PEOPLE V.

LIZADA [January 24, 2003]

November 10, 2010
Facts: Freedie Lizada was accused of raping his step daughter Analia Orilloso in four instances in their house
in Tondo, Manila, sometime in August 1998, on or about Nov. 5, 1998, on or about Oct. 22, 1998 and on or
about September 15, 1998. Physical examination showed no extragenital physical injuries. Hymen intact.
Issue: WON Nov. 5, 1998 is consummated rape?
Held: No. Attempted rape only
1.
No proof of introduction of penis into pudendum of childs vagina
2.
Not act of lasciviousness, Lewd is obsecene, lustful, indecent, lecherous
3.
RPC Art. 6 attempted is based on 4 elements (reyes)
4.
Not preparatory (devise means or measure to accomplish desired end). Attempt should be equivocal.
No need to complete all acts just need to start act w/ causal relation to intended crime.
5.
Acts must be directly related to consummation of act and ascertainable from facts (People v.
Lamahang)
6.
Accused had intended to have carnal knowledge of complainant. Acts not preparatory, he commenced
execution but failed to finish due to presence of 3rd party, not spontaneous desistance.

Baleros v. People
G.R. No. 138033

February 22, 2006

Lessons Applicable: Attempted Rape

Laws Applicable: Art. 6
FACTS:
Martina Lourdes Albano (Malou), a medical student of the University of
Sto. Tomas, stayed at Room 307 with her maid Marvilou.
December 12 10:30 pm: Malou slept. Her maid Marvilou slept on a
folding bed right in front of her bedroom door.
December 13, 1991 1:00 am: Chito left the fraternity party with Robert
Chan and Alberto wearing a barong tagalog, with t-shirt inside, with short
pants with stripes lent by Perla Duran and leather shoes.
December 13, 1991 1:30 am: Chito arrived at the Building wearing a white
t-shirt with fraternity symbols and black shorts with the brand name Adidas
from a party. He requested permissionfrom S/G Ferolin to go up to Room
306 leased by Ansbert Co but at that time only Joseph Bernard Africa was
there. Although Chito could not produce the required written authorization,
he let him in because he will be a tenant in the coming summer break.
Joseph was awaken by Chitos knock so he glanced the alarm clock and let
him. He saw him wearing dark-colored shorts and white T-shirt.
December 13, 1991 1:50 am: Renato Baleros, Jr. y David (Chito)
forcefully covered the face of Martina Lourdes T. Albano with a piece of cloth
soaked in chemical with dizzying effects. This awakened Malou. She
struggled but could not move because she was tightly held and pinned down

on the bed. She kicked him and got her right hand free to squeeze his sex
organ causing him to let her go. She went for the bedroom door and woke
up Marvilou. She also intercommed S/G Ferolin saying: "may pumasok sa
kuarto ko pinagtangkaan ako". Malou proceed to Room 310 where her
classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel
Montes were staying and seeked help. She saw her bed in a mess and
noticed that her nightdress was stained with blue. Aside from the window
with grills which she had originally left opened, another window inside
her bedroom which leads to Room 306 was now open.
December 13, 1991 3:30 pm: Christian and his roommates, Bernard and
Lutgardo were asked by the CIS people to look for anything not belonging to
them in their Unit when Rommel Montes went inside and found a grey bag.
o Christian knew right away that it belonged to Chito. It contained white tshirt with fraternity symbol, a Black Adidas short pants, a handkerchief , 3
white T-shirts, an underwear and socks.
Chito pleaded NOT Guilty
13 witnesses including Malou and her classmates, Joseph Bernard Africa,
Rommel Montes, Renato Alagadan and Christian Alcala
o Malou: Chito was her classmate whom he rejected a week before
o Chito: He only slept and at about 6 to 6:30, Joseph told him that
something had happened and asked him to follow him to Room 310 carrying
his gray bag and since no one was there they went to Room 401 where
Renato Alagadan was. He left his grey bag at Room 306 the day before.
handkerchief and Malous night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what Malou
sustained on that part of her face where the chemical-soaked cloth had been
pressed
RTC: guilty of attempted rape
CA: Affirmed
ISSUE: W/N Chito is guilty of attempted rape
HELD: NO. REVERSED and SET ASIDE. ACQUITTING Renato D. Baleros,
Jr. of the charge for attempted rape. GUILTY of light coercion and is
accordingly sentenced to 30 days of arresto menor and to pay a fine of
P200.00, with the accessory penalties thereof and to pay the costs.
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.
o whether or not the act of the petitioner, i.e., the pressing of a chemicalsoaked cloth while on top of Malou, constitutes an overt act of rape.
o 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
Chito was fully clothed and that there was no attempt on his part to
undress Malou, let alone touch her private part
Verily, while the series of acts committed by the petitioner do not
determine attempted rape, they constitute unjust vexation punishable as light
coercion under the second paragraph of Article 287 of the Revised Penal
Code.
o 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
o 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

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 Information3which 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 Obaana and Dr. Edwin Jose Figura, the physicians at the Sara District Hospital
where the victims were admitted. The defense, on the other hand, presented appellant,
Demapanag, and the latters brother, Frederick.

Version of the prosecution

The prosecutions version of the facts is as follows: At around 7:00 p.m. on 23 December 2000,
Gregorio Conde, and his two daughters, Judy and Glenelyn Conde, were in their home at
Barangay Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in their
store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the
latter. Gregorio called Judy for help. When Judy and Glenelyn rushed to Gregorios aid,
appellant shot Judy in the abdomen. The two other accused were standing behind the appellant.
Appellant said, "she is already dead," and the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on
arrival while Gregorio made a full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His report stated that her death was
caused by "cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound." 5

In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Frustrated Murder and hereby sentences the said
accused to a prison term ranging from six (6) years and one (1) day of prision mayor as
minimum to ten (10) years and one (1) day of reclusion temporal as maximum, together with the
necessary penalty provided by law and without subsidiary imprisonment in case of insolvency
and to pay the costs.
Accuseds entire period of detention shall be deducted from the penalty herein imposed when
the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in
both cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed
to release accused Cristy Demapanag from custody unless he is being held for some other valid
or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu

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,
Demapanags 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 CondeP50,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency and to pay the costs.

Appellant impugned the RTCs Joint Decision, claiming that "the RTC gravely erred in convicting
the appellant of the crime charged despite failure of the prosecution to prove his guilt beyond
reasonable doubt."8 The CA-Cebu, however, upheld the conviction for murder and frustrated
murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary
damages in both criminal cases. The CA-Cebu made a distinction between the civil indemnity
awarded by the RTC in Criminal Case No. 2001-1555 and the moral damages. The CA-Cebu
pointed out that:
The trial court granted the amount of P50,000.00 as civil indemnity in Criminal Case No. 20011555. It did not award moral damages. Nonetheless, the trial court should have awarded both,
considering that they are two different kinds of damages. For death indemnity, the amount
of P50,000.00 is fixed "pursuant to the current judicial policy on the matter, without need of any
evidence or proof of damages. Likewise, the mental anguish of the surviving family should be
assuaged by the award of appropriate and reasonable moral damages."9
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 P50,000.00 as civil
indemnity, P50,000.00 as moral damages andP25,000.00 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 P25,000.00 as
moral damages and P25,000.00 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.

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

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.

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

SO ORDERED.

In contrast, we find that the Condes account of the incident is persuasive. Both the CA-Cebu
and the RTC found that the testimonies of the Condes were credible and presented in a clear
and convincing manner. This Court has consistently put much weight on the trial courts
assessment of the credibility of witnesses, especially when affirmed by the appellate court. 14 In
People v. Mangune,15 we stated that:

SO ORDERED.10
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.

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 appellants 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
Appellants feeble attempt to invoke self-defense in both cases was correctly rejected by the
RTC and the CA-Cebu. This Court, in People v. Damitan,11 explained that:

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.

When the accused admits killing a person but pleads self-defense, the burden of evidence shifts
to him to prove by clear and convincing evidence the elements of his defense. However,
appellants version of the incident was uncorroborated. His bare and self-serving assertions
cannot prevail over the positive identification of the two (2) principal witnesses of the
prosecution.12

We note, however, that appellant should be convicted of attempted murder, and not frustrated
murder in Criminal Case No. 2002-1777.

Appellants failure to present any other eyewitness to corroborate his testimony and his
unconvincing demonstration of the struggle between him and Gregorio before the RTC lead us
to reject his claim of self-defense. Also, as correctly pointed out by the CA-Cebu, appellants
theory of self-defense is belied by the fact that:

Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as

those which are frustrated and attempted, are punishable.

x x x The appellant did not even bother to report to the police Gregorios alleged unlawful
aggression and that it was Gregorio who owned the gun, as appellant claimed. And, when
appellant was arrested the following morning, he did not also inform the police that what
happened to Gregorio was merely accidental.13

Article 6 of the Revised Penal Code defines the stages in the commission of felonies:

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.

x x x the court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly imposed
under the rules of the Revised Penal Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense.
1wphi1

In Serrano v. People, we distinguished a frustrated felony from an attempted felony in this

manner:
19

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

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

A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
xxxx
Court (to the witness)

Valenzuela v. People
G. R. No. 160188 June 21, 2007

Q: The nature of these injuries, not serious?

Lessons Applicable: frustrated or consummated theft

A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the
anterior aspect right shoulder.22

Laws Applicable: Art. 6

Since Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of
attempted murder and not frustrated murder. Under Article 51 of the Revised Penal Code, the
corresponding penalty for attempted murder shall be two degrees lower than that prescribed for
consummated murder under Article 248, that is, prision correccional in its maximum period to
prision mayor in its medium period. Section 1 of the Indeterminate Sentence Law provides:

FACTS:
May 19, 1994 4:30 pm: Aristotel Valenzuela and Jovy Calderon were
sighted outside the Super Sale Club, a supermarket within the ShoeMart
(SM) complex along North EDSA, by Lorenzo Lago, a security guard who
was then manning his post at the open parking area of the

supermarket.Lago saw Valenzuela, who was wearing an ID with the mark

Receiving Dispatching Unit (RDU) who hauled a push cart with cases of
detergent of Tide brand and unloaded them in an open parking space,
where Calderon was waiting. He then returned inside the supermarket and
emerged 5 minutes after with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.
Thereafter, he 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. As Lagowatched, he proceeded to stop the taxi as it
was leaving the open parking area and asked Valenzuela for a receipt of the
merchandise but Valenzuela and Calderon reacted by fleeing on
foot. Lago fired a warning shot to alert his fellow security guards.
Valenzuela and Calderon were apprehended at the scene and the stolen
merchandise recovered worth P12,090.
Valenzuela, Calderon and 4 other persons were first brought to the SM
security office before they were transferred to the Baler Station II of
the Philippine National Police but only Valenzuela and Calderon were
charged with theft by the Assistant City Prosecutor.
They pleaded not guilty.
Calderons Alibi: 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. As the queue for the ATM was long, he and Rosulada
decided to buy snacks inside the supermarket. While they were eating, they
heard the gunshot fired by Lago, so they went out to check what was
transpiring and when they did, they were suddenly grabbed by a security
guard
Valenzuelas Alibi: He is employed as a bundler of GMS Marketing and
assigned at the supermarket. He and his cousin, a Gregorio Valenzuela, 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 causing evryon to start running. Then they were
apprehended by Lago.
RTC: guilty of consummated theft
CA: Confirmed RTC and rejected his contention that it should only be
frustrated theft since at the time he was apprehended, he was never placed
in a position to freely dispose of the articles stolen.
ISSUE: W/N Valenzuela should be guilty of consummated theft.
HELD: YES. petition is DENIED

Article 6 defines those three stages, namely the consummated, frustrated

and attempted felonies.
o A felony is consummated when all the elements necessary for its
execution and accomplishment are present.
o 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.
o 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:
o subjective phase - 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
if the offender never passes the subjective phase of the offense, the
crime is merely attempted
o objective phase - After that point of subjective phase has been breached
subjective phase is completely passed in case of frustrated crimes
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 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.
actus non facit reum, nisi mens sit rea - ordinarily, evil intent must unite
with an unlawful act for there to be a crime or there can be no crime when
the criminal mind is wanting
In crimes mala in se, mens rea has been defined before as a guilty mind,
a guilty or wrongful purpose or criminal intent and essential for criminal
liability.
Statutory definition of our mala in se crimes must be able to supply what
the mens rea of the crime is and overt acts that constitute the crime
Article 308 of the Revised Penal Code (Elements of Theft):
1. that there be taking of personal property - only one operative act of
execution by the actor involved in theft
2. property belongs to another
3. taking be done with intent to gain - descriptive circumstances
4. taking be done without the consent of the owner - descriptive

circumstances
5. taking be accomplished without the use of violence against or
intimidation of persons or force upon things - descriptive circumstances
Abandoned cases:
o U.S. v. Adiao: failed to get the merchandise out of the Custom House consummated theft
o Dio: Military Police inspected the truck at the check point and found 3
boxes of army rifles - frustrated theft
o Flores: guards discovered that the empty sea van had actually
contained other merchandise as well - consummated theft
o Empelis v. IAC: Fled the scene, dropping the coconuts they had seized frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence
cannot attribute weight because definition is attempted
The ability of the actor to freely dispose of the articles stolen, even if it
were only momentary.
o 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.
Article 308 of the Revised Penal Code, theft cannot have a frustrated
stage. Theft can only be attempted (no unlawful taking) or consummated
(there is unlawful taking).

penalty ofreclusion perpetua "of Forty (40) Years," has been brought up by them to this Court. The appeal
opens up the whole case for review.
The information, dated 06 April 1994, charging the two accused with the crime of rape reads:
That on or about the 5th day of March, 1994, at about 11:30 o'clock in the evening,
more or less, at Barangay Tangil, Municipality of Dumanjug, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with lewd design
and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously lie and succeed in having carnal knowledge of the offended party Catalina
Carciller, fifteen (15) years of age, against her will and consent.
CONTRARY TO LAW. 3
Already in force and effect at the time of the averred commission of the crime are the provisions of Republic
Act No. 7659, amending the Revised Penal Code, which define and penalize rape, as follows:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of
reason or otherwise unconscious; and
3. When the woman is under twelve
years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.

G.R. No. 126148 May 5, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGAPITO QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accused-appellants.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on
the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

VITUG, J.:
In People vs. Orita, 1 this Court has declared that the crime of frustrated rape is non-existent. The
pronouncement, notwithstanding, on 01 March 1996, more than six years after the promulgation of the
decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted accused Agapito
Quianola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the crime of frustrated rape,
principally on the strength of People vs. Eriia 2 which this Court, in the Orita decision, has considered to be a
"stray" decision. The 1st March 1996 decision of the RTC of Cebu City imposing upon each of the accused the

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. when the victim is under eighteen
(18) years of age and the offender is a
parent, ascendant, step-parent,
guardian, relative by consanguinity or

affinity within the third civil degree, or

the common-law-spouse of the parent of
the victim.
2. when the victim is under the custody
of the police or military authorities.
3. when the rape is committed in full
view of the husband, parent, any of the
children or other relatives within the third
degree of consanguinity.
4. when the victim is a religious or a
child below seven (7) years old.
5. when the offender knows that he is
afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. when committed by any member of
the Armed Forces of the Philippines or
the Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of
the rape, the victim has suffered
permanent physical mutilation.
Duty assisted by counsel the two accused pleaded not guilty to the crime charged. During the trial that
ensued, the prosecution and the defense presented respective versions of the case.
The story of prosecution was the first to be told.
Catalina Carciller her cousin 15-year-old Rufo Ginto and another male companion named Richard Diaz, went
to attend a dance at around ten o'clock in the evening of 05 March 1994 in Sitio Bangag Tangil, Dumanjug,
Cebu. Catalina born on 09 November 1978, 4 was just then fifteen (15) years and four (4) months old. She was
a student at the Bito-on National vocational School at Dumanjug Cebu. About an hour later they left the party
and were soon on their way home. The three unsuspecting youngsters stopped momentarily to rest at a
waiting shed beside the Tangil Elementary School. Accused Agapito Quianola a.k.a. "Petoy" and accused
Eduardo Escuadro a.k.a. "Botiquil" who were both armed with guns suddenly turned up Quianola beaming
his flashlight at the trio while Escuadro stood by focused his attention on Catalina. Quionala announced that
he and Escuardo were members of New People's Army ("NPA"). Quionala instructed Escuadro to take care
of the male companions of Catalina while he (Quianola) held the latter at gunpoint.
Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face down on the
ground and then urinated at them. While Escuadro was fixing the zipper of his pants, Diaz and Ginto were bale
to escape and ran away. Meanwhile Quianola with his gun pointed at Catalina, forcibly brought her towards
the nearby school. Catalina heard a gunfire but Quianola assured her that it was only an exploding
firecracker. When Escuadro again showed up, Catalina asked about her two friends. Quianola replied that he
had ordered them to go home. Catalina begged that she herself be allowed to leave. Pretending to agree, they
walked the path towards the road behind the school. Then, unsuspectingly, Quianola forced Catalina to sit on
the ground. She resisted but Quianola, pointing his gun at her, warned her that if she would not accede to
what he wanted he would kill her. Catalina started to cry. Quianola told Escuadro to remove her denim pants.

Catalina struggled to free herself from Escuadro's hold but to no avail. Escuadro ultimately succeeded in
undressing her. Quianola unzipped his pants and laid on top of her while Escuadro held her legs Quianola
"started to pump, to push and pull" 5 even as Catalina still tried desperately to free herself from him. She felt
his organ "on the lips of (her) genitalia." 6 When Quianola had satisfied his lust, Escuadro took his turn by
placing himself on top of Catalina. Catalina could feel the sex organ of Escuadro "on the lips of (her)
vulva" 7 while he made a push and pull movement. Quianola, who stood by, kept on smoking a cigarette.
Escuadro and Quianola scampered immediately after Catalina's ordeal. Failing to find her pair of pants and
panty. Catalina was left wearing her T-shirt and brassieres. Catalina just then sat down, not knowing what to
do, until she finally started to run home fearing that she might be followed. Upon reaching home, Catalina went
upstairs and, afraid that the culprit would still come after her, hid herself behind the door. Baffled by Catalina's
strange behavior, her mother and her elder sister took turns interrogating her. Catalina finally said that she was
raped but she would not reveal the names of the persons who had committed the dastardly act because of
their threat.1wphi1.nt
Guillermo Zozobrado learned from his wife, Catalina's sister, that Catalina had been raped. He promptly
repaired to the municipal hall of Dumanjug to report the crime. Policemen were immediately dispatched to the
Carcillers' residence. Still in a state of shock, Catalina initially kept mum about it; later, when the police officers
returned at daytime, she was able to respond to questions and to disclose that "Petoy," referring to Agapito
Quianola, and "Botiquil," the other accused Eduardo Escuadro, were the persons who ravished her. The
officers later invited her to the police station to identify a suspect whom she positively identified to be "Botiquil"
or Eduardo Escuadro.
Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P. Refe, medico-legal officer of the National Bureau
of Investigation ("NBI") of Region 7, Central Visayas, who conducted the physical examination of Catalina on
07 March 1994, showed that there was "no evidence of extragenital physical injury noted on the body of the
Subject." 9 The genital examination yielded the following findings on the victim:
Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both coaptated.
Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick, wide, intact.
Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with moderate resistance.
Vaginal walls, tight and rogusities, prominent. 10 (Emphasis supplied.)
The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was "so small as to
preclude complete penetration of an average-size adult penis in erection without producing
laceration." 11
Against the evidence submitted by the prosecution, the accused, in their defense, interposed alibi, ill motive on
the part of an "uncle" of the complainant, and insufficient identification.
Accused Agapito Quianola, a member of the Philippine National Police stationed at Naga, Cebu, testified that
it was his day-off on 05 March 1994. At about 8:30 a.m., he and his wife, Leticia, who had just arrived in Naga
from Cebu City, proceeded to the house of his parents in Panla-an, Dumanjug, to attend to the construction of
their unfinished house. Quianola helped Vidal Laojan and Nicasio Arnaiz in cementing the kitchen floor of
their house. The work was finished at around 11:00 o'clock in the evening. After Vidal and Nicasio had gone
home, Quianola went to bed with his wife around midnight until the following morning of 06 March 1994. He
denied having been in the company of his co-accused, Escuadro a.k.a. "Botiquil," at any time during the whole
day and night of 05 March 1994. According to him, Guillermo Zozobrado, Catalina's brother-in-law, concocted
the rape charge to get even with him because of an incident in August 1993 at a fiesta dance in upper Tangil,
Panla-an, when George Camaso, the husband of his sister Jinga, got into trouble with Samuel Escuadro.
Quianola tried to pacify George Camaso who was then drunk but Camaso suddenly hit him. He parried the
blow and slapped Camaso on the face. Zozobrado joined the fray and tried to hit Quianola but because
Zozobrado was drunk, he stumbled when Quianola had pushed him. 12 He admitted that he had no
misunderstanding of any kind with the complainant and her parents themselves.

Leticia Quianola the wife of accused Agapito Quianola, testified to attest to her husband's "good moral
character" and to corroborate his testimony. Leticia said that after the workers had left their house at around
midnight she and appellant talked for a while and then made love. Vidal Laojan the carpenter was presented
to state that Quianola was at home helping the carpenters until past 11 o'clock on the night of the incident.
Nicasio Arnaiz a farmer and store cutter added that work in the Quianola's house had started late in the
morning of 05 March 1994 since they still waited for Quianola and his wife Patsy to arrive. Work in the house,
he said had stopped at about 11 o'clock that night.
Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at about seven o'clock in the evening of 05 March
1994 he and Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu until about ten o'clock that evening.
After partaking of supper at around 11:30 p.m., they had a drinking spree and went to bed at 12:00 midnight
waking up at 6:30 a.m. the following day. He denied having been in the company of Quianola and insisted
that the rape charge had been the result of a mere mistaken identity. Pablito Cuizon, Jr., corroborated
Escuadro's story about their being together up until they parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato Mascarinas, Jr.,
who took part in the investigation of the crime, and Margarito Villaluna, a suspect at the early stages of the
police investigation who was in the frequent company of the accused. According to PO2 Beltran, barangay
tanods Gilly and George Zozobrado reported the rape incident to him at midnight of 05 March 1994. He
entered the report in the "temporary blotter because the suspect was unknown then." 13Accompanied by the
two tanods, he went to the residence of the victim and when he asked Catalina if she was able to recognize
the malefactors, she kept silent and continued crying. SPO2 Liberato Mascarinas, Jr., asserted that, in the
early morning of 06 March 1994, Gilly and George Zozobrado went to the police station and named "Pitoy
Quianola, Margarito Villaluna and Batiquil or Escuadro" as being the suspects in the rape incident. While on
their way to the latter's respective residences, the team met Catalina Carciller and party who were themselves
about to repair to the police headquarters. Mascarinas asked Catalina about the identities of the rapists. She
named "Pitoy Quianola" but said she did not know the names of "the other persons" although she could
recognize them by face. Botiquil was later brought to the police station Pitoy Quianola by that time had
already gone to Naga. Margarito Villaluna declared that he had been in Panla-an, Negros Oriental, from 05
March 1994 until 09 March 1994 until harvesting corn. His sister, Mercy Villaluna testified that, in the morning
of 06 March 1994, policemen in the company of barangay tanods including Gilly Zozobrado and his son
Marcelo, came to their house looking for her brother Margarito. Shortly after the group had left, another
policeman, in the company of one Erwin Quirante also came looking for her brother. The arrival of the
policemen prompted her to verify from the Coast Guard whether her brother had indeed left for Negros
Oriental. She was told that her brother was in the boat that departed for Negros in early dawn of 02 March
1994. Still unsatisfied with the result of her queries, Mercy went to Guinholngan where she met Margarito.

years of reclusion perpetuameted out against them in this case. They should be
interdicted for that length of time from the usual and normal liasons (sic) and dealings
with their fellowmen and their community so as to protect the latter from their
pernicious and insidious examples. This is the most generous and charitable
recommendation that the Court can make for these two malefactors, short of imposing
upon them the supreme penalty of death, which the Court in other times and conditions
might have been compelled, as a matter of inexorable duty, to mete out against them,
in obedience to the implacable and peremptory demands and dictates of retributive
justice.
Costs shall also be taxed against the two accused.
SO ORDERED. 15
The trial court ruled that the accused were liable for the crime of frustrated rape "with an eye to extending to
the two accused the benefit of the principle that in case of doubt criminal justice naturally leans in favor of the
milder form of penalty" 16 but that, because of the existence of "at least six (6) aggravating
circumstances, 17 not offset by any mitigating circumstance," 18the accused should each be meted the penalty
of reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it been committed with the
attendance of the above-mentioned aggravating circumstances, with absolutely no
offsetting mitigating circumstances, ought to be punished with the mandatory penalty of
death under the pertinent provisions of Section 11 and 23 of Republic Act No. 7659,
which amended Article 335 of the Revised Penal Code, and further amplified the
aggravating circumstances enumerated in Article 14 of the same code. But because
the crime committed here is "merely" frustrated rape for the reasons heretofore
discussed, attended by the aforementioned six aggravating circumstances, not offset
by even one mitigating circumstance, the proper penalty to be imposed upon the two
principals, the two accused herein, both co-conspirators, by direct participation and
indispensable cooperation, of the frustrated rape, should be one degree lower than the
indivisible afflictive penalty of death, which is also the indivisible afflictive penalty
of reclusion perpetua which, under Section 21 of the amendatory statute, shall range
from twenty years and one day to forty years. 19
In their appeal to this court, the two convicted accused interposed the following assignment of errors:

Following the trial and submission of the case for decision, the court
a quo, 14 on 01 March 1996, found the two accused guilty beyond reasonable doubt of the crime of "frustrated
rape" and sentenced them accordingly; thus:
WHEREFORE, premises considered, the Court hereby finds guilty beyond reasonable
doubt the two accused Agapito "Petoy" Quianola and Eduardo
Escuadro, alias "Batiquil", as principals by direct participation and indispensable
cooperation of the frustrated rape of the complaining witness Catalina "Cathy" Carciller,
and considering the attendance in the commission of the crime of the six (6)
aggravating circumstances aforementioned, not offset by any mitigating circumstance,
hereby sentences these two accused individually toReclusion Perpetua of Forty (40)
Years, plus all the accessory penalties prescribed by law, and to pay the offended party
civil indemnity in the amount of P50,000.00 each.
The Court also hereby recommends that under no circumstance should the two
accused be granted parole or conditional or absolute pardon, in view of the extreme
moral turpitude and perversity which they exhibited in the commission of the crime
not until they shall have served at least thirty (30) years of the full range of forty (40)

I. THE COURT ERRED IN DISREGARDING THE

INCONSISTENCIES OF THE PROSECUTION WITNESSES
WHICH IF THOROUGHLY CONSIDERED COULD HAVE
ALTERED THE DECISION IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF
COMPLAINING WITNESS CARCILLER EVEN IF THE SAME
WERE CLOUDED WITH GRAVE INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING THE
TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS
WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER THE
REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF
THE SAME WERE NOT CONTROVERTED.

V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO

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

A I said I will not sit down.

TRIAL PROS. NAZARENO:
Q What did Agapito Quianola do, if any, when you resisted?
A He pointed his gun to me.
Q When he pointed a gun at you, referring to Agapito
Quianola, what did he say?
A He said that if I will not accede to what he wanted me to do
and if I will shout, he will kill me.
Q What did you do when you heard those words coming from
Agapito Quianola?
A I cried.

The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and
will not be disturbed on appeal in the absence of any clear showing that the trial court has "overlooked,
misunderstood or misapplied facts or circumstances of weight and substance" that could have consequential
effects. The stringency with which appellate tribunals have observed this rule is predicated on the undisputed
vantage of the trial court in the evaluation and appreciation of testimonial evidence. 22
In assailing Catalina's credibility, as against the assessment made by the trial court which has described the
victim's testimony to be impressed with "candor, spontaneity and naturalness," appellants theorize that the
sexual intercourse, if indeed true, could have only been committed against Catalina in a sitting position,
contrary to her declaration of having been made to lie on the ground because her T-shirt, marked Exhibit E, is
"not tainted with mud at all especially the back if she were made to lie down." 23The Court finds this so-called
incongruity committed by the complainant to a feeble attempt to discredit her testimony. The Court is
convinced of the sexual assault made against her. Here follows the testimony of Catalina on this score.
Q You said that you were forced by Agapito Quianola to sit
down, where were you forced to sit down, in what particular
place or area?
A Just behind the back of the school.
Q You were forced to sit down on the ground?

Q When you cried what did Agapito Quianola do, if any?

A He ordered Eduardo Escuadro to remove my pants and
panty.
COURT
Q Why what were you wearing at that time?
A Pants.
Q What kind of pants?
A Denim.
TRIAL PROS. NAZARENO

A Yes.

Q Now, after Agapito Quianola ordered Eduardo Escuadro to

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

Q In effect did you sit down as ordered by him?

A He did what Agapito Quianola commanded him.

A I resisted.

COURT:

COURT:

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

Q How did you resist?

A I cried and tried to free myself.

TRIAL PROS. NAZARENO

TRIAL PROS. NAZARENO:

Q Now, when Eduardo Escuadro removed your pants and

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

Q When Agapito Quianola lay on top of you and made a push

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

A He unzipped his pants.

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

Q After that what happened?

Q What is this something hard that you felt that touched the lips
of your vagina or vulva?

In effect, were your pants and panty removed by Eduardo

Escuadro?
A Yes.

A His organ or penis.

Q When Agapito Quianola unzipped his pants, did you see his
penis?

Q Now, you said Agapito Quianola opened his fly or unzipped

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

A Yes.

A He approached me and lay on top of me.

Q You also said that Eduardo Escuadro took his turn and laid
on top of you and made a push and pull on you, specifically
what did Eduardo Escuadro do?

Q When Agapito Quianola approached you and laid on top of

you, what did Eduardo Escuadro do?

A The same as Agapito did, he was doing the push and pull
movement.

A He was holding on to my legs.

Q Then what happened after that?
A Agapito Quianola started to pump, to push and pull.
Q What did you do when Agapito Quianola was already on top
of you and made a push and pull on you?

Q What did you feel when Eduardo Escuadro was already on

top of you and made a push and pull on you?
A I held my breath.
Q Did you see the penis Eduardo Escuadro?
A No.

A I struggled to free myself.

Q After that what happened when Agapito Quianola was
already on top of you and kept on making a push and pull?

Q Now, did you feel that the penis of Escuadro inserted into
your vagina?
A I felt it on the lips of my vulva. 24

A Eduardo Escuadro took his turn.

Q What do you mean by took his turn, please specify what did
Escuadro do? He did what Agapito had just done to you?
COURT:
Q What did Agapito Quianola do to you actually?
A He lay on top of me and did a push and pull movement.

The fact that she must have been lying down when violated has even more been made clear by
the defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were on the
ground at the time when you were raped by these two
accused?
A They pointed a gun at me and ordered me to lie down.
Q Lie on the ground?

A Yes. 25
And on why her T-shirt was no longer soiled with mud when presented in court, Catalina creditably explained
that when it was offered in evidence, she had already dusted and rid it of grass particles. At all events, whether
appellants spent their lust on Catalina in a sitting position or lying down would not be of any real moment for
what remained clear, established rather convincingly by the prosecution, was that appellants had forced carnal
knowledge of the victim.
The reliance being made by appellants on the affidavit of Catalina in order to discredit her is likewise futile.
The Court has consistently ruled that discrepancies between the statement of an affiant in an affidavit and
those made on the witness stand do not necessary downgrade testimonial evidence. Ex parte affidavits are
usually incomplete and frequently prepared by an administrating officer and cast in the latter's language and
understanding of what the affiant has said. Quite frequently, the affiant would simply sign the affidavit after it
has been read to him or to her. 26
Not much differently could be said of Catalina's identification of appellants as being her ravishers. On the
witness stand, Catalina explained that while she gave appellant Escuadro's nickname "Botiquil" to the
investigating police officer, the latter did not mention that name in the affidavit because, according to the
officer, the affidavit was merely a "shortcut". In her testimony, she was categorical that she had known
appellants even before the rape incident. She knew that appellant Quianola was a policeman and a "popular
maldito" (nasty) in the locality. 28 Catalina knew that appellant Escuadro, a resident of Punla-an far from her
own abode, was commonly known as "Batiquil" (Botiquil). She could not have been mistaken in the
identification of the culprits since appellants themselves held a flashlight which they used that added to the
illumination shed by a fluorescent lamp and two bulbs on the side of a house only some meters away.
As regards the allegation of appellants that the testimony of Catalina contradicted in certain respects that of
prosecution witness Rufo Ginto, suffice it to say that the testimony of Rufo Ginto (who was noted by the trial
court not to be "an intelligent witness" 29) was merely corroborative in nature and neither dealt with the actual
commission of the crime nor delved on material points.
Catalina's candid and straightforward narration of the two sexuals assaults perpetrated on her on the night of
the incident unmistakably deserves credence. It is unbelievable that a young barrio lass would concoct a tale
of defloration publicly admit having been ravished and her honor tainted allow the examination of her private
parts, and undergo all the trouble and inconvenience not to mention the trauma and scandal of a public trial
had she not in fact been raped and truly moved to protect and preserve her honor as well as to obtain justice,
for the wicked acts committed against her. 30 There is no plausible reason why Catalina should testify against
appellants, imputing upon them so grave a crime as rape if it did not happen. This Court has consistently held
that where there is no evidence to show any dubious reason or improper motive why a prosecution witness
should testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith
and credit. 31 So, also, the Court has repeatedly said that the lone testimony of the victim in a rape case, if
credible, is enough to sustain a
conviction. 32
The positive identification of appellants as being the perpetrators of the crime effectively effaces their
alibi. 33 The rule is that affirmative testimony is far weightier than a mere denial, especially when it comes from
the mouth of a credible witness. 34 Moreover, alibi might be aptly considered only when an accused has been
shown to be in some other place at the crucial time and that it would have been physically impossible for him
to be at the locus criminis or its immediate vicinity at the time of the commission of the crime. 35
In the context it is used in the Revised Penal Code, "carnal knowledge" unlike its ordinary connotation of
sexual intercourse, does not necessarily require that the vagina be penetrated or that the vagina be
penetrated or that the hymen be ruptured. 36 The crime of rape is deemed consummated even when the man's
penis merely enters the labia or lips of the female organ 37 or, as once so said in a case, by the "mere touching

of the external genitalia by a penis capable of consummating the sexual act." 38 In People vs. Escober, 39 in
convicting a father of having raped twice his 1l-year-old daughter, the Court has said:
While the evidence may not show full penetration on both occasions of rape the
slightest penetration is enough to consummate the offense in fact there was vulva
penetration in both cases. The fact that the hymen was intact upon examination does
not belie rape for a broken hymen is not an essential element of rape not does the fact
that the victim has remained a virgin negate the crime. What is fundamental is that the
entrance of at least the introduction, of the male organ into the labia of the pudendum
is proved. As in the case at bar it can be said that there was penetration although
incomplete, and it was sufficient to prove carnal knowledge of a child under twelve
years of age. A medical examination is not an indispensable element in a prosecution
for rape. The accused may be convicted on the sole basis of complainant's testimony
of credible and the findings of the medico-legal officer do not disprove the commission
of rape.
There are half measures or even quarter measures nor is their gravity graduated by the
inches of entry. Partial penile penetration is as serious as full penetration. The rape is
deemed consummated in either case. In a manner of speaking, bombardment of the
drawbridge is invasion enough even if the troops do not succeed in entering the
castle. 40(Emphasis supplied.)
In another case, People vs. Gabayton, 41 where the accused has been found guilty of raping his
daughter then less than twelve years old, the Court has observed:
Accused appellant draws attention to the fact that based on the medico-legal findings,
there is no showing that his daughter's hymen was penetrated, nor was there any
evidence of injuries inflicted. However, jurisprudence is well-settled to the effect that for
rape to be consummated, rupture of the hymen is not necessary, nor is it necessary
that the vagina sustained a laceration especially if the complainant is a young girl. The
medical examination merely stated that the smallness of the vaginal orifice only
precludes COMPLETE penetration. This does not mean that rape has not been
committed. The fact that there was no deep penetration of the victim's vagina and that
her hymen was intact does not negate rape, since this crime is committed even with
the slightest penetration of a woman's sex organ. Presence of a laceration in the
vagina is not an essential prerequisite to prove that a victim has been raped. Research
in medicine even points out that negative findings are of no significance, since the
hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have
been reported in women with unruptured hymen. Entry of the labia or lips of the female
organ merely, without rupture of the hymen or laceration of the vagina, is sufficient to
warrant conviction. What must be proven in the crime of rape is merely the introduction
of the male organ into the labia of the pudendum and not the full penetration of the
complainant's private part. As we held in Baculi: "there could still be a finding of rape
even if despite the repeated intercourse over a period of four years the complainant still
retained an intact hymen without signs of injury." In the case at bench, Summer's
testimony has established without a doubt that accused-appellants organ managed to
come into contact with her vagina, enough to cause her pain. 42 (Emphasis supplied.)
In its recent holding in People vs. Echegaray, 43 the Court has declared that "a mere knocking at
the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of
rape as full entry into the victim's vagina is not required to sustain a conviction."
The trial court appellants only frustrated rape, ruled that there was no "conclusive evidence of penetration of
the genital organ of the offended party 44 in the (a) Catalina had admitted that she did not spread her legs and
(b) the medico-legal officer's findings showed she did not sustain any extragenital injuries and her hymenal

orifice was so small that an erect average-size penis would not have completely penetrated it would causing
laceration. It would seem that the trial court failed to consider Catalina's testimony in its entirely she testified:
Q And when he mounted on top of you Escuadro was holding
on to your two feet and all the time that he Quianola, was
making a push and pull on you Escuadro was holding on to
your two feet?

Q Now if Eduardo Escuadro was the one holding on both your

two legs how was Quianola able to place himself on top of
you?
A It was because Eduardo Escuadro had already released my
hands and Quianola was the one holding on to it already,
afterwards Eduardo Escuadro transferred to hold both my
legs. 46

A Yes.
COURT:
Q Your two feet?
A Yes.
ATTY. CREEP:
Q Now in other words since your two feet were held and
Eduardo Escuadro was waving (sic [moving]) slightly to your left
as you demonstrated your two feet became closer to each
other, it could not be spread?
A I was still struggling at that time to free myself and I do not
know whether my legs were speared out or not.

Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as
frustrated rape. In People vs. Orita, 47 the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his
victim, he actually attains his purpose and, from that moment also all the essential
elements of the offense have been accomplished. Nothing more is left to be done by
the offender, because he has performed the last act necessary to produce the crime.
Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil.
527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April
29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505). We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil.
559, People vs. Rabadan, et al., 53 Phil. 694; Unites States vs. Garcia, 9 Phil. 434)
because not all acts of execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape can ever be committed.

Q Did you spread your legs?

A No.
Q Since you did not spread your legs and Quianola was on
top of you, did you not bother to pull your legs, kick the one
holding it and pushed Quianola or do any harm to him?
A No, because I was already frightened considering that there
were two of them and they were armed. 45
This testimony would indicate that Catalina, considering her struggle to free herself,
understandably failed to notice whether her legs were spread apart or close together during her
ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs
when Quianola took her. Thus
Q At that time when he unzipped and your hands were free, did
you not attempt to hold his penis forcibly so that he will refrain
from raping you?
A I was not able to think of that because of my fear and besides
that Eduardo Escuadro was holding on to both my legs.

Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia,
50 Phil. 998 [1927] where, We found the offender guilty of frustrated rape there being
no conclusive evidence of penetration of the genital organ of the offended party.
However, it appears that this is a "stray" decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12,
1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on the occasion thereof. We are of
the opinion that this particular provision on frustrated rape is a dead provision. The
Eriia case, supra, might have prompted the law-making body to include the crime of
frustrated rape in the amendments introduced by said laws. 48
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has
retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by
reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term
frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being
merely a persistent lapse in language.
Each appellant is liable for two counts of consummated rape on account of a clear conspiracy between them
shown by their obvious concerted efforts to perpetrate, one after the other, the crime. Each of them therefore
is responsible not only for the rape committed personally by him but also for the rape committed by the other
as well. 49

Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 when rape is committed
with the use of a deadly weapon or by two persons, the crime is punishable by reclusion perpetuata to death.
Even while the information has failed to allege the use of a deadly weapon in the commission of the rape,
appellants can, nonetheless, be held accountable under that provision since the information has likewise
averred that the "above-named accused," referring to the two appellants, have conspiratorially committed the
crime.
Article 14 of the Revised Penal Code, 50 includes among its enumeration of generic aggravating circumstances
the fact that the crime is committed with the aid of armed men or persons who insure or afford impunity. The
fact alone, then, that a malefactor has sported a firearm does not, by itself, militate to aggravate crime. As
regards appellant Quianola, the aggravating circumstance of his being a member of the Philippine National
Police would have exposed him to the penalty of death 51under the amendatory provisions of Article 335 by
Republic Act No. 7659, had this circumstance been properly alleged in the information. The description by the
trial court of appellants as being "powerfully, built, brawny and mean-looking" as against the "short slender
easily cowed" 15-year-old victim would not here warrant a finding that abuse of superior strength has
aggravated the commission of the crime. The law should be deemed to have already considered this
circumstance in qualifying the crime to its "heinous" character rendering in that context abuse of superior
strength has an inherent element thereof. Neither may nighttime be considered an aggravating circumstance
in the absence of proof of its having been deliberately sought out by appellants to by appellants to facilitate the
commission of the offense. 52 Craft fraud or disguise 53 is a species of aggravating circumstance that denotes
intellectual trickery or cunning resorted to by an accused to aid in the execution of his criminal design or to lure
the victim into a trap and to conceal the identity of the accused. The fact that one of the appellants has
pretended to be a member of the New People's Army does not necessarily imply the use of craft, fraud or
disguise, in the commission of the crime Finally, the Court does not subscribe to the view of the trial court that
accused-appellants have employed means which added ignominy to the natural effects of the crime,
particularly in "stripp(ing) the victim of her denim parts and panties and then sending her home in this
humiliating and distressing condition. 54 There is nothing on record that even remotely suggests that accusedappellants so deliberately sought to leave Catalina with bottoms bare that she might be left alone in shame
with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the commission of a crime punishable by two (2) indivisible
penalties, such as reclusion perpetua to death would justify even without any mitigating circumstance, the
imposition of the lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended party and indemnity in the amount of
P50,000.00. Prevailing jurisprudence 55 likewise allows the victim is have an award of moral damages for
having evidently undergone mental physical and psychological sufferings. The availability of appellants being
on delict is solidary. 56

Jessica Castro charged the plaintiff Arnulfo Orande for raping her four times
between 1994 to 1996 while the former was still a minor (between 9-12 years old).
The complainant contends that all were executed by means of threat and intimidation,
threatening her of feat if she resists. RTC convicted Orande two counts of simple
rape, one statutory and one frustrated. The accused appealed that the court had a
grave error on convicting him of frustrated rape despite the fact that there is no such
crime.
Issue:
WON there is a crime of frustrated rape?
Ruling:
The court said no, there is no crime of frustrated rape. In People vs. Orita, it
was reiterated that in the crime of rape, the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and from that moment, all the
elements of the crime is consummated. Since the offender has performed the last act
necessary to the crime, there is nothing more left to be done by the offender. Thus, it
is consummated rape. Also, perfect penetration is not essential in consummating
rape, mere or any penetration of the female organ by the male organ is sufficient.
Necessarily, when there is no penetration of the female organ, the rape is considered
attempted because not all acts of execution was performed. Considering all the
elements and manner of execution of the crime of rape and all jurisprudence on the
mater, it is hardly conceivable how the frustrated stage can be committed.
WHEREFORE, the court ruled that the RTC commited an error on convicting Orande

WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo Escuadro y Floro are each found guilty
beyond reasonable doubt of two (2) counts of consummated rape and accordingly, sentenced to the penalty
of reclusion perpetua in each case. Said appellants are ordered to pay jointly and severally Catalina Carciller
the sum of P100,000.00 by way of indemnity ex delictu for the two counts of consummated rape plus
P60,000.00 moral damages. Costs against appellants.1wphi1.nt

the crime of frustrated rape, for in fact, the rape was consummated. Hence, Orande
should be found guilty of consummated rape rather that frustrated

G.R. No. 188979

September 5, 2012

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
People vs. Arnulfo Chavez Orande
Facts:

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

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 Childrens Desk of the Mandaluyong City Police
Station and reported the incident.12

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

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

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 abovenamed 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

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 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 sisters 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 AAAs 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 AAAs cry got louder; AAA kicked the appellants
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

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

At around 6:00 a.m. of the same day, AAAs 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

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 victims

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

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 P 50,000.00 as moral damages and P 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
appellants penis touched AAAs vagina as he was trying to insert it.

lack of tenacity in resisting the appellants sexual aggression did not amount
to consent or voluntary submission to the criminal act. 18

A: I didnt mind it because I thought that the person beside me just moved
and when he made the movement, its like that I was embraced, maam.

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 victims vagina. He added that the victims
testimony was incredible and contrary to human experience.

Q:

Whom are you referring to?

A:

My brother-in-law, maam.

Q:

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

THE COURTS RULING

We find that the prosecution failed to prove the appellants 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.

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,
maam.
Q:

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

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-inlaw, maam.
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, maam.

Q:

What was your position while he was kissing your neck?

FISCAL TRONCO:

A:

I was on my side at that time and I was also crying, maam.

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?

xxxx

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

follows:

A:

It was like somebody was embracing me or hugging me, maam.

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

Q:

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

A:

I was afraid of what will happen next, maam.

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

A:

Yes, maam.

Q:

What about him?

xxxx

A:

He was on my lap, maam.

Q:

xxxx

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, maam.
Q:

When did this happen, AAA?

A:

Also on said date, maam.

Q:

You said that you saw him take off his short pants?

A:

Yes, maam.

xxxx
Q:

Did he also take off his brief?

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

A:

Yes, maam.

A:

xxxx

Yes, maam.

xxxx

Q:

Q:

Was he able to take off your clothes?

A:

Yes, maam.

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, maam.

Q:

What particular clothing was he able to take off?

A:

My short pants and underwear, maam.

And after that what happened, AAA?

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, maam.

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

Q:

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

A:

A:

He tried to insert his sexual organ but he was not able to do so, maam.

xxxx

Q:

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

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

A:

"Naidikit po niya sa ari ko."

Q:

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

A:

I tried to fight him off, maam.

I was lying down, maam.

A:

On my sexual organ, maam.

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

Yes, maam.

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," maam.
xxxx
Q:

And were you able to successfully resist?

A: Yes, maam, I was able to kicked (sic) his upper thigh, maam. 23 (italics
supplied; emphasis ours)
From the foregoing, we find it clear that the appellants penis did not
penetrate, but merely touched (i.e.,"naidikit"), AAAs private part. In fact, the
victim confirmed on cross-examination that the appellant did not
succeed in inserting his penis into her vagina. Significantly, AAAs
Sinumpaang Salaysay24 also disclosed that the appellant was holding the
victims hand when he was trying to insert his penis in her vagina. This
circumstance coupled with the victims declaration that she was resisting
the appellants attempt to insert his penis into her vagina makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the
records supports the CAs conclusion that the appellants penis penetrated,
however slightly, the victims female organ.
Did the touching by the appellants penis of the victims 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. AAAs
testimony did not establish that the appellants penis touched the labias or
slid into her private part. Aside from AAAs testimony, no other evidence on
record, such as a medico-legal report, could confirm whether there indeed

had been penetration, however slight, of the victims 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 AAAs 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 appellants acts
demonstrated the unmistakable objective to insert his penis into the victims
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 victims 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 appellants 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 victims 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 appellants 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 accuseds conviction for rape, and convicted him of attempted rape
only, because we found the victims testimony too ambiguous to prove the
vital element of penile penetration. We added that the victims 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 victims 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 accuseds conviction for rape, and found him guilty of attempted
rape only.
In People v. Ocomen,35 the Court also set aside the appellants 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 appellants 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 accuseds penis entered the victims vagina. We added that
the pain that the victim felt might have been caused by the accuseds failed
attempts to insert his organ into her vagina.
In People v. Mariano,37 the accused tried to insert his penis into the victims
vagina, but failed to secure penetration. The Court set aside the accuseds
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 victims 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 accuseds 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.

In addition, we order the appellant to pay the victim P 30,000.00 as civil

indemnity, P 25,000.00 as moral damages and P 10,000.00 as exemplary
damages, in accordance with prevailing jurisprudence on attempted rape
cases.43

1wphi1

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 accuseds 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 victims statements that the accused was "trying to force his sex organ
into mine" and "binundol-undol ang kanyang ari" did not prove that the
accuseds penis reached the labia of the pudendum of the victims 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.

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 P 30,000.00 as
civil indemnity; P 25,000.00 as moral damages; and P 10,000.00 as
exemplary damages.
SO ORDERED.

G.R. No. 166441

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.

October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction
between attempted rape and acts of lasciviousness. The felony of attempted
rape requires such intent; the felony of acts of lasciviousness does not. Only
the direct overt acts of the offender establish the intent to lie with the female.

However, merely climbing on top of a naked female does not constitute

attempted rape without proof of his erectile penis being in a position to
penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, 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, the victim.
1

Antecedents
The petitioner was charged in the RTC with attempted rape and acts of
lasciviousness involving different victims. At arraignment, he pleaded not
guiltyto the respective informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar,Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force and intimidation
commenced the commission ofrape directly byovert acts, to wit: While private
complainant AAA, an unmarried woman, fifteen (15) yearsold, was sleeping
inside the tentalong Bangar-Luna Road, the said accused remove her panty
and underwear and lay on top of said AAA embracing and touching her
vagina and breast with intent of having carnal knowledge of her by means of
force, and if the accused did not accomplish his purpose that is to have
carnal knowledge of the said AAA it was not because of his voluntary
desistance but because the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and prejudice of said
offended party.
CONTRARY TO LAW.

Criminal Case No. 2389

Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 oclock in the
morning, along the Bangar-Luna Road, Barangay Central West No. 2,
Municipality of Bangar, Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the
vagina of [BBB] against the latters will and with no other purpose but to
satisfy his lascivious desire to the damage and prejudice of said offended
party.
4

CONTRARY TO LAW.

Version of the Prosecution

The CA summarized the version of the Prosecution as follows:

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were

engaged in the selling of plastic wares and glass wares in different
municipalities around the country. On December 20, 1993, Norberto and
Belinda employed AAA and BBB to help them in selling their wares in
Bangar, La Union which was then celebrating its fiesta. From Libsong East,
Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a
passenger jeepney owned by Norberto. The young girls were accompanied
by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name
of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December
20, 1993, they parked in front of Maroon enterprises. They brought out all the
goods and wares for display. Two tents were fixed in order that they will have
a place to sleep. Belinda and the driver proceeded to Manila in order to get
more goods to be sold.
On December 21, 1993, at around 1:00 oclock in the morning, AAA and BBB
went to sleep. Less thanan hour later, AAA was awakened when she felt that
somebody was on top of her. Norberto was mashing her breast and touching
her private part. AAA realized that she was divested of her clothing and that
she was totally naked. Norberto ordered her not to scream or shell be killed.

AAA tried to push Norberto away and pleaded to have pity on her but her
pleas fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her
money and told her not totell the incident to her mother otherwise, she will be
killed. AAA went out of the tent to seek help from Jess (the house boy) but
she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto
touching the private parts of BBB. AAA saw her companion awake but her
hands wereshaking. When she finally entered the tent, Norberto left and went
outside.

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

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.

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, to wit:

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".

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.

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

With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby

sentences the accused to suffer an indeterminate penalty of imprisonment
from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum
and the accessory penalties provided for by law, and to pay the victim
BBBthe amount of P10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by reason of the two
cases is counted in his favor.

SO ORDERED.

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, holding thusly:

In this case, the evidence adducedby the prosecution is insufficient to

substantiate the charge of acts of lasciviousness against the
accusedappellant. The basis of the complaint for acts of lasciviousness is the
sworn statement of BBB to the effectthat the accused-appellant likewise
molested her by mashing her breast and touching her private part. However,
she was not presented to testify. While AAA claims that she personally saw
the accused touching the private parts of BBB, there was no testimony to the
effect that suchlascivious acts were without the consent or against the will of
BBB.
11

Issues

10

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 perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty
shall be the medium period of prision mayorin the absence of any mitigating
or aggravating circumstance and the minimum shall be within the range of
the penalty nextlower to that prescribed for the offense which in this case is
prision correccionalin any of its periods.
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 appeal, the petitioner posits that the CAs decision was not in accord
with law or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony
of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the
prosecution to prove the guilt of the petitioner beyond reasonable
doubt.
Anent the first issue, the petitioner assails the behavior and credibility of
AAA. He argues that AAA still continued working for him and his wife until
December 30, 1994 despite the alleged attempted rape in the early morning
of December 21, 1994, thereby belying his commission of the crime against
her; that he could not have undressed her without rousing her if she had
gone to sleep only an hour before, because her bra was locked at her back;
that her testimony about his having been on top of her for nearly an hour
while they struggled was also inconceivable unless she either consented to
his act and yielded to his lust, or the incident did not happen at all, being the
product only of her fertileimagination; that the record does not indicate if he
himself was also naked, or that his penis was poised to penetrate her; and
that she and her mother demanded from him P80,000.00 as settlement,
under threat that she would file a case against him.
12

On the second issue, the petitioner assails the glaring inconsistencies in the
testimony of AAA that cast doubt on her veracity.
Ruling of the Court

The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court, the Court reviews only
questions of law. No review of the findings of fact by the CA is involved. As a
consequence of thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and
the probative weight of their testimonies and the conclusions drawn from its
factual findings, particularly when they are affirmed by the CA. Judicial
experience has shown, indeed, that the trial courts are in the best position to
decideissues of credibility of witnesses, having themselves heard and seen
the witnesses and observed firsthand their demeanor and deportment and
the manner of testifying under exacting examination. As such, the
contentionsof the petitioner on the credibility of AAA as a witness for the
State cannot beentertained. He thereby raises questions of fact that are
outside the scope of this appeal. Moreover, he thereby proposes to have the
Court, which is not a trier of facts, review the entire evidence adduced by the
Prosecution and the Defense.
13

Conformably with this limitation, our review focuses only on determining the
question of law of whether or not the petitioners climbing on top of the
undressed AAA such thatthey faced each other, with him mashing her
breasts and touching her genitalia with his hands, constituted attempted
rape, the crime for which the RTC and the CA convicted and punished him.
Based on the information, supra, he committed such acts "with intent of
having carnal knowledge ofher by means of force, and if the accused did not
accomplish his purpose that is to have carnal knowledge of the said AAA it
was not because of his voluntary desistance but because the said offended
party succeeded in resisting the criminal attempt of said accused to the
damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when
the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than this own spontaneous
desistance. In People v. Lamahang, the Court, speaking through the
eminent Justice Claro M.Recto, eruditely expounded on what overt acts
would constitute anattempted felony, to wit:
14

It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;

that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the
standpoint of the Penal Code. xxxx But it is not sufficient, for the purpose of
imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect,
with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said
beginning of execution, if carried to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage iswanting, the nature of the action
intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts of execution (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any
doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation, that is, in favor as well as against the culprit, and
which show an innocent aswell as a punishable act, must not and cannot
furnish grounds by themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense
of which said facts are supposed to produce must be direct; the intention
must be ascertainedfrom the facts and therefore it is necessary, in order to
avoid regrettable instance of injustice, that the mind be able to directly infer
from them the intention of the perpetrator to cause a particular injury. This
must have been the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed must be such
that, withoutthe intent to commit an offense, they would be meaningless."
15

To ascertain whether the acts performed by the petitioner constituted

attempted rape, we have to determine the law on rape in effect on December
21, 1993, when the petitioner committed the crime he was convicted of. That

law was Article 335 of the Revised Penal Code, which pertinently provided as
follows:
Article335. When and how rape is committed. Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived ofreason or otherwise unconscious;
and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
xxxx
The basic element of rape then and now is carnal knowledge of a female.
Carnal knowledge isdefined simply as "theact of a man having sexual bodily
connections with a woman," which explains why the slightest penetration of
the female genitalia consummates the rape. In other words, rape is
consummated once the peniscapable of consummating the sexual act
touches the external genitalia of the female. In People v. Campuhan, the
Court has defined the extent of "touching" by the penis in rape in the
following terms:
16

17

18

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

The pudendumor vulvais the collective term for the female genital organs that
are visible in the perineal area, e.g., mons pubis, labia majora, labia minora,
the hymen, the clitoris, the vaginal orifice, etc. The mons pubisis the rounded
eminence that becomes hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majoraor the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin
of the outer convex surface is covered with hair follicles and is pigmented,
while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majorais the labia
minora. Jurisprudence dictates that the labia majoramust be entered for rape
to be consummated, and not merely for the penis to stroke the surface of the
female organ. xxxx Thus, a grazing of the surface of the female organ or
touching the mons pubisof the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendumby the penis,
there can be no consummated rape; at most, it can only be attempted rape, if
not acts of lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita, the Court clarified that the ruling in
People v. Eriia whereby the offender was declared guilty of frustrated
rapebecause of lack of conclusive evidence of penetration of the genital
organ of the offended party, was a stray decisionfor not having been
reiterated in subsequent cases. As the evolving case law on rape stands,
therefore, rape in its frustrated stage is a physical impossibility, considering
that the requisites of a frustrated felony under Article 6 of the Revised Penal
Codeare that: (1) the offender has performed all the acts of execution which
would produce the felony; and (2) that the felony is not produced due to
causes independent of the perpetrators will. Obviously, the offender attains
his purpose from the moment he has carnal knowledge of his victim, because
from that moment all the essential elements of the offense have been
accomplished, leaving nothing more to be done by him.
19

20

21

Nonetheless, rape admits of an attempted stage. In this connection, the

character of the overt actsfor purposes of the attempted stage has been
explained in People v. Lizada:
22

An overt or external act is defined as some physical activity or deed,

indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor

by the spontaneous desistance of the perpetrator, will logically and

necessarily ripen into a concrete offense. The raison detrefor the law
requiring a direct overtact is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is
that quality of being equivocal that must be lacking before the act becomes
one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is.It is
necessary that the overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the
offense after the preparations are made." The act done need not constitute
the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and necessary relation to the
offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender
does not perform all the acts of execution of having carnal knowledge. If the
slightest penetration of the female genitalia consummates rape, and rape in
its attempted stage requires the commencement of the commission of the
felony directly by overt actswithout the offender performing all the acts of
execution that should produce the felony, the only means by which the overt
acts performed by the accused can be shown to have a causal relation to
rape as the intended crime is to make a clear showing of his intent to lie with
the female. Accepting that intent, being a mental act, is beyond the sphere of
criminal law, that showing must be through his overt acts directly connected
with rape. He cannot be held liable for attempted rape withoutsuch overt acts
demonstrating the intent to lie with the female. In short, the State, to establish
attempted rape, must show that his overt acts, should his criminalintent be
carried to its complete termination without being thwarted by extraneous
matters, would ripen into rape, for, as succinctly put in People v. Dominguez,
Jr.: "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."

from his clutches and effectively ended his designs on her. Yet, inferring from
such circumstances thatrape, and no other,was his intended felony would be
highly unwarranted. This was so, despite his lust for and lewd designs
towards her being fully manifest. Such circumstances remained equivocal, or
"susceptible of double interpretation," as Justice Recto put in People v.
Lamahang, supra, such that it was not permissible to directly infer from them
the intention to cause rape as the particular injury. Verily, his felony would not
exclusively be rapehad he been allowed by her to continue, and to have
sexual congress with her, for some other felony like simple seduction (if he
should employ deceit to have her yield to him) could also be ultimate felony.
26

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. His
preparatory acts could include his putting up of the separate tents, with one
being for the use of AAA and BBB, and the other for himself and his
assistant, and his allowing his wife to leave for Manila earlier that evening to
buy more wares. Such acts, being equivocal, had no direct connection to
rape. As a rule, preparatory acts are not punishable under the Revised Penal
Codefor as long as they remained equivocal or of uncertain significance,
because by their equivocality no one could determine with certainty what the
perpetrators intent really was.
27

28

If the acts of the petitioner did not constitute attempted rape, did they
constitute acts of lasciviousness?

23

24

25

It is obvious that the fundamental difference between attempted rape and

acts of lasciviousness is the offendersintent to lie with the female. In rape,
intent to lie with the female is indispensable, but this element is not required
in acts of lasciviousness. 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. Without such showing, only the felony of acts of lasciviousness is
committed.
29

30

31

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

Based on Article 336 of the Revised Penal Code, the felony of acts of
lasciviousness is consummated whenthe following essential elements
concur, namely: (a) the offender commits any act of lasciviousness or
lewdness upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived ofreason or is
otherwise unconscious; or (iii) when the offended party is under 12 years of
age. In that regard, lewdis defined as obscene, lustful, indecent, lecherous;
it signifies that form of immorality that has relation to moral impurity; or that
which is carried on a wanton manner.

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty
of acts of lasciviousness, is punished with prision correccional. In the
absence of modifying circumstances, prision correccional is imposed in its
medium period, which ranges from two (2) years, four (4) months and one
day to four (4) years and two (2) months. Applying the Indeterminate
Sentence Law, the minimum of the penalty should come from arresto mayor,
the penalty next lower than prision correccionalwhich ranges from one (1)
month to six (6) months. Accordingly, the Court fixes the indeterminate
sentence of three (3) months of arresto mayor, as the minimum, to two (2)
years, four (4) months and one day of prision correccional, as the maximum.

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.

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." Indeed, Article 2219, (3), of the Civil Code expressly recognizes
the right of the victim in acts of lasciviousness to recover moral
damages. Towards that end, the Court, upon its appreciation of the record,
decrees that P30,000.00 is a reasonable award of moral damages. In
addition, AAA was entitled to recover civil indemnity of P20,000.00.

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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, where the accused was charged with attempted rape through an
information alleging that he, by means of force and intimidation, "did then and
there willfully, unlawfully and feloniously commence the commission of the
crime of Rape directly by overt acts, by then and there kissing the nipples
and the vagina of the undersigned [complainant], a minor, and about to lay
on top of her, all against her will, however, [he] did not perform all the acts of
execution which would have produced the crime of Rape by reason of some
causes other than his own spontaneous desistance, that is, undersigned
complainant push[ed] him away." The accused was held liable only for acts of
lasciviousness because the intent to commit rape "is not apparent from the
actdescribed," and the intent to have sexual intercourse with her was not
inferable from the act of licking her genitalia. The Court also pointed out that
the "act imputed to him cannot be considered a preparatory act to sexual
intercourse."
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Under Article 2211 of the Civil Code, the courts are vested with the discretion
to impose interest as a part of the damages in crimes and quasidelicts. In
that regard, the moral damages of P20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full payment.
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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.

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SO ORDERED.