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THE REVISED PENAL CODE: CRIMINAL LAW II CASES AND DOCTRINES, ARELLANO UNIVERSITY SCHOOL OF LAW aiza ebina/2014

PEOPLE vs. SALUFRANIA


159 SCRA 401, G.R. No. L-50884, March 30, 1988
PARRICIDE WITH UNINTENTIONAL ABORTION

FACTS: Filomeno Salufrania and his wife Marciana Abuyo quarrelled at about 6:00 o'clock in the evening
of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte.
During said quarrel, he boxed his pregnant wife on the stomach and, once fallen on the floor, he
strangled her to death; that blood oozed from the eyes and nose of his wife and that she died right on
the spot where she fell.

Pedro Salufrania, the spouses son, testified as an eyewitness to the crime. He further testified that after
killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex
and he were the only ones who witnessed how the accused killed their mother because his sister and
other brothers were already asleep when the horrible incident happened; that his brothers Celedonio,
Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body
while their father was away; that their father arrived early the next morning with the hammock and
after placing their dead mother on the hammock, the accused carried her on his shoulder and brought
the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from
Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial.

Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and
had refused and still refused to live with his father-accused, because the latter has threatened to kill him
and his other brothers and sister should he reveal the true cause of his mother's death.

The accused denied the allegations and contended that his wife died due to a stomach ailment and
headache. The defense presented witnesses in favor of the accused. However, the trial court decided
and found the accused guilty of the complex crime of parricide with intentional abortion.

He further assigns several errors allegedly committed by the trial court and one of which is that the
latter erred in convicting him of the complex crime of parricide with intentional abortion, assuming
arguendo that the evidence for the prosecution is credible and sufficient.

ISSUE: Whether or not the accused is guilty of the complex crime of parricide with intentional abortion

HELD: No. There is no evidence to show that he had the intention to cause an abortion. He should not
be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of
Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1) That
there is a pregnant woman. 2) That violence is used upon such pregnant woman without intending an
abortion. 3) That the violence is intentionally exerted. 4) That as a result of the violence the fetus dies,
either in the womb or after having been expelled therefrom.

The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he
boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that
appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the
stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to
show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but
not necessarily to cause an abortion.
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The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno
Salufrania committed and should be held liable for the complex crime of parricide with unintentional
abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana
Abuyo, such violence being voluntarily exerted by the herein accused upon his victim.

It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant
when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c)
that, as a result of said violence, Marciana Abuyo died together with the fetus in her womb.

RATIO: Mere boxing on the stomach, taken together with the immediate strangling of the victim in a
fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely
intended to kill the victim but not necessarily to cause an abortion.

---

PEOPLE vs. MORI
G.R. No. L-23511 and L-23512, January 31, 1974
MURDER WITH INTENTIONAL ABORTION

FACTS: At around eleven o'clock in the morning of September 2, 1958, Pio Diamante left the house and
went to the garden patch about twenty meters at the back of the house to gather eggplants for the
family's gulay. Before leaving the house, Diamante instructed his granddaughter, Teresita Luad, "to leaf
calamongay" and prepare the midday meal. Teresita was in the kitchen on the ground floor. Her
husband, Simeon, was also in the kitchen peeling kamoteng kahoy (a species of sweet potato) for the
noon meal. Martina Culao was in the upper floor of the house putting to sleep her baby, Leticia.
Celedonio Luad left the house to plant kawang kabog and drive away the maya birds from his farm.
Felicisimo Luad also left the house to weed his farm which was about a hundred "arms' length" from the
house.

After gathering about seven eggplants, Diamante heard the sound of gunshot shattering the stillness of
the rural scene. It originated from behind a baganga tree about seven meters from the western side of
the house. Diamante looked in that direction. He saw Mori Bilaan, as the intruder who had fired the first
shot, with nine other Bilaans, also armed with guns and krises, all emerging from behind the baganga
tree. The Bilaans carried six guns. The house was between the eggplant garden and the baganga tree.
Diamante sought cover among the plants in the garden which measured thirty brazas square. Through
an opening he could see the Bilaans and the house.

He looked towards the house and saw his granddaughter, Teresita Luad, bleeding and shouting: "Help,
Simeon". Tolabeng embraced her. At that juncture. Oto Bilaan came nearer about three "arms length"
from the house and fired at Tolabeng but missed him. To avoid the gunfire, Tolabeng jumped to the
ground and fled to the forest. Part of the kitchen had no walls. That would explain why Diamante saw
what happened to Teresita Luad and Simeon Tolabeng.

From the garden patch, Diamante saw Mori, Tiwaro, Lapnayan, Mongkil, and Oto going up the house.
Lapnayan, Oto and Mongkil guarded the stairs, while Tiwaro, armed with a kris, and Mori, armed with a
gun, went upstairs.

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After Tiwaro and Mori had gone up the house, Diamante heard Martina Culao, shout "Tatang, help". He
could not do anything because the Bilaans were armed. Then he heard the sounds of hacking and
groaning emanating from the house. Moments later, bundles and other things were thrown out of the
window. Trunks were destroyed. From his position in the garden patch Diamante saw Oto slashing the
neck of Teresita Luad. Pot and Tot killed the pig in the yard. Thereafter, Mori, Oto, Tiwaro, Mongkil and
the other Bilaans regrouped and left for the forest.

After the departure of the Bilaans, Diamante went to the house and found the bodies of Teresita Luad,
Leticia Luad, and Martina Culao sprawled on the floor with several wounds. The head of Teresita (who
was five months pregnant) was almost severed from her body. The same was true with the baby, Leticia.
Martina Culao suffered wounds in the abdomen. She was eight months pregnant. Her abdomen was
almost severed. Diamante saw a blood-stained kris and its scabbared beside her body.

The Bilaans named Mori, Oto, Tiwaro, Mongkil, Lapnayan, Tot and Pok from the decision of the Court of
First Instance of Davao, were found guilty of three separate murders.

ISSUE: Whether or not the accused can be charged with intentional abortion

HELD: No. The two informations charge the accused with multiple murder as a complex crime (Articles
48 and 248, Revised Penal Code). The offense proven is the special complex crime of robbery with
multiple homicide and intentional abortion (Arts. 294 and 256, Revised Penal Code) of which the
accused cannot be convicted because that was not the offense charged (Secs. 4 and 5, Rule 120, Rules of
Court). The trial court convicted the accused on "multiple murder", a complex crime, but then it
imposed three distinct reclusion perpetuas for three separate murders thus, in effect, discarding the
complex nature of the offenses.

Possibly, the three murders may be regarded as a complex crime under the theory that they were
perpetrated under the influence of a single criminal impulse. However, the different killings may also be
characterized as distinct and juridically independent acts which should be separately punished as was
done by the trial court. That would be a form of actual combination of offenses resulting in material
accumulation of penalties, which is founded on the theory that if there are multiple results, where
there are several actions, conforms with the logic and justice the agent borne by each of the offenses
(si son varios los resultados, si son varias las acciones, esta conforme con la logica y con la justicia que el
agente soporte la carga de cada uno de los delitos). The trial court's conviction of the accused of three
separate offenses should not be disturbed.

The killings were attended with the aggravating circumstances of treachery, abuse of superiority,
dwelling and band (cuadrilla). The qualifying circumstance alleged in the information is treachery which
absorbs abuse of superior strength and cuadrilla.

There was treachery (alevosia) because the accused made a deliberate, surprise attack on the victims.
They perpetrated the killings in such a manner that there was no risk to themselves arising from any
defense which the victim might have made (Par. 16, Art. 14, Revised Penal Code) As correctly observed
by the trial court, the killing of the helpless baby, Leticia, was downright murder.

The qualifying circumstance of evident premeditation was not proven. Disregard of sex is not
aggravating because there was no showing that the accused deliberately insulted the sex of the three
victims. It may be included in treachery. The death penalty is imposable on the appellants because the
THE REVISED PENAL CODE: CRIMINAL LAW II CASES AND DOCTRINES, ARELLANO UNIVERSITY SCHOOL OF LAW aiza ebina/2014

aggravating circumstance of dwelling justifies the imposition in the maximum period of the penalty for
murder which is reclusion temporal maximum to death.

The conspiracy among the appellants may be implied from the manner in which, as a band, they acted in
concert when they perpetrated the three murders. Hence, each one of them is responsible for the three
crimes. The act of one was the act of all.

RATIO: Sections. 4 and 5, Rule 120, Rules of Court:

Section 4. Judgment in case of variance between allegation and proof. When there is variance
between the offense charged in the complaint or information and that proved, and the offense as
charged is included in or necessarily includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the offense charged which is included in
the offense proved.

Section 5.When an offense includes or is included in another. An offense charged necessarily includes
the offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form a part of those
constituting the latter.

---
PEOPLE vs. PENESA
81 Phil. 398, C.A. No. 263, August 19, 1948
FRUSTRATED HOMICIDE

FACTS: Timoteo Penesa and Rosario Aguillon lived as husband and wife, in the barrio of Marupit,
municipality of Camalingan, Province of Camarines Sur. Their daughter and five children of Rosario by
her late husband lived with them. Due to continuous wrangles between Timoteo and Rosario's children
by her late husband, both agreed to part. In pursuance of the agreement and after dividing the palay,
lumber and firewood between Timoteo and the children of Rosario by her late husband, Timoteo left
the house on 30 August 1942. Early in the morning of the following day, Timoteo returned to the house
and asked Rosario to live with him in another place. The request was refused. Santiago Cerrado, a cousin
of Rosario, came to the house and, upon seeing Timoteo, asked the latter why he was there after they
had agreed to live apart. Angered by this remark, Timoteo unsheathed his bolo and assaulted Santiago.
Crescencio Doro, the eldest son of Rosario, who tried to prevent another blow upon Santiago and had
made a remark similar to that of Santiago before the latter came to the house, was also assaulted by
Timoteo. At this juncture, Rosario went down through the stairway, preceded by Santiago. Crescencio
and Timoteo grappled for the possession of the bolo and both fell to the floor. A brother of Rosario
appeared upon the scene and snatched the bolo and a dagger from the hands of Timoteo. As a result of
the assault upon Santiago Cerrado, two wounds were inflicted upon him. They were not serious. Upon
Crescensio Doro, wounds were inflicted, which on the day of the trial was still bandaged because it was
not yet healed. There was one wound on him, which was serious and, if the hemorrhage was not
stopped, it would have resulted in his death.

Upon this evidence the trial court found Timoteo Penesa guilty of frustrated homicide. From this
judgment he has appealed.

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ISSUE: Whether or not the accused is guilty of frustrated homicide

HELD: No. The trial court found the appellant guilty of frustrated homicide. This is an error. When he
went to the house of Rosario early in the morning of 31 August, it was not with the intention to kill
anybody, for he went there to entreat Rosario Aguillon to live with him in another house. Neither could
the remarks uttered by Crescencio Doro and Santiago Cerrado have aroused his temper to such an
extent as to engender the desire and intent to kill them. The finding of the trial court is based on the
kind of weapons carried by the appellant when he went to the house and on the parts of the victims'
bodies at which the weapons were aimed, as shown by the wounds inflicted. The bolo with the
appellant inflicted the wounds upon Santiago Cerrado and Crescencio Doro was one ordinarily used by
farm laborers. The dagger was carried for self-defense. The wounds inflicted upon the offended parties
by the appellant were caused indiscriminately and not deliberately. Appellant's purpose in going to the
house, and not the kind of weapons he carried, nor the parts of the victims' bodies on which the wounds
were inflicted indiscriminately, is indicative and determinative of his intent.

We are of the opinion that crime committed by the appellant against Santiago Cerrado, in the absence
of proof as to the period of the offended party's incapacity for labor or of the required medical
attendance, is slight physical injuries, as provided for in Article 266 of the Revised Penal Code; and
against Crescencio Doro is serious physical injuries, for the evidence shows that the wound inflicted on
the 31st of August upon Crescencio Doro was not yet cured on the day of the trial held on 9 October
1942, or that the wound did not heal within 30 days. Pursuant to Article 263, Paragraph 4, of the
Revised Penal Code, and giving the appellant the benefit of the mitigating circumstance of passion and
obfuscation, taken into consideration in his favor by the trial court (Article 13, Paragraph 6, Revised
Penal Code), the penalty to be imposed upon him is six months and 1 day of prision correccional for the
wounds inflicted upon Crescencio Doro; and 15 days of arresto menor for the wounds inflicted upon
Santiago Cerrado.

RATIO: In attempted or frustrated homicide, the offender must have the intent to kill the victim. If there
is no intent to kill on the part of the offender, he is liable for physical injuries. Intent to kill is shown by
the kind of weapon used by the offender and the parts of the victims body at which the weapon was
aimed, as shown by the wounds inflicted. However, the bolo which the accused carried with him is one
ordinarily used by farm laborers and the accused was such a farm laborer.

---

PEOPLE vs. ATENTO
G.R. No. 84728, April 26, 1991
RAPE

FACTS: Glenda Aringo, who was sixteen years old at the time of the alleged offense is a neighbor of
Cesar Atento, a 39-year old store-keeper with a wife and eight children. Her claim is that Atento raped
her five separate times, the first sometime in April 1986.

She says that on that first occasion, she went to Atento's store in Barangay 18, Minoro, Cabagan, in
Legazpi City to buy bread. Her parents were at work and Atento was alone in his house except for his
three-year old daughter. Glenda claims Atento cajoled her into coming inside the house and then took
her downstairs, where he succeeded in deflowering her. She says her maiden head ached and bled.
Afterwards, he gave her P5.00. Glenda speaks of four other times when he raped her. It was later
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(presumably because her hymen had healed) that she felt tickled by his manhood and described the act
of coitus as "masarap."
The girl says she never told anybody about Atento's attacks on her because he had threatened her life.
But she could not conceal her condition for long and after five months had to admit she was pregnant.
She revealed the accused-appellant as the father of the fetus in her womb. The child was delivered on
December 27, 1987.

Atento denies the charge against him, saying it was pure harassment concocted by a relative of the girl
who wanted to eject him from the land where his house was erected. Insisting that Glenda was a girl of
loose morals, he says he had twice seen her in sexual congress with a man and that she had once
offered her body to his thirteen year old son for a fee of P5.00.

Glenda's description of the act of coitus as pleasurable would have destroyed the whole case against
Atento but for one singular significant fact. The girl is a mental retardate.

According to a series of intelligence tests to which she was subjected, Glenda is with an intellectual
capacity between the ages of nine (9) and twelve (12) years. As such, her intellectual functioning is
within the mentally defective level. Her fund of information is inadequate, her judgment is unsound, and
her thinking and working capacity is poor. She is unable to distinguish essential from non-essential
details. Her vocabulary is limited. Her capacity for her perceptual processes is unsatisfactory. She lacks
the capacity for abstracting and synthesizing concepts. However, in the midst of all these, Glenda was
found capable of telling the truth.

The trial court, held Atento guilty of rape under Article 335, Paragraph 3 of the Revised Penal Code.

ISSUE: Whether or not the accused is guilty of rape

HELD: Yes. The Court finds this to be the reason why, while a rape victim with normal intelligence, would
have said that the attack on her caused her much physical pain and mental agony, Glenda naively
declared that Atento's sexual organ in hers gave her much pleasure. It is worth observing that Glenda's
child was born on December, nine months after her rape in April, and that, according to the trial judge,
there was a remarkable resemblance between Atento and the child.

Article 335 of the Revised Penal Code provides: When and how rape 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, even though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.

It has not been clearly established that Atento employed force or threat against Glenda to make her
submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon Glenda under
paragraph 2, because the girl was deprived of reason. Alternatively, he is liable under paragraph 3,
because his victim had the mentality of a girl less than twelve years old at the time she was raped.

Given the low I.Q. of Glenda, it is impossible to believe that she could have fabricated her charges
against the accused. She lacks the gift of articulation and inventiveness. She could not even explain with
ease the meaning of rape, a term which she learned in the community. Even with intensive coaching,
assuming that happened, on the witness stand where she was alone, it would show with her testimony
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falling into irretrievable pieces. But that did not happen. She proceeded, though with much difficulty,
with childlike innocence. A smart and perspicacious person would hesitate to describe to the Court her
sexual experiences as "tickling" and "masarap" for that would only elicit disdain and laughter. Only a
simple-minded artless child would do it. And Glenda falls within the level of a 9-12 year old child. And
Glenda was telling the truth. There is no doubt that when she submitted herself to the accused later for
subsequent intercourses, she was dominated more by fear and ignorance than by reason. In any event,
whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised Penal Code, the accused-
appellant deserves to be punished for the rape of Glenda Aringo.

RATIO: In the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of
will determines the existence of the rape. Such lack of will may exist not only when the victim is
unconscious or totally deprived of reason, but also when she is suffering some mental deficiency
impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or
constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be
incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and
almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not
mean consent for she was incapable of giving any rational consent.

The deprivation of reason need not be complete. Mental abnormality or deficiency is enough.
Cohabitation with a feeble-minded, idiotic woman is rape.

---

PEOPLE vs. BELLO
G.R. No. 129433, March 30, 2000
RAPE

FACTS: On 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo
chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then
busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor.
Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks,
she heard one of her daughters cry, "Ayo'ko, ayo'ko!" prompting Corazon to rush upstairs. Thereupon,
she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose pajamas or "jogging
pants" and panty were already removed, while his short pants were down to his knees. According to
Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, "P - t - ng
ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living within their compound, to chase the
accused. Seconds later, Primo was apprehended by those who answered Corazon's call for help. They
held the accused at the back of their compound until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for
his refusal to run an errand for her. He asserted that in truth Crysthel was in a playing mood and wanted
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to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor.
It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped
him and accused him of raping her child. He got mad but restrained himself from hitting back when he
realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from
the second floor.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that
her narration should not be given any weight or credence since it was punctured with implausible
statements and improbabilities so inconsistent with human nature and experience. He claims that it was
truly inconceivable for him to commit the rape considering that Crysthels younger sister was also in the
room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence
alone as possible eyewitnesses and the fact that the episode happened within the family compound
where a call for assistance could easily be heard and responded to, would have been enough to deter
him from committing the crime. Besides, the door of the room was wide open for anybody to see what
could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such
a vivid description of the alleged sexual contact when from where she stood she could not have possibly
seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence
of any external signs of physical injuries or of penetration of Crysthels private parts more than bolsters
his innocence.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape.

ISSUE: Whether or not the accused is guilty of consummated rape

HELD: No. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that
she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthels vagina."
The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when
sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible
penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have
said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of
the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute
carnal knowledge. But the act of touching should be understood here as inherently part of the entry of
the penis into the labias of the female organ and not mere touching alone of the mons pubis or the
pudendum.

Touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing
of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons
pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the
labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused
to be convicted of consummated rape.

Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not
merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated
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rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia
of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted
rape, if not acts of lasciviousness.

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of
proving that Primos penis was able to penetrate Crysthels vagina however slight. Even if we grant
arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel.
When asked what she saw upon entering her childrens room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact point.

It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the victim
would have provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels
external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo
would have hidden his movements from Corazons sight, not to discount the fact that Primos right hand
was allegedly holding his penis thereby blocking it from Corazons view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual contact and to shove her account into
the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed
in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact
was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to
run roughshod over the constitutional right of the accused to be presumed innocent.

RATIO: Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than his
own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are
present in the instant case, hence, the accused should be punished only for it.

---

PEOPLE vs. MENDOZA
G.R. NO. 180501, December 24, 2008
RAPE

FACTS: In the early afternoon of April 25, 2000, after her parents had left for work, [AAA], who was then
six (6) years old, was at home. With her on that day was the maid and accused-appellant, who was
reapplying as family driver. As she was playing with the water hose in the garage, her dress got wet
forcing her to repair to her room to change. Accused-appellant followed. Once inside the room,
accused-appellant tried to undress her, tightly held her hands, and told her to lie in the bed. He
thereupon pulled her panties down. In reaction, she pulled it up but accused-appellant quickly pulled it
down again. It was at this moment when, according to AAA, accused-appellant touched her vagina with
his fingers and kissed her on the left cheek. All the while, he repeatedly assured her of being her friend
and that they were just playing the mother-and-father roles. Shortly after, she ran to her parents' room
and locked the door. Accused-appellant followed but left after AAA ignored his insistence to continue
with the father-mother game.
THE REVISED PENAL CODE: CRIMINAL LAW II CASES AND DOCTRINES, ARELLANO UNIVERSITY SCHOOL OF LAW aiza ebina/2014


Later in the evening, AAA told her parents about her ordeal, after which they reported the matter to
barangay officials and the police. AAA was then asked to undergo a medical examination.

In the course of her direct examination, AAA was presented a sketch of a female body to assist her
pinpoint what part of her body accused-appellant touched. In response, she shaded the area in between
the legs of the female figure.

Testifying in his defense, accused-appellant admitted to being at AAA's family home on April 24, 2000
and staying overnight. He remained in the house the following day waiting for AAA's father to return so
he could collect what he earned for a day's work. To while his time away, he went outside to watch and
talk to persons doing road repair work. And while outside, he suddenly felt water falling upon him. As it
turned out, AAA was playing in the yard with the water hose aimed at him, which he did not mind. She
continued to play with the hose and ended up flooding the garage. Thereafter, he asked the road
workers about the possibility of working with them only to be told he would need a barangay clearance.
He then left, returning a few days later to submit his clearance to the workers' foreperson and to collect
his one-day salary. According to accused-appellant, AAA's father was so angry at him for not waiting last
April 25, 2000 that he pushed accused-appellant and banged his head against the garage wall. After
AAA's mother pacified her irate husband, barangay officials arrived and brought accused-appellant to
the police station. Once there, accused-appellant was charged with molesting AAA, who, however, did
not say anything at the police station; it was her mother who answered all the questions of the police
investigator. He was charged with fingering the sexual organ of AAA. He denied the accusation, asserting
that he did not touch the child, being outside their house on the day in question watching men doing
road repair work.

Despite his contentions, the trial court rendered judgment finding accused-appellant guilty of rape. He
appealed in the CA and the latter modified the trial courts decision, finding the accused guilty of acts of
lasciviousness. Hence, this appeal.

ISSUE: Whether or not the accused is guilty of rape

HELD: No. The Court need not belabor the issue of whether or not accused-appellant is guilty of rape
which in turn resolves itself into the question of whether or not he inserted his fingers into AAA's sexual
organ. The issue has been peremptorily answered in the negative by the CA, basing its resolution on the
relevant finding of the examining doctor and on the testimony of AAA, who, at best, was tentative in her
response when queried about the finger-insertion aspect of the incident. Also, the People does not
challenge the determination. And precisely because of the fact of non-insertion that the appellate court
was impelled, and rightly so, to downgrade the criminal act to acts of lasciviousness.

Absent any showing of the actual insertion of the finger in the private part of the child, there can be no
consummated rape. Thus, the failure of the prosecution to establish accused-appellant's guilt for rape
notwithstanding, this Court finds him liable for the lesser crime of acts of lasciviousness. This latter
crime is considered an offense included or subsumed in the rape charge.

By analogy, we hold that for a charge for rape by sexual assault (with the use of one's fingers as the
assaulting object, as here) to prosper, there should be evidence of at least the slightest penetration of
the sexual organ and not merely a brush or graze of its surface.

THE REVISED PENAL CODE: CRIMINAL LAW II CASES AND DOCTRINES, ARELLANO UNIVERSITY SCHOOL OF LAW aiza ebina/2014

This is in consonance with Article 266-A, paragraph 2 of the Revised Penal Code, as amended by
Republic Act No. 8353, which provides: Rape is committed 2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.

Accused-appellant's virtual contention that his guilt for acts of lasciviousness has not been proved by
proof beyond reasonable doubt deserves scant consideration. While the RTC and the CA had disagreed
as to what crime was committed, the disagreement stemming from their differing findings on whether
or not accused-appellant inserted his fingers into AAA's vagina, both the courts were one in saying that
accused-appellant indeed kissed AAA on the face and fondled her most private part, or, in fine, that he
committed lascivious acts on a six-year girl. The prosecution's evidence introduced during the entire trial
established the presence of all the elements of the crime of acts of lasciviousness. The testimony of the
victim shows that accused-appellant committed lewd acts against her when he pulled down her panties,
kissed her on her left cheek, touched her private part and then squeezing her arm causing her extreme
pain.

RATIO: Rape through sexual assault, thus, requires that the assault be specifically done through
"insertion" into the genital or anal orifices of the victim, a circumstance absent in this case, or at least
not established by the required quantum of evidence.

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