EN BANC

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

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.

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

XXX That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent. Contrary to law.[3] The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393, respectively. Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to each of the charges.[4] A joint trial then ensued.

DECISION CALLEJO, SR., J.: This is an automatic review of the Decision[1] of the Regional Trial Court of Manila, Branch 54, finding accused-appellant Freedie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the death penalty for each count. I. The Charges Accused-appellant[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

II. Evidence of the Prosecution[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] Jepsy, who was 11 years old, and Rossel, who was nine years old. However, the couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children. She worked as a waitress to make both ends meet. In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan, bought a truck and used it for her business. In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She sold Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and Analia took turns in tending the video shop and attending to customers. Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-shirt and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her vagina. Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ. Satiated, accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her. Accused-appellant then returned to his room. The incident lasted less than one hour. Petrified by the threats on her life, Analia kept to herself what happened to her.[7]

Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and held her legs and arms. He then inserted his finger into her sex organ (fininger niya ako). Satiated, accused-appellant left the room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times a week. On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments. Accused-appellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her room and lay down in bed. She did not lock the door of the room because her brother might enter any time. She wanted to sleep but found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however, entered the room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind accused-appellant entering her room because she knew that her brother, Rossel was around. However, accused-appellant sat on the side of her bed, placed himself on top of her, held her hands and legs and fondled her breasts. She struggled to extricate herself. Accused-appellant removed her panty and touched her sex organ. Accused-appellant inserted his finger into her vagina, extricated it and then inserted his penis into her vagina. Accusedappellant ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after drinking water from the refrigerator, and peeped through the door. He saw accused-appellant on top of Analia. Accused-appellant saw Rossel and dismounted. Accused-appellant berated Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the house and stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what accused-appellant had just done to her. On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her. Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the house on board the motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had not yet been returned. When Rose inquired from her daughter what she meant by her statement, ayoko na, ayoko na, she told her mother that accused-appellant had been touching the sensitive parts of her body and that he had been on top of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have 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 medicolegal officer interviewed Analia, told him that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.[8] Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which contained her findings during her examination on Analia, thus: x x x Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.

No extragenital physical injuries noted. GENITAL EXAMINATION: Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent. CONCLUSIONS: 1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. 2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.[9] Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang sinabi ko. When Rose inquired from her daughter what she meant by her statement, Analia revealed to her mother that accused-appellant had sexually abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and charged accused-appellant with rape.[10]

III. The Defenses and Evidence of Accused-Appellant Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994 to live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine Banking Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila. Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his own children. He took care of them, as in fact he cooked and prepared their food before they arrived home from school. At times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was hard-headed because she disobeyed him whenever he ordered her to do some errands. Because of Analias misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their house. Another irritant in his and Roses lives were the frequent visits of the relatives of her husband. Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay of P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income of P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact disc player and many other properties. Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them to fabricate charges against him because Rose wanted to manage their business and take control of all the properties they acquired during their coverture. Also, Rose was so exasperated because he had no job.

IV. The Verdict On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and meted on him the death penalty for each count. The dispositive portion of the decision reads: From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable doubt of the crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code. SO ORDERED.[11]

facts and the law on which it is based. This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure, as amended, which reads: SEC. 2. Form and contents of judgment.The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived.[14] The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by the court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that they were accorded their rights to be heard by an impartial and responsible judge.[15] More substantial reasons for the requirement are: For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate what he may consider its errors for review by a higher tribunal. For another, the decision if wellpresented and reasoned, may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and the law on which they are based, especially those coming from the Supreme Court, will constitute a valuable body of case law that can serve as useful references and even as precedents in the resolution of future controversies.[16] The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution.[17] Trial courts should not merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal conclusion. In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on direct and cross examinations and merely made referral to the documentary evidence of the parties then concluded that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced him to death, on each count. The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for convicting accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-appellant with the curt declaration in the decretal portion of its decision that it did so based on the evidence of the prosecution. The trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its decision why it believed and gave probative weight to the evidence of the prosecution. Reading the decision of the trial court, one is apt to conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even bother specifying the factual and legal bases for its imposition of the supreme penalty of death on accused-appellant for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The

V. Assigned Errors of the Trial Court Accused-appellant assailed the decision of the court a quo and averred in his brief that: THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12] XXX THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]

VI. Findings of the Court On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its decision. The trial court merely summarized the testimonies of the witnesses of the prosecution and those of accused-appellant and his witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to state in said decision the factual and legal basis for the imposition of the supreme penalty of death on him. The Solicitor General, on the other hand, argues that there should be no mechanical reliance on the constitutional provision. Trial courts may well-nigh synthesize and simplify their decisions considering that courts are harassed by crowded dockets and time constraints. Even if the trial court did not elucidate the grounds as the legal basis for the penalties imposed, nevertheless the decision is valid. In any event, the Solicitor General contends that despite the infirmity of the decision, there is no need to remand the case to the trial court for compliance with the constitutional requirement as the Court may resolve the case on its merits to avoid delay in the final disposition of the case and afford accused-appellant his right to a speedy trial. The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that no decision shall be rendered by any court without expressing therein clearly and distinctly the

decision of the trial court is a good example of what a decision, envisaged in the Constitution and the Revised Rules of Criminal Procedure, should not be. The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial court, for compliance with the constitutional provision. However, to avert further delay in the disposition of the cases, the Court decided to resolve the cases on their merits considering that all the records as well as the evidence adduced during the trial had been elevated to the Court.[18] The parties filed their respective briefs articulating their respective stances on the factual and legal issues. In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; (3) the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the weakness of the evidence of the defense.[19] By the very nature of the crime of rape, conviction or acquittal depends almost entirely on the credibility of the complainants testimony because of the fact that usually only the participants can testify as to its occurrence. However, if the accused raises a sufficient doubt as to any material element of the crime, and the prosecution is unable to overcome it with its evidence, the prosecution has failed to discharge its burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled to an acquittal. Anent the second assignment of error, we will resolve the same for convenience, as follows: Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22, 1998 and on or about September 15, 1998) Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil show that the hymen of the private complainant was intact and its orifice so small as to preclude complete penetration by an average size adult Filipino male organ in full erection without producing any genital injury. The physical evidence belies private complainants claim of having been deflowered by accused-appellant on four different occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the private complainant proved the guilt of accused-appellant for the crime charged on both counts. The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to her.[20] Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of private complainant. It bears stressing that under the two Informations, the rape incidents are alleged to have been committed on or about September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period, months or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998. In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of which were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995 and one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by means of force, violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M. Gianan, against her will and consent, to her damage and prejudice.[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] Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996 until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined the private complainant on her testimony on direct examination. The presentation by the prosecution, without objection on the part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which includes September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted a waiver by accused-appellant of his right to object to any perceived infirmity in, and in the amendment of, the aforesaid Informations to conform to the evidence adduced by the prosecution. The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the penetration of the male organ went only as deep as herlabia. Whether or not the hymen of private complainant was still intact has no substantial bearing on accused-appellants commission of the crime.[24] Even the slightest penetration of the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is sufficient that there be entrance of the male organ within the labia of the pudendum.[25] In People vs. Baculi, cited in People vs. Gabayron,[26] we held that there could be a finding of rape even if despite repeated intercourse over a period of four years, the complainant still retained an intact hymen without injury. In these cases, the private complainant testified that the penis of accused-appellant gained entry into her vagina: Fiscal Carisma (continuing) After your underwear was removed by the accused, what happened next? Witness: He laid himself on top of me, sir.

Q A Q A Q A Q A

What did he do while he was on top of you? He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya) Can you please describe more specifically what is this and I quote Pinatong nya yong ano nya and where did he place it? 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? I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir.[27] (Underlining supplied)

The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not render the Information defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge of the private complainant under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as amended. Significantly, accused-appellant did not even bother to file a motion for a bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned under the Information and entered a plea of not guilty to the charge without any plaint on the sufficiency of the Information. Accused-appellant even adduced his evidence after the prosecution had rested its case. It was only on appeal to this Court that accused-appellant questioned for the first time the sufficiency of the Information filed against him. It is now too late in the day for him to do so. Moreover, in People vs. Salalima, [31] this Court held that: Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed before and until October 15, 1994, sometime in the year 1991 and the days thereafter, sometime in November 1995 and some occasions prior and/or subsequent thereto and on or about and sometime in the year 1988 constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure. In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we believe that the allegations therein that the acts were committed sometime during the month of March 1996 or thereabout, sometime during the month of April 1996 or thereabout, sometime during the month of May 1996 or 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, accusedappellant saw Rossel peeping through the door and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-appellant then left the room of the private complainant. The testimony of private complainant on direct examination reads: Fiscal Carisma: Q A Q In between 1996 and August 1997? Yes, sir, sometimes two (2) times a week. In November of 1998, do you recall of any unusual experience that happened to you again?

We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the common-law husband of the victims mother, is a special qualifying circumstance warranting the imposition of the death penalty. [28] However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to the accused. [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] 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.

A Q A Q A Q A Q A Q A Q

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?

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? Yes, sir.[32]

On cross-examination, the private complainant testified, thus: Atty. Balaba: Q Who was that somebody who entered the room? A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q My stepfather Freedie Lizada, sir. 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. What happened when you realized that somebody entered the room, and the one who entered was your stepfather, Freedie Lizada? 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. 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. 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? 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?

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.

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 - -

You cannot also remember which leg was held by Freedie Lizada? A Q A Q A Q A Q A Q I cannot recall, sir. When this happened, did you not shout for help? 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. And you were not able to extricate yourself from him? I was not able to extricate myself, sir. 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? No, sir, its not like that. Could you tell us, what happened, you did not shout for help and you were trying to extricate yourself, what happened? He suddenly went out of the room, sir. Now, he went - - -

Court: Proceed. Atty. Balaba: Q A Q A Q A Q A Q A Q A 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.

Court: You did not shout during that time? A No, your honor.[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) Q A Q A Now, on November 2, 1998 do you recall where you were at about 3:00 oclock? I was outside our house, sir. Where was your house again, Mr. witness, at that time? time and place? At that date and time? 1252 Jose Abad Santos, Tondo, Manila, sir. Where was your house at that date,

Atty. Balaba: Can we take a recess your honor? Court: How long will it take you to finish your cross? Atty. Balaba: We will confront the witness with so many things your honor. Court: Yes, thats why I am asking you how long will it take you to finish your cross? Atty. Balaba: About another hour, sir. Court: So we will be finished by 11:15, proceed. Atty. Balaba:

Court: Q A The same address? Yes, sir.

Fiscal Carisma: Q A Q A 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 A Q A Q A Q A Q A Q A Q A

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

A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

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. And --- okay, you said your sister was sleeping. What was the position of your sister when you said the accused removed her panty? 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 to a male person who when asked answers to the name Freedie Lizada. Fiscal Carisma: Q A Q A Q A Q A 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? 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? He scolded me, he shouted at me, he told me something and after that he went to the other room and slept, sir.[34]

Court Interpreter: Witness pointing at the lower portion of the body. Atty. Balaba: Q A You saw with what hand was the accused touching your sister? Yes, sir.

Rossel testified on cross-examination, thus: Q So you got thirsty, is that correct, and went inside the house? A Q Yes, sir. And you took a glass of water from the refrigerator?

Q A

What hand was he touching your sister? This hand, sir.

Q A Q A Q A

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]

Court Interpreter: Witness raising his right hand. Atty. Balaba: Q A Q A Q A 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? Her right leg, sir. How about his left hand, what was the accused doing with his left hand? Removing her panty, sir. Removing her? Panty, sir. Which hand of your sister was being removed with the left hand of the accused?

In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the aperture or within thepudendum of the vagina of private complainant. Hence, accused-appellant is not criminally liable for consummated rape.[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] 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] Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on a wanton manner.[39] The 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:

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

1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offenders act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[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] An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.[42] The raison detre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. [43] It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.[44] The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. [45] In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.[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] One perpetrating preparatory acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a consummated felony under the law, the malefactor is guilty of such consummated offense. [48] The Supreme Court of Spain, in its decision of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their objective be known and established or such that acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for designation of the offense.[49] There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts executed (accion medio).[50] Hence, it is necessary that the acts of the accused must be such that, by their nature, by the facts to which they are related, by circumstances of the persons performing the same, and by the things connected therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs. Lamahang[51] that: The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is

necessary, in order to avoid regrettable instances of injustice, that the mind be able to cause a particular injury.[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] The law does not punish him for his attempt to commit a felony. [54] The rationale of the law, as explained by Viada: La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un perdon que concede la Ley al arrepentimiento voluntario.[55] As aptly elaborated on by Wharton: First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before it is possible for any evil consequences to ensue. Neither society, nor any private person, has been injured by his act. There is no damage, therefore, to redress. To punish him after retreat and abandonment would be to destroy the motive for retreat and abandonment.[56] It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal liability for the intended crime but it does not exempt him from the crime committed by him before his desistance.[57] In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if not for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from performing all the acts of execution however his desistance was not spontaneous as he was impelled to do so only because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted rape.[58] In a case of similar factual backdrop as this case, we held: Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the 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. Accused-appellant should be meted an indeterminate penalty the minimum of which should be taken from prision correccional which has a range of from six months and one day to six years and the maximum of which shall be taken from the medium period of prision mayor which has a range of from eight years and
[59]

one day to ten years, without any modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in the amount of P25,000.00. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows: 1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple rape under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua. Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts of P50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages; 2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335 of the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate penalty of from six years of prision correccional in its maximum period, as minimum to ten years of prision mayor in its medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the amount of P25,000.00 by way of moral damages; and, 3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral damages for each count, or a total amount of P200,000.00. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Bellosillo, J., on leave.

[13] [14] [15] [16] [17] [18] [19] [20]

Id., at 53. Supra. Francisco vs. Permskul, et al., 173 SCRA 327 (1989). Vide Note 14. Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975). People vs. Bugarin, 273 SCRA 384 (1997). People vs. Sta. Ana, 291 SCRA 188 (1998). TSN, Orillosa, June 3, 1999, pp. 8-28.

[21] 340 SCRA 481 (2000).

[22] [23] [24] [25] [26] [27] [28] [29] [30]

Ibid., p. 489. Ibid., p. 488. People vs. Cabingas, et al., 329 SCRA 21 (2000). People vs. Borja, 267 SCRA 370 (1997). 278 SCRA 78 (1997). TSN, Orillosa, June 3, 1999, pp. 11-12. People vs. Torio, 318 SCRA 345 (1999). People vs. Alcala, 307 SCRA 330 (1999). Id., supra. 363 SCRA 192 (2001). TSN, Orillosa, June 3, 1999, pp. 18-20. TSN, Orillosa, June 7, 1999, pp. 39-45. TSN, Orillosa, June 28, 1999, pp. 6-10. TSN, Orillosa, June 28, 1999, pp. 13-20. People vs. Campuhan, 329 SCRA 270 (2000). Id., supra. Id., supra. People vs. Tayag, 329 SCRA 491 (2000). Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra. Id., supra, p. 98. Id., supra, pp. 98-99. People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing Wharton.

[1] [2] [3] [4] [5]

Penned by Judge Manuel T. Muro. Accused-appellant was charged under the name Freedie Lizada. Original records, pp. 1-4. Id., at 73. The prosecution presented four witnesses, namely, Analia Orillosa, Rose Orillosa, Rossel Orillosa & Dr. Armie Umil. Exhibit A. Exhibit 2. Exhibit C. Supra. Exhibit 2. Records, p. 147. (The name of accused-appellant is erroneously stated as Fredie Lizada.) Rollo, p. 51.

[31] [32] [33] [34] [35] [36] [37] [38] [39] [40] [41] [42] [43]

[6] [7] [8] [9]

[10] [11] [12]

[44] [45] [46] [47] [48] [49] [50] [51] [52] [53]

People vs. Gibson, 94 Cal. App. 2d. 468. Wharton, Criminal Law, Vol. 1, 12 ed. 287. Vide Note 32, p. 47. Wharton, Criminal Law, idem, supra, p. 293. Reyes, Revised Penal Code, supra, p. 97. People vs. Lamahang, 62 Phil. 703 (1935). 1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935). See note 48. Ibid., p. 707. Spontaneous means proceeding from natural feeling or native tendency without external constraint; synonymous with impulsive, automatic and mechanical. (Webster, Third New International Dictionary, p. 2204). Reyes, idem, supra, p. 104. Aquino, Revised Penal Code, Vol. 1, 1987 ed. Wharton, Criminal Law, Vol. 1, pp. 307-308, supra. Reyes, Revised Penal Code, supra, p. 105. People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001. Article 51, Revised Penal Code.

The Solicitor General contends that accused-appellant should be held liable for unjust vexation under Art. 287(2) of the Revised Penal Code. However, the elements of unjust vexation do not form part of the crime of rape as defined in Art. 335 of the Revised Penal Code. Moreover, the circumstances stated in the information do not constitute the elements of the said crime. Accused-appellant, therefore, cannot be convicted of unjust vexation. Petitioners reliance on Contreras is misplaced. There, the 12 identical Informations3 substantially alleged: The undersigned State Prosecutor accuses IAN CONTRERAS Y EROY, based on the sworn declaration of one ANGELIC OCRENAS y CONTRERAS assisted by NELENE DIAZ y OCRENAS of the crime of "STATUTORY RAPE IN RELATION TO R.A. 7610," committed as follows: That between the period from May to June 1996 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and feloniously have sexual intercourse with one ANGELIC OCRENAS y CONTRERAS, age 6 years old. Contrary to law. Unlike the 12 separate Informations in Contreras, the indicting Information for attempted rape against the petitioner in the instant case contains averments constituting and thus justifying his conviction for unjust vexation, a form of light coercion, under Article 287 of the Revised Penal Code. Here, the Information reads: 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. (Italics ours.) Contrary to law. The aforequoted Information states all the facts and ingredients that fully apprised the petitioner of the nature and cause of the accusation against him, in compliance with his constitutional right to be informed of the nature of the charges against him. Petitioner argues, however, that the Information, as quoted above, does not allege that the complained act of covering the face of the victim (Malou) with a piece of cloth soaked in chemical caused her annoyance, irritation, torment, distress and disturbance. We wish to stress that malice, compulsion or restraint need not be alleged in an Information for unjust vexation. Unjust vexation exists even without the element of restraint or compulsion for the reason that the 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.4 As pointed out in the Decision sought to be reconsidered: The paramount question [in a prosecution for unjust vexation] is whether the offender's act causes annoyance, irritation, torment, distress, or disturbance to the mind of the person to whom it is directed. That

[54] [55] [56] [57] [58] [59]

G.R. No. 138033

January 30, 2007

RENATO BALEROS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. RESOLUTION GARCIA, J.: In this Motion for Partial Reconsideration,1 petitioner-movant Renato Baleros, Jr., through counsel, seeks reconsideration of our Decision of February 22, 2006, acquitting him of the crime of attempted rape, thereby reversing an earlier decision of the Court of Appeals, but adjudging him guilty of light coercion and sentencing him to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs. It is petitioners submission that his conviction for light coercion under an Information for attempted rape, runs counter to the en banc ruling of the Court in People v. Contreras2 where the Court held:

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 the petitioner. For being a mere rehash of those already passed upon and found to be without merit in the Decision sought to be reconsidered, the other grounds relied upon by the petitioner in his Motion for Partial Reconsideration in support of his plea for a complete acquittal need not be belabored anew. WHEREFORE, the motion under consideration is DENIED with FINALITY. SO ORDERED. CANCIO C. GARCIA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson ANGELINA SANDOVAL-GUTIERREZ Associate Justice ADOLFO S. AZCUNA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice RENATO C. CORONA Asscociate Justice

Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81. FIRST DIVISION

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners, Present:

G.R. No. 166326

- versus -

PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ.

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. January 25, 2006 DECISION CALLEJO, SR., J.: This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming, with modification, the Decision[2] of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al. On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads: That on or about the 3rd day of May 1998, in the Municipality of Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit with a piece of hollow block, one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the different parts of his body, the accused thus commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution which would produce the crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen, to his damage and prejudice. CONTRARY TO LAW.[3]

Footnotes
1

Rollo, pp. 374-399. G.R. Nos. 137123-24, August 23, 2000, 338 SCRA 622.

All the 12 Informations read substantially the same, except for the names of the persons who executed the different sworn declarations and the persons who assisted them.

Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would-be rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the television network ABS-CBN for saving the would-be victim. His wife eked out a living as a manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmarias,Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo. At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued. At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted: Awatin sila! Awatin sila! Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house. Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital left.[4] The doctor declared that the lacerated wound in the parietal area was slight and superficial and would heal from one to seven days.[5] The doctor prescribed medicine for Rubens back pain, which he had to take for one month.[6] Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to Ruben, the latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and brought to their house. For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo at the scene. Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and ordered him to get out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and asked Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at Edgardos shirt and hair, and, in the process, Rubens head hit the lamp post.[7] On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00. SO ORDERED.[8] The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed decision. The dispositive portion of the CA decision reads: WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED. SO ORDERED.[9] The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in affirming the RTC decision. They insist that the prosecution failed to prove that they had the intention to kill Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area; hence, they should be held criminally liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only of attempted homicide. On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill Ruben: On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows: Q: And while you were being boxed by Esmeraldo and Bong, what happened next? A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head, Sir. Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol? A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir. As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them even picked up a cement hollow block and proceeded to hit the victim on the head

with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.[10] The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus: The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent to kill is very evident and was established beyond reasonable doubt. Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo Baby Rivera. They further narrated that, soon thereafter, his two brothers Ismael and Edgardo Dagul Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo Dagul Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. He was caught off-guard by the assault of Esmeraldo Baby Rivera and the simultaneous attack of the two other petitioners. It was also established that the victim was hit by Edgardo Dagul Rivera, while he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed the victim had he not managed to escape and had the police not promptly intervened. Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court of Appeals held: As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.[11] The petition is denied for lack of merit. An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo. In People v. Delim,[12] the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was

committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed. In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral contusions. That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate petitioners criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still criminally liable for attempted murder. The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: 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. 2. 3. The offender commences the commission of the felony directly by overt acts; He does not perform all the acts of execution which should produce the felony; The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.[13] 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.[14] The Court in People v. Lizada[15] elaborated on the concept of an overt or external act, thus: 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 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. 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.[16] In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have died. We reject petitioners contention that the prosecution failed to prove treachery in the commission of the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-year-old daughter, impervious of the imminent peril to his life. He had no chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden and unexpected attack on the victim.[17] Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or defend himself, there would be treachery.[18] Obviously, petitioners assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners, treachery is considered against all of them.[19] The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetuato death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years. Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum

period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. No costs. SO ORDERED. ROMEO J. CALLEJO, SR. WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson CONSUELO YNARES-SANTIAGO Associate Justice MINITA V. CHICO-NAZARIO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice [1] Penned by Associate Justice Portia Alio-Hormachuelos (Chairman), with Associate Justices Danilo B. Pine and Fernanda Lampas Peralta, concurring; rollo, pp. 17-29. [2] Penned by Judge Dolores L. Espaol; CA rollo, pp. 15-19. [3] Records, p. 1. [4] Exhibits B and B-1, records, p. 9. [5] Id. [6] TSN, June 19, 2000, p. 29. [7] TSN, September 24, 2001, pp. 2-18. [8] Records, p. 257. [9] CA rollo, p. 136. [10] Rollo, pp. 25-26. [11] Id. at 70-71. [12] G.R. No. 142773, January 28, 2003, 444 Phil. 430, 450 (2003). [13] People v. Lizada, G.R. No. 143468-71, January 24, 2003, 444 Phil. 67 (2003). [14] Reyes, Revised Penal Code, 1981, Vol. I, p. 98. [15] Supra at note 13. [16] Id. at 98-99. [17] People v. Gutierrez, G.R. No. 142905, March 18, 2002, 429 Phil. 124, 126 (2002). [18] People v. Coscos, G.R. No. 132321, January 21, 2002, 424 Phil. 886, 903 (2002). [19] People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil. 668, 682 (2000). Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code. EN BANC ARISTOTEL VALENZUELA y NATIVIDAD, Petitioner, G. R. No. 160188 Present: PUNO, C.J., QUISUMBING, SANTIAGO, versus CARPIO, GUTIERREZ, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and NACHURA, JJ. Promulgated: 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[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. As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory I. The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS, Respondents.

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[9] Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on20 May 1994, the day after the incident.[10] After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12]Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio

Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15] In a Decision[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.[17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime. Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[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.[20] However, in its Decision dated 19 June 2003, [21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24] Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated. II. In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part,Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied

in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft. More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future. 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.[30] Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.[33]On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34] Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code. In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the

felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent. The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40] It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives. We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows: Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with

intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property. Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[42] In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another against the will of the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another.[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.
[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing.[47]However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.[51] So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him. On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes

independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code[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. U.S. v. Adiao[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.[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below: The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.) The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another. In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration: We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59] If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft. Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions. Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check

point without further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows: Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]Integrating these considerations, the Court of Appeals then concluded: This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63] Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well.[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.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less

restricted,[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead. Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68] In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling: There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he coulddispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [[70]][71] In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[72] There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon[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.[74] In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any

element of theft, is the use or benefit that the thieves expected from the commission of the offense.[76] In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place. IV.The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78] As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full: However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80] No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis. Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of executionwhich should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders. For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided

in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication. Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see howEmpelis 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[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.[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.[84] Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello 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.[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 delagente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied) Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft. This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court. V.The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.[89] With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[90] Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab. Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we asserted in People v.Avila:[93] x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance.[94] Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio? Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people

present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated. All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the 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. DANTE O. TINGA Associate Justice

WE CONCUR: REYNATO S. PUNO Chief Justice

[4]

53 Phil. 226 (1929). 217 Phil. 377 (1984). Records, pp. 1-2. Rollo, pp. 21-22. Id. at 22. See id. at 472.

[5]

[6]

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

[7]

[8]

[9]

[10]

[1]

See infra, People v. Dio and People v. Flores.

[2]

Not accounting for those unpublished or unreported decisions, in the one hundred year history of this Court, which could no longer be retrieved from the Philippine Reports or other secondary sources, due to their wholesale destruction during the Second World War or for other reasons.
[3]

See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The affidavits and sworn statements that were executed during the police investigation by security guards Lago and Vivencio Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused, commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record why no charges were brought against the four (4) other suspects, and the prosecutions case before the trial court did not attempt to draw in any other suspects other than petitioner and Calderon. On the other hand, both petitioner and Calderon claimed during trial that they were innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of the incident when they were haled in, along with the four (4) other suspects by the security guards in the resulting confusion. See infra. However, both petitioner and Calderon made no move to demonstrate that the non-filing of the charges against the four (4) other suspects somehow bolstered their plea of innocence. In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was anymore raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other suspects should bear no effect in the present consideration of the case.
[11]

See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for frustrated theft, yet in none of those cases was the issue squarely presented that theft could be committed at its frustrated stage. See People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721 (1951). InPeople v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept the viability of a conviction for frustrated theft, though the issue expounded on by the Court pertained to the proper appellate jurisdiction over such conviction. It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still, the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated theft, or even discuss such scenario by way of dicta. In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court affirmed a conviction for frustrated theft, the accused therein having been caught inside Meralco property before he could flee with some copper electrical wire. However, in the said decision, the accused was charged at the onset with frustrated theft, and the Court of Appeals did not inquire why the crime committed was only frustrated theft. Moreover, the charge for theft was not under the Revised Penal Code, but under Rep. Act No. 7832, a special law.

Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also testified in court in behalf of Calderon. See Records, pp. 357-390.
[12]

Records, pp. 330-337.

[13]

A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[14]

Rollo, p. 25. Records, pp. 424-425. Id. at 472-474; Penned by Judge Reynaldo B. Daway. Id. at 474.

[15]

[16]

[17]

[18]

Id. at 484. CA rollo, pp. 54-62. Rollo, p. 25.

[39]

[19]

City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.
[40]

[20]

J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 288.
[41]

[21]

Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division, concurred in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.
[22]

A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution dated 1 October 2003.
[23]

Rollo, pp. 8-15. Id. at 12. Id. at 9. Id. at at 13-14. No. 924-R, 18 February 1948, 45 O.G. 3446. 6 C.A. Rep. 2d 835 (1964).

See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.
[42]

[24]

See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000).
[43]

[25]

S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614. Id. at 615. Id. citing Inst. 4, 1, 1.

[26]

[44]

[27]

[45]

[28]

[46] [29]

See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112113 and R. AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.
[30]

Act No. 3185, as amended.

[31]

See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as that point where [the offender] still has control over his acts, including their (acts) natural course. See L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]

People v. Caballero, 448 Phil. 514, 534 (2003). See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id. U.S. v. Eduave, 36 Phil. 209, 212 (1917).

Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a view to gain, or is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this doctrine: Thus, to take examples from the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps horse down a mine shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It might be thought that these instances could safely and more appropriately have been left to other branches of the criminal lawthat of criminal damage to property for instance. But there are cases where there is no such damage or destruction of the thing as would found a charge under another Act. For example, D takes Ps diamond and flings it into a deep pond. The diamond lies unharmed in the pond and a prosecution for criminal damage would fail. It seems clearly right that D should be guilty of theft. J. SMITH, SMITH & HOGAN CRIMINAL LAW (9th ed., 1999), at 534.
[47]

[33]

F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520. People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.

[34]

[48]

[35]

People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999).
[36]

[49]

People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CAG.R. No. 14953, 31 October 1956, all cited in REGALADO, supra note 47 at 521.
[50]

See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.

People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO, supra note 47 at 521.
[51]

[37]

People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.
[38]

Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.

REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28 October 1980, 100 SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505 (1983). See also People v. Bustinera, supra note 42.

[74] [52]

Id. at 1391. Citations omitted. CA G.R. No. 2107-R, 31 May 1949.

The distinction being inconsequential if the criminal charge is based on a special law such as the Dangerous Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838,October 23 1997, 281 SCRA 103, 120.
[53]

[75]

[76]

38 Phil. 754 (1918). Id. at 755. Id. Id. at 755-756. Supra note 4. Supra note 4 at 227. Id. People v. Dio, supra note 27 at 3450. Id. Id. Id. at 3451. People v. Flores, supra note 28 at 840.

Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[77]

[54]

REYES, supra note 29 at 113.

[55]

[78] [79]

[56]

[57]

[58]

[59]

[60]

Supra note 5. REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next higher by two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x x consists of coconuts taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in the tree or deposited on the ground within the premises is qualified theft. When the coconuts are stolen in any other place, it is simple theft. Stated differently, if the coconuts were taken in front of a house along the highway outside the coconut plantation, it would be simple theft only. [In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises of the plantation. They would therefore come within the definition of qualified theft because the property stolen consists of coconuts taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.
[80]

[61]

Empelis v. IAC, supra note 5, at 380.

[62]

[81] [82]

[63]

[64]

[65]

Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.
[66]

Id. at 841. Id. People v. Dio, supra note 27 at 841. People v. Naval and Beltran, CA 46 O.G. 2641. See note 62. AQUINO, supra note 29 at 122. Id. at 110. C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.

[67]

[68]

Id. Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal, http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier but without violence against or intimidation of persons nor force upon things, is instead incorporated in the definition of robbery (robos) under Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de lucro, se apoderaren de las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar donde stas se encuentran o violencia o intimidacin en las personas.) By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great Britain). The most notable difference between the modern British and Spanish laws on theft is the absence in the former of the element of animo lucrandi. See note 42. [83] 1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.
[84]

[69]

[70]

[71]

Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D. Joaquin Gabino sorprendieron al penado Juan Gomez Lopez al tomar una capa que haba en un maniqu, por lo que hubo de arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no aparece realizado en toda la extensin precisa para poderlo calificar como consumado, etc. Id. at 103-104.
[85]

[72]

[73]

The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada (supra note 83, at 103), where the offender was surprised at the meadow from where he was stealing firewood, id.

In Criminal Case No. 97-159184 [86]

E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1). Id. at 798-799. 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. THIRD DIVISION In Criminal Case No. 97-159187[G.R. Nos. 141724-27. November 12, 2003] That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW.[2] Arraigned on September 5, 1997, appellant pleaded not guilty.[3] Thereafter, trial on the merits ensued. However, the trial was subsequently postponed for eight months as Jessica was suffering from psychological and emotional trauma from her horrifying ordeal.[4] The lower court ordered the suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting Jessica as its first witness. Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother, Girlie de la Cruz Castro, and the appellant for child abuse. The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother Girlie. Appellant, a pedicabdriver, started living with Girlie and her three children sometime in 1993 in a two-storey house in Paco, Manila owned by Girlies mother. They occupied a room on the ground floor which served as their bedroom, kitchen and living room. The adjacent room was occupied by Girlies brother and his family while the room on the second floor was occupied by Girlies sister and her family.

[87]

[88]

Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger, 18 U.S. 76 (1820).
[89]

Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United States, 473 U.S. 207 (1985).
[90]

See e.g., People v. Bustinera, supra note 42. AQUINO, supra note 29, at 110.

[91]

[92]

People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v. Bustinera, supra note 42 at 295.
[93]

44 Phil. 720 (1923). Id. at 726.

[94]

[95]

Justice Regalado cautions against putting a premium upon the pretensions of an accused geared towards obtention of a reduced penalty. REGALADO, supra note 47, at 27.

PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant. DECISION CORONA, J.: This is an appeal from the decision[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159184, 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 informationsfiled against appellant by the City Prosecutor read:

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 Navotasfish market late at night and sometimes in the early hours of the morning. The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two children with Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant grabbed Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen. She tried to leave the room but appellant locked the door and threatened to kill her if she told her mother what happened. Jessica was then only nine years and four months old, having been born on December 19, 1983.[5] The second rape, subject of Criminal Case No. 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[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 waswith 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. SO ORDERED. [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.[8]

The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution was able to prove his guilt beyond reasonable doubt. The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt appellants guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as frustrated rape in this jurisdiction. After a thorough review of the records, we find no reason to deviate from the well-established rule that the credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.[9] In the present case, the trial court found Jessicas testimony convincing, logical and credible. Moreover, the court a quo: xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her ... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the proceeding was interrupted several times to calm her down.[10] No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of a public trial if the accusations were not true, or if her motive were other than a fervent desire to seek justice.[11] We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not see in Jessica. The fact that Jessica had to undergo psychological treatment[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.[13] Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the family are also sleeping, in a house where there are other occupants or even in places which to many might appear unlikely and high-risk venues for its commission.[14] Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of her relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated into silence and conceal for sometime the violation of her honor, even by the mildest threat to her life. [15] Besides, Girlie, Jessicas mother, had a rift with her siblings who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the strained relations between Jessicas mother, uncle and aunt prevented Jessica from confiding in them. In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not necessarily detract from the witness credibility as long as it is satisfactorily explained.

[16]

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

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs. xxx xxx. SO ORDERED. [19] However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape: The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis thereof in the body of the decision reads: With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00 p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and T-shirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was smeared with his semen. (emphasis supplied, p. 2, Decision) Such was the only rape incident where the trial court concluded there was no penetration. On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial courts decision reads: Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica was watching TV while the other siblings were asleep and her mother was away, when accused again made sexual advances to her. She resisted and told accused she might become pregnant, but the accused persisted and threatened to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again succeeded xxx

in having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the accused tried to calm her down by assuring her that she would not be impregnated, because she has not yet began to have menstruation (p. 3, Decision) Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where the findings of the trial court was that there was carnal knowledge.[20] Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is further evidenced by the following paragraph found in page four of the trial court decision: In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year, constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by lethal injection. [21] (Emphasis Ours) The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97159187, as borne out by theinformations filed by the City Prosecutor.[22] Thus, the conviction for frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187. Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases. [23] Recently, in People vs. Quinanola,[24] we again reiterated the rule: Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, the Court has explicitly pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs.Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L32996, 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 reclusionperpetua 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. (emphasisours) Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of his penis and smear her vagina.[25] In response to the clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to slightly penetrate her because she felt pain and her vagina bled.[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.[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.[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 97-159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged in the information.[29] Thus, appellant can only be convicted of simple rape punishable by reclusion perpetuaunder 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[30] and duly proven during the trial by the presentation of her birth certificate.[31] We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape victims without need of pleading or proof. [32] We also award civil indemnity ex delicto of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the finding of the fact of rape.[33] We likewise award exemplary damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on the matter.[34] WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97159 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. Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

[23]

People vs. Aca-Ac, 357 SCRA 373 [2001]; People vs. Quinanola, 306 SCRA 710 [1999]; People vs. Orita, 184 SCRA 105 [1990]. 306 SCRA 710 [1999]. TSN, February 17, 1998, p. 5-6. TSN, February 23, 1999, p. 3. People vs. Campuhan, 329 SCRA 270, 280 [2000]. Ibid. citing People vs. Villamor, 199 SCRA 472 [1991], People vs. Palicte 229 SCRA 543 [1994], People vs. Sanchez, 250 SCRA 14 [1995], People vs. Gabris, 258 SCRA 663 [1996], People vs. Gabayron, 278 SCRA 78 [1997]. People vs. Mendoza, G.R. Nos. 132923-24, June 6, 2002; People vs. Gabiana, 338 SCRA 562 [2000]; People vs. Dimapilis, 300 SCRA 279 [1998]. Rollo, pp. 7-8. Exhibit E. People vs. Catubig, 363 SCRA 621 [2001]; People vs. Sarmiento, 344 SCRA 345 [2000]. People vs. Quilatan, 341 SCRA 247 [2000]; People vs. Narido, 316 SCRA 131 [1999]. People vs. Patanayan, Jr., G.R. Nos. 141189-141202, July 23, 2002.

[24] [25] [26] [27] [28]

[1] [2] [3] [4] [5] [6] [7] [8] [9]

Penned by Judge Perfecto Laguio, Jr. Rollo, pp. 6-9. Records, p. 13. Records, p. 33. TSN, February 17, 1998, p. 2; Exhibit E. Exhibit C, records, p. 8. Rollo, p. 23. Rollo, p. 41. People vs. Sabdani, 334 SCRA 498 [2000]; Pag-Ibig Village Association vs. Angon, 294 SCRA 554 [1998]. Rollo, p. 26. People vs. Clado, 343 SCRA 729 [2000]; People vs. Mariano, 345 SCRA 17 [2000]; People vs. Sancha, 324 SCRA 646 [1998]. Rollo, pp. 33-41. People vs. Bayona, 327 SCRA 190 [2000]; People vs. Calayca, 301 SCRA 192 [1999]. People vs. Castillo, 335 SCRA 100 [2000]. People vs. Bea Jr., 306 SCRA 653 [1999]; People vs. Antonio, 336 SCRA 366 [1998]. People vs. Santos, 368 SCRA 535 [2001]; People vs. Gonzales, 338 SCRA 371 [2000]; People vs. Padil, 318 SCRA 795 [1999]. People vs. Narido, 316 SCRA 131 [1999]; People vs. Alimon, 257 SCRA 658 [1996]. People vs. Villaraza, 339 SCRA 666 [2000]; People vs. Ballesteros, 285 SCRA 438 [1998]. Rollo, p. 23. Rollo, pp. 108-110. Rollo, p. 26. Rollo, pp. 6-10.
[29]

[30] [31] [32] [33] [34]

[10] [11]

[12] [13] [14] [15] [16]

[17] [18] [19] [20] [21] [22]

SYLLABI/SYNOPSIS THIRD DIVISION [G.R. No. 126148. May 5, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accused-appellants. DECISION VITUG, J.: In People vs. Orita,[1] this Court has declared that the crime of frustrated rape is nonexistent. The pronouncement, notwithstanding, on 01 March 1996, more than six years after the promulgation of the decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted accused Agapito Quianola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the crime of frustrated rape, principally on the strength of People vs. Eriia[2] which this Court, in theOrita decision, has considered to be a stray decision. The 1st March 1996 decision of the RTC of Cebu City imposing upon each of the accused the penalty ofreclusion perpetua of Forty (40) Years, has been brought up by them to this Court. The appeal opens up the whole case for review. The information, dated 06 April 1994, charging the two accused with the crime of rape reads: That on or about the 5th day of March, 1994, at about 11:30 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 above-named accused, conspiring, confederating and mutually helping one another, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of the offended party Catalina Carciller, fifteen (15) years of age, against her will and consent. "CONTRARY TO LAW.[3]

Already in force and effect at the time of the averred commission of the crime are the provisions of Republic Act No. 7659, amending the Revised Penal Code, which define and penalize rape, as follows: ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: "1. By using force or intimidation; "2. When the woman is deprived of reason or otherwise unconscious; and "3. When the woman is under twelve years of age or is demented. "The crime of rape shall be punished by reclusion perpetua. "Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. "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,[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[5] even as Catalina still tried desperately to free herself from him. She felt his organ "on the lips of (her) genitalia.[6] When Quianola had satisfied his lust, Escuadro took his turn by placing himself on top of Catalina. Catalina could feel the sex organ of Escuadro on the lips of (her) vulva[7] while he made a push and pull movement. Quianola, who stood by, kept on smoking a cigarette. Escuadro and Quianola scampered immediately after Catalina's ordeal. Failing to find her pair of pants and panty, Catalina was left wearing 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,[8] prepared by Dr. Tomas P. Refe, medico-legal officer of the National Bureau of Investigation ("NBI") of Region 7, Central Visayas, who conducted the physical examination of Catalina on 07 March 1994, showed that there was no evidence of extragenital physical injury noted on the body of the Subject.[9] The genital examination yielded the following findings on the victim: Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick, wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with moderate resistance. Vaginal walls, tight and rogusities, prominent.[10] (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.[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.[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.[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 Panlaan, 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,[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.[15] The trial court ruled that the accused were liable for the crime of frustrated rape with an eye to extending to the two accused the benefit of the principle that in case of doubt criminal justice naturally leans in favor of the milder form of penalty[16] but that, because of the existence of at least six (6) aggravating circumstances,[17] not offset by any mitigating circumstance,[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 above-mentioned aggravating circumstances, with absolutely no offsetting mitigating circumstances, ought to be punished with the mandatory penalty of death under the pertinent provisions of Section 11 and 23 of Republic Act No. 7659, which amended Article 335 of the Revised Penal Code, and further amplified the aggravating circumstances enumerated in Article 14 of the same code. But because the crime committed here is 'merely' frustrated rape for the reasons heretofore discussed, attended by the aforementioned six aggravating circumstances, not offset by even one mitigating circumstance, the proper penalty to be imposed upon the two principals, the two accused herein, both co-conspirators, by direct participation and indispensable cooperation, of the frustrated rape, should be one degree lower than the indivisible afflictive penalty of death, which is also the indivisible afflictive penalty of reclusion perpetua which, under Section 21 of the amendatory statute, shall range from twenty years and one day to forty years.[19] In their appeal to this court, the two convicted accused interposed the following assignment of errors:

"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."[20] In reviewing rape cases, this Court must again say that it has been continually guided by the principles (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves only two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.[21] Expectedly, courts would scrupulously examine the testimony of the complainant with the thought always in mind that the conviction of the accused would have to depend heavily on the credibility of the offended woman. It is not much different in this instance for, at bottom, appellants assail the credibility of the prosecution witnesses, particularly that of the complainant, in seeking a reversal of the judgment of conviction. The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and will not be disturbed on appeal in the absence of any clear showing that the trial court has overlooked, misunderstood or misapplied facts or circumstances of weight and substance that could have consequential effects. The stringency with which appellate tribunals have observed this rule is predicated on the undisputed vantage of the trial court in the evaluation and appreciation of testimonial evidence.[22] In assailing 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.[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. Q You said that you were forced by Agapito Quianola to sit down, where were you forced to sit down, in what particular place or area? "A Just behind the back of the school. "Q You were forced to sit down on the ground? "A Yes. "Q In effect did you sit down as ordered by him? "A I resisted. "COURT: "Q How did you resist? "A I said I will not sit down.

"TRIAL PROS. NAZARENO: "Q What did Agapito Quianola do, if any, when you resisted? "A He pointed his gun to me. "Q When he pointed a gun at you, referring to Agapito Quianola, what did he say? "A He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me. "Q What did you do when you heard those words coming from Agapito Quianola? "A I cried. "Q When you cried what did Agapito Quianola do, if any? "A He ordered Eduardo Escuadro to remove my pants and panty. "COURT: "Q 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 After that what happened when Agapito Quianola was already on top of you and kept on making a push and pull? "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.[24] The fact that she must have been lying down when violated has even more been made clear by the defense on cross-examination. Thus: Q Did 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.[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.[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.[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.[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 witness[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.[30] There is no plausible reason why Catalina should testify against appellants, imputing upon them so grave a crime as rape if it did not happen. This Court has consistently held that where there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith and credit.[31] So, also, the Court has repeatedly said that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction.[32] The positive identification of appellants as being the perpetrators of the crime effectively effaces their alibi.[33] The rule is that affirmative testimony is far weightier than a mere denial, especially when it comes from the mouth of a credible witness.[34] Moreover, alibi might be aptly considered only when an accused has been shown to be in some other place at the crucial time and that it would have been physically impossible for him to be at the locus criminis or its immediate vicinity at the time of the commission of the crime.[35] In the context it is used in the Revised Penal Code, carnal knowledge, unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the hymen be ruptured.[36] The crime of rape is deemed consummated even when the mans penis merely enters the labia or lips of the female organ[37] or, as once so said in a case, by the mere touching of the external genitalia by a penis capable of consummating the sexual act.[38] In People vs. Escober,[39] in convicting a father of having raped twice his 11-year-old daughter, the Court has said: While the evidence may not show full penetration on both occasions of rape, the slightest penetration is enough to consummate the offense. In fact, there was vulva penetration in both cases. The fact that the hymen was intact upon examination does not belie rape for a broken hymen is not an essential element of rape; 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.[40] (Italics supplied.) In another case, People vs. Gabayron,[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 well-settled to the effect that for rape to be consummated, rupture of the hymen is not necessary, nor is it necessary that the vagina

sustained a laceration especially if the complainant is a young girl. The medical examination merely stated that the smallness of the vaginal orifice only precludes COMPLETE penetration. This does not mean that rape has not been committed. The fact that there was no deep penetration of the 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 thataccused-appellants organ managed to come into contact with her vagina, enough to cause her pain.[42] (Italics supplied.) In its recent holding in People vs. Echegaray,[43] the Court has declared that a mere knocking at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the 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,[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: Q And when he mounted on top of you Escuadro was holding on to your two feet and all the time that he (Quianola) was making a push and pull on you, Escuadro was holding on to your two feet? "A. Yes. "COURT: "Q Your two feet? "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.[45] This testimony would indicate that Catalina, considering her struggle to free herself, understandably failed to notice whether her legs were spread apart or close together during her ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs when Quianola took her. Thus -

Q At that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly so that he will refrain from raping you? "A I was not able to think of that because of my fear, and besides that Eduardo Escuadro was holding on to both my legs. "Q Now, if Eduardo Escuadro was holding on both your two legs how was Quianola able to place himself on top of you? "A It was because Eduardo Escuadro had already released my hands and Quianola was the one holding on to it already, afterwards Eduardo Escuadro transferred to hold both my legs.[46] Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita,[47] the Court has explicitly pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; 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.[48] The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language. Each appellant is liable for two counts of consummated rape on account of a clear conspiracy between them shown by their obvious concerted efforts to perpetrate, one after the other, the crime. Each of them, therefore, is responsible not only for the rape committed personally by him but also for the rape committed by the other as well.[49] Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, when rape is committed with the use of a deadly weapon or by two persons, the crime is punishable by reclusion 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,[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 death[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.[52] Craft, fraud or disguise[53] is a species of aggravating circumstance that denotes intellectual trickery or cunning resorted to by an accused to aid in the execution of his criminal design or to lure the victim into a trap and to conceal the identity of the accused. The fact that one of the appellants has pretended to be a member of the New 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.[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 jurisprudence[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.[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. Romero (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
[1] [2] [3] [4] [5]

[6]

184 SCRA 105. 50 Phil. 998. Records, p. 1. Exh. B, Records, p. 39. TSN, Catalina Carciller, 29 July 1994, p. 10.

Ibid., p. 11. Ibid. [8] Exh. A or 1, Records, p. 13. [9] Ibid. [10] Ibid. [11] Ibid. [12] TSN, Agapito Quianola, November 13, 1995, p. 16. [13] TSN, PO2 William Beltran, 14 December 1994, p. 3. [14] Presided by Judge Renato C. Dacudao. [15] Records, p. 121. [16] Ibid., p. 120. [17] (1) Use of deadly weapons to terrorize and intimidate the victim; (2) Two persons committed the crime; (3) One of the offenders was a member of the Philippine National Police; (4) Fraud or disguise because appellant Quianola pretended that he was a member of the New Peoples Army to instill fear in the victim; (5) Commission of the crime at nighttime, and (6) Resort to ignominy in the commission of the crime by stripping the victim of her pants and panty and sending her home in that humiliating and distressing condition. [18] Ibid. [19] Records, p. 121. [20] Rollo, p. 188. [21] People vs. Balmoria, 287 SCRA 687. [22] People vs. Sta. Ana, G.R. Nos. 115657-59, June 26, 1998. [23] Appellants Brief, pp. 20-24. [24] TSN, July 29, 1994, pp. 8-11. [25] TSN, August 1, 1994, p. 5. [26] People vs. Banguis, G.R. No. 121626, June 26, 1998. [27] TSN, August 1, 1994, pp. 8-9. [28] Ibid., pp. 6-7. [29] TSN, November 15, 1994, pp. 9-10. [30] People vs. Auxtero, 289 SCRA 75. [31] People vs. Banguis, supra. [32] People vs. Fuensalida, 281 SCRA 452. [33] People vs. Bajar, 281 SCRA 262. [34] People vs. Ramirez, 334 Phil. 305. [35] People vs. Timon, 281 SCRA 577. [36] 6 WORDS AND PHRASES 273 citing Walker vs. State, 273 S.W.2d 707, 711, 197 Tenn. 452. [37] People vs. Cabebe, G.R. No. 125910, May 21, 1998. [38] People vs. De la Pea, 233 SCRA 573 cited in People vs. Castromero, 280 SCRA 421. [39] 281 SCRA 498. [40] At pp. 506-507. [41] 278 SCRA 78. [42] At pp. 92-93. [43] 327 Phil. 349, 360, citing People vs. Abella, 228 SCRA 662; People vs. Tismo, 204 SCRA 535; People vs. Castillo, 197 SCRA 657. [44] Records, pp. 119-120. [45] TSN, August 29, 1994, p. 10. [46] Ibid., p. 9. [47] 184 SCRA 105.
[7]

[48] [49]

At pp. 114-115. REYES, THE REVISED PENAL CODE, Book II, 12th ed. (1981), citing People vs. Villa, 81 Phil. 193 and People vs. Alfaro, 91 Phil. 404. [50] That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity. [51] Art. 335 (6), Ibid., as amended by Rep. Act No. 7659. [52] People vs. Garcia, 327 Phil. 1056. [53] Art. 14 (14), Revised Penal Code. [54] Rollo, p.138. [55] People vs. Prades, G.R. No. 127569, July 30, 1998. [56] Art. 110, Revised Penal Code.