the presence of
other persons around them. Considering the
cramped space and meager room for privacy,
couples perhaps have gotten used to quick and less
disturbing modes of sexual congresses which elude
the attention of family members; otherwise, under

the circumstances, it would be almost impossible to


copulate with them around even when asleep. It is
also not impossible nor incredible for the family
members to be in deep slumber and not be
awakened while the sexual assault is being
committed. One may also suppose that growing
children sleep more soundly than grown-ups and
are not easily awakened by adult exertions and
suspirations in the night. There is no merit in
appellants contention that there can be no rape in a
room where other people are present. There is no
rule that rape can be committed only in seclusion.
We have repeatedly declared that "lust is no
respecter of time and place," and rape can be
committed in even the unlikeliest of places.
(Citations omitted.)
Demeanor of AAA
as a rape victim
Pareja asseverates that AAAs demeanor and
conduct belie her claim that she was raped. He said
that "the ordinary Filipina [would have summoned]
every ounce of her strength and courage to thwart
any attempt to besmirch her honor and blemish her
purity." Pareja pointed out that they lived in a
thickly populated area such that any commotion
inside their house would have been easily heard by
the neighbors, thus, giving AAA the perfect
opportunity to seek their help.36 Moreover, Pareja
said, AAAs delay in reporting the incidents to her

mother or the authorities negates the possibility that


he indeed committed the crimes. AAAs belated
confession, he claimed, "cannot be dismissed as
trivial as it puts into serious doubt her credibility."37
A person accused of a serious crime such as rape
will tend to escape liability by shifting the blame on
the victim for failing to manifest resistance to
sexual abuse. However, this Court has recognized
the fact that no clear-cut behavior can be expected
of a person being raped or has been raped. It is a
settled rule that failure of the victim to shout or
seek help do not negate rape. Even lack of
resistance will not imply that the victim has
consented to the sexual act, especially when that
person was intimidated into submission by the
accused. In cases where the rape is committed by a
relative such as a father, stepfather, uncle, or
common law spouse, moral influence or
ascendancy takes the place of violence.38 In this
case, AAAs lack of resistance was brought about
by her fear that Pareja would make good on his
threat to kill her if she ever spoke of the incident.
AAAs conduct, i.e., acting like nothing happened,
after being sexually abused by Pareja is also not
enough to discredit her. Victims of a crime as
heinous as rape, cannot be expected to act within
reason or in accordance with societys expectations.
It is unreasonable to demand a standard rational
reaction to an irrational experience, especially from

a young victim. One cannot be expected to act as


usual in an unfamiliar situation as it is impossible
to predict the workings of a human mind placed
under emotional stress. Moreover, it is wrong to say
that there is a standard reaction or behavior among
victims of the crime of rape since each of them had
to cope with different circumstances.39
Likewise, AAAs delay in reporting the incidents to
her mother or the proper authorities is insignificant
and does not affect the veracity of her charges. It
should be remembered that Pareja threatened to kill
her if she told anyone of the incidents. In People v.
Ogarte,40 we explained why a rape victims deferral
in reporting the crime does not equate to
falsification of the accusation, to wit:
The failure of complainant to disclose her
defilement without loss of time to persons close to
her or to report the matter to the authorities does
not perforce warrant the conclusion that she was
not sexually molested and that her charges against
the accused are all baseless, untrue and fabricated.
Delay in prosecuting the offense is not an
indication of a fabricated charge. Many victims of
rape never complain or file criminal charges against
the rapists. They prefer to bear the ignominy and
pain, rather than reveal their shame to the world or
risk the offenders making good their threats to kill
or hurt their victims. (Citation omitted.)

Medical examination
not indispensable
Pareja avers that the Medico-Legal Report
indicating that there is evidence of blunt force or
penetrating trauma upon examination of AAAs
hymen, "cannot be given any significance, as it
failed to indicate how and when the said signs of
physical trauma were inflicted." Furthermore,
Pareja said, the findings that AAAs hymen
sustained trauma cannot be utilized as evidence
against him as the alleged sexual abuse that
occurred in December, was not by penetration of
the vagina.41
This Court has time and again held that an accused
can be convicted of rape on the basis of the sole
testimony of the victim. In People v. Colorado, 42 we
said:
[A] medical certificate is not necessary to prove the
commission of rape, as even a medical examination
of the victim is not indispensable in a prosecution
for rape. Expert testimony is merely corroborative
in character and not essential to conviction. x x x.
Therefore, the absence of testimony or medical
certificate on the state of AAAs anus at the time
she was examined is of no consequence. On the
contrary, the medical examination actually bolsters
AAAs claim of being raped by Pareja on more than

one occasion, and not just by anal penetration.


However, as the prosecution failed to capitalize on
such evidence and prove the incidence of carnal
knowledge, Pareja cannot be convicted of rape
under paragraph 1 of Article 266-A of the Revised
Penal Code.
In People v. Perez,43 this Court aptly held:
This Court has held time and again that testimonies
of rape victims who are young and immature
deserve full credence, considering that no young
woman, especially of tender age, would concoct a
story of defloration, allow an examination of her
private parts, and thereafter pervert herself by being
subject to a public trial, if she was not motivated
solely by the desire to obtain justice for the wrong
committed against her. Youth and immaturity are
generally badges of truth. It is highly improbable
that a girl of tender years, one not yet exposed to
the ways of the world, would impute to any man a
crime so serious as rape if what she claims is not
true. (Citations omitted.)
Criminal Case No. 04-1557-CFM:

The enactment of Republic Act No. 8353 or the


Anti-Rape Law of 1997, revolutionized the concept
of rape with the recognition of sexual violence on
"sex-related" orifices other than a womans organ is
included in the crime of rape; and the crimes
expansion to cover gender-free rape. "The
transformation
mainly
consisted
of
the
reclassification of rape as a crime against persons
and the introduction of rape by sexual assault as
differentiated from the traditional rape through
carnal knowledge or rape through sexual
intercourse."44 Republic Act No. 8353 amended
Article 335, the provision on rape in the Revised
Penal Code and incorporated therein Article 266-A
which reads:
Article 266-A. Rape, When and How Committed.
Rape is committed
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or
is otherwise unconscious,

The December 2003 Incident


In Criminal Case No. 04-1557-CFM or the
December 2003 incident, Pareja was charged and
convicted of the crime of rape by sexual assault.

c) By means of fraudulent machination or grave


abuse of authority;

d) When the offended party is under twelve (12)


years of age or is demented, even though none of
the circumstances mentioned above be present;
2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another persons mouth or anal
orifice, or any instrument or object, into the genital
or anal orifice of another person.
Thus, under the new provision, rape can be
committed in two ways:
1. Article 266-A paragraph 1 refers to Rape through
sexual intercourse, also known as "organ rape" or
"penile rape."45 The central element in rape through
sexual intercourse is carnal knowledge, which must
be proven beyond reasonable doubt.46
2. Article 266-A paragraph 2 refers to rape by
sexual assault, also called "instrument or object
rape," or "gender-free rape."47 It must be attended
by any of the circumstances enumerated in
subparagraphs (a) to (d) of paragraph 1.48
In People v. Abulon,49 this Court differentiated the
two modes of committing rape as follows:

(1) In the first mode, the offender is always a man,


while in the second, the offender may be a man or a
woman;
(2) In the first mode, the offended party is always a
woman, while in the second, the offended party
may be a man or a woman;
(3) In the first mode, rape is committed through
penile penetration of the vagina, while the second is
committed by inserting the penis into another
persons mouth or anal orifice, or any instrument or
object into the genital or anal orifice of another
person; and
(4) The penalty for rape under the first mode is
higher than that under the second.
Under Article 266-A, paragraph 2 of the Revised
Penal Code, as amended, rape by sexual assault is
"by any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another persons mouth or anal
orifice, or any instrument or object, into the genital
or anal orifice of another person."
AAA positively and consistently stated that Pareja,
in December 2003, inserted his penis into her anus.
While she may not have been certain about the
details of the February 2004 incident, she was

positive that Pareja had anal sex with her in


December 2003, thus, clearly establishing the
occurrence of rape by sexual assault. In other
words, her testimony on this account was, as the
Court of Appeals found, clear, positive, and
probable.50
However, since the charge in the Information for
the December 2003 incident is rape through carnal
knowledge, Pareja cannot be found guilty of rape
by sexual assault even though it was proven during
trial. This is due to the material differences and
substantial distinctions between the two modes of
rape; thus, the first mode is not necessarily included
in the second, and vice-versa. Consequently, to
convict Pareja of rape by sexual assault when what
he was charged with was rape through carnal
knowledge, would be to violate his constitutional
right to be informed of the nature and cause of the
accusation against him.51
Nevertheless, Pareja may be convicted of the lesser
crime of acts of lasciviousness under the variance
doctrine embodied in Section 4, in relation to
Section 5, Rule 120 of the Rules of Criminal
Procedure,52 to wit:
SEC. 4. Judgment in case of variance between
allegation and proof. When there is a variance
between the offense charged in the complaint or
information and that proved, and the offense as

charged is included in or necessarily includes the


offense proved, the accused shall be convicted of
the offense proved which is included in the offense
charged, or of the offense charged which is
included in the offense proved.
SEC. 5. When an offense includes or is included in
another. An offense charged necessarily includes
the offense proved when some of the essential
elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.
And an offense charged is necessarily included in
the offense proved, when the essential ingredients
of the former constitute or form part of those
constituting the latter.
Article 336 of the Revised Penal Code provides:
Art. 336. Acts of lasciviousness. Any person
who shall commit any act of lasciviousness upon
other persons of either sex, under any of the
circumstances mentioned in the preceding article,
shall be punished by prisin correccional.
The elements of the above crime are as follows:
(1) That the offender commits any act of
lasciviousness or lewdness;
(2) That it is done under any of the following
circumstances:

a. By using force or intimidation; or


b. When the offended party is deprived of reason or
otherwise unconscious; or
c. When the offended party is under 12 years of
age; and

punished for his crime. A faulty and defective


Information, such as that in Criminal Case No. 041556-CFM, does not render full justice to the State,
the offended party, and even the offender. Thus, the
public prosecutor should always see to it that the
Information is accurate and appropriate.
Criminal Case No. 04-1556-CFM:

(3) That the offended party is another person of


either sex.53 (Citation omitted.)
Clearly, the above-mentioned elements are present
in the December 2003 incident, and were
sufficiently established during trial. Thus, even
though the crime charged against Pareja was for
rape through carnal knowledge, he can be
convicted of the crime of acts of lasciviousness
without violating any of his constitutional rights
because said crime is included in the crime of
rape.54
Nonetheless, the Court takes this case as an
opportunity to remind the State, the People of the
Philippines, as represented by the public
prosecutor, to exert more diligence in crafting the
Information, which contains the charge against an
accused. The primary duty of a lawyer in public
prosecution is to see that justice is done55 to the
State, that its penal laws are not broken and order
maintained; to the victim, that his or her rights are
vindicated; and to the offender, that he is justly

The February 2004 Incident


It is manifest that the RTC carefully weighed all the
evidence presented by the prosecution against
Pareja, especially AAAs testimony. In its scrutiny,
the RTC found AAAs declaration on the rape in the
December 2003 incident credible enough to result
in a conviction, albeit this Court had to modify it as
explained above. However, it did not find that the
same level of proof, i.e., beyond reasonable doubt,
was fully satisfied by the prosecution in its charge
of attempted rape and a second count of rape
against Pareja. In Criminal Case No. 04-1556CFM, or the February 2004 incident, the RTC
considered AAAs confusion as to whether or not
she was actually penetrated by Pareja, and
eventually resolved the matter in Parejas favor.
This Court agrees with such findings. AAA, in her
Sinumpaang Salaysay,56 stated that aside from
sucking her breasts, Pareja also inserted his finger
in her vagina. However, she was not able to give a

clear and convincing account of such insertion


during her testimony. Despite being repeatedly
asked by the prosecutor as to what followed after
her breasts were sucked, AAA failed to testify, in
open court, that Pareja also inserted his finger in
her vagina. Moreover, later on, she added that
Pareja inserted his penis in her vagina during that
incident. Thus, because of the material omissions
and inconsistencies, Pareja cannot be convicted of
rape in the February 2004 incident. Nonetheless,
Parejas acts of placing himself on top of AAA and
sucking her breasts, fall under the crime of acts of
lasciviousness, which, as we have discussed above,
is included in the crime of rape.
Verily, AAA was again positive and consistent in
her account of how Pareja sucked both her breasts
in the February 2004 incident. Thus, Pareja was
correctly convicted by the courts a quo of the crime
of acts of lasciviousness.
Defense of Denial
and Improper Motive
Pareja sought to escape liability by denying the
charges against him, coupled with the attribution of
ill motive against AAA. He claims that AAA filed
these cases against him because she was angry that
he caused her parents separation. Pareja added that
these cases were initiated by AAAs father, as
revenge against him.57

Such contention is untenable. "AAAs credibility


cannot be diminished or tainted by such imputation
of ill motives.1wphi1It is highly unthinkable for
the victim to falsely accuse her father solely by
reason of ill motives or grudge."58Furthermore,
motives such as resentment, hatred or revenge have
never swayed this Court from giving full credence
to the testimony of a minor rape victim.59 In People
v. Manuel,60 we held:
Evidently, no woman, least of all a child, would
concoct a story of defloration, allow examination of
her private parts and subject herself to public trial
or ridicule if she has not, in truth, been a victim of
rape and impelled to seek justice for the wrong
done to her being. It is settled jurisprudence that
testimonies of child-victims are given full weight
and credit, since when a woman or a girl-child says
that she has been raped, she says in effect all that is
necessary to show that rape was indeed committed.
Liability for Acts of Lasciviousness
The penalty for acts of lasciviousness under Article
336 of the Revised Penal Code is prisin
correccional in its full range. Applying the
Indeterminate Sentence Law,61 the minimum of the
indeterminate penalty shall be taken from the full
range of the penalty next lower in degree, 62 i.e.,
arresto mayor, which ranges from 1 month and 1
day to 6 months.63 The maximum of the

indeterminate penalty shall come from the proper


penalty64 that could be imposed under the Revised
Penal Code for Acts of Lasciviousness,65 which, in
this case, absent any aggravating or mitigating
circumstance, is the medium period of prisin
correccional, ranging from 2 years, 4 months and 1
day to 4 years and 2 months.66
In line with prevailing jurisprudence, the Court
modifies
the
award
of
damages
as
follows: P20,000.00
as
civil
indemnity;67 P30,000.00 as moral damages;
and P10,000.00 as exemplary damages,68 for each
count of acts of lasciviousness. All amounts shall
bear legal interest at the rate of 6% per annum from
the date of finality of this judgment.
WHEREFORE, premises considered, the Decision
of the Court of Appeals in CA-G.R. CR.-H.C. No.
03794
is
hereby
AFFIRMED
with
MODIFICATION. We find accused-appellant
Bernabe Pareja y Cruz GUILTY of two counts of
Acts of Lasciviousness, defined and penalized
under Article 336 of the Revised Penal Code, as
amended. He is sentenced to two (2) indeterminate
prison terms of 6 months of arresto mayor, as
minimum, to 4 years and 2 months of prisi6n
correccional, as maximum; and is ORDERED to
pay the victim, AAA, P20,000.00 as civil
indemnity, P30,000.00
as
moral
damages,
and P10,000.00 as exemplary damages, for each

count of acts of lasciviousness, all with interest at


the rate of 6% per annum from the date of finality
of this judgment.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 166441

October 8, 2014

NORBERTO CRUZ y
BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female
defines the distinction between attempted rape and
acts of lasciviousness. The felony of attempted rape
requires such intent; the felony of acts of
lasciviousness does not. Only the direct overt acts
of the offender establish the intent to lie with the
female. However, merely climbing on top of a
naked female does not constitute attempted rape
without proof of his erectile penis being in a
position to penetrate the female's vagina.
The Case

This appeal examines the decision promulgated on


July 26, 2004,1 whereby the Court of Appeals (CA)
affirmed the conviction for attempted rape of the
petitioner by the Regional Trial Court, Branch 34,
in Balaoan, La Union (RTC), and imposing on him
the indeterminate penalty of imprisonment of four
(4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of
prision mayor, as maximum, and ordering him to
pay moral damages of P20,000.00 to AAA,2 the
victim.
Antecedents
The petitioner was charged in the RTC with
attempted rape and acts of lasciviousness involving
different victims. At arraignment, he pleaded not
guiltyto the respective informations, to wit:
Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at
about 2:00 o'clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar,Province of La Union,
Philippines and within the jurisdiction of this
Honorable Court, said accused, did then and there
willfully, unlawfully and feloniously and by means
of force and intimidation commenced the
commission ofrape directly byovert acts, to wit:

While private complainant AAA, an unmarried


woman, fifteen (15) yearsold, was sleeping inside
the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of
said AAA embracing and touching her vagina and
breast with intent of having carnal knowledge of
her by means of force, and if the accused did not
accomplish his purpose that is to have carnal
knowledge of the said AAA it was not because of
his voluntary desistance but because the said
offended party succeeded in resisting the criminal
attempt of said accused to the damage and
prejudice of said offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at
about 3:00 oclock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with
lewd design, did then and there willfully,
unlawfully and feloniously touch the vagina of
[BBB]4 against the latters will and with no other
purpose but to satisfy his lascivious desire to the
damage and prejudice of said offended party.

CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution
as follows:6
x x x [Petitioner] Norberto Bartolome and [his
wife] Belinda Cruz were engaged in the selling of
plastic wares and glass wares in different
municipalities around the country. On December
20, 1993, Norberto and Belinda employed AAA
and BBB to help them in selling their wares in
Bangar, La Union which was then celebrating its
fiesta. From Libsong East, Lingayen, Pangasinan to
Bangar, La Union, AAA and BBB boarded a
passenger jeepney owned by Norberto. The young
girls were accompanied by Norberto, Belinda,
Ruben Rodriguez (driver) and a sales boy by the
name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in
the evening of December 20, 1993, they parked in
front of Maroon enterprises. They brought out all
the goods and wares for display. Two tents were
fixed in order that they will have a place to sleep.
Belinda and the driver proceeded to Manila in order
to get more goods to be sold.
On December 21, 1993, at around 1:00 oclock in
the morning, AAA and BBB went to sleep. Less

thanan hour later, AAA was awakened when she


felt that somebody was on top of her. Norberto was
mashing her breast and touching her private part.
AAA realized that she was divested of her clothing
and that she was totally naked. Norberto ordered
her not to scream or shell be killed. AAA tried to
push Norberto away and pleaded to have pity on
her but her pleas fell on deaf ears. She fought back
and kicked Norberto twice.
Norberto was not able to pursue his lustful desires.
Norberto offered her money and told her not totell
the incident to her mother otherwise, she will be
killed. AAA went out of the tent to seek help from
Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their
tent, she saw Norberto touching the private parts of
BBB. AAA saw her companion awake but her
hands wereshaking. When she finally entered the
tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the
incident that took place that early morning. Later
still, while they were on their way to fetch water,
AAA and BBB asked the people around where they
can find the municipal building. An old woman
pointed to them the place.

In the evening of December 21, 1993, AAA and


BBB went straight to the municipal hall where they
met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them
by Norberto. Norberto was summoned to the police
station where he personally confronted his
accusers. When Norbertos wife, Belinda, arrived at
the police station, an argument ensued between
them.
On December 22, 1993, at around 2:20 oclock in
the morning, the police investigator ordered the
complainants to return at6:00 oclock in the
morning. Norberto and Belinda were still able to
bring AAA and BBB home with them and worked
for them until December 30, 1994, after which they
were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to
La Union and executed their respective sworn
statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to
him. His version was presented in the assailed
decision of the CA,7 as follows:
In a bid to exculpate himself, accused-appellant
presents a totally different version of the story. The

accused maintains that it was not possible for him


to commit the crimes hurled against him. On the
date of the alleged incident, there were many
people around who were preparing for the
"simbang gabi". Considering the location of the
tents, which were near the road and the municipal
hall, he could not possibly do the dastardly acts out
in the open, not to mention the fact that once AAA
and BBB would scream, the policemen in the
municipal hall could hear them. He believes that
the reason why the complainants filed these cases
against him was solely for the purpose of extorting
money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the
RTC rendered its judgment on April 6, 2000 finding
the petitioner guilty beyond reasonable doubt of
attempted rape in Criminal Case No. 2388 and acts
of lasciviousness in Criminal Case No. 2389,8 to
wit:
WHEREFORE, in the light of the foregoing, the
Court hereby renders judgment declaring the
accused NORBERTO CRUZ Y BARTOLOME
guilty beyond reasonable doubt of the crimes of
ATTEMPTED
RAPE
and
ACTS
OF
LASCIVIOUSNESS as defined and penalized in
Article 335 in relation with (sic) Article 6, par. 3
and Article 336 of the Revised Penal Code

respectively. With respect to the crime of


ATTEMPTED RAPE, the Court hereby sentences
the accused to suffer an indeterminate penalty of
imprisonment from FOUR (4) YEARS and TWO
(2) MONTHS PRISION CORRECCIONAL as
Minimum to TEN (10) YEARS PRISION MAYOR
as Maximum and the accessory penalties provided
for by law and to pay the victim AAA the amount
of P20,000.00 as moral damages.

of lasciviousness despite the fact that BBB did not


testify.

With regard to the crime ofACTS OF


LASCIVIOUSNESS, the Court hereby sentences
the accused to suffer an indeterminate penalty of
imprisonment from FOUR (4) MONTHS
ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Maximum and the accessory
penalties provided for by law, and to pay the victim
BBBthe amount of P10,000.00 as moral damages.

In sum, the arguments of the accused-appellant are


too puerile and inconsequential as to dent, even
slightly, the overall integrity and probative value of
the prosecution's evidence insofar as AAA is
concerned.

The preventive imprisonment suffered by the


accused by reason of the two cases is counted in his
favor.
SO ORDERED.9
Decision of the CA
On appeal, the petitioner contended that the RTC
gravely erred in convicting him of attempted rape
despite the dubious credibility of AAA, and of acts

On July 26, 2004, the CA promulgated its decision


affirming the conviction of the petitioner for
attempted rape in Criminal Case No. 2388, but
acquitting him of the acts of lasciviousness charged
in Criminal Case No. 2389 due to the insufficiency
of the evidence,10 holding thusly:

Under Article 51 of the Revised Penal Code, the


penalty for an attempted felony is the "penalty
lower by two (2) degrees" prescribed by law for the
consummated felony. In this case, the penalty for
rape if it had been consummated would have been
reclusion perpetuapursuant to Article 335 of the
Revised Penalty Code, as amended by Republic Act
No. 7659. The penalty two degrees lower than
reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the
maximum term of the penalty shall be the medium
period of prision mayorin the absence of any
mitigating or aggravating circumstance and the
minimum shall be within the range of the penalty

nextlower to that prescribed for the offense which


in this case is prision correccionalin any of its
periods.

that suchlascivious acts were without the consent or


against the will of BBB.11
Issues

We also find that the trial court correctly assessed


the amount of P20,000.00 by way of moral
damages against the accused-appellant. In a rape
case, moral damages may be awarded without the
need of proof or pleading since it is assumed that
the private complainant suffered moral injuries,
more so, when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness
committed against BBB, the accused argues that
there is not enough evidence to support such
accusation. BBB did not testify and neither her
sworn statement was formally offered in evidence
to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the
prosecution is insufficient to substantiate the charge
of
acts
of
lasciviousness
against
the
accusedappellant. The basis of the complaint for
acts of lasciviousness is the sworn statement of
BBB to the effectthat the accused-appellant
likewise molested her by mashing her breast and
touching her private part. However, she was not
presented to testify. While AAA claims that she
personally saw the accused touching the private
parts of BBB, there was no testimony to the effect

In this appeal, the petitioner posits that the CAs


decision was not in accord with law or with
jurisprudence, particularly:
I. In giving credence to the incredulous and
unbelievable testimony of the alleged victim; and
II. In convicting the accused notwithstanding the
failure of the prosecution to prove the guilt of the
petitioner beyond reasonable doubt.
Anent the first issue, the petitioner assails the
behavior and credibility of AAA. He argues that
AAA still continued working for him and his wife
until December 30, 1994 despite the alleged
attempted rape in the early morning of December
21, 1994, thereby belying his commission of the
crime against her; that he could not have undressed
her without rousing her if she had gone to sleep
only an hour before, because her bra was locked at
her back; that her testimony about his having been
on top of her for nearly an hour while they
struggled was also inconceivable unless she either
consented to his act and yielded to his lust, or the
incident did not happen at all, being the product
only of her fertileimagination; that the record does

not indicate if he himself was also naked, or that his


penis was poised to penetrate her; and that she and
her mother demanded from him P80,000.00 as
settlement, under threat that she would file a case
against him.12
On the second issue, the petitioner assails the
glaring inconsistencies in the testimony of AAA
that cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of
Court,13 the Court reviews only questions of law.
No review of the findings of fact by the CA is
involved. As a consequence of thisrule, the Court
accords the highest respect for the factual findings
of the trial court, its assessment of the credibility of
witnesses and the probative weight of their
testimonies and the conclusions drawn from its
factual findings, particularly when they are
affirmed by the CA. Judicial experience has shown,
indeed, that the trial courts are in the best position
to decideissues of credibility of witnesses, having
themselves heard and seen the witnesses and
observed firsthand their demeanor and deportment
and the manner of testifying under exacting
examination. As such, the contentionsof the
petitioner on the credibility of AAA as a witness for

the State cannot beentertained. He thereby raises


questions of fact that are outside the scope of this
appeal. Moreover, he thereby proposes to have the
Court, which is not a trier of facts, review the entire
evidence adduced by the Prosecution and the
Defense.
Conformably with this limitation, our review
focuses only on determining the question of law of
whether or not the petitioners climbing on top of
the undressed AAA such thatthey faced each other,
with him mashing her breasts and touching her
genitalia with his hands, constituted attempted rape,
the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra,
he committed such acts "with intent of having
carnal knowledge ofher by means of force, and if
the accused did not accomplish his purpose that is
to have carnal knowledge of the said AAA it was
not because of his voluntary desistance but because
the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and
prejudice of said offended party."
There is an attempt, according to Article 6 of the
Revised Penal Code, when the offender commences
the commission of a felony directly by overt acts,
and does not perform all the acts of execution
which should produce the felony by reason of some
cause or accident other than this own spontaneous
desistance. In People v. Lamahang,14 the Court,

speaking through the eminent Justice Claro


M.Recto, eruditely expounded on what overt acts
would constitute anattempted felony, to wit:
It is our opinion that the attempt to commit an
offense which the Penal Code punishes is that
which has a logical relation to a particular, concrete
offense; that, which is the beginning of the
execution of the offense by overt acts of the
perpetrator, leading directly to its realization and
consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code.
xxxx But it is not sufficient, for the purpose of
imposing penal sanction, that an act objectively
performed constitute a mere beginning of
execution; it is necessary to establish its
unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed
which, upon its consummation, will develop into
one of the offenses defined and punished by the
Code; it is necessary to prove that said beginning of
execution, if carried to its complete termination
following its natural course, without being
frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense. x x x x.

"It must be borne in mind (I Groizard, p. 99) that in


offenses not consummated, as the material damage
iswanting, the nature of the action intended (accion
fin) cannot exactly be ascertained, but the same
must be inferred from the nature of the acts of
execution (accion medio). Hence, the necessity that
these acts be such that by their very nature, by the
facts to which they are related, by the
circumstances of the persons performing the same,
and by the things connected therewith, they must
show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of
double interpretation, that is, in favor as well as
against the culprit, and which show an innocent
aswell as a punishable act, must not and cannot
furnish grounds by themselves for attempted or
frustrated crimes. The relation existing between the
facts submitted for appreciation and the offense of
which said facts are supposed to produce must be
direct; the intention must be ascertainedfrom the
facts and therefore it is necessary, in order to avoid
regrettable instance of injustice, that the mind be
able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must
have been the intention of the legislator in requiring
that in order for an attempt to exist, the offender
must commence the commission of the felony
directly by overt acts, that is to say, that the acts
performed must be such that, withoutthe intent to
commit an offense, they would be meaningless."15

To ascertain whether the acts performed by the


petitioner constituted attempted rape, we have to
determine the law on rape in effect on December
21, 1993, when the petitioner committed the crime
he was convicted of. That law was Article 335 of
the Revised Penal Code, which pertinently
provided as follows:

consummating the sexual act touches the external


genitalia of the female.17 In People v.
Campuhan,18 the Court has defined the extent of
"touching" by the penis in rape in the following
terms:

xxxx

[T]ouching when applied to rape cases does not


simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the
penis on the external layer of the victims vagina,
or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis
indeedtouched the labias or slid into the female
organ, and not merely stroked the external surface
thereof, for an accused to be convicted of
consummated rape. As the labias, which are
required to be "touched" bythe penis, are by their
natural situsor location beneath the mons pubisor
the vaginal surface, to touch them with the penis is
to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the
labia majora or the labia minora of the pudendum
constitutes consummated rape.

The basic element of rape then and now is carnal


knowledge of a female. Carnal knowledge
isdefined simply as "theact of a man having sexual
bodily connections with a woman,"16 which
explains why the slightest penetration of the female
genitalia consummates the rape. In other words,
rape is consummated once the peniscapable of

The pudendumor vulvais the collective term for the


female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora,
the hymen, the clitoris, the vaginal orifice, etc. The
mons pubisis the rounded eminence that becomes
hairy after puberty, and is instantly visible within
the surface. The next layer is the labia majoraor the

Article335. When and how rape is committed.


Rape is committed by having carnal knowledge of
a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived ofreason or
otherwise unconscious; and
3. When the woman is under twelve years of age,
even though neither of the circumstances
mentioned in the two next preceding paragraphs
shall be present.

outer lips of the female organ composed of the


outer convex surface and the inner surface. The
skin of the outer convex surface is covered with
hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair
but has many sebaceous glands. Directly beneath
the labia majorais the labia minora. Jurisprudence
dictates that the labia majoramust be entered for
rape to be consummated, and not merely for the
penis to stroke the surface of the female organ.
xxxx Thus, a grazing of the surface of the female
organ or touching the mons pubisof the pudendum
is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of
the female organ, i.e., touching of either labia of the
pudendumby the penis, there can be no
consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness. [Bold
emphasis supplied]
It is noteworthy that in People v. Orita, 19 the Court
clarified that the ruling in People v.
Eriia20 whereby the offender was declared guilty
of frustrated rapebecause of lack of conclusive
evidence of penetration of the genital organ of the
offended party, was a stray decisionfor not having
been reiterated in subsequent cases. As the evolving
case law on rape stands, therefore, rape in its
frustrated stage is a physical impossibility,
considering that the requisites of a frustrated felony
under Article 6 of the Revised Penal Codeare that:

(1) the offender has performed all the acts of


execution which would produce the felony; and (2)
that the felony is not produced due to causes
independent of the perpetrators will. Obviously,
the offender attains his purpose from the moment
he has carnal knowledge of his victim, because
from that moment all the essential elements of the
offense have been accomplished, leaving nothing
more to be done by him.21
Nonetheless, rape admits of an attempted stage. In
this connection, the character of the overt actsfor
purposes of the attempted stage has been explained
in People v. Lizada:22
An overt or external act is defined as some physical
activity or deed, indicating the intention to commit
a particular crime, more than a mere planning or
preparation, which if carried out to its complete
termination following its natural course, without
being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense. The raison detrefor the law requiring a
direct overtact is that, in a majority of cases, the
conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and
this is necessarily so, irrespective of his declared
intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may
be said to be a commencement of the commission

of the crime, or an overt act or before any fragment


of the crime itself has been committed, and this is
so for the reason that so long as the equivocal
quality remains, no one can say with certainty what
the intent of the accused is.It is necessary that the
overt act should have been the ultimate step
towards the consummation of the design. It is
sufficient if it was the "first or some subsequent
step in a direct movement towards the commission
of the offense after the preparations are made." The
act done need not constitute the last proximate one
for completion. It is necessary, however, that the
attempt must have a causal relation to the intended
crime. In the words of Viada, the overt acts must
have an immediate and necessary relation to the
offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is
rape, but the offender does not perform all the acts
of execution of having carnal knowledge. If the
slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage
requires the commencement of the commission of
the felony directly by overt actswithout the
offender performing all the acts of execution that
should produce the felony, the only means by
which the overt acts performed by the accused can
be shown to have a causal relation to rape as the
intended crime is to make a clear showing of his
intent to lie with the female. Accepting that intent,
being a mental act, is beyond the sphere of criminal

law,23 that showing must be through his overt acts


directly connected with rape. He cannot be held
liable for attempted rape withoutsuch overt acts
demonstrating the intent to lie with the female. In
short, the State, to establish attempted rape, must
show that his overt acts, should his criminalintent
be carried to its complete termination without being
thwarted by extraneous matters, would ripen into
rape,24 for, as succinctly put in People v.
Dominguez, Jr.:25 "The gauge in determining
whether the crime of attempted rape had been
committed is the commencement of the act of
sexual intercourse, i.e., penetration of the penis into
the vagina, before the interruption."
The petitioner climbed on top of the naked victim,
and was already touching her genitalia with his
hands and mashing her breasts when she freed
herself from his clutches and effectively ended his
designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his
intended felony would be highly unwarranted. This
was so, despite his lust for and lewd designs
towards her being fully manifest. Such
circumstances remained equivocal, or "susceptible
of double interpretation," as Justice Recto put in
People v. Lamahang, supra, such that it was not
permissible to directly infer from them the intention
to cause rape as the particular injury. Verily, his
felony would not exclusively be rapehad he been
allowed by her to continue, and to have sexual

congress with her, for some other felony like simple


seduction (if he should employ deceit to have her
yield to him)26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner
that would have produced attempted rape did not
include equivocal preparatory acts. The former
would have related to his acts directly connected to
rape as the intended crime, but the latter, whether
external or internal, had no connection with rape as
the intended crime. Perforce, his perpetration of the
preparatory acts would not render him guilty of an
attempt to commit such felony.27 His preparatory
acts could include his putting up of the separate
tents, with one being for the use of AAA and BBB,
and the other for himself and his assistant, and his
allowing his wife to leave for Manila earlier that
evening to buy more wares. Such acts, being
equivocal, had no direct connection to rape. As a
rule, preparatory acts are not punishable under the
Revised Penal Codefor as long as they remained
equivocal or of uncertain significance, because by
their equivocality no one could determine with
certainty what the perpetrators intent really was.28
If the acts of the petitioner did not constitute
attempted rape, did they constitute acts of
lasciviousness?
It is obvious that the fundamental difference
between attempted rape and acts of lasciviousness

is the offendersintent to lie with the female. In


rape, intent to lie with the female is indispensable,
but this element is not required in acts of
lasciviousness.29 Attempted rape is committed,
therefore, when the "touching" of the vagina by the
penis is coupled with the intent to penetrate. The
intent to penetrate is manifest only through the
showing of the penis capable of consummating the
sexual act touching the external genitalia of the
female.30 Without such showing, only the felony of
acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code,
the felony of acts of lasciviousness is consummated
whenthe following essential elements concur,
namely: (a) the offender commits any act of
lasciviousness or lewdness upon another person of
either sex; and (b) the act of lasciviousness or
lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is
deprived ofreason or is otherwise unconscious; or
(iii) when the offended party is under 12 years of
age.32 In that regard, lewdis defined as obscene,
lustful, indecent, lecherous; it signifies that form of
immorality that has relation to moral impurity; or
that which is carried on a wanton manner.33
The information charged that the petitioner
"remove[d] her panty and underwear and la[id] on
top of said AAA embracing and touching her
vagina and breast." With such allegation of the

information being competently and satisfactorily


proven beyond a reasonable doubt, he was guilty
only of acts of lasciviousness, not attempted rape.
His embracing her and touching her vagina and
breasts did not directly manifest his intent to lie
with her. The lack of evidence showing his erectile
penis being in the position to penetrate her when he
was on top of her deterred any inference about his
intent to lie with her. At most, his acts reflected
lewdness and lust for her.
The intent to commit rape should not easily be
inferred against the petitioner, even from his own
declaration of it, if any, unless he committed overt
acts directly leading to rape. A good illustration of
this can be seen in People v. Bugarin,34 where the
accused was charged with attempted rape through
an information alleging that he, by means of force
and intimidation, "did then and there willfully,
unlawfully and feloniously commence the
commission of the crime of Rape directly by overt
acts, by then and there kissing the nipples and the
vagina of the undersigned [complainant], a minor,
and about to lay on top of her, all against her will,
however, [he] did not perform all the acts of
execution which would have produced the crime of
Rape by reason of some causes other than his own
spontaneous desistance, that is, undersigned
complainant push[ed] him away." The accused was
held liable only for acts of lasciviousness because
the intent to commit rape "is not apparent from the

actdescribed," and the intent to have sexual


intercourse with her was not inferable from the act
of licking her genitalia. The Court also pointed out
that the "act imputed to him cannot be considered a
preparatory act to sexual intercourse."35
Pursuant to Article 336 of the Revised Penal Code,
the petitioner, being guilty of acts of lasciviousness,
is punished with prision correccional. In the
absence of modifying circumstances, prision
correccional is imposed in its medium period,
which ranges from two (2) years, four (4) months
and one day to four (4) years and two (2) months.
Applying the Indeterminate Sentence Law, the
minimum of the penalty should come from arresto
mayor, the penalty next lower than prision
correccionalwhich ranges from one (1) month to six
(6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of
arresto mayor, as the minimum, to two (2) years,
four (4) months and one day of prision
correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral
injuries because the offender violates her chastity
by his lewdness.1wphi1 "Moral damages include
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral
damages may be recovered if they are the

proximate result of the defendant's wrongful act for


omission."36 Indeed, Article 2219, (3), of the Civil
Code expressly recognizes the right of the victim in
acts of lasciviousness to recover moral
damages.37 Towards that end, the Court, upon its
appreciation of the record, decrees that P30,000.00
is a reasonable award of moral damages.38 In
addition, AAA was entitled to recover civil
indemnity of P20,000.00.39
Under Article 2211 of the Civil Code, the courts are
vested with the discretion to impose interest as a
part of the damages in crimes and quasidelicts. In
that regard, the moral damages of P20,000.00 shall
earn interest of 6% per annum reckoned from the
finality of this decision until full payment.40
WHEREFORE,
the
Court
FINDS
and
PRONOUNCES petitioner NORBERTO CRUZ y
BARTOLOME
guilty
of
ACTS
OF
LASCIVIOUSNESS,
and,
ACCORDINGLY,
PENALIZES him with the indeterminate sentence
of three (3) months of arresto mayor, as the
minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum;
ORDERS him to pay moral damages of P30,000.00
and civil indemnity of P20,000.00 to the
complainant, with interest of 6% per annum on
such awards reckoned from the finality of this
decision until full payment; and DIRECTS him to
pay the costs of suit.

SO ORDERED.