THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE LIZADA @ FREDIE LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision 1[1] of the Regional Trial Court of Manila, Branch 54, finding accusedappellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the
death penalty for each count.
I. The Charges
Accused-appellant2[2] was charged with four (4) counts of qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:
That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having
carnal knowledge with the said ANALIA ORILLOSA y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then
and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter
removing her skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having
carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then
and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter
removing her skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.3[3]
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to
each of the charges.4[4] A joint trial then ensued.
II. Evidence of the Prosecution5[5]
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia, who
was born on December 18, 1985;6[6] Jepsy, who was 11 years old, and Rossel, who was nine years old. However, the
couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children. She
worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad Santos
Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan, bought a truck
and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She
sold Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-shirt
and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her vagina.
Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ. Satiated,
accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her. Accusedappellant then returned to his room. The incident lasted less than one hour. Petrified by the threats on her life, Analia
kept to herself what happened to her. 7[7]
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and held
her legs and arms. He then inserted his finger into her sex organ (fininger niya ako). Satiated, accused-appellant left

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the room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times a
week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments. Accusedappellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her room and
lay down in bed. She did not lock the door of the room because her brother might enter any time. She wanted to sleep
but found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however, entered the
room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind accusedappellant entering her room because she knew that her brother, Rossel was around. However, accused-appellant sat
on the side of her bed, placed himself on top of her, held her hands and legs and fondled her breasts. She struggled to
extricate herself. Accused-appellant removed her panty and touched her sex organ. Accused-appellant inserted his
finger into her vagina, extricated it and then inserted his penis into her vagina. Accused-appellant ejaculated. Analia
felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after drinking water from the refrigerator,
and peeped through the door. He saw accused-appellant on top of Analia. Accused-appellant saw Rossel and
dismounted. Accused-appellant berated Rossel and ordered him to go to his room and sleep. Rossel did. Accusedappellant then left the room. Analia likewise left the room, went out of the house and stayed outside for one hour. Rose
arrived home at 6:00 p.m. However, Analia did not divulge to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a
heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the house on board the
motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which
had not yet been returned. When Rose inquired from her daughter what she meant by her statement, ayoko na, ayoko
na, she told her mother that accused-appellant had been touching the sensitive parts of her body and that he had
been on top of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have accusedappellant placed under arrest. On November 10, 1998, the two proceeded to the Western Police District where Analia
gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to the
police investigator that accused-appellant had touched her breasts and arms in August, 1998, September 15, 1998,
October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia examination by Dr.
Armie Umil, a medico-legal officer of the NBI. The medico-legal officer interviewed Analia, told him that she was raped
in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m. 8[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained her findings during her
examination on Analia, thus:
xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. ----,
brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa, pinkish.
Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized
adult Filipino male organ in full erection without producing any genital injury. 9[9]
Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi ko. When Rose inquired
from her daughter what she meant by her statement, Analia revealed to her mother that accused-appellant had
sexually abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and charged
accused-appellant with rape.10[10]
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994 to
live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his own
children. He took care of them, as in fact he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was hard-headed
because she disobeyed him whenever he ordered her to do some errands. Because of Analias misbehavior, accusedappellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their house. Another
irritant in his and Roses lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay of
P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income of
P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact
disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them to
fabricate charges against him because Rose wanted to manage their business and take control of all the properties
they acquired during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict

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On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable
doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal
Code, and meted on him the death penalty for each count. The dispositive portion of the decision reads:
From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable
doubt of the crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.
SO ORDERED.11[11]
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND SUCH FAILURE IS A
REVERSIBLE ERROR.12[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 13[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it
failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the
1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its decision. The
trial court merely summarized the testimonies of the witnesses of the prosecution and those of accused-appellant and
his witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to state in said
decision the factual and legal basis for the imposition of the supreme penalty of death on him. The Solicitor General,
on the other hand, argues that there should be no mechanical reliance on the constitutional provision. Trial courts may
well-nigh synthesize and simplify their decisions considering that courts are harassed by crowded dockets and time
constraints. Even if the trial court did not elucidate the grounds as the legal basis for the penalties imposed,
nevertheless the decision is valid. In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance with the constitutional requirement as
the Court may resolve the case on its merits to avoid delay in the final disposition of the case and afford accusedappellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that no
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which
it is based. This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal
Procedure, as amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts
committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if
there are any; (b) the participation of the accused in the commission of the offense, whether as principal, accomplice,
or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by
the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the
civil liability by a separate action has been reserved or waived. 14[14]
The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by the
court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that
they were accorded their rights to be heard by an impartial and responsible judge. 15[15] More substantial reasons for
the requirement are:
For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may
elevate what he may consider its errors for review by a higher tribunal. For another, the decision if well-presented and
reasoned, may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of
prolonging the litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and
the law on which they are based, especially those coming from the Supreme Court, will constitute a valuable body of
case law that can serve as useful references and even as precedents in the resolution of future controversies. 16[16]
The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled
therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution. 17[17] Trial courts
should not merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary evidence of the parties then concluded
that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and
sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues
raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for
convicting accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-

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appellant with the curt declaration in the decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its
decision why it believed and gave probative weight to the evidence of the prosecution. Reading the decision of the trial
court, one is apt to conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme penalty of death on accused-appellant
for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code.
The decision of the trial court is a good example of what a decision, envisaged in the Constitution and the Revised
Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial court,
for compliance with the constitutional provision. However, to avert further delay in the disposition of the cases, the
Court decided to resolve the cases on their merits considering that all the records as well as the evidence adduced
during the trial had been elevated to the Court.18[18] The parties filed their respective briefs articulating their
respective stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to
disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two persons
are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution;
(3) the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the
weakness of the evidence of the defense.19[19] By the very nature of the crime of rape, conviction or acquittal
depends almost entirely on the credibility of the complainants testimony because of the fact that usually only the
participants can testify as to its occurrence. However, if the accused raises a sufficient doubt as to any material
element of the crime, and the prosecution is unable to overcome it with its evidence, the prosecution has failed to
discharge its burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an
acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re:CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22,
1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the
private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
Armie Umil show that the hymen of the private complainant was intact and its orifice so small as to preclude complete
penetration by an average size adult Filipino male organ in full erection without producing any genital injury. The
physical evidence belies private complainants claim of having been deflowered by accused-appellant on four different
occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996,
when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top
of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis
into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what
he did to her.20[20] Although private complainant did not testify that she was raped on September 15, 1998 and
October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of
private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed on or about
September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period, months or even two
or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was
committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21[21] this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of
which were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995
and one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:
That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of
Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by
means of force, violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated
carnal knowledge of Myra M. Gianan, against her will and consent, to her damage and prejudice. 22[22]
On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote from
the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being as near
to the actual date at which the offense was committed as provided under Section 11, Rule 110 of the Rules on Criminal
Procedure, as amended, this Court held:
Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date
(November 1995) alleged in the information, so that the latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple rape from November 1990 up to July 21, 1994, a time
difference of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated,
accused-appellants failure to raise a timely objection based on this ground constitutes a waiver of his right to object. 23
[23]
Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996
until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined the
private complainant on her testimony on direct examination. The presentation by the prosecution, without objection on

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the part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which includes
September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted a waiver by accusedappellant of his right to object to any perceived infirmity in, and in the amendment of, the aforesaid Informations to
conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the hymen of private complainant was
still intact has no substantial bearing on accused-appellants commission of the crime. 24[24] Even the slightest
penetration of the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated
rape. It is sufficient that there be entrance of the male organ within the labia of the pudendum.25[25] In People vs.
Baculi, cited in People vs. Gabayron,26[26] we held that there could be a finding of rape even if despite repeated
intercourse over a period of four years, the complainant still retained an intact hymen without injury. In these cases,
the private complainant testified that the penis of accused-appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
QWhat did he do while he was on top of you?
A

He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)

Q
Can you please describe more specifically what is this and I quote Pinatong nya yong ano nya and where did
he place it?
A

His organ, sir.

Where did he place his organ?

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

At this very juncture madam witness, what did you feel?

A
I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir.27[27] (Underlining
supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended
by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victims mother, is a special qualifying circumstance warranting the imposition of the
death penalty.28[28] However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110
of the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to
the accused.29[29] Hence, even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her mother, accused-appellant
is guilty only of simple rape. Under the given law, the penalty for simple rape is reclusion perpetua. Conformably with
current jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the amount of
P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape, or a total of P200,000.00.
Re:Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August 1998 and
November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date of
the offense on or about August 1998 alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint or information the precise date
the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have
been committed on a date as near as possible to the actual date of its commission. (11a) 30[30]
Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date on or about August 1998 is sufficiently definite. After all, the date of the commission of the crime of rape
is not an essential element of the crime. The prosecution adduced conclusive proof that accused-appellant raped
private complainant on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the
crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed
does not render the Information defective. The reason for this is that the gravamen of the crime of rape is carnal
knowledge of the private complainant under any of the circumstances enumerated under Article 335 of the Revised
Penal Code, as amended. Significantly, accused-appellant did not even bother to file a motion for a bill of particulars
under Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was arraigned. Indeed, accusedappellant was duly arraigned under the Information and entered a plea of not guilty to the charge without any plaint
on the sufficiency of the Information. Accused-appellant even adduced his evidence after the prosecution had rested
its case. It was only on appeal to this Court that accused-appellant questioned for the first time the sufficiency of the

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Information filed against him. It is now too late in the day for him to do so. Moreover, in People vs. Salalima,31[31] this
Court held that:
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective
on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the
offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under
Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to
the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that
allegations that rapes were committed before and until October 15, 1994, sometime in the year 1991 and the days
thereafter, sometime in November 1995 and some occasions prior and/or subsequent thereto and on or about and
sometime in the year 1988 constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal
Procedure.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took place,
we believe that the allegations therein that the acts were committed sometime during the month of March 1996 or
thereabout, sometime during the month of April 1996 or thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he was charged with since all the elements of rape were
stated in the informations. As such, appellant cannot complain that he was deprived of the right to be informed of the
nature of the cases filed against him. Accordingly, appellants assertion that he was deprived of the opportunity to
prepare for his defense has no leg to stand on.
The prosecution proved through the testimony of private complainant that accused-appellant raped her two times a
week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally liable
of rape. We agree with accused-appellant. The collective testimony of private complainant and her younger brother
Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked from waist
up, entered the bedroom of private complainant, went on top of her, held her hands, removed her panty, mashed her
breasts and touched her sex organ. However, accused-appellant saw Rossel peeping through the door and
dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-appellant
then left the room of the private complainant. The testimony of private complainant on direct examination reads:
Fiscal Carisma:
QIn between 1996 and August 1997?
A

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

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

Yes, sir.

What was this unusual experience of yours?

He laid himself on top of me, sir.

You said he whom are you referring to?

Freedie Lizada Jakosalem, sir.

The same person you pointed to earlier?

Yes, sir.

You said he placed himself on top of you in November, 1998, what did he do while he was on top of you?

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

What else if any madam witness?

He was also touching my sex organ, sir.

What else, if any?

Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch your sex
organ?
Witness:
With his hands, sir.

31

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

Yes, sir.32[32]

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

Atty. Balaba:
Q Who was that somebody who entered the room?
AMy stepfather Freedie Lizada, sir.
Q

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

Yes, sir, he was dressed then, sir.

And he had his pants on, is that correct?

He was wearing a short pants, sir.

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

He was not wearing any shirt then, sir, he was naked.

When you realized that somebody was entering the room were you not afraid?

No, sir, I was not afraid.

Q
What happened when you realized that somebody entered the room, and the one who entered was your
stepfather, Freedie Lizada?
A
I did not mind him entering the room because I know that my brother was around but suddenly I felt that
somebody was holding me.
Q

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

I was in the bed, sir, lying down.

You were lying down?

Yes, sir.

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

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

Q
Do you mean to tell us that he was holding your two arms and at the same time your legs, is that what you are
trying to tell us?
A

He held me first in my arms and then my legs, sir.

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

Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q

Your honor, I am just trying to - -

Court:
Proceed.
Atty. Balaba:
Q

He held your arms with his two hands?

Only with one hand, sir.

Which hand were you touched?

I do not know which hand, sir.

Which arm of yours was held by Freedie Lizada?

I could not recall, sir.

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

I cannot recall, sir.

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

He was sitting on our bed, sir.

Which side of your bed was Freedie Lizada sitting on?

I do not know, sir. I cannot recall.

Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.

32

Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A

I cannot recall, sir.

When this happened, did you not shout for help?

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

And you were not able to extricate yourself from him?

I was not able to extricate myself, sir.

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

No, sir, its not like that.

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

He suddenly went out of the room, sir.

Now, he went - - -

Court:
You did not shout during that time?
A

No, your honor.33[33]

Rossel, the nine-year old brother of the private complainant corroborated in part his sisters testimony. He testified on
direct examination, thus:
Fiscal Carisma: (continuing)
QNow, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A

I was outside our house, sir.

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

1252 Jose Abad Santos, Tondo, Manila, sir.

Court:
Q

The same address?

Yes, sir.

Fiscal Carisma:
Q

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

Yes, sir.

Where was she?

She was sleeping, sir.

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

No, sir.

Where did you go next?

Inside, sir.

For what purpose did you get inside your house?

Because I was thirsty, sir.

So you went to the fridge to get some water?

Yes, sir.

And what happened as you went inside your house to get some water?

I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of her, sir.

Do you see your stepfather inside the courtroom now?

Yes, sir.

Will you point to him?

He is the one, sir.

Court Interpreter:

33

Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q
This thing that your father was that your stepfather did to your elder sister, did you see this before or after you
went to the fridge to get some water?
A

I already got water then, sir.

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

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

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

Yes, sir.

So, what did you do as you were seen by your stepfather?

A
He scolded me, he shouted at me, he told me something and after that he went to the other room and slept,
sir.34[34]
Rossel testified on cross-examination, thus:
QSo you got thirsty, is that correct, and went inside the house?
A

Yes, sir.

And you took a glass of water from the refrigerator?

Yes, sir.

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

Yes, sir.

Where was this refrigerator located?

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

So the door of your sisters room was open?

Yes, sir.

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

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

Were you noticed by your sister at that time?

No, sir.

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

No, sir.

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

Yes, sir.

Did you not say something to the accused?

No, sir, I was just looking.

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

Yes, sir.

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

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

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

Here, sir.

Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q

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

Yes, sir.

What hand was he touching your sister?

This hand, sir.

Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q
And which part of your sisters body was the accused touching with his right hand? Your sisters body was the
accused touching with his right hand?
A

Her right leg, sir.

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

Removing her panty, sir.

Removing her?

34

Panty, sir.

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

Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand --Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q

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

Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q
Rather the right thigh of your sister and with his left hand removing the panty, is that what you are telling to
tell us?
A

Yes, sir.

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

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

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

Yes, sir.

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

Yes, sir.35[35]

In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the
aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally
liable for consummated rape.36[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of lasciviousness
defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code, as amended in
relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record, we believe that
accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
Art. 336. Acts of Lasciviousness.Any person who shall commit any act of lasciviousness upon other persons of either
sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.37
[37]
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of the
following essential elements:
1.That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age. 38[38]
Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to moral
impurity; or that which is carried on a wanton manner. 39[39]
The last paragraph of Article 6 of the Revised Penal Code reads:
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offenders act be not stopped by his own spontaneous desistance;

35
36
37
38
39

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.40
[40]
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed.41[41]
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. 42[42] The raison detre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the intent of the accused is. 43[43] It is necessary
that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was
the first or some subsequent step in a direct movement towards the commission of the offense after the preparations
are made.44[44] The act done need not constitute the last proximate one for completion. It is necessary, however, that
the attempt must have a causal relation to the intended crime. 45[45] In the words of Viada, the overt acts must have
an immediate and necessary relation to the offense.46[46]
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of
devising means or measures necessary for accomplishment of a desired object or end. 47[47] One perpetrating
preparatory acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a
consummated felony under the law, the malefactor is guilty of such consummated offense. 48[48] The Supreme Court of
Spain, in its decision of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for
designation of the offense.49[49]
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).50[50] Hence, it is necessary that the acts of the accused must be such that, by their nature,
by the facts to which they are related, by circumstances of the persons performing the same, and by the things
connected therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang51[51] that:
The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to
avoid regrettable instances of injustice, that the mind be able to cause a particular injury. 52[52]
If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty of
an attempted felony.53[53] The law does not punish him for his attempt to commit a felony. 54[54] The rationale of the
law, as explained by Viada:
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa,
despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y
espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un
perdon que concede la Ley al arrepentimiento voluntario.55[55]
As aptly elaborated on by Wharton:
First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act
to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long
as he is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such
retreat before it is possible for any evil consequences to ensue. Neither society, nor any private person, has been
injured by his act. There is no damage, therefore, to redress. To punish him after retreat and abandonment would be to
destroy the motive for retreat and abandonment.56[56]

40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal
liability for the intended crime but it does not exempt him from the crime committed by him before his desistance. 57
[57]
In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere
preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if not
for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from performing
all the acts of execution however his desistance was not spontaneous as he was impelled to do so only because of the
sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted rape. 58[58] In a case of
similar factual backdrop as this case, we held:
Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can
only be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and
kissing his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce
the crime of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the
victims brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years
of prision correccional as minimum to twelve (12) years of prision mayor as maximum.
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua.59[59] Accusedappellant should be meted an indeterminate penalty the minimum of which should be taken from prision correccional
which has a range of from six months and one day to six years and the maximum of which shall be taken from the
medium period of prision mayor which has a range of from eight years and one day to ten years, without any
modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in the amount of
P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET ASIDE.
Another judgment is hereby rendered as follows:
1.In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple rape
under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts of P50,000.00 by way
of civil indemnity and P50,000.00 by way of moral damages;
2.
In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335
of the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as minimum to ten years of prision mayor in its
medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the
amount of P25,000.00 by way of moral damages; and,
3.
In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable
doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby meted
the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private complainant
Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.
SO ORDERED.
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13,
1999 decision of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 12
denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case
No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as
follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty." 5 Thereafter, trial on the
merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian
Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street, Sampaloc,
Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom
door, her maid, Marvilou, slept on a folding bed.

57
58
59

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her
face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted
to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993,
p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free. With this
the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom,
MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not,
however, know. The only thing she had made out during their struggle was the feel of her attackers clothes and
weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17).
He was wearing a t-shirt and shorts Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel
Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July 5, 1993, pp.
13-14). Aside from the window with grills which she had originally left opened, another window inside her bedroom was
now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers to Question
number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior to the
attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she
rejected him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning
of December 13, 1991, wearing a white t-shirt with a marking on the front of the T-shirt T M and a Greek letter (sic)
and below the quoted letters the word 1946 UST Medicine and Surgery (TSN, October 9, 1992, p. 9) and black
shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and requested permission to go up to Room 306.
This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused
[but later, relented] . S/G Ferolin made the following entry in the security guards logbook :

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said
so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa
(Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the time CHITOs
knocking on the door woke him up, . He was able to fix the time of CHITOs arrival at 1:30 A.M. because he glanced
at the alarm clock beside the bed when he was awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. .
It was at around 3 oclock in the morning of December 13, 1991 when he woke up again later to the sound of knocking
at the door, this time, by Bernard Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open window through
which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He
mentioned to the latter that something had happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph
went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO and Joseph to go with
them to Camp Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991,
after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building
and were asked by the CIS people to look for anything not belonging to them in their Unit. While they were outside
Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the
Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag,
Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school
inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic)
Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D3) to be CHITOs because CHITO had lent the very same one to him . The t-shirt with CHITOs fraternity symbol,
CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato
R. Alagadans testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was
closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went
back to Room 310 at around 3 to 4 oclock that afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 oclock in Camp
Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having
acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991,
(Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and submitted.
Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime
imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the
defense sought to establish the following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was
likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to him being also a medical student at
the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants and
leather shoes, arrived at their Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 oclock in the
evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members scheduled for
a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North
Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4) presidential
nominees of the Fraternity, CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was dunked. Perla
Duran, , offered each dry clothes to change into and CHITO put on the white t-shirt with the Fraternitys symbol
and a pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black
short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and
Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at about
1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this,
CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO
entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since
CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5)
minutes vainly tried to open the door until Rommel Montes, approached him and even commented: "Okey ang suot
mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him, "Ikaw
na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , changed
to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the fraternity party
(TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and, without
elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the
room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came to
the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then
asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them,
CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes.
xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination
at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were physically examined by a certain Dr. de
Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit
"8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock in the morning of December 13, 1991.
The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for
inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the contents of the bag
were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat
were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at
Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 oclock in the
early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the
morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991,
he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first
time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon,
when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo and Robert Chan,
who both testified being with CHITO in the December 12, 1991 party held in Dr. Durans place at Greenhills, riding on
the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the
party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also
testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room
306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking
party held in her fathers house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry
instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30)
seconds without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly
sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros,
Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the
information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND
ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the
accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of P30,000.00, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial courts
judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed
from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March
31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him,
absent sufficient, competent and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and
contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and
unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has
not been met, hence, he should be acquitted on the ground that the offense charged against him has not been
proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the
ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed
to rule for petitioners acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder
holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very
act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or
accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act
of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime
as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and
right after the commission of the crime. This is the second type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial
evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is
highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed
heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove. 14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for
conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when
taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the petitioner as such
intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307
where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not
only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a
black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of
December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruders apparel
to be something made of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave
it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of
chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness,
this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory examination
on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief
and MALOUs night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what
MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth soaked in chemical
while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of an
intent or attempt to rape the victim. It is argued that petitioners actuation thus described is an overt act
contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended
to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said,
adds that if petitioners intention was otherwise, he would not have lain on top of the victim. 15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse
with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender
commences the commission of rape directly by overt acts and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. 16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs.
Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical
and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not
certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The
next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemicalsoaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. 19
Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of
pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that
there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted

the complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA maintained that if
the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate
court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious.
Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet
exposed because his intended victim is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has
to make her lose her guard first, or as in this case, her unconsciousness. 20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in
criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an
attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the
victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is
not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand
inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute
attempted rape absent any showing that petitioner actually commenced to force his penis into the complainants
sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus criminis. Thus, it
would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted
rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her face
of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily, while
the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In
the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and
cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was
proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his
defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion
in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or
compulsion for the reason that this term is broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy or irritate an innocent person. 25 The paramount
question is whether the offenders act causes annoyance, irritation, torment, distress or disturbance to the mind of the
person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her classmates what
she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she
was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor
or a fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is
hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge
for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days
of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision 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 Decision 2 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.
1

The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an Information 3 which reads:
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot JUDY CONDE
alias JOJO with said unlicensed firearm, hitting her and inflicting gunshot wounds on the different parts of her breast
which caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in Criminal Case No.
2002-1777, under an Information4 which states:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot Gregorio Conde
with said unlicensed firearm, hitting him on the posterior aspect, middle third right forearm 1 cm. In diameter; thereby
performing all the acts of execution which would produce the crime of Murder as a consequence, but nevertheless did
not produce it by reason of causes independent of the will of the accused; that is by the timely and able medical
assistance rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases and joint trial
ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in Criminal Case No. 20021777; 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
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 Conde P50,000.00 as civil
indemnity, without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said accused to a prison term ranging from six (6) years and one
(1) day of prision mayor as minimum to ten (10) years and one (1) day of reclusion temporal as maximum, together
with the necessary penalty provided by law and without subsidiary imprisonment in case of insolvency and to pay the
costs.
Accuseds entire period of detention shall be deducted from the penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that "the RTC gravely erred in convicting the appellant of the
crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt." 8 The CA-Cebu, however,
upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC in Criminal Case No.
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. 2001-1555. It did not award
moral damages. Nonetheless, the trial court should have awarded both, considering that they are two different kinds of
damages. For death indemnity, the amount of P50,000.00 is fixed "pursuant to the current judicial policy on the
matter, without need of any evidence or proof of damages. Likewise, the mental anguish of the surviving family should
be assuaged by the award of appropriate and reasonable moral damages." 9
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 and P25,000.00 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.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of attempted murder
and not frustrated murder. We uphold 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:
When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to prove by
clear and convincing evidence the elements of his defense. However, appellants version of the incident was
uncorroborated. His bare and self-serving assertions cannot prevail over the positive identification of the two (2)
principal witnesses of the prosecution. 12
Appellants failure to present any other eyewitness to corroborate his testimony and his unconvincing demonstration of
the struggle between him and Gregorio before the RTC lead us to reject his claim of self-defense. Also, as correctly
pointed out by the CA-Cebu, appellants theory of self-defense is belied by the fact that:
x x x The appellant did not even bother to report to the police Gregorios alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the following morning, he did
not also inform the police that what happened to Gregorio was merely accidental. 13
Appellants claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also
implausible.
In contrast, we find that the Condes account of the incident is persuasive. Both the CA-Cebu and the RTC found that
the testimonies of the Condes were credible and presented in a clear and convincing manner. This Court has
consistently put much weight on the trial courts assessment of the credibility of witnesses, especially when affirmed
by the appellate court.14 In People v. Mangune,15 we stated that:
It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by
the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor,
conduct, and attitude under grilling examination. These are important in determining the truthfulness of witnesses and
in unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness credibility, and the trial court has the opportunity to
take advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with arbitrariness or
oversight or misapprehension of relevant facts, the same must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the victim was not
afforded any opportunity to defend himself or resist the attack. 17 The existence of treachery is not solely determined
by the type of weapon used. If it appears that the weapon was deliberately chosen to insure the execution of the
crime, and to render the victim defenseless, then treachery may be properly appreciated against the accused. 18
In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge shotgun
against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to fend off the offender.
We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in Criminal
Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this manner:

1.) In a frustrated felony, the offender has performed all the acts of execution which should produce the felony
as a consequence; whereas in an attempted felony, the offender merely commences the commission of a
felony directly by overt acts and does not perform all the acts of execution.
2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in an attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the 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?
A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect right
shoulder.22
Since Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of attempted murder and
not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty for attempted murder
shall be two degrees lower than that prescribed for consummated murder under Article 248, that is, prision
correccional in its maximum period to prision mayor in its medium period. Section 1 of the Indeterminate Sentence
Law provides:
x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code,
and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense.1wphi1
Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and one (1) day
of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the lower court in
both cases. In Criminal Case No. 2001-1555, this Court hereby awards P75,000.00 as civil indemnity23 and P30,000.00
as exemplary damages.24 The award of P50,000.00 as moral damages in the foregoing case is sustained. Appellant is
also liable to pay P40,000.00 as moral damages and P30,000.00 as exemplary damages, in relation to Criminal Case
No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC No. 01000
with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant Regie Labiaga is GUILTY of Attempted
Murder and shall suffer an indeterminate sentence ranging from two (2) years, four (4) months and one (1) day of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum, and pay P40,000.00
as moral damages and P30,000.00 as exemplary damages. In Criminal Case No. 2001-1555, appellant shall pay
P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages.
SO ORDERED.
June 21, 2007
x----------------------------------------------------------------------------x

DECISION
TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively
concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be
adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known decisions 60[1] rendered decades ago by the Court
of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However,
the rationale behind the rulings has never been affirmed by this Court.

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As far as can be told,61[2] the last time this Court extensively considered whether an accused was guilty of
frustrated or consummated theft was in 1918, in People v. Adiao.62[3] A more cursory

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treatment of the question was followed in 1929, in People v. Sobrevilla,63[4] and in 1984, in Empelis v. IAC.64[5] This
petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission
under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information 65[6] charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area
of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching
Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases
in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five
(5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the
open parking space.66[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the
parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then
boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open
parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing
on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 67[8] The filched items seized from the duo were four
(4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with
an aggregate value of P12,090.00.68[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged
with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 69[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago
and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.70[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head
out of the building to check what was

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transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their
detention.71[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, 72[13] had
been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when
they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was
detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police
Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and
eventually brought to the prosecutors office where he was charged with theft. 73[14] During petitioners crossexamination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket
though not at SM.74[15]

In a Decision75[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.76[17]
The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive
identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal, 77[18] but only petitioner filed a brief 78[19] with the Court
of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before
the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen. 79[20] However, in its Decision
dated 19 June 2003,80[21] the Court of Appeals rejected this contention and affirmed petitioners conviction. 81[22]
Hence the present Petition for Review, 82[23] which expressly seeks that petitioners conviction be modified to only of
Frustrated Theft.83[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.84[25]
As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites 85[26] two decisions rendered many
years ago by the Court of Appeals: People v. Dio86[27] and People v. Flores.87[28] Both decisions elicit the interest of

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this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu
that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they
have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence
on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations, 88[29] and studied in criminal law
classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

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

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III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft,
it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code. 89[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when
the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted
when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous
desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the
crime included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime. 90[31] After that point has been breached, the
subjective phase ends and the objective phase begins. 91[32] It has been held that if the offender never passes the
subjective phase of the offense, the crime is merely attempted. 92[33] On the other hand, the subjective phase is
completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete. 93[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted
felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the
commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that
define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining
whether a crime is attempted only would need to compare the acts actually performed by the accused as against the
acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that
all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether the felony was produced after all
the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a
crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be
no crime when the criminal mind is wanting. 94[35] Accepted in this jurisdiction as material in crimes mala in se,95[36]
mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent, 96[37] and essential
for criminal liability.97[38] It follows that the statutory definition of our mala in se crimes must be able to supply what
the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that
contains no mens rea requirement infringes on constitutionally protected rights. 98[39] The criminal statute must also

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provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea
be shown; there must also be an actus reus.99[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the
language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably
ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and
legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our
Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage
or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled
out as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal property
of another without the latters consent.
Theft is likewise committed by:
1.

Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2.

Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and

3.

Any person who shall enter an inclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon
the same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by
which theft may be committed.100[41] In the present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the
definition, there is only one operative act of execution by the actor involved in theft the taking of personal property
of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further
be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence
against or intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised
Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that
the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of persons or force upon things. 101[42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law
as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to
another against the will of the owner, 102[43] a definition similar to that by Paulus that a thief handles (touches, moves)
the property of another.103[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei

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fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.104[45] This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.105[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding
that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing. 106[47] However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking 107[48] or an intent to permanently
deprive the owner of the stolen property; 108[49] or that there was no need for permanency in the taking or in its intent,
as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.109[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that
there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. 110
[51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by
intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction
for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of
the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such
theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to
consider: that the felony is not produced, and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however,
relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code 111[52] as to when
a particular felony is not produced, despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is
the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of
another without the latters consent.

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U.S. v. Adiao112[53] apparently supports that notion. Therein, a customs inspector was charged with theft after
he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom
House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was
under observation during the entire transaction. 113[54] Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed
crime of theft are present. 114[55] In support of its conclusion that the theft was consummated, the Court cited three (3)
decisions of the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain,
October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a
church. The latter on account of the solemnity of the act, although noticing the theft, did not do
anything to prevent it. Subsequently, however, while the defendant was still inside the church, the
offended party got back the money from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a
case, and from the case took a small box, which was also opened with a key, from which in turn he
took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were stationed in another room nearby. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 115[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal
actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime
later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,116[57] where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft,
caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his
pocket-book and let go of the defendant, who was afterwards caught by a policeman. 117[58] In rejecting the contention
that only frustrated theft was established, the Court simply said, without further comment or elaboration:

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114
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117

We believe that such a contention is groundless. The [accused] succeeded in taking the pocketbook, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.118[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that
the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in
this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought
on when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by
an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had
been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the
rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of
Appeals modified the conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles
pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without further investigation or checking. 119[60] This point was
deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that
the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were
more or less momentary.120[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor
la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el
concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension,
sin materializar demasiado el acto de tomar la cosa ajena. 121[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the
control and disposal of the culprits, the articles stolen must first be passed through the M.P. check
point, but since the offense was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final control and disposal of the
looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft. 122[63]

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119
120
121
122

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by
the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it,
bore no substantial variance between the circumstances [herein] and in [Dio].123[64] Such conclusion is borne out by
the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the
terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at
the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van
had actually contained other merchandise as well.124[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in
the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the
Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not
consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then
before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which
unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said
traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its contents at
once.125[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were
still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of
Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as
money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted, 126[67]
though no further qualification was offered what the effect would have been had that alternative circumstance been
present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of
theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary.
Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied in
Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free
disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money
x x x.127[68]

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio
ruling:

123
124
125
126
127

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to
freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[128[69]], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en
circumstancias x x x [129[70]]130[71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n
theft or robbery the crime is consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated. 131[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores
rulings. People v. Batoon132[73] involved an accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial
court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft. 133[74]

In People v. Espiritu,134[75] the accused had removed nine pieces of hospital linen from a supply depot and
loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the
Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold
of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the
use or benefit that the thieves expected from the commission of the offense. 135[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony.136[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated
theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated,
theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.137
[78]

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129
130
131
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134
135
136
137

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After
trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code, 138[79]
but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not
able to perform all the acts of execution which should have produced the felony as a consequence.
They were not able to carry the coconuts away from the plantation due to the timely arrival of the
owner.139[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may
have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of
execution which should have produced the felon as a consequence. 140[81] However, per Article 6 of the Revised Penal
Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the
felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided
that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis
concludes that the crime was

138
139
140

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such
passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no
further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we
cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had
once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also
by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this
jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are
beyond cavil in this jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place.
The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1.

Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de su dueo.

2.

Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin
de lucro.

3.

Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos
previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo
prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were
handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the
Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado 141[82]

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the
property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and
perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo
Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question
whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa
ajena, vindose sorprendido, la arroja al suelo.142[83] Even as the answer was as stated in Dio, and was indeed derived
from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was
apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the
employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to
throw away the garment as he fled.143[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the
Supreme Court of Spain that have held to that effect. 144[85] A few decades later, the esteemed Eugenio Cuello Caln
pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos
de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si
existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin
"muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29
mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.145[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa
queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente
porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge
o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste
pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado
aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos consumados.146[87] (Emphasis
supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft
could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto
no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of theft.

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143
144
145
146

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that
obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of
frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to
accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a
mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in
the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise
of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives
of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial
interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in
the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.147[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended
by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal
laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct the law forbids. 148[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in
Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To
restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation of persons or force upon things. 149[90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of
personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of
the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the
offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question
is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is
produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as
earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the thing was frustrated. 150[91]

147
148
149
150

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the
concept of taking itself, in that there could be no true taking until the actor obtains such degree of control over the
stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not
frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having
been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession
of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment
the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 151[92] And long ago,
we asserted in People v. Avila:152[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the taking
must be effected animo lucrandi and without the consent of the owner; and it will be here noted that
the definition does not require that the taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of no slight importance. 153[94]

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking,
which is the deprivation of ones personal property, is the element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at
all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot
have a frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property.
The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the
owners have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose
of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect
any legislated intent,154[95] since the Court would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the
number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the

151
152
153
154

manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was
indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain
the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking,
have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such
fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows
that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been
produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and
even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be
no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference
to Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y
FLORO, accused-appellants.
DECISION
VITUG, J.:
In People vs. Orita,i[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. Eriiaii[2] which this
Court, in the Orita decision, has considered to be a stray decision. The 1 March 1996 decision of the RTC of Cebu City
imposing upon each of the accused the penalty of reclusion 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 5stth day of March, 1994, at about 11:30 oclock in the evening, more or less, at Barangay Tangil,
Municipality of Dumanjug, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another, with lewd design and by means of force
and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of
the offended party Catalina Carciller, fifteen (15) years of age, against her will and consent.
"CONTRARY TO LAW.iii[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.
"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
"When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the
penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:
"1.
when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, 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.

Duly assisted by counsel, the two accused pleaded not guilty to the crime charged. During the trial that ensued, the
prosecution and the defense presented their 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 oclock in the evening of 05 March 1994 in Sitio Bangag, Tangil, Dumanjug, Cebu. Catalina, born
on 09 November 1978,iv[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. Quianola announced that he and Escuadro were members of the New Peoples Army ("NPA").
Quianola 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 able 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 v[5] even as Catalina still tried desperately to free herself from him.
She felt his organ "on the lips of (her) genitalia.vi[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 vii[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 only 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 culprits would still come after her, hid herself behind the door. Baffled by Catalina's strange behavior, her
mother and her elder sister took turns in 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.
Guillermo Zozobrado learned from his wife, Catalinas 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,viii[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. ix[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. x[10] (Italics 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. xi[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 oclock 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, Catalinas 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.xii[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 11:00 oclock on the night of the incident. Nicasio Arnaiz, a farmer and stone cutter,
added that work in the Quianola house had started late in the morning of 05 March 1994 since they still waited for
Quianola and his wife Pritsy to arrive. Work in the house, he said, had stopped at about past 11:00 oclock that night.
Accused Eduardo Escuadro, a.k.a. Botiquil, declared that at about seven oclock in the evening of 05 March 1994, he
and Pablito Cuizon, Jr., went fishing in Tangil, Dumanjug, Cebu, until about ten oclock 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 Escuadros 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.xiii[13] Accompanied 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, harvesting corn. His sister, Mercy Villaluna, testified that, in the morning of 06 March 1994, policemen in
the company of barangay tanods, including Gilly Zozobrado and his son Marcelo, came to their house looking for her
brother Margarito. Shortly after the group had left, another policeman, in the company of one Erwin Quirante also
came looking for her brother. The arrival of the policemen prompted her to verify from the Coast Guard whether her
brother had indeed left for Negros Oriental. She was told that her brother was in the boat that departed for Negros in
early dawn of 02 March 1994. Still unsatisfied with the result of her queries, Mercy went to Guinholngan where she met
Margarito.
Following the trial and submission of the case for decision, the court a quo,xiv[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 to Reclusion Perpetua of Forty (40) Years,
plus all the accessory penalties prescribed by law, and to pay the offended party civil indemnity in the amount of
P50,000.00 each.
"The Court also hereby recommends that under no circumstance should the two accused be granted parole or
conditional or absolute pardon, in view of the extreme moral turpitude and perversity which they exhibited in the
commission of the crime not until they shall have served at least thirty (30) years of the full range of forty (40) years
of reclusion perpetua meted 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.xv[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
penaltyxvi[16] but that, because of the existence of at least six (6) aggravating circumstances, xvii[17] not offset by any
mitigating circumstance,xviii[18] the 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 abovementioned 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. xix[19]
In their appeal to this court, the two convicted accused interposed the following assignment of errors:
"I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF THE PROSECUTION WITNESSES WHICH IF
THOROUGHLY CONSIDERED COULD HAVE ALTERED THE DECISION IN FAVOR OF THE ACCUSED.
"II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE
CLOUDED WITH GRAVE INCONSISTENCIES.
"III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
"IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF THE
SAME WERE NOT CONTROVERTED.
"V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE TESTIMONIES OF THE POLICEMEN WHICH WERE
UNCONTROVERTED AND WITH PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTIES.
"VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF FRUSTRATED RAPE AND OF SENTENCING THEM TO 40
YEARS OF RECLUSION PERPETUA."xx[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.xxi[21] Expectedly, courts would scrupulously examine the testimony of the complainant with the thought
always in mind that the conviction of the accused would have to depend heavily on the credibility of the offended
woman. It is not much different in this instance for, at bottom, appellants assail the credibility of the prosecution
witnesses, particularly that of the complainant, in seeking a reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and will not
be disturbed on appeal in the absence of any clear showing that the trial court has overlooked, misunderstood or
misapplied facts or circumstances of weight and substance that could have consequential effects. The stringency with
which appellate tribunals have observed this rule is predicated on the undisputed vantage of the trial court in the
evaluation and appreciation of testimonial evidence.xxii[22]
In assailing Catalinas 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.xxiii[23] The Court finds this so-called incongruity committed by the complainant
to be 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.
QYou said that you were forced by Agapito Quianola to sit down, where were you forced to sit down, in what particular
place or area?
"A

Just behind the back of the school.

"Q

You were forced to sit down on the ground?

"A

Yes.

"Q

In effect did you sit down as ordered by him?

"A

I resisted.

"COURT:
"Q

How did you resist?

"A

I said I will not sit down.

"TRIAL PROS. NAZARENO:

"Q

What did Agapito Quianola do, if any, when you resisted?

"A

He pointed his gun to me.

"Q

When he pointed a gun at you, referring to Agapito Quianola, what did he say?

"A

He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me.

"Q

What did you do when you heard those words coming from Agapito Quianola?

"A

I cried.

"Q

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

"A

He ordered Eduardo Escuadro to remove my pants and panty.

"COURT:
"Q

Why what were you wearing at that time?

"A

Pants.

"Q

What kind of pants?

"A

Denim.

"TRIAL PROS. NAZARENO:

"Q
Now, after Agapito Quianola ordered Eduardo Escuadro to remove your pants and panty what did Eduardo
Escuadro do, if any?
"A

He did what Agapito Quianola commanded him.

"COURT:
"Q

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

"A

I cried and tried to free myself.

"TRIAL PROS. NAZARENO:

"Q
Now, when Eduardo Escuadro removed your pants and panty where was Agapito Quianola and what did
Agapito Quianola do?
"A

He unzipped his pants.

"Q

After that what happened?

In effect, were your pants and panty removed by Eduardo Escuadro?

"A

Yes.

"Q
Now, you said Agapito Quianola opened his fly or unzipped his pants, when Agapito Quianola already unzipped
his pants, what did he do?
"A

He approached me and lay on top of me.

"Q

When Agapito Quianola approached you and laid on top of you, what did Eduardo Escuadro do?

"A

He was holding on to my legs.

"Q

Then what happened after that?

"A

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?

"A

I struggled to free myself.

"Q
pull?

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

"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.

"TRIAL PROS. NAZARENO:

"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

I felt something hard on the lips of my genitals.

"Q

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

"A

His organ or penis.

"Q

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

"A

Yes.

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

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

"Q

What did you feel when Eduardo Escuadro was already on top of you and made a push and pull on you?

"A

I held my breath.

"Q

Did you see the penis of Eduardo Escuadro?

"A

No.

"Q

Now, did you feel that the penis of Escuadro was inserted into your vagina?

"A

I felt it on the lips of my vulva.xxiv[24]

The fact that she must have been lying down when violated has even more been made clear by the defense on crossexamination. Thus:
QDid you say any testimony in the direct that you were made to lie 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.xxv[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 necessarily downgrade testimonial evidence. Ex parte affidavits are usually incomplete and
frequently prepared by an administering officer and cast in the latters 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. xxvi[26]

Not much differently could be said of Catalinas identification of appellants as being her ravishers. On the witness
stand, Catalina explained that while she gave appellant Escuadros 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.xxvii[27] 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.xxviii[28] Catalina knew
that appellant Escuadro, a resident of Punla-an not 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 witnessxxix[29]) was merely corroborative in nature and neither dealt with the actual commission of
the crime nor delved on material points.
Catalinas candid and straightforward narration of the two sexual 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.xxx[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. xxxi[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. xxxii
[32]
The positive identification of appellants as being the perpetrators of the crime effectively effaces their alibi.xxxiii[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.xxxiv[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. xxxv[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 hymen be ruptured. xxxvi[36] The
crime of rape is deemed consummated even when the mans penis merely enters the labia or lips of the female
organxxxvii[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.xxxviii[38] In People vs. Escober,xxxix[39] in convicting a father of having raped twice his 11year-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; nor does the fact that the
victim has remained a virgin negate the crime. What is fundamental is that the entrance, or 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 complainants testimony, if credible, and the findings of the medico-legal officer do not disprove the
commission of rape.
"There are no 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.xl[40] (Italics supplied.)
In another case, People vs. Gabayron,xli[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
daughters hymen was penetrated, nor was there any evidence of injuries inflicted. However, jurisprudence is wellsettled 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 victims vagina and that her hymen was intact
does not negate rape, since this crime is committed even with the slightest penetration of a womans 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 complainants 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, Summers testimony has established without a
doubt that accused-appellants organ managed to come into contact with her vagina, enough to cause her pain.xlii[42]
(Italics supplied.)
In its recent holding in People vs. Echegaray,xliii[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 victims
vagina is not required to sustain a conviction.
The trial court, in convicting appellants only of frustrated rape, ruled that there was no "conclusive evidence of
penetration of the genital organ of the offended party,xliv[44] in that: (a) Catalina had admitted that she did not spread
her legs and (b) the medico-legal officers 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 without causing
laceration. It would seem that the trial court failed to consider Catalinas testimony in its entirety; she testified:
QAnd when he mounted on top of you Escuadro was holding on to your two feet and all the time that he (Quianola)
was making a push and pull on you, Escuadro was holding on to your two feet?

"A.

Yes.

"COURT:
"Q

Your two feet?

"A

Yes.

"ATTY. CREER:
"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 spread out or not.

"Q

Did you spread your legs?

"A

No.

"Q
Since you did not spread your legs and Quianola was on top of you, did you not bother to pull your legs, kick
the one holding it and pushed Quianola or do any harm to him?
"A

No, because I was already frightened considering that there were two of them and they were armed. xlv[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 QAt that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly so that he will
refrain from raping you?
"A
I was not able to think of that because of my fear, and besides that Eduardo Escuadro was holding on to both
my legs.
"Q
you?

Now, if Eduardo Escuadro was holding on both your two legs how was Quianola able to place himself on top of

"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. xlvi[46]
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape.
In People vs. Orita,xlvii[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; United States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in
rape can ever be committed.
"Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where We
found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of
the offended party. However, it appears that this is a 'stray' decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted the law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.xlviii[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. xlix[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 perpetua 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 abovenamed accused, referring to the two appellants, have conspiratorially committed the crime.
Article 14 of the Revised Penal Code,l[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 the 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 deathli[51] under 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 as 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 facilitate

the commission of the offense.lii[52] Craft, fraud or disguiseliii[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 Peoples 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
pants and panties and then sending her home in this humiliating and distressing condition. liv[54] There is nothing on
record that even remotely suggests that accused-appellants so deliberately sought to leave Catalina with bottoms bare
that she might be left alone in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the commission of a crime punishable by two (2) indivisible penalties,
such as reclusion perpetua to death, would justify, even without any mitigating circumstance, the imposition of the
lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended party civil indemnity in the amount of P50,000.00.
Prevailing jurisprudencelv[55] likewise allows the victim to have an award of moral damages for having evidently
undergone "mental, physical and psychological sufferings. The civil liability of appellants, being predicated on delict, is
solidary.lvi[56]
WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo Escuadro y Floro are each found guilty beyond
reasonable doubt of two (2) counts of consummated rape and, accordingly, sentenced to the penalty of reclusion
perpetua in each case. Said appellants are ordered to pay, jointly and severally, Catalina Carciller the sum of
P100,000.00 by way of indemnity ex delictu for the two counts of consummated rape plus P60,000.00 moral damages.
Costs against appellants.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant.
DECISION
CORONA, J.:
This is an appeal from the decision155[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape, one count of
statutory rape and one count of frustrated rape, and sentencing him to suffer three counts of reclusion perpetua for
the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years and 8 months of imprisonment for
the frustrated rape.
Complainant Jessica Castro charged appellant with raping her four times between January 1994 and November 1996.
The informations filed against appellant by the City Prosecutor read:
In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA CRUZ
of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor,
under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of
death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under
12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.
CONTRARY TO LAW.156[2]
Arraigned on September 5, 1997, appellant pleaded not guilty. 157[3] Thereafter, trial on the merits ensued. However,
the trial was subsequently postponed for eight months as Jessica was suffering from psychological and emotional
trauma from her horrifying ordeal.158[4] The lower court ordered the suspension of the trial to enable her to undergo
psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial resumed in November 1998
with the prosecution presenting Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother, Girlie
de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother Girlie.
Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-storey house in
Paco, Manila owned by Girlies mother. They occupied a room on the ground floor which served as their bedroom,

155
156
157
158

kitchen and living room. The adjacent room was occupied by Girlies brother and his family while the room on the
second floor was occupied by Girlies sister and her family.
Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market, buying her stock
from the Navotas fish market late at night and sometimes in the early hours of the morning.
The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie was
at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two children with Girlie.
Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant grabbed
Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she obeyed out of
fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of complainant and
succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen. She
tried to leave the room but appellant locked the door and threatened to kill her if she told her mother what happened.
Jessica was then only nine years and four months old, having been born on December 19, 1983. 159[5]
The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00 a.m. when
Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings were left in the house
watching television. Soon after, appellant arrived and sent the children, except Jessica, to play outside. Left alone with
Jessica, appellant removed his clothes, pulled out a balisong and ordered Jessica to undress. He then held her by the
shoulder and made her lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her
slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt down, kissed and
fingered Jessicas vagina, then mashed her breasts. He only stopped what he was doing when someone knocked at the
door. Appellant and Jessica hurriedly put on their clothes and, as appellant opened the door, Jessica went to the
bathroom to wash herself.
The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was 12 years and
6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes, appellant ordered
Jessicas brother and sister to visit their mother at the Paco Market and sent his children to play outside the house.
When appellant and Jessica were alone, he removed his pants, got his knife and ordered her to undress. Since she was
afraid, Jessica was forced to remove her clothes. Appellant then told her they would do what they did before, pulled
her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered her vagina, then
mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he ejaculated. When
Jessicas brother and sister arrived, appellant hurriedly put on his clothes. Jessica did the same. She then went to the
bathroom to wash herself and change her bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at around 11:00 p.m.
Girlie was again in the public market while Jessica was at home with her siblings who were all asleep. Appellant told
Jessica that they would again do what they did before but she refused, saying that she might get pregnant. Appellant
brandished his balisong and threatened to kill her. He then covered himself and Jessica with a blanket, removed his
pants and her shorts, and placed himself on top of her. His penis slightly penetrated her vagina. He mashed her
breasts, inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she wanted to sleep.
Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother what he did to her.
He assured her that she would not get pregnant because she was not yet menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of Jessica by
appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several times. Mrs. Mojica
called up Jessicas aunt, Mrs. Antonina de la Cruz, and narrated to her what Jessica had confessed. Mrs. De la Cruz then
accompanied Jessica to the police station to file a complaint and to the Philippine General Hospital (PGH), Child
Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica and
the findings revealed the following:
Genital Examination:
Hymen:Estrogenized,
Attenuated from 1 oclock position to 4 o clock position
and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus:
Normal rectal tone, no pigmentation, no scars, normal rugae 160[6]
For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified that, during the purported
first and second incidents of rape, appellant was with her to buy fish in Navotas and sell them in Paco market.
Appellant argued that since Jessica disapproved of his relationship with her mother, she had the motive to falsely
accuse him of raping her. Further, he pointed out the improbability of the alleged first and fourth incidents of rape
inasmuch as the make-up of the room made it impossible for Jessicas siblings not to wake up during the commission of
the crime. Appellant further contended that Jessicas failure to cry out for help, knowing that her mothers relatives were
in the same house, made her story of rape unbelievable.
The trial court gave credence to the testimony of Jessica and convicted the appellant:
WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape under
Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory
penalties provided by law.
In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.
In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal
Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8
months of reclusion temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal and
exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00.

159
160

SO ORDERED.161[7]
In this appeal, appellant assigns the following errors:
I.THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONE COUNT OF STATUTORY RAPE, ONE COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE.
II.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF FRUSTRATED RAPE DESPITE
THE FACT THAT UNDER PREVAILING JURISPRUDENCE THERE IS NO SUCH CRIME. 162[8]
The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution was able to
prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt
appellants guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as frustrated
rape in this jurisdiction.
After a thorough review of the records, we find no reason to deviate from the well-established rule that the credibility
of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them firsthand
and to note their demeanor, conduct and attitude.163[9] In the present case, the trial court found Jessicas testimony
convincing, logical and credible. Moreover, the court a quo:
xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she
suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and
her ... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the
proceeding was interrupted several times to calm her down. 164[10]
No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of a
public trial if the accusations were not true, or if her motive were other than a fervent desire to seek justice. 165[11]
We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas dislike for him.
To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a certain
kind of psychiatric depravity which this Court does not see in Jessica. The fact that Jessica had to undergo
psychological treatment166[12] after her first testimony in February 1998 belies appellants defense. The need for such
counseling came about after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape
that caused her psychological and emotional imbalance which required therapy at the Child Protection Unit of the
Philippine General Hospital.
The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor reveal any fabrication.
Inconsistencies regarding minor details were attributable to the fact that she was recalling details of incidents that
happened three years before, not to mention the fact that these details pertained to something she had very little
knowledge of, being then only nine years and three months old when the first rape was committed. We have
consistently ruled that errorless recollection of a harrowing experience cannot be expected of a witness (a very young
one at that) specially when she is recounting details of an occurrence so humiliating, so painful and, in this case, so
alien as rape.167[13]
Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were
sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the
family are also sleeping, in a house where there are other occupants or even in places which to many might appear
unlikely and high-risk venues for its commission. 168[14]
Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of her
relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not
uncommon for a young girl of tender age to be easily intimidated into silence and conceal for sometime the violation
of her honor, even by the mildest threat to her life.169[15] Besides, Girlie, Jessicas mother, had a rift with her siblings
who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the
strained relations between Jessicas mother, uncle and aunt prevented Jessica from confiding in them.
In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not
necessarily detract from the witness credibility as long as it is satisfactorily explained. 170[16] Jessica was threatened by
appellant that he would kill her mother and relatives if she reported the rape. A young girl like Jessica can easily be
mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to have the courage or
confidence to immediately report a sexual assault on her, specially when a death threat hangs over her head. 171[17]
In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no consideration. These
weak defenses cannot stand against the positive identification and categorical testimony of a rape victim. 172[18]
The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987, the dispositive
portion of which read:
xxxxxx xxx.
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal
Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs.

161
162
163
164
165
166
167
168
169
170
171
172

xxx

xxx

xxx.

SO ORDERED.173[19]
However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case No.
97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape:
The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis thereof
in the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00
p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in
Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused
held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and Tshirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive parts
of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in
nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance
offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was
smeared with his semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court concluded there was no penetration.
On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial courts
decision reads:
Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica
was watching TV while the other siblings were asleep and her mother was away, when accused again made sexual
advances to her. She resisted and told accused she might become pregnant, but the accused persisted and threatened
to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again succeeded in
having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the
accused tried to calm her down by assuring her that she would not be impregnated, because she has not yet began to
have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case
No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where
the findings of the trial court was that there was carnal knowledge. 174[20]
Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is further
evidenced by the following paragraph found in page four of the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by
lethal injection.175[21] (Emphasis Ours)
The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97-159187, as borne
out by the informations filed by the City Prosecutor. 176[22] Thus, the conviction for frustrated rape should pertain to
Criminal Case No. 97-159185 and not Criminal Case No. 97-159187.
Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants contention that
there is no such crime as frustrated rape, as we have ruled in a long line of cases. 177[23] Recently, in People vs.
Quinanola,178[24] we again reiterated the rule:
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated
rape. In People vs. Orita, the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his
purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more
is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980;
People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53
Phil. 694; United States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in
rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where We
found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of
the offended party. However, it appears that this is a stray decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead
provision. The Eriia case, supra, might have prompted the law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained
the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the

173
174
175
176
177
178

occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby
penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language.
(emphasis ours)
Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the
records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not
succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of
his penis and smear her vagina.179[25] In response to the clarificatory questions asked by the prosecutor, Jessica
testified that the appellant was able to slightly penetrate her because she felt pain and her vagina bled. 180[26] It has
been held that, to be convicted of rape, there must be convincing and sufficient proof that the penis indeed touched
the labia or slid into the female organ, and not merely stroked the external surface thereof. 181[27] Nevertheless, we
have also ruled in cases where penetration is not established that the rape is deemed consummated if the victim felt
pain, or the medico-legal examination finds discoloration in the inner lips of the vagina, or the labia minora is already
gaping with redness, or the hymenal tags are no longer visible. 182[28] In the present case, the victim testified that she
felt pain and her vagina bled, indisputable indications of slight penetration or, at the very least, that the penis indeed
touched the labia and not merely stroked the external surface thereof. Thus, the appellant should be found guilty of
(consummated) rape and not merely frustrated or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is committed
when the victim is under 18 years of age and the offender is the common-law spouse of the parent of the victim.
However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-159184 and 97159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged in
the information.183[29] Thus, appellant can only be convicted of simple rape punishable by reclusion perpetua under
Article 335 of the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant can be
convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the Revised Penal Code
inasmuch as the age of Jessica was alleged in the information 184[30] and duly proven during the trial by the
presentation of her birth certificate.185[31]
We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape
victims without need of pleading or proof.186[32] We also award civil indemnity ex delicto of P50,000 for each count of
rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the finding
of the fact of rape.187[33] We likewise award exemplary damages of P25,000 for each count of rape consistent with the
prevailing jurisprudence on the matter.188[34]
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159 184 to 87 is
AFFIRMED with the following MODIFICATIONS:
1.In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335 of the Revised Penal Code
and sentenced to suffer the penalty of reclusion perpetua.
2.
In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua.
3.
In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of reclusion perpetua.
4.
In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the Revised Penal
Code and sentenced to suffer the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral damages, P50,000 as
civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs against appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
DECISION
BRION, J.:
This is an appeal from the June 15, 2009 decision of the Court of Appeals (CA) in CA-G.R. CR HC No. 02759. TheCA
affirmed the February 22, 2007 decision 12
of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant Christopher Pareja guilty beyond
reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua.
THE CASE
The prosecution charged the appellant before the RTC with the crime of rape under an Amended Information that
reads:
That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously lie and have carnal
knowledge of AAA,3 13 years of age, sister of the common law spouse of accused, against her will and consent, thus

179
180
181
182
183
184
185
186
187
188

debasing and/or demeaning the intrinsic worth and dignity of the victim thereby prejudicing her normal development
as a child.4
The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003, AAA was sleeping beside her
two-year old nephew, BBB, on the floor of her 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
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 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
For his defense, the appellant declared on the witness stand that he hauled "filling materials" at his house, located at
Block 38, Fabella Compound, on the evening of June 15, 2003. At around 10:00 p.m., he went to his room and slept. 13
On the next day, the appellant, accompanied by his mother and brother-in-law, went to the municipal hall to ask for
financial assistance for his wife who was confined in the hospital. Upon arrival at the hospital, the doctor told him that
his wife needed blood. Immediately after, the appellant and his companions went to Pasig City to find blood donors. 14
On the evening of June 16, 2003, and while the appellant was folding the clothes of his son, two policemen entered his
house and informed him that a complaint for attempted rape had been filed against him. The police brought him to the
Criminal Investigation and Detection Group, forced him to admit the crime, mauled him, and then placed him in a
detention cell.15 The appellant added that he filed a complaint before the Office of the Ombudsman against the police
officers who beat him up.16
The RTC convicted the appellant of rape in its decision of February 22, 2007, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY beyond reasonable doubt of the crime
of RAPE and hereby sentences him as he is hereby sentenced to suffer the penalty of reclusion perpetua; and to
indemnify the victim, AAA, the amount of 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.
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 lack of
tenacity in resisting the appellants sexual aggression did not amount to consent or voluntary submission to the
criminal act.18
In his brief,19 the appellant argued that the lower courts erred in convicting him for the crime of rape, as the
prosecution failed to prove even the slightest penetration of his penis into the victims vagina. He added that the
victims testimony was incredible and contrary to human experience.
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.
Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a woman with the use of force, threat or intimidation,
or when she is deprived of reason or otherwise unconscious, or when she is under 12 years of age or is demented. 20
"Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a
woman."21 Carnal knowledge of the victim by the accused must be proven beyond reasonable doubt, considering that
it is the central element in the crime of rape.22
In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:
FISCAL TRONCO:
Q: You said that the three of you then was (sic) sleeping on the floor, what is it that happened on that particular day
and time that is unusual?
A:

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

Q:

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

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.
Q:

Whom are you referring to?

A:

My brother-in-law, maam.

Q:

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

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

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

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

A:

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

xxxx
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.

xxxx
Q:

What incident was that?

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

When did this happen, AAA?

A:

Also on said date, maam.

Q:

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

A:

Yes, maam.

xxxx
Q:

Was he able to take off your clothes?

A:

Yes, maam.

Q:

What particular clothing was he able to take off?

A:

My short pants and underwear, maam.

Q:

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

A:

I tried to fight him off, maam.

xxxx
Q:

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

A:

I was lying down, maam.

Q:

What about him?

A:

He was on my lap, maam.

xxxx
Q:

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

A:

Yes, maam.

xxxx
Q:

Did he also take off his brief?

A:

Yes, maam.

xxxx
Q:

And after that what happened, AAA?

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

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

A:

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

Q:

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

A:

"Naidikit po niya sa ari ko."

Q:

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

A:

On my sexual organ, 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.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.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape is two degrees lower than the
prescribed penalty of reclusion perpetua for consummated rape. Two degrees lower from reclusion perpetua is prision
mayor whose range is six (6) years and one (1) day to 12 years. Without any attendant aggravating or mitigating
circumstances and applying the Indeterminate Sentence Law, the maximum of the penalty to be imposed upon the
appellant is prision mayor in its medium period, while the minimum shall be taken from the penalty next lower in
degree, which is prision correccional whose range is six (6) months and one (1) day to six (6) years, in any of its
periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of six (6) years of prision
correccional, as minimum, to 10 years of prision mayor, as maximum.
In addition, we order the appellant to pay the victim 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
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.
NORBERTO CRUZ y BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only
the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top of a
naked female does not constitute attempted rape without proof of his erectile penis being in a position to penetrate
the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004,1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and
imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages of
P20,000.00 to AAA,2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines and within the jurisdiction of this
Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and
intimidation commenced the commission ofrape directly byovert acts, to wit: While private complainant AAA, an
unmarried woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with
intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is

to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said
offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said
offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 oclock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and feloniously
touch the vagina of [BBB]4 against the latters will and with no other purpose but to satisfy his lascivious desire to the
damage and prejudice of said offended party.
CONTRARY TO LAW.5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows:6
x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and glass
wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed AAA and
BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From Libsong East,
Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young
girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of Maroon
enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they will have a
place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold.
On December 21, 1993, at around 1:00 oclock in the morning, AAA and BBB went to sleep. Less thanan hour later,
AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching her
private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered her
not to scream or shell be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on
deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not totell the incident to
her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the house boy) but she failed
to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of BBB. AAA saw
her companion awake but her hands wereshaking. When she finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they
were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building.
An old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman by
the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station where
he personally confronted his accusers. When Norbertos wife, Belinda, arrived at the police station, an argument
ensued between them.
On December 22, 1993, at around 2:20 oclock in the morning, the police investigator ordered the complainants to
return at6:00 oclock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and
worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against
Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was presented in the assailed decision of the CA,7
as follows:
In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused maintains
that it was not possible for him to commit the crimes hurled against him. On the date of the alleged incident, there
were many people around who were preparing for the "simbang gabi". Considering the location of the tents, which
were near the road and the municipal hall, he could not possibly do the dastardly acts out in the open, not to mention
the fact that once AAA and BBB would scream, the policemen in the municipal hall could hear them. He believes that
the reason why the complainants filed these cases against him was solely for the purpose of extorting money from
him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding the petitioner
guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts of lasciviousness in Criminal
Case No. 2389,8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO CRUZ
Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as
defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code
respectively. With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as
Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory penalties provided for by law and to pay
the victim AAA the amount of P20,000.00 as moral damages.
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.9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape despite the
dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for attempted rape in
Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged in Criminal Case No. 2389 due to the
insufficiency of the evidence,10 holding thusly:
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 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
In this appeal, the petitioner posits that the CAs decision was not in accord with law or with jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner
beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA still continued
working for him and his wife until December 30, 1994 despite the alleged attempted rape in the early morning of
December 21, 1994, thereby belying his commission of the crime against her; that he could not have undressed her
without rousing her if she had gone to sleep only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they struggled was also inconceivable unless
she either consented to his act and yielded to his lust, or the incident did not happen at all, being the product only of
her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to
penetrate her; and that she and her mother demanded from him P80,000.00 as settlement, under threat that she
would file a case against him.12
On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that cast doubt on her
veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only questions of law. No review of the findings
of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies
and the conclusions drawn from its factual findings, particularly when they are affirmed by the CA. Judicial experience
has shown, indeed, that the trial courts are in the best position to decideissues of credibility of witnesses, having
themselves heard and seen the witnesses and observed firsthand their demeanor and deportment and the manner of
testifying under exacting examination. As such, the contentionsof the petitioner on the credibility of AAA as a witness
for the State cannot beentertained. He thereby raises questions of fact that are outside the scope of this appeal.
Moreover, he thereby proposes to have the Court, which is not a trier of facts, review the entire evidence adduced by
the Prosecution and the Defense.
Conformably with this limitation, our review focuses only on determining the question of law of whether or not the
petitioners climbing on top of the undressed AAA such thatthey faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge
ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the
said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than this own spontaneous desistance. In People v. Lamahang,14 the Court,
speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt acts would constitute
anattempted felony, to wit:
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of

the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the
nature of the acts of execution (accion medio). Hence, the necessity that these acts be such that by their very nature,
by the facts to which they are related, by the circumstances of the persons performing the same, and by the things
connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts
susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent aswell
as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to
produce must be direct; the intention must be ascertainedfrom the facts and therefore it is necessary, in order to avoid
regrettable instance of injustice, that the mind be able to directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts
performed must be such that, withoutthe intent to commit an offense, they would be meaningless."15
To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law
on rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was
Article 335 of the Revised Penal Code, which pertinently provided as follows:
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,"16 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.17 In People v. Campuhan,18 the Court has
defined the extent of "touching" by the penis in rape in the following terms:
[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,19 the Court clarified that the ruling in People v. Eriia20 whereby the offender
was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital organ of the
offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving case law on
rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the requisites of a
frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of
execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the
perpetrators will. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim,
because from that moment all the essential elements of the offense have been accomplished, leaving nothing more to
be done by him.21
Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt actsfor purposes of the
attempted stage has been explained in People v. Lizada:22
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison detrefor the law requiring a direct overtact is that, in
a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the intent of the accused is.It is necessary that
the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the preparations are

made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense. (Bold emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its
attempted stage requires the commencement of the commission of the felony directly by overt actswithout the
offender performing all the acts of execution that should produce the felony, the only means by which the overt acts
performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear
showing of his intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal
law,23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for
attempted rape withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish
attempted rape, must show that his overt acts, should his criminalintent be carried to its complete termination without
being thwarted by extraneous matters, would ripen into rape,24 for, as succinctly put in People v. Dominguez, Jr.:25
"The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act
of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing
her breasts when she freed herself from his clutches and effectively ended his designs on her. Yet, inferring from such
circumstances thatrape, and no other,was his intended felony would be highly unwarranted. This was so, despite his
lust for and lewd designs towards her being fully manifest. Such circumstances remained equivocal, or "susceptible of
double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible to directly
infer from them the intention to cause rape as the particular injury. Verily, his felony would not exclusively be rapehad
he been allowed by her to continue, and to have sexual congress with her, for some other felony like simple seduction
(if he should employ deceit to have her yield to him)26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not include
equivocal preparatory acts. The former would have related to his acts directly connected to rape as the intended
crime, but the latter, whether external or internal, had no connection with rape as the intended crime. Perforce, his
perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony.27 His
preparatory acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and the
other for himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares.
Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable under the
Revised Penal Codefor as long as they remained equivocal or of uncertain significance, because by their equivocality
no one could determine with certainty what the perpetrators intent really was.28
If the acts of the petitioner did not constitute attempted rape, did they constitute acts of lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is the offendersintent
to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of
lasciviousness.29 Attempted rape is committed, therefore, when the "touching" of the vagina by the penis is coupled
with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female.30 Without such showing, only the felony of
acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is consummated whenthe following
essential elements concur, namely: (a) the offender commits any act of lasciviousness or lewdness upon another
person of either sex; and (b) the act of lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived ofreason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age.32 In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it
signifies that form of immorality that has relation to moral impurity; or that which is carried on a wanton manner.33
The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of said AAA
embracing and touching her vagina and breast." With such allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any
inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if
any, unless he committed overt acts directly leading to rape. A good illustration of this can be seen in People v.
Bugarin,34 where the accused was charged with attempted rape through an information alleging that he, by means of
force and intimidation, "did then and there willfully, unlawfully and feloniously commence the commission of the crime
of Rape directly by overt acts, by then and there kissing the nipples and the vagina of the undersigned [complainant],
a minor, and about to lay on top of her, all against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some causes other than his own spontaneous desistance,
that is, undersigned complainant push[ed] him away." The accused was held liable only for acts of lasciviousness
because the intent to commit rape "is not apparent from the actdescribed," and the intent to have sexual intercourse
with her was not inferable from the act of licking her genitalia. The Court also pointed out that the "act imputed to him
cannot be considered a preparatory act to sexual intercourse."35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and one day to four (4) years and two (2) months. Applying
the Indeterminate Sentence Law, the minimum of the penalty should come from arresto mayor, the penalty next lower
than prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity by his
lewdness.1wphi1 "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for
omission."36 Indeed, Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that end, the Court, upon its appreciation of the record, decrees
that P30,000.00 is a reasonable award of moral damages.38 In addition, AAA was entitled to recover civil indemnity of
P20,000.00.39

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a part of the
damages in crimes and quasidelicts. In that regard, the moral damages of P20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full payment.40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS OF
LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3) months of arresto
mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as the maximum;
ORDERS him to pay moral damages of P30,000.00 and civil indemnity of P20,000.00 to the complainant, with interest
of 6% per annum on such awards reckoned from the finality of this decision until full payment; and DIRECTS him to pay
the costs of suit.
SO ORDERED.

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