EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him
guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional
penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to
pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of
the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located
on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had
only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-
General, as constituting attempted robbery, which we think is erroneous.

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. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to
make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond
the first steps of its execution. 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. Thus, in case of robbery, in order that the simple act of entering by means of force or
violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly
intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in
the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store,
it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of
its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to
commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of
the acts executed (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 as well as a punishable act,
must not and can not furnish grounds by themselves for attempted nor frustrated crimes. 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 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, without the intent
to commit an offense, they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not
punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation
to the offense."
 Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such
and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that
said 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 the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery
but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain
therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling
of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil.,
67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be
taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that
several final judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack
of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is
the very fact which in this case constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force,
is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods.
Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its
maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling,
committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one
day of arresto mayor, with the accessory penalties thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

 EN BANC

G.R. No. 143468-71. January 24, 2003

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FREEDIE LIZADA @ FREDIE LIZADA, Accused-
Appellant.

DECISION

CALLEJO, SR., J.:

This is an automatic review of the Decision1 of the Regional Trial Court of Manila, Branch 54, finding accused-
appellant Freedie 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:

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

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.

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.

Contrary to law.

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.3cräläwvirtualibräry
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 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.7cräläwvirtualibräry

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. Accused-appellant 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. Accused-appellant saw Rossel and dismounted. Accused-appellant 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 accused-appellant 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.8cräläwvirtualibräry

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

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.9cräläwvirtualibräry

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 Accused-Appellant

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
hard-headed because she disobeyed him whenever he ordered her to do some errands. Because of Analias
misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave
their house. Another irritant in his and Roses 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

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:

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.

SO ORDERED.11

V. Assigned Errors of the Trial Court

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

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

VI. Findings of the Court

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 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. 14cräläwvirtualibräry

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.16cräläwvirtualibräry

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 accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-
appellant with the curt 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.

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 complainants 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 burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is
entitled to an acquittal.

Anent the second assignment of error, we will resolve the same for convenience, as follows:

Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October
22, 1998 and on or about September 15, 1998)

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 complainants 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 accused-appellant for the crime charged on both counts.

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:

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.22cräläwvirtualibräry

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 which the offense was committed as provided under Rule 110, 11.

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-appellants failure to raise a timely objection based on this ground constitutes a waiver of
his right to object.23cräläwvirtualibräry

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. Accused-appellant 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-appellants commission of the crime.24 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 In People vs. Baculi, cited in People vs. Gabayron,[26] 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.

Q Where did he place his organ?

A 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(Underlining 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 accused-
appellant is the common-law husband of the victims 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.29Hence, even if the prosecution proved the special qualifying circumstance
of minority of private complainant and relationship, the accused-appellant 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)30cräläwvirtualibräry

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 accused-appellant 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,
in People 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 thereaboutsubstantially 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, appellants 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.
Accused-appellant 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?

A 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.

Q What was this unusual experience of yours?

A He laid himself on top of me, sir.

Q You said he whom are you referring to?

A Freedie Lizada Jakosalem, sir.

Q The same person you pointed to earlier?

A 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 Hes smashing my breast and he was also touching my arms and my legs, sir.

Q What else if any madam witness?

A He was also touching my sex organ, sir.

Q What else, if any?

Atty. Estorco:

May we take note of the same objection your honor, the prosecution - - -

Court:

Same ruling. Let the complainant continue considering that she is crying and still young.

Witness:

None else, sir.

Fiscal Carisma:

With what part of his body did he touch your sex organ?

Atty. Estorco:

Your Honor, that is - - -

Court:

May answer.

Fiscal Carisma:

I will re-propound the question, your honor.

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?

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.32cräläwvirtualibräry

On cross-examination, the private complainant testified, thus:

Atty. Balaba:

Q Who was that somebody who entered the room?

A My stepfather Freedie Lizada, sir.

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

A Yes, sir, he was dressed then, sir.

Q And he had his pants on, is that correct?

A He was wearing a short pants, sir.

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

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 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?

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.

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

A I was in the bed, sir, lying down.

Q You were lying down?

A Yes, sir.

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

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

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.

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

Fiscal Carisma:

Already answered your honor, he held the arms and then the legs.

Court:

Already answered.
Atty. Balaba:

Q Your honor, I am just trying to - -

Court:

Proceed.

Atty. Balaba:

Q He held your arms with his two hands?

A Only with one hand, sir.

Q Which hand were you touched?

A I do not know which hand, sir.

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?

A I cannot recall, sir.

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

A He was sitting on our bed, sir.

Q Which side of your bed was Freedie Lizada sitting on?

A I do not know, sir. I cannot recall.

Atty. Balaba:

Can we take a recess your honor?

Court:

How long will it take you to finish your cross?

Atty. Balaba:

We will confront the witness with so many things your honor.

Court:

Yes, thats why I am asking you how long will it take you to finish your cross?

Atty. Balaba:

About another hour, sir.

Court:

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

Atty. Balaba:

You cannot also remember which leg was held by Freedie Lizada?

A I cannot recall, sir.

Q When this happened, did you not shout for help?

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.

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

A I was not able to extricate myself, sir.

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?

A No, sir, its 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?

A He suddenly went out of the room, sir.

Q Now, he went - - -

Court:

You did not shout during that time?

A No, your honor.33cräläwvirtualibräry

Rossel, the nine-year old brother of the private complainant corroborated in part his sisters 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 oclock?

A 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?

A 1252 Jose Abad Santos, Tondo, Manila, sir.

Court:

Q The same address?

A Yes, sir.

Fiscal Carisma:

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

A Yes, sir.

Q Where was she?

A She was sleeping, 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?

A No, sir.

Q Where did you go next?

A Inside, sir.

Q For what purpose did you get inside your house?

A Because I was thirsty, sir.

Q So you went to the fridge to get some water?

A Yes, sir.

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 Do you see your stepfather inside the courtroom now?

A Yes, sir.

Q Will you point to him?

A He is the one, sir.

Court Interpreter:

Witness pointing to a male person who when asked answers to the name Freedie Lizada.

Fiscal Carisma:

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?

A I already got water then, sir.

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

A I was just looking at them when he saw me, sir.

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

A 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.34cräläwvirtualibräry

Rossel testified on cross-examination, thus:

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

A Yes, sir.

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

A Yes, sir.

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

A Yes, sir.

Q Where was this refrigerator located?

A In front of the room where my sister sleeps, sir.

Q So the door of your sisters room was open?

A 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?

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

Q Were you noticed by your sister at that time?

A No, sir.

Q And your sister did not call for help at that time?

A No, sir.

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

A Yes, sir.

Q Did you not say something to the accused?

A No, sir, I was just looking.

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?

A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.

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

A Here, sir.

Court Interpreter:

Witness pointing at the lower portion of the body.

Atty. Balaba:

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

A Yes, sir.

Q What hand was he touching your sister?

A This hand, sir.

Court Interpreter:

Witness raising his right hand.

Atty. Balaba:

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

A Her right leg, sir.

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

A Removing her panty, sir.

Q Removing her?

A Panty, sir.

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

Court:

Which?

Atty. Balaba:

Which hand, which hand?

Fiscal Carisma:

The question is vague, your honor.

Atty. Balaba:

Because he said that removing the hand ---

Fiscal Carisma:

He said removing the panty.

Atty. Balaba:

Is that panty? Im sorry.

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

Fiscal Carisma:

The right thigh.

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?

A Yes, sir.

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

A Yes, sir, she was resisting. (witness demonstrating)

Q She was struggling --- was the accused able to remove the panty?

A Yes, sir.

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

A Yes, sir.35cräläwvirtualibräry

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

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.

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.37cräläwvirtualibräry

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:

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.38cräläwvirtualibräry

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.39cräläwvirtualibräry

The last paragraph of Article 6 of the Revised Penal Code reads:

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.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance.40cräläwvirtualibräry

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.41cräläwvirtualibräry

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 detre 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 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.46cräläwvirtualibräry

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.49cräläwvirtualibräry
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of
the action intended (accion fin) cannot 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 by the
things connected therewith, that they are aimed at the consummation of the offense. This Court emphasized
in People vs. Lamahang[51] that:

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.52cräläwvirtualibräry

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.55cräläwvirtualibräry

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.56cräläwvirtualibräry

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.57cräläwvirtualibräry

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 victims brother. Thus, his penis merely touched Mary Joys 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, accused-appellant 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. Accused-appellant 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, accused-appellant 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
of prision 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 99-171393, 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. Accused-appellant 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.

Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.

Bellosillo, J., on leave.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 198400 October 7, 2013

FE ABELLA y PERPETUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26, 2010 and August 11, 2011,
respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN affirming with modifications the conviction4 by the Regional
Trial Court RTC) of Misamis Oriental, Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua petitioner) for the crime of frustrated
homicide committed against his younger brother, Benigno Abella Benigno). The RTC sentenced the petitioner to suffer an
indeterminate penalty of six 6) years and one 1) day to eight 8) years of prision mayor as minimum, to ten 10) years and one 1) day
to twelve 12) years of prision mayor as maximum, and to pay Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the
medical expenses he incurred, plus the costs of suit.5 The CA concurred with the RTC’s factual findings. However, the CA modified
the penalty imposed to six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8) years and one
(1) day of prision mayor in its medium period as maximum. The CA also deleted the RTC’s award in favor of Benigno of (a)
₱10,000.00 as actual damages corresponding to the medical expenses allegedly incurred; and (b) ₱100,000.00 as consequential
damages. In lieu of the preceding, the CA ordered the petitioner to pay Benigno ₱30,000.00 as moral damages and ₱10,000.00 as
temperate damages.6

Antecedent Facts

On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was charged with frustrated homicide
in an Information7 which reads:

That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli, Canitoan, Cagayan de Oro City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, did then and
there willfully, unlawfully and feloniously and with intent to kill, attack, assault, harm and hack one, BENIGNO ABELLA y
PERPETUA, with the use of a scythe, hitting the latter’s neck, thereby inflicting the injury described below, to wit:

• hacking wound left lateral aspect neck; and

• incised wound left hand dorsal aspect thus performing all the acts of execution which would produce the crime of
homicide as a consequence, but nevertheless, did not produce it by reason of some cause or causes independent of the
will of the accused, that is the timely and able intervention of the medical attendance rendered to the said victim.

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was only arrested by agents of the National Bureau of
Investigation on October 7, 2002.9

During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus proceeded.

The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s wife; (c) Alejandro
Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente13 (Dr. Ardiente), a surgeon from J.R.
Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to Benigno after the latter was hacked by the
petitioner.

The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching television in his
house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring trouble in a nearby store.
Benigno and Amelita found the petitioner fighting with Alejandro and a certain Dionisio Ybañes (Dionisio). Benigno was able to
convince the petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the houses of Alejandro
and Dionisio to apologize for the petitioner’s conduct.
Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two scythes, one in each of his hands.
Benigno instructed Alejandro and Dionisio to run away and the latter two complied. The petitioner wanted to enter Alejandro’s
house, but Benigno blocked his way and asked him not to proceed. The petitioner then pointed the scythe, which he held in his left
hand, in the direction of Benigno’s stomach, while the scythe in the right hand was used to hack the latter’s neck once. 14 Benigno fell
to the ground and was immediately taken to the hospital15 while the petitioner ran to chase Alejandro.16 Benigno incurred an
expense of more than ₱10,000.00 for hospitalization, but lost the receipts of his bills. 17 He further claimed that after the hacking
incident, he could no longer move his left hand and was thus deprived of his capacity to earn a living as a carpenter. 18

Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm"; and (b) an "incised wound left
hand dorsal aspect 4 cm".19 Benigno was initially confined in the hospital on September 6, 1998 and was discharged on September
23, 1998.20 From Dr. Ardiente’s recollection, since the scythe used in the hacking was not sterile, complications and infections could
have developed from the big and open wounds sustained by Benigno, but fortunately did not. 21

The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a friend of the petitioner; and (c)
Urbano Cabag24 (Urbano).

The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he and his family
resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the hacking incident occurred, is about
four (4) hours drive away. Fernando testified that on September 6, 1998, he saw the petitioner gathering woods to make a
hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the petitioner drinking tuba in the store of Clarita Perpetua. 26

The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the Judgment27 reads:

WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient to prove the guilt of the
[petitioner] beyond reasonable doubt, judgment is rendered finding petitioner Fe Abella GUILTY beyond reasonable doubt of the
crime of Frustrated Homicide as defined and penalized by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code.
Accordingly, petitioner Fe Abella is hereby sentenced to suffer an indeterminate penalty of Six (6) years and One (1) day to Eight (8)
years of prision mayor as minimum to Ten (10) years and One (1) day to Twelve (12) years of prision mayor as maximum; to
indemnify offended-party complainant Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses
incurred; to pay the sum of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs.

SO ORDERED.28

The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were presented to corroborate the
petitioner’s claim that he was nowhere at the scene of the hacking incident on September 6, 1998. Fernando and Urbano’s
testimonies were riddled with inconsistencies. The RTC accorded more credence to the averments of the prosecution witnesses,
who, without any ill motives to testify against the petitioner, positively, categorically and consistently pointed at the latter as the
perpetrator of the crime. Besides, medical records show that Benigno sustained a wound in his neck and his scar was visible when
he testified during the trial.

The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred despite the prosecution’s failure
to offer receipts as evidence. The petitioner was likewise ordered to pay ₱100,000.00 as consequential damages, but the RTC did
not explicitly lay down the basis for the award.

The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution failed to prove by clear and
convincing evidence the existence of intent to kill which accompanied the single hacking blow made on Benigno’s neck. The
petitioner argued that the hacking was merely accidental especially since he had no motive whatsoever which could have impelled
him to hurt Benigno, and that the infliction of merely one wound negates intent to kill.

The CA Ruling

On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioner’s conviction for the crime of frustrated
homicide ratiocinating that:

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c)
the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) the words uttered by the
offender at the time the injuries are inflicted by him on the victim.

Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno with deadly weapons, two
scythes. The petitioner’s blow was directed to the neck of Benigno. The attack on the unarmed and unsuspecting Benigno was swift
and sudden. The latter had no means, and no time, to defend himself.
Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno suffered from a hack wound on the
left neck, and an incised wound on the left hand palm. He said that the wounds might have been caused by a sharp, pointed and
sharp-edged instrument, and may have resulted to death without proper medical attendance. Benigno was hospitalized for about a
month because of the injuries. The location of the wound (on the neck) shows the nature and seriousness of the wound suffered by
Benigno. It would have caused his death, had it not been for the timely intervention of medical science. 31 (Citations omitted and
emphasis supplied)

However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6) years of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor in its medium period, as maximum." 32 The CA explained that:

Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide is reclusion temporal , or
twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the same Code, the penalty for a frustrated crime is one
degree lower than that prescribed by law. Thus, frustrated homicide is punishable by prision mayor , or six (6) years and one (1) day
to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or aggravating circumstances, the maximum
of the indeterminate penalty should be taken from the medium period of prision mayor . To determine the minimum of the
indeterminate penalty, prision mayor should be reduced by one degree, which is prision correccional , with a range of six (6) months
and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken from the full range of prision
correccional.33(Citation omitted)

The CA also deleted the RTC’s order for the payment of actual and consequential damages as there were no competent proofs to
justify the awards. The CA instead ruled that Benigno is entitled to ₱30,000.00 as moral damages and ₱10,000.00 as temperate
damages,34 the latter being awarded when some pecuniary loss has been incurred, but the amount cannot be proven with
certainty.35

Issue

Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the RTC and the CA erred in
rendering judgments which are not in accordance with law and applicable jurisprudence and which if not corrected, will cause grave
injustice and irreparable damage to the petitioner.37

In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if considered, would justify
either his acquittal or the downgrading of his conviction to less serious physical injuries. The petitioner points out that after the single
hacking blow was delivered, he ran after Alejandro and Dionisio leaving Benigno behind. Had there been an intent to kill on his part,
the petitioner could have inflicted more wounds since at that time, he had two scythes in his hands. Further, the CA erred in finding
that the hacking blow was sudden and unexpected, providing Benigno with no opportunity to defend himself. Benigno saw the
petitioner arriving with weapons on hand. Benigno could not have been unaware of the danger facing him, but he knew that the
petitioner had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the former was accidentally hit with
the latter’s scythe.

The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a conviction from attempted murder
to physical injuries as proper considering that homicidal intent was absent when the accused shot the victim once and did not hit a
vital part of the latter’s body.39

Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the neck and incised wound in
the hand. Such being the case, death could not have resulted. The neck wound was not "so extensive because it did not involve a
big blood vessel on its vital structure" while the incised wound in the hand, which only required cleansing and suturing, merely left a
slight scarring.40 Besides, Benigno was only confined for seventeen (17) days at the hospital and the injuries he sustained were in
the nature of less serious ones.

In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition. The OSG stresses that the
petitioner raises factual issues, which call for a re-calibration of evidence, hence, outside the ambit of a petition filed under Rule 45
of the Rules of Court. Moreover, the petitioner’s argument that the development of infections or complications on the wounds is a
necessary factor to determine the crime committed is specious. The petitioner’s intent to kill Benigno can be clearly inferred from the
nature of the weapon used, the extent of injuries inflicted and the circumstances of the aggression. Benigno could have died had
there been no timely medical assistance rendered to him.

If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and Dionisio, a kick, fist blow,
push, or the use of a less lethal weapon directed against a non-vital part of the body would have been sufficient. However, the
petitioner hacked Benigno’s neck with an unsterile scythe, leaving behind a big, open and gaping wound.

This Court’s Ruling

The instant petition raises factual issues which are beyond the scope of a petition filed under Rule 45 of the Rules of Court.
Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas 42 is instructive anent what is the subject of review in a petition filed
under Rule 45 of the Rules of Court, viz:

A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of law. It is only in
exceptional circumstances that we admit and review questions of fact.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when
the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the question must not involve an
examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest
solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact.43(Citations omitted)

In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the petitioner had a homicidal
intent when he hacked Benigno’s neck with a scythe and that the wounds the latter sustained could have caused his death had
there been no prompt medical intervention. These questions are patently factual in nature requiring no less than a re-calibration of
the contending parties’ evidence.

It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of exceptions, among which is,
"when the judgment of the CA is premised on a misapprehension of facts or a failure to notice certain relevant facts that would
otherwise justify a different conclusion x x x."44 However, the factual backdrop and circumstances surrounding the instant petition do
not add up to qualify the case as falling within the exceptions.

Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the instant petition is susceptible to
denial.

To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person
was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill,
which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide
or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal
and could cause the death of the victim without medical intervention or attendance.45

In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The prosecution has to prove this
clearly and convincingly to exclude every possible doubt regarding homicidal intent. And the intent to kill is often inferred from,
among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim.46

The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill Benigno. The petitioner likewise
invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal intent is absent in a case where the accused shot the victim only
once when there was an opportunity to do otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he could
have repeatedly hacked him to ensure the latter’s death, and not leave right after the blow to chase Alejandro instead.

The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician certified that the
injury would require medical attendance for ten days, but the victim was in fact promptly discharged from the hospital the following
day.

In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in his left hand
caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is possible to have complications resulting from
these injuries because the wounds were extensive and they were big and they were open wounds, so there is a possibility of
infections resulting from these kinds of wounds, and the instrument used was not a sterile instrument contaminated with other
things."48 No complications developed from Benigno’s wounds which could have caused his death, but he was confined in the
hospital for a period of 17 days from September 6, 1998 to September 23, 1998.

From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck was
determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require imagination to figure out
that a single hacking blow in the neck with the use of a scythe could be enough to decapitate a person and leave him dead. While
no complications actually developed from the gaping wounds in Benigno’s neck and left hand, it perplexes logic to conclude that the
injuries he sustained were potentially not fatal considering the period of his confinement in the hospital. A mere grazing injury would
have necessitated a lesser degree of medical attention.

This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he pursued Alejandro
instead and refrained from further hacking Benigno. What could have been a fatal blow was already delivered and there was no
more desistance to speak of. Benigno did not die from the hacking incident by reason of a timely medical intervention provided to
him, which is a cause independent of the petitioner’s will.1âwphi1

All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of the crime
charged.

The Court modifies the award of damages.

As to the civil liability of the petitioner, the CA was correct in deleting the payment of the consequential damages awarded by the
trial court in the absence of proof thereof. Where the amount of actual damages cannot be determined because of the absence of
supporting receipts but entitlement is shown by the facts of the case, temperate damages may be awarded. 49 In the instant case,
Benigno certainly suffered injuries, was actually hospitalized and underwent medical treatment. Considering the nature of his
injuries, it is prudent to award temperate damages in the amount of ₱25,000.00, in lieu of actual damages.50

Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00. 51 There is sufficient basis to award
moral damages as ordinary human experience and common sense dictate that such wounds inflicted on Benigno would naturally
cause physical suffering, fright, serious anxiety, moral shock, and similar injury.52

WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010 and August 11 2011,
respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are AFFIRMED with MODIFICATIONS. The petitioner, Fe
Abella y Perpetua is ORDERED TO PAY the offended party moral damages in the amount of ₱25,000.00 and temperate damages
in the amount of ₱25,000.00. Further, the monetary awards for damages shall be subject to interest at the legal rate of six percent (
6%) p r annum from the date of finality of this Decision until fully paid. 53

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN*

Associate Justice

CERTIFICATION

Pursuant to Section 13 Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

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 CR-HC 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. 2002-1777 convicting appellant of frustrated murder.

The Facts

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 Information 3 which reads:

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 Obañana 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 latter’s brother, Frederick.

Version of the prosecution

The prosecution’s 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 Gregorio’s 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.

Dr. Jeremiah Obañana 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 "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, Demapanag’s brother.

The Ruling of the RTC

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 Conde ₱50,000.00 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.

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 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 Ruling of the CA-Cebu

Appellant impugned the RTC’s 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. 2001-1555 and the moral
damages. The CA-Cebu pointed out that:

The trial court granted the amount of ₱50,000.00 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 ₱50,000.00 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
The dispositive portion of the Decision of the CA-Cebu reads:

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 ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages and ₱25,000.00 as exemplary damages, 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 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 Conde ₱25,000.00 as moral damages and ₱25,000.00 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

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 appellant’s conviction in Criminal Case No. 2001-1555 for murder, but modify the civil indemnity
awarded in Criminal Case No. 2001-1555, as well as the award of moral and exemplary damages in both cases.

Justifying circumstance of self-defense

Appellant’s 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, appellant’s 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

Appellant’s 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,
appellant’s theory of self-defense is belied by the fact that:

x x x The appellant did not even bother to report to the police Gregorio’s 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

Appellant’s claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also implausible.

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 court’s 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 of relevant facts, the same must be sustained by this Court.

Attempted and Frustrated Murder

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:

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.

2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause 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 offender’s 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 victim’s 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:

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?

A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.

xxxx

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 Gregorio’s 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.1âwphi1

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 ₱75,000.00 as civil indemnity23 and ₱30,000.00 as exemplary
damages.24 The award of ₱50,000.00 as moral damages in the foregoing case is sustained. Appellant is also liable to pay
₱40,000.00 as moral damages and ₱30,000.00 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 ₱40,000.00 as moral damages and ₱30,000.00 as
exemplary damages. In Criminal Case No. 2001-1555, appellant shall pay ₱75,000.00 as civil indemnity, ₱50,000.00 as moral
damages, and ₱30,000.00 as exemplary damages.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

MARIANO C. DEL CASTILLO

Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA*

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

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 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

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.

I.

The basic facts are no longer disputed before us. The case stems from an Information 6 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 ₱12,090.00.9

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 Rosulada. 11 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 Pag-asa, 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 prosecutor’s office where he was charged with theft. 14 During petitioner’s 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 Calderon’s 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 petitioner’s conviction.22 Hence the present Petition for Review,23 which expressly seeks that petitioner’s 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 ₱12,090.00 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 cites 26 two decisions rendered many years ago by the Court
of Appeals: People v. Diño27 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 Diño 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,
Diño 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 Diño 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 Diño and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Diño 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.

III.

To delve into any extended analysis of Diño 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

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 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."
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

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 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,36mens 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 latter’s 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 latter’s
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 [accused’s] 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 Diño and Flores decisions.

Diño 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

Diño 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 [Diño]."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. 65 The 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 Diño, 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 Diño and Flores then before it. The
prosecution in Flores had sought to distinguish that case from Diño, 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 Diño 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 Diño 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 Diño 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 Viada’s 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 Diño 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 Diño, 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 Diño 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 Court’s 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 Diño, 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 España 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 ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las cosas muebles
ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los artίculos 606,
núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo 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 Español de
1995, the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
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 question-answer form in his 1926 commentaries on the 1870 Codigo Penal de España.
Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The
passage cited in Diño 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, viéndose sorprendido, la arroja al suelo." 83 Even as the answer was
as stated in Diño, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decision’s factual predicate
occasioning the statement was apparently very different from Diño, 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

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 Calón pointed out the inconsistent application by the
Spanish Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los
conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia situada
en el local donde se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo
menos" frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy
próxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos
han considerado la existencia de frustración 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, éstos, conforme a lo antes
expuesto, son hurtos consumados.86

Ultimately, Cuello Calón 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 disposición del
agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que generalmente considera
consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder.
El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de consumado aunque
la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace
cuanto es necesario para la consumación 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 Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Calón 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 consumación 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 Diño 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 Calón’s 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 Diño 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 Diño/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 latter’s consent. While the Diño/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 Aquino’s 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 effected animo 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 one’s 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 Diño 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 Diño?

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
non-completion 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 Diño/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. Diño itself did not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later Flores was ultimately content in relying on Diño 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 Diño 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.

DANTE O. TINGA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 206442 July 1, 2015

JOVITO CANCERAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012 Decision1 and the March 7, 2013
Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified the September 20, 2007
Judgment3 of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-141,
convicting petitioner Jovito Canceran (Canceran) for consummated Theft.

The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was charged with "Frustrated Theft." The
Information reads:

That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery Department, Lapasan, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Jovito Canceran, conspiring,
confederating together and mutually helping one another with his co-accused Frederick Vequizo, URC Merchandiser, and Marcial
Diaz, Jr., a Unilever Philippines merchandiser both of Ororama Mega Center, with intent to gain and without the knowledge and
consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds
White Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus,
performing all the acts of execution which would produce the crime of theft as a consequence but, nevertheless, did not produce it
by reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama Mega Center
who prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, to the damage and prejudice of the
Ororama Mega Center.

Article 308 in relation to Article 309, and 6 of the Revised Penal Code. 4

Version of the Prosecution

To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security guard; and William Michael N.
Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega Center (Ororama),as its witnesses. Through their testimonies,
the prosecution established that on or about October 6, 2002, Ompoc saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic Flakes for which he paid ₱1,423.00; that Ompoc went to the
packer and asked if the boxes had been checked; that upon inspection by Ompoc and the packer, they found out that the contents
of the two boxes were not Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that
Canceran hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Canceran stumbled as he attempted to ride
a jeepney; that after being questioned, he tried to settle with the guards and even offered his personal effects to pay for the items he
tried to take; that Arcenio refused to settle; and that his personal belongings were deposited in the office of Arcenio. 5

Version of the Defense

Canceran vehemently denied the charges against him. He claimed that he was a promo merchandiser of La Tondeña, Inc. and that
on October 6, 2002, he was in Ororama to buy medicinefor his wife. On his way out, after buying medicine and mineral water, a
male person ofaround 20 years of age requested him to pay for the items in his cart at the cashier; that he did not know the name of
this man who gavehim ₱1,440.00 for payment of two boxes labelled Magic Flakes; that he obliged with the request of the unnamed
person because he was struck by his conscience; that he denied knowing the contents of the said two boxes; that after paying at the
cashier, he went out of Ororama towards Limketkai to take a jeepney; that three persons ran after him, and he was caught; that he
was brought to the 4th floor of Ororama, where he was mauled and kicked by one of those who chased him; that they took his Nokia
5110 cellular phone and cash amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring, while a certain Amion took
his necklace.6
Canceran further claimed that an earlier Information for theft was already filed on October 9,2002 which was eventually dismissed.
In January 2003, a second Information was filed for the same offense over the same incident and became the subject of the present
case.7

The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable doubt of consummated Theft in line
with the ruling of the Court in Valenzuela v. People8 that under Article 308 of the Revised Penal Code (RPC),there is no crime of
"Frustrated Theft." Canceran was sentenced to suffer the indeterminate penalty of imprisonment from ten (10) years and one (1) day
to ten (10) years, eight (8) months of prision mayor, as minimum, to fourteen (14) years, eight (8) months of reclusion temporal, as
maximum.9

The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported by sufficient and convincing
evidence and no disinterested witness was presented to corroborate his claims. As such, his denial was considered self-serving and
deserved no weight. The trial court was also of the view that his defense, that the complaint for theft filed against him before the sala
of Judge Maximo Paderanga was already dismissed, was not persuasive. The dismissal was merely a release order signed by the
Clerk of Court because he had posted bail.10

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time. The CA held that there could be
no double jeopardy because he never entered a valid plea and so the first jeopardy never attached.11

The CA also debunked Canceran’s contention that there was no taking because he merely pushed the cart loaded with goods to the
cashier’s booth for payment and stopped there. The appellate court held that unlawful taking was deemed complete from the
moment the offender gained possession of the thing, even if he had no opportunity to dispose of the same. 12

The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the penalty ranging from two (2) years,
four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years, eight (8) months and one (1) day of prision
mayor, as maximum. Canceran moved for the reconsideration of the said decision, but his motion was denied by the CA in its March
7, 2013 resolution.

Hence, this petition.

As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether Canceran should be acquitted
in the crime of theft as it was not charged in the information; and 2] whether there was double jeopardy.

Canceran argues that the CA erred in affirming his conviction. He insists that there was already double jeopardy as the first criminal
case for theft was already dismissed and yet he was convicted in the second case. Canceran also contends that there was no taking
of the Ponds cream considering that "the information in Criminal Case No. 2003-141 admits the act of the petitioner did not produce
the crime of theft."13 Thus, absent the element of taking, the felony of theft was never proved.

In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double jeopardy as the first jeopardy never
attached. The trial court dismissed the case even before Canceran could enter a plea during the scheduled arraignment for the first
case. Further, the prosecution proved that all the elements of theft were present in this case.

In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was already bonded and ready to
enter a plea. It was the RTC who decided that the evidence was insufficient or the evidence lacked the element to constitute the
crime of theft. He also stressed that there was no unlawful taking as the items were assessed and paid for.

The Court's Ruling

The Court finds the petition partially meritorious.

Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.

No less than the Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature
and cause of accusation against him.16 It is fundamental that every element of which the offense is composed must be alleged in the
complaint or information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable
the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the
offense.17

Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property; (2) the property belongs to
another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5)
the taking away is accomplished without violence or intimidation against person or force upon things. "Unlawful taking, which is the
deprivation of one’s 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." 18

"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."19

A careful reading of the allegations in the Information would show that Canceran was charged with "Frustrated Theft" only. Pertinent
parts of the Information read:

x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream
valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus performing all the acts
of execution which would produce the crime of theft as a consequence, but nevertheless, did not produce it by reason of some
cause independent of accused’s will x x x.

[Emphasis and Underscoring Supplied]

As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge Canceran of consummated
Theft because the indictment itself stated that the crime was never produced. Instead, the Information should be construed to mean
that Canceran was being charged with theft in its attempted stage only. Necessarily, Canceran may only be convicted of the lesser
crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the complaint or information and on
which he was tried. It matters not how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted in
the courts of any offense, unless it is charged in the complaint or information on which he is tried, or necessarily included therein. He
has a right to be informed as to the nature of the offense with which he is charged before he is put on trial, and to convict him of an
offense higher than that charged in the complaint or information on which he is tried would be an unauthorized denial of that
right."20 Indeed, an accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the
information filed against him.21 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. 22

The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage. In this case, although the
evidence presented during the trial prove the crime of consummated Theft, he could be convicted of Attempted Theft only.
Regardless of the overwhelming evidence to convict him for consummated Theft, because the Information did not charge him with
consummated Theft, the Court cannot do so as the same would violate his right to be informed of the nature and cause of the
allegations against him, as he so protests.

The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption or preamble of
the information nor from the specification of the law alleged to have been violated – these being conclusions of law – but by the
actual recital of facts in the complaint or information."23 In the case of Domingo v. Rayala,24 it was written:

What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof
allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the
particular facts therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person
of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No
information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element
of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare
his defense.25

In the subject information, the designation of the prosecutor of the offense, which was "Frustrated Theft," may be just his conclusion.
Nevertheless, the fact remains that the charge was qualified by the additional allegation, "but, nevertheless, did not produce it by
reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama Mega Center who
prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, x x x. 26 This averment, which could also
be deemed by some as a mere conclusion, rendered the charge nebulous. There being an uncertainty, the Court resolves the doubt
in favor of the accused, Canceran, and holds that he was not properly informed that the charge against him was consummated theft.
No double jeopardy when
the first jeopardy never
attached

Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.

No person shall be twice put in jeopardy for punishment for the same offense. The rule of double jeopardy has a settled meaning in
this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction
or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.
This principle is founded upon the law of reason, justice and conscience. 27

Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and he, already bonded, was ready to
enter a plea. It was the RTC who decided that there was insufficient evidence to constitute the crime of theft.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that
in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid
plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. 28

Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the RTC.1âwphi1 Even assuming
that he was able to raise the issue of double jeopardy earlier, the same must still fail because legal jeopardy did not attach. First, he
never entered a valid plea. He himself admitted that he was just about to enter a plea, but the first case was dismissed even before
he was able to do so. Second, there was no unconditional dismissal of the complaint. The case was not terminated by reason of
acquittal nor conviction but simply because he posted bail. Absent these two elements, there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and medium periods.29 The penalty lower by two degrees than
that prescribed by law for the consummated felony shall be imposed upon principals in an attempt to commit a felony.30 The basis
for reduction of penalty by two degrees is the penalty prescribed by law for the consummated crime. Also, when the offenses
defined in the RPC are punished with a penalty composed of two periods, like in the crime of theft, the penalty lower by one degree
is formed by two periods to be taken from the same penalty prescribed. 31

Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the penalty shall be the maximum period
of the penalty prescribed in. the same paragraph, because the value of the things stolen exceeded ₱22,000.00. In other words, a
special aggravating circumstance shall affect the imposable penalty.

Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of Arresto Mayor Minimum to Arresto
Mayor Medium. In view of the special aggravating circumstance under Article 309 (1), the maximum penalty should be Arresto
Mayor Maximum to Prision Correccional Minimum in its maximum period.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March 7, 2013 Resolution of the
Court of Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds accused Jovito Canceran guilty beyond
reasonable doubt of the crime of Attempted Theft.

Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from Four (4) Months of Arresto
Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision Correccional, as maximum.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO

Associate Justice Associate Justice
 MARVIC M.V.F. LEONEN
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer 'of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 188979 September 5, 2012

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.

DECISION

BRION, J.:

This is an appeal from the June 15, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 02759. TheCA affirmed the
February 22, 2007 decision2

of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant Christopher Pareja guilty beyond reasonable
doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua.

THE CASE

The prosecution charged the appellant before the RTC with the crime of rape under an Amended Information that reads:

That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously lie and have carnal knowledge of AAA,3 13
years of age, sister of the common law spouse of accused, against her will and consent, thus debasing and/or demeaning the
intrinsic worth and dignity of the victim thereby prejudicing her normal development as a child. 4

The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003, AAA was sleeping beside her two-year old
nephew, BBB, on the floor of her sister’s room, when the appellant hugged her and kissed her nape and neck. 5 AAA cried, but the
appellant covered her and BBB with a blanket.6 The appellant removed AAA’s clothes, short pants, and underwear; he then took off
his short pants and briefs.7 The appellant went on top of AAA, and held her hands. AAA resisted, but the appellant parted her legs
using his own legs, and then tried to insert his penis into her vagina.8 The appellant stopped when AAA’s cry got louder; AAA kicked
the appellant’s upper thigh as the latter was about to stand up. The appellant put his clothes back on, and threatened to kill AAA if
she disclosed the incident to anyone. Immediately after, the appellant left the room. 9 AAA covered herself with a blanket and cried.10

At around 6:00 a.m. of the same day, AAA’s brother, CCC, went to her room and asked her why she was lying on the floor and
crying. AAA did not answer, and instead hurled invectives at CCC. 11 AAA went to the house of her other brother, but the latter was
not in his house. AAA proceeded to the house of her older sister, DDD, at Block 19, Welfareville Compound, and narrated to her
what had happened. Afterwards, AAA and her two (2) siblings went to the Women and Children’s Desk of the Mandaluyong City
Police Station and reported the incident.12

For his defense, the appellant declared on the witness stand that he hauled "filling materials" at his house, located at Block 38,
Fabella Compound, on the evening of June 15, 2003. At around 10:00 p.m., he went to his room and slept. 13 On the next day, the
appellant, accompanied by his mother and brother-in-law, went to the municipal hall to ask for financial assistance for his wife who
was confined in the hospital. Upon arrival at the hospital, the doctor told him that his wife needed blood. Immediately after, the
appellant and his companions went to Pasig City to find blood donors.14

On the evening of June 16, 2003, and while the appellant was folding the clothes of his son, two policemen entered his house and
informed him that a complaint for attempted rape had been filed against him. The police brought him to the Criminal Investigation
and Detection Group, forced him to admit the crime, mauled him, and then placed him in a detention cell. 15 The appellant added that
he filed a complaint before the Office of the Ombudsman against the police officers who beat him up. 16

The RTC convicted the appellant of rape in its decision of February 22, 2007, under the following terms:

WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY beyond reasonable doubt of the crime of
RAPE and hereby sentences him as he is hereby sentenced to suffer the penalty of reclusion perpetua; and to indemnify the victim,
AAA, the amount of ₱ 50,000.00 as moral damages and ₱ 50,000.00 as civil indemnity. 17
The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It explained that a slight penetration of the labia by the male
organ is sufficient to constitute rape, and held that a slight penetration took place when the appellant’s penis touched AAA’s vagina
as he was trying to insert it.

The appellate court further ruled that the presence of people in the other room did not make it impossible for the appellant to have
raped the victim, because lust is no respecter of time and place. It also held that the victim’s lack of tenacity in resisting the
appellant’s sexual aggression did not amount to consent or voluntary submission to the criminal act. 18

In his brief,19 the appellant argued that the lower courts erred in convicting him for the crime of rape, as the prosecution failed to
prove even the slightest penetration of his penis into the victim’s vagina. He added that the victim’s testimony was incredible and
contrary to human experience.

THE COURT’S RULING

We find that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt of the crime of consummated rape. We
convict him instead of attempted rape, as the evidence on record shows the presence of all the elements of this crime.

Carnal Knowledge Not Proven With

Moral Certainty

By definition, rape is committed by having carnal knowledge of a woman with the use of force, threat or intimidation, or when she is
deprived of reason or otherwise unconscious, or when she is under 12 years of age or is demented. 20 "Carnal knowledge is defined
as the act of a man having sexual intercourse or sexual bodily connections with a woman." 21 Carnal knowledge of the victim by the
accused must be proven beyond reasonable doubt, considering that it is the central element in the crime of rape. 22

In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:

FISCAL TRONCO:

Q: You said that the three of you then was (sic) sleeping on the floor, what is it that happened on that particular day and time that
is unusual?

A: It was like somebody was embracing me or hugging me, ma’am.

Q: When you felt that some (sic) is embracing and hugging you, what did you do?

A: I didn’t mind it because I thought that the person beside me just moved and when he made the movement, it’s like that I was
embraced, ma’am.

Q: Whom are you referring to?

A: My brother-in-law, ma’am.

Q: And after that, what else happened, if any, AAA?

A: Before that happened, my nephew cried and so I picked him up and put him on my chest and after a while, I slept again and
brought him down again and then "dumapa po ako" and I felt that somebody was kissing my nape, ma’am.

Q: Were you able to see who was that somebody kissing your nape?

A: When I tried to evade, I looked on my side where the room was not that dark that I could not see the person and so, I saw that it
was my brother-in-law, ma’am.

xxxx

Q: When you saw that it was your brother-in-law kissing your nape while you were on a prone position, what else happened, if
any?

A: He kissed my neck, ma’am.

Q: What was your position while he was kissing your neck?

A: I was on my side at that time and I was also crying, ma’am.

xxxx

Q: Why were you crying at that time while he was kissing your neck?

A: I was afraid of what will happen next, ma’am.

Q: Aside from that incident that he was kissing your neck, was there any other previous incident that happened?

A: Yes, ma’am.

xxxx

Q: What incident was that?

A: At that time, my brother-in-law covered me and my nephew with a blanket and he tried to get my clothes off, ma’am.

Q: When did this happen, AAA?

A: Also on said date, ma’am.

Q: You said that he covered you and your nephew with a blanket and then taking (sic) off your clothes?

A: Yes, ma’am.

xxxx

Q: Was he able to take off your clothes?

A: Yes, ma’am.

Q: What particular clothing was he able to take off?

A: My short pants and underwear, ma’am.

Q: While he was taking off your short pants and your underwear, what did you do, if any?

A: I tried to fight him off, ma’am.

xxxx

Q: You said that he was trying to take off your clothes and undergarments, what was your position at that time?

A: I was lying down, ma’am.

Q: What about him?

A: He was on my lap, ma’am.

xxxx

Q: You said that you saw him take off his short pants?
A: Yes, ma’am.

xxxx

Q: Did he also take off his brief?

A: Yes, ma’am.

xxxx

Q: And after that what happened, AAA?

A: After removing his undergarments, he suddenly brought his body on top of me and he held my hands. At that time I was crying
and still resisting and then he was trying to get my legs apart. I was still resisting at that time, and at some point in time I felt weak
and he was able to part my legs, ma’am.

Q: Could you please tell us how did (sic) he able to part your legs?

A: He did that with his legs while he was holding my hands, ma’am.

Q: And when he was able to part your legs, what happened next?

A: He tried to insert his sexual organ but he was not able to do so, ma’am.

Q: How did you know that he was trying to insert his sexual organ?

A: "Naidikit po niya sa ari ko."

Q: Which part of your body was he able to touch his sexual organ? (sic)

A: On my sexual organ, ma’am.

xxxx

Q: You mentioned earlier that he was not able to penetrate your private part, AAA?

A: Yes, ma’am.

Q: So, what happened after that?

A: I cried and then while I was resisting, I hit my wrist on the wall and my wrist was "nagasgas," ma’am.

xxxx

Q: And were you able to successfully resist?

A: Yes, ma’am, I was able to kicked (sic) his upper thigh, ma’am.23 (italics supplied; emphasis ours)

From the foregoing, we find it clear that the appellant’s penis did not penetrate, but merely ‘touched’ (i.e., "naidikit"), AAA’s private
part. In fact, the victim confirmed on cross-examination that the appellant did not succeed in inserting his penis into her
vagina. Significantly, AAA’s Sinumpaang Salaysay24 also disclosed that the appellant was holding the victim’s hand when he was
trying to insert his penis in her vagina. This circumstance – coupled with the victim’s declaration that she was resisting the
appellant’s attempt to insert his penis into her vagina – makes penile penetration highly difficult, if not improbable. Significantly,
nothing in the records supports the CA’s conclusion that the appellant’s penis penetrated, however slightly, the victim’s female
organ.
Did the touching by the appellant’s penis of the victim’s private part amount to carnal knowledge such that the appellant should be
held guilty of consummated rape?

In People v. Campuhan,25 the Court laid down the parameters of genital contact in rape cases, thus:

Thus, touching 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 victim's vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched 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" by
the penis, are by their natural situs or location beneath the mons pubis or 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 pudendum or vulva is 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 pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the 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 majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and
not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the
mons pubis of 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 pudendum by the penis, there can be no consummated rape; at most, it can
only be attempted rape, if not acts of lasciviousness.26 (italics supplied)

Simply put, "rape is consummated by the slightest penile penetration of the labia majora or pudendum of the female
organ."27 Without any showing of such penetration, there can be no consummated rape; at most, it can only be attempted rape [or]
acts of lasciviousness."28

As earlier discussed, the prosecution failed to present sufficient and convincing evidence to establish the required penile
penetration. AAA’s testimony did not establish that the appellant’s penis touched the labias or slid into her private part. Aside from
AAA’s testimony, no other evidence on record, such as a medico-legal report, could confirm whether there indeed had been
penetration, however slight, of the victim’s labias. In the absence of testimonial or physical evidence to establish penile penetration,
the appellant cannot be convicted of consummated rape.

Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the offender commenced the commission of
the crime directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his
own spontaneous desistance. In People v. Publico,29 we ruled that when the "touching" of the vagina by the penis is coupled
with the intent to penetrate, attempted rape is committed;otherwise, the crime committed is merely acts of lasciviousness.

In the present case, the appellant commenced the commission of rape by the following overt acts: kissing AAA’s nape and neck;
undressing her; removing his clothes and briefs; lying on top of her; holding her hands and parting her legs; and trying to insert his
penis into her vagina. The appellant, however, 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., the victim's loud cries and resistance. The totality of the
appellant’s acts demonstrated the unmistakable objective to insert his penis into the victim’s private parts.

A review of jurisprudence reveals that the Court has not hesitated to strike down convictions for consummated rape when the
evidence failed to show that penetration, however slight, of the victim’s vagina took place. In People v. Bon,30 the Court found the
appellant guilty of attempted rape only, as there was no indication that the appellant’s penis even touched the labia of the pudendum
of the victim. We further held that the appellant could not be convicted of consummated rape by presuming carnal knowledge out of
pain.

The Court had a similar ruling in People v. Miranda,31 where the accused tried to insert his penis into the victim’s private parts, but
was unsuccessful, so he inserted his fingers instead. We convicted the accused of attempted rape only due to lack of evidence to
establish that there was even a slight penile penetration. We noted, however, that the appellant’s act of inserting his fingers would
have constituted rape through sexual assault had the offense occurred after the effectivity of the Anti-Rape Law of 1997.

In People v. Alibuyog,32 the victim declared that the accused placed his penis on her vagina; and claimed that it touched her private
parts. The Court set aside the accused’s conviction for rape, and convicted him of attempted rape only, because we found the
victim’s testimony too ambiguous to prove the vital element of penile penetration. We added that the victim’s testimony was "replete
with repeated denial of penile insertion."33

Similarly, in People v. Quarre,34 the evidence for the prosecution consisted only of the victim’s testimony that the accused tried, but
failed, to insert his penis into her vagina, and she felt pain in the process. No medico-legal examination report was presented in
evidence. Accordingly, the Court reversed the accused’s conviction for rape, and found him guilty of attempted rape only.
In People v. Ocomen,35 the Court also set aside the appellant’s conviction for rape because no proof was adduced of even the
slightest penetration of the female organ, aside from a general statement of the victim that she had been "raped."

People v. Monteron36 is another noteworthy case where the Court set aside the appellant’s conviction for rape. In this case, the
victim testified that the accused placed his penis on top of her vagina, and that she felt pain. In finding the accused guilty of
attempted rape only, we held that there was no showing that the accused’s penis entered the victim’s vagina. We added that the
pain that the victim felt might have been caused by the accused’s failed attempts to insert his organ into her vagina.

In People v. Mariano,37 the accused tried to insert his penis into the victim’s vagina, but failed to secure penetration. The Court set
aside the accused’s conviction for three (3) counts of rape and found him guilty of attempted rape only. We explained the necessity
of carefully ascertaining whether the penis of the accused in reality entered the labial threshold of the female organ to accurately
conclude that rape had been consummated.

In People v. Arce, Jr.,38 the Court found the accused guilty of attempted rape only, because the victim did not declare that there was
the slightest penetration, which was necessary to consummate rape. On the contrary, she categorically stated that the accused was
not able to insert his penis into her private parts because she was moving her hips away. We further ruled that the victim’s attempt
to demonstrate what she meant by "idinidikit ang ari" was unavailing to prove that rape had been consummated.

In People v. Francisco,39 the victim testified that the accused "poked" her vagina. The Court set aside the accused’s conviction for
qualified rape, and convicted him instead only of attempted rape after failing to discern from the victim's testimony that the accused
attained some degree of penile penetration, which was necessary to consummate rape.1âwphi1

In People v. Dimapilis,40 the Court refused to convict the accused for consummated rape on the basis of the victim's testimony that
she felt the accused's penis pressed against her vagina as he tried to insert it. We explained that in order to constitute
consummated rape, there must be entry into the vagina of the victim, even if only in the slightest degree.

Finally, in People v. Tolentino,41 the Court reversed the accused’s conviction for rape and convicted him of attempted rape only, as
there was paucity of evidence that the slightest penetration ever took place. We reasoned out that the victim’s statements that the
accused was "trying to force his sex organ into mine" and "binundol-undol ang kanyang ari" did not prove that the accused’s penis
reached the labia of the pudendum of the victim’s vagina.

"In rape cases, the prosecution bears the primary duty to present its case with clarity and persuasion, to the end that conviction
becomes the only logical and inevitable conclusion."42 We emphasize that a conviction cannot be made to rest on possibilities;
strongest suspicion must not be permitted to sway judgment. In the present case, the prosecution failed to discharge its burden of
proving all the elements of consummated rape.

The Proper Penalty and Indemnities

Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape is two degrees lower than the prescribed
penalty of reclusion perpetua for consummated rape. Two degrees lower from reclusion perpetua is prision mayor whose range is
six (6) years and one (1) day to 12 years. Without any attendant aggravating or mitigating circumstances and applying the
Indeterminate Sentence Law, the maximum of the penalty to be imposed upon the appellant is prision mayor in its medium period,
while the minimum shall be taken from the penalty next lower in degree, which is prision correccional whose range is six (6) months
and one (1) day to six (6) years, in any of its periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of
six (6) years of prision correccional, as minimum, to 10 years of prision mayor, as maximum.

In addition, we order the appellant to pay the victim ₱ 30,000.00 as civil indemnity, ₱ 25,000.00 as moral damages and ₱ 10,000.00
as exemplary damages, in accordance with prevailing jurisprudence on attempted rape cases.43

WHEREFORE, premises considered, the June 15, 2009 decision of the Court of Appeals in CA-G.R. CR HC No. 02759
is MODIFIED, as follows:

The appellant's conviction for the crime of rape is VACATED, and

(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime of ATTEMPTED RAPE;

(2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of prision correccional, as minimum, to 10
years of prision mayor, as maximum; and

(3) we ORDER him to PAY the victim the amounts of ₱ 30,000.00 as civil indemnity; ₱ 25,000.00 as moral damages; and
₱ 10,000.00 as exemplary damages.
SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

G.R. No. 166441, October 08, 2014 - NORBERTO CRUZ Y BARTOLOME, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
 FIRST DIVISION

G.R. No. 166441, October 08, 2014

NORBERTO CRUZ Y BARTOLOME, Petitioner, v. 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 guilty to the respective informations, to
wit:ChanRoblesVirtualawlibrary

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 of rape
directly by overt acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15)
years old, was sleeping inside the tent along 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 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, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB]4 against the
latter's 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

xxx [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 o'clock in the morning, AAA and BBB went to sleep. Less than an
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 she'll 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 to tell
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 were shaking. 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 Norberto's wife, Belinda, arrived at the police
station, an argument ensued between them.

On December 22, 1993, at around 2:20 o'clock in the morning, the police investigator ordered the
complainants to return at 6:00 o'clock 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:ChanRoblesVirtualawlibrary

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:ChanRoblesVirtualawlibrary
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.

With regard to the crime of ACTS 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 BBB the amount of P10,000.00 as moral damages.

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 of lasciviousness despite the fact that BBB did not
testify.

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:ChanRoblesVirtualawlibrary

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.

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
perpetua is prision mayor.

Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period
of prision mayor in the absence of any mitigating or aggravating circumstance and the minimum shall be
within the range of the penalty next lower to that prescribed for the offense which in this case is prision
correctional in any of its periods.

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 adduced by the prosecution is insufficient to substantiate the charge of acts of
lasciviousness against the accused-appellant. The basis of the complaint for acts of lasciviousness is the
sworn statement of BBB to the effect that 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
that such lascivious acts were without the consent or against the will of BBB.11

Issues

In this appeal, the petitioner posits that the CA's decision was not in accord with law or with
jurisprudence, particularly:ChanRoblesVirtualawlibrary
 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 fertile imagination;
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 this rule, 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 decide issues 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 contentions of the petitioner on the credibility of AAA as a witness for
the State cannot be entertained. 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 petitioner's climbing on top of the undressed AAA such that they 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 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."

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 an attempted felony, to
wit:ChanRoblesVirtualawlibrary

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
is wanting, the nature of the action intended (action fin) cannot exactly be ascertained, but the same
must be inferred from the nature of the acts of execution (action 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 as well 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 ascertained from 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, without the
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:

Article 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:ChanRoblesVirtualawlibrary

1. By using force or intimidation;chanrobleslaw

2. When the woman is deprived of reason 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.

xxxx

The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge is defined
simply as "the act 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 penis capable of 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:ChanRoblesVirtualawlibrary

[T]ouching when applied to rape cases docs 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 victim's vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labiasor 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" by the penis, are by
their natural situs or location beneath the mons pubis or 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 pudendum or vulva is 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 pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the 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 majora is the labia minora.
Jurisprudence dictates that the labia majora must 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 pubis of 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 pudendum by 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. Erihia20 whereby
the offender was declared guilty of frustrated rape because of lack of conclusive evidence of penetration
of the genital organ of the offended party, was a stray decision for 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 Code are 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 perpetrator's 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 acts for
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 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. 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)chanroblesvirtuallawlibrary

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 acts without 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 without such 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 criminal intent 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.:25cralawred "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 that rape, 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 rape had 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 perpetrator's 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
offender's intent 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
when the 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 of reason or is otherwise unconscious; or (iii) when the offended party is under 12 years of
age.32 In that regard, lewd is 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 act described," 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 correccional which 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. "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 quasi-delicts. 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.cralawlawlibrary

Sereno, C.J., Leonardo-De Castro, Perez, and Perlas-Bernabe, JJ., concur.

 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 petitioner’s
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 information4 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 attacker’s 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 … topsy-turvy. 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) ΣΦ’ 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.

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 guard’s logbook …:

"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

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s knocking on the
door woke him up, …. He was able to fix the time of CHITO’s 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 ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at
around 3 o’clock 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), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through which the
intruder supposedly passed.

xxx xxx xxx

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 o’clock 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
CHITO’s because CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on
weekends, and the handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R.
Alagadan’s 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 o’clock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where
Renato had seen CHITO leave it. Not until later that night at past 9 o’clock 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-487-91
(Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

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), non-volatile 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 o’clock 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 Fraternity’s symbol and a pair of black shorts
with stripes. xxx .

Again riding on Alberto’s 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 o’clock 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 o’clock 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 o’clock in the early morning of December 13, 1991 (TSN, June
16, 1994, p. 24), nor when he dressed up at about 6 o’clock 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 petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both
testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s 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 father’s 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 Attorney’s 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 court’s 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
petitioner’s 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 CA’s 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 intruder’s apparel to be something made of cotton material on top and shorts
that felt satin-smooth on the bottom.

From CHITO’s 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 MALOU’s 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 Malou’s 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 petitioner’s 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 petitioner’s 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 anybody’s
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:

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 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

Petitioner’s 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 complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s 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 offender’s
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 ₱5.00 to ₱200.00 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 ₱200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

( On Leave )
RENATO C. CORONA
ANGELINA SANDOVAL-GUTIERREZ*
Asscociate Justice
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

REYNATO S .PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the
conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the
Court.

ARTEMIO V. PANGANIBAN
Chief Justice