2 5

PEOPLE VS.
CAMPUHAN
GR No. 129433, March 30, 2000
329 SCRA 270
FACTS:
1. Ma. Corazon Pamintuan is the mother of four-year old Crysthel Pamintuan.
2. Ma. Corazon went down from the 2nd floor of their house to prepare Milo chocolate for her
two children.
3. 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 in the second floor.
4. Primo was a helper of the brother of Corazon.
5. As Corazon was busy preparing the drinks, she heard one of her daughters cry, “Ayo’ko,
Ayo’ko” prompting Corazon to rush upstairs.
6. Thereupon, she saw Primo inside her children’s room kneeling down before Crysthel, whose
pajamas were already removed, while his short pants were down to his knees.
7. Primo was apprehended and was charged with statutory rape.
8. The trial court found him guilty and sentenced him to the extreme penalty of death.
9. 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 Crysthel’s vagina.”
10. Hence this automatic review.
ISSUE:
Is Primo guilty of Consummated rape?
HELD:
In PEOPLE VS. DE LA PENA, the SC clarified that the decisions finding a case for rape even if
the attacker’s penis merely touched the external portions of the female genitalia were made in
the context of the presence or existence of an erect penis capable of full penetration. Where
the accused failed to achieve an erection, had a limp of flaccid penis, or an oversized penis
which could not fit into the victim’s vagina, the Court nonetheless held that rape was
consummated on the basis of the victim’s testimony that the accused repeatedly tried, but in
vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum
as the victim felt his organ on the lips of her vulva, or that the penis of the accused touched
the middle part of her vagina.
Thus, touching when applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of
the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the female organ, and not merely
stroked the external surface thereof, for an accused to be convicted of consummated rape. As
the labias, which are required to be “touched” by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence, the conclusion that touching
the labia majora or the labia minora of the pudendum constitutes consummated rape.
Judicial depiction of consummated rape has not been confined to the oft-quoted “touching of
the female organ,” but has also progressed into being described as “the introduction of the
male organ into the labia of the pudendum,” or “the bombardment of the drawbridge.” But to
the SC's mind, the case at bar merely constitues a "shelling of the castly of orgasmic
potency," or ***a "strafing of the citadel of passion."
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.
JUDGMENT MODIFIED TO ATTEMPTED RAPE
EN BANC
[G.R. No. 143468-71. January 24, 2003]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

FREEDIE LIZADA @ FREDIE LIZADA, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision of the Regional Trial Court of

1[1]
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 was charged with four (4) counts of qualified rape under
2[2]
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.
1 [1]
Penned by Judge Manuel T. Muro.
2 [2]
Accused-appellant was charged under the name “Freedie Lizada.”
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
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the
Contrary to law.”3[3]
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390,
99-171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de
parte and entered a plea of not guilty to each of the charges. A joint trial then
4[4]
ensued.
II. Evidence of the Prosecution 5[5]
3 [3]
Original records, pp. 1-4.
4 [4]
Id., at 73.
5
The prosecution presented four witnesses, namely, Analia Orillosa, Rose Orillosa,
[5]
Rossel Orillosa & Dr. Armie Umil.

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; Jepsy,
6[6]
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[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.
Accused-appellant ejaculated. Analia felt pain in her sex organ. Momentarily,
6 [6]
Exhibit “A.”
7 [7]
Exhibit “2.”
Rossel passed by the room of Analia after drinking water from the refrigerator,
and peeped through the door. He saw accused-appellant on top of Analia.
Accused-appellant saw Rossel and dismounted. Accused-appellant berated
Rossel and ordered him to go to his room and sleep. Rossel did. Accused-
appellant then left the room. Analia likewise left the room, went out of the house
and stayed outside for one hour. Rose arrived home at 6:00 p.m. However,
Analia did not divulge to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-
appellant was in the sala of the house watching television. Analia tended the
video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant
who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in
the video shop. When Rose returned, a heated argument ensued between
accused-appellant and Analia. Rose sided with her paramour and hit Analia.
This prompted Analia to shout. “Ayoko na, ayoko na.” Shortly thereafter, Rose
and Analia left the house on board the motorcycle driven by her mother in going
to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had
not yet been returned. When Rose inquired from her daughter what she meant
by her statement, “ayoko na, ayoko na,” she told her mother that accused-
appellant had been touching the sensitive parts of her body and that he had been
on top of her. Rose was shocked and incensed. The two proceeded to
Kagawad Danilo Santos to have accused-appellant placed under arrest. On
November 10, 1998, the two proceeded to the Western Police District where
Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of
SPO2 Fe H. Avindante. She related to the police investigator that accused-
appellant had touched her breasts and arms in August, 1998, September 15,
1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then
submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal
officer of the NBI. The medico-legal officer interviewed Analia, told him that she
was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m. 8[8]
Dr. Umil prepared and signed a report on “Living Case No. MO-98-1265”
which contained her findings during her examination on Analia, thus:
“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.
8 [8]
Exhibit “C.”
Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight.
Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude
complete penetration by an average-sized adult Filipino male organ in full
erection without producing any genital injury.”9[9]
Subsequently, Analia told her mother that “mabuti na lang iyong panghihipo
lang ang sinabi ko.” When Rose inquired from her daughter what she meant by
her statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a “Dagdag na Salaysay
ng Paghahabla” and charged accused-appellant with rape. 10[10]
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of

courtship, he and Rose agreed in 1994 to live together as husband and wife. He
was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer
house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the
children of Rose as if they were his own children. He took care of them, as in
fact he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was
already big. Analia was hard-headed because she disobeyed him whenever he
ordered her to do some errands. Because of Analia’s misbehavior, accused-
appellant and Rose oftentimes quarreled. Rose even demanded that accused-
appellant leave their house. Another irritant in his and Rose’s 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
9 [9]
Supra.
10 [10]
Exhibit “2.”
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[11]
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his
brief that:
“THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF
FACT IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.”12[12]
XXX
“THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.13[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the

decision of the trial court is null and void as it failed to comply with the
requirements of Section 14, Article VIII of the 1987 Constitution and Section 1,
11
Records, p. 147. (The name of accused-appellant is erroneously stated as “Fredie”
[11]
Lizada.)
12 [12]
Rollo, p. 51.
13 [13]
Id., at 53.
Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers that the
court a quo made no findings of facts in its decision. The trial court merely
summarized the testimonies of the witnesses of the prosecution and those of
accused-appellant and his witnesses, and forthwith set forth the decretal portion
of said decision. The trial court even failed to state in said decision the factual
and legal basis for the imposition of the supreme penalty of death on him. The
Solicitor General, on the other hand, argues that there should be no mechanical
reliance on the constitutional provision. Trial courts may well-nigh synthesize
and simplify their decisions considering that courts are harassed by crowded
dockets and time constraints. Even if the trial court did not elucidate the grounds
as the legal basis for the penalties imposed, nevertheless the decision is valid.
In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance
with the constitutional requirement as the Court may resolve the case on its
merits to avoid delay in the final disposition of the case and afford accused-
appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14
of the 1987 Constitution provides that “no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it
is based.” This requirement is reiterated and implemented by Rule 120, Section
2 of the 1985 Rules on Criminal Procedure, as amended, which reads:
“SEC. 2. Form and contents of judgment.—The judgment must be written
in the official language, personally and directly prepared by the judge and
signed by him and shall contain clearly and distinctly a statement of the facts
proved or admitted by the accused and the law upon which the judgment is
based.
If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the aggravating
or mitigating circumstances attending the commission thereof, if there are any;
(b) the participation of the accused in the commission of the offense, whether
as principal, accomplice, or accessory after the fact; (c) the penalty imposed
upon the accused; and (d) the civil liability or damages caused by the wrongful
act to be recovered from the accused by the offended party, if there is any,
unless the enforcement of the civil liability by a separate action has been
reserved or waived.”14[14]
The purpose of the provision is to inform the parties and the person reading
the decision on how it was reached by the court after consideration of the
evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading
of the decision of the trial court that they were accorded their rights to be heard
by an impartial and responsible judge. More substantial reasons for the
15[15]
requirement are:
14 [14]
Supra.
15 [15]
Francisco vs. Permskul, et al., 173 SCRA 327 (1989).
“For one thing, the losing party must be given an opportunity to analyze the
decision so that, if permitted, he may elevate what he may consider its errors
for review by a higher tribunal. For another, the decision if well-presented and
reasoned, may convince the losing party of its merits and persuade it to accept
the verdict in good grace instead of prolonging the litigation with a useless
appeal. A third reason is that decisions with a full exposition of the facts and the
law on which they are based, especially those coming from the Supreme Court,
will constitute a valuable body of case law that can serve as useful references
and even as precedents in the resolution of future controversies.”16[16]
The trial court is mandated to set out in its decision the facts which had been
proved and its conclusions culled therefrom, as well as its resolution on the
issues and the factual and legal basis for its resolution. Trial courts should not
17[17]
merely reproduce the respective testimonies of witnesses of both parties and

come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary
evidence of the parties then concluded that, on the basis of the evidence of the
prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced
him to death, on each count.
The trial court even failed to specifically state the facts proven by the
prosecution based on their evidence, the issues raised by the parties and its
resolution of the factual and legal issues, as well as the legal and factual bases
for convicting accused-appellant of each of the crimes charged. The trial court
rendered judgment against accused-appellant with the curt declaration in the
decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the
prosecution. It failed to explain in its decision why it believed and gave probative
weight to the evidence of the prosecution. Reading the decision of the trial court,
one is apt to conclude that the trial court ignored the evidence of accused-
appellant. The trial court did not even bother specifying the factual and legal
bases for its imposition of the supreme penalty of death on accused-appellant for
each count of rape. The trial court merely cited seventh paragraph, no. 1, Article
335 of the Revised Penal Code. The decision of the trial court is a good example
of what a decision, envisaged in the Constitution and the Revised Rules of
Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the
infirmity of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the
Court decided to resolve the cases on their merits considering that all the records
16 [16]
Vide Note 14.
17 [17]
Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975).
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
[18]
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. By the very nature of the crime of rape,
19[19]
conviction or acquittal depends almost entirely on the credibility of the

complainant’s 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 complainant’s 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. Although private complainant did not testify that she was
20[20]
18 [18]
People vs. Bugarin, 273 SCRA 384 (1997).
19 [19]
People vs. Sta. Ana, 291 SCRA 188 (1998).
20 [20]
TSN, Orillosa, June 3, 1999, pp. 8-28.
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, this Court affirmed the conviction of accused-
21[21]
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 Dasmariñas, Province of Cavite, and
within the jurisdiction of this Honorable Court, the above-named accused, with
lewd designs, taking advantage of his superior strength over the person of his
own twelve (12) year old daughter, and by means of force, violence and
intimidation, did, then and there, willfully, unlawfully and feloniously, have
repeated carnal knowledge of Myra M. Gianan, against her will and consent, to
her damage and prejudice.”22[22]
On the contention of accused-appellant in said case that his conviction for
rape in December 1992 was so remote from the date (November 1995) alleged
in the Information, so that the latter could no longer be considered as being “as
near to the actual date at which the offense was committed” as provided under
Section 11, Rule 110 of the Rules on Criminal Procedure, as amended, this
Court held:
“Accused-appellant nevertheless argues that his conviction for rape in
December 1992 is so remote from the date (November 1995) alleged in the
information, so that the latter could no longer be considered as being “as near
to the actual date at which the offense was committed” as provided under Rule
110, §11.
This contention is also untenable. In People v. Garcia, this Court upheld a
conviction for ten counts of rape based on an information which alleged that the
accused committed multiple rape “from November 1990 up to July 21, 1994,” a
time difference of almost four years which is longer than that involved in the
case at bar. In any case, as earlier stated, accused-appellant’s failure to raise
a timely objection based on this ground constitutes a waiver of his right to
object.”23[23]
21 [21]
340 SCRA 481 (2000).
22 [22]
Ibid., p. 489.
23 [23]
Ibid., p. 488.
Moreover, when the private complainant testified on how accused-appellant
defiled her two times a week from 1996 until 1998, accused-appellant raised nary
a whimper of protest. Accused-appellant even rigorously cross-examined the
private complainant on her testimony on direct examination. The presentation by
the prosecution, without objection on the part of accused-appellant, of evidence
of rape committed two times a week from 1996 until 1998 (which includes
September 15, 1998 and October 22, 1998) to prove the charges lodged against
him constituted a waiver by accused-appellant of his right to object to any
perceived infirmity in, and in the amendment of, the aforesaid Informations to
conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998
does not preclude her having been repeatedly sexually abused by accused-
appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the
hymen of private complainant was still intact has no substantial bearing on
accused-appellant’s commission of the crime. Even the slightest penetration
24[24]
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. In People vs. Baculi, cited in People
25[25]
vs. Gabayron, we held that there could be a finding of rape even if despite
26[26]
repeated intercourse over a period of four years, the complainant still retained an
intact hymen without injury. In these cases, the private complainant testified that
the penis of accused-appellant gained entry into her vagina:
“Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote “Pinatong
nya yong ano nya” and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
24 [24]
People vs. Cabingas, et al., 329 SCRA 21 (2000).
25 [25]
People vs. Borja, 267 SCRA 370 (1997).
26 [26]
278 SCRA 78 (1997).
A I felt pain, sir, and I also felt that there was a sticky substance that was
coming out, sir.”27[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of
simple rape, instead of qualified rape. The evidence on record shows that
accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years
old, and under Article 335 as amended by Republic Act 7659, the minority of the
private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim’s mother, is a special qualifying circumstance
warranting the imposition of the death penalty. However, said circumstance
28[28]
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. Hence, even if the prosecution
29[29]
proved the special qualifying circumstance of minority of private complainant and

relationship, the accused-appellant being the common-law husband of her
mother, accused-appellant is guilty only of simple rape. Under the given law, the
penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil
indemnity in the amount of P50,000.00 and moral damages in the amount of
P50,000.00 for each count of rape, or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime
committed on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-
171390 is defective because the date of the offense “on or about August 1998”
alleged therein is too indefinite, in violation of Rule 110, Section 11 of the
Revised Rules on Criminal Procedure which reads:
“Sec. 11. Date of commission of the offense.—It is not necessary to state in
the complaint or information the precise date the offense was committed except
when it is a material ingredient of the offense. The offense may be alleged to
have been committed on a date as near as possible to the actual date of its
commission. (11a)”30[30]
Accused-appellant further asserts that the prosecution failed to prove that he
raped private complainant in August 1998. Hence, he argues, he should be
acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date “on or about August 1998” is sufficiently definite. After all, the date
of the commission of the crime of rape is not an essential element of the crime.
The prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the
trial.
27 [27]
28 [28]
People vs. Torio, 318 SCRA 345 (1999).
29 [29]
People vs. Alcala, 307 SCRA 330 (1999).
30 [30]
Id., supra.
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[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, appellant’s 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
31 [31]
363 SCRA 192 (2001).
wearing a pair of short pants but naked from waist up, entered the bedroom of
private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant
saw Rossel peeping through the door and dismounted. He berated Rossel for
peeping and ordered him to go back to his room and to sleep. Accused-
appellant then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
“Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that
happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said “he” whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do
while he was on top of you?
A He’s smashing my breast and he was also touching my arms and my legs,
sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and
still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of
his body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual
thing that you experienced from the hands of the accused was this that last
time, the one you narrated in November 1998?
A Yes, sir.”32[32]
On cross-examination, the private complainant testified, thus:
“Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not
afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the
one who entered was your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was
around but suddenly I felt that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
32 [32]
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same
time your legs, is that what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, that’s why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out,
sir. I was struggling to free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other
hand was holding your leg, is that what you are trying to tell us?
A No, sir, it’s not like that.
Q Could you tell us, what happened, you did not shout for help and you were
trying to extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.”33[33]
Rossel, the nine-year old brother of the private complainant corroborated in
part his sister’s testimony. He testified on direct examination, thus:
“Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00
o’clock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your
house at that date, time and place? At that date and time?
33 [33]
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea
Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did
you stay the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and
then he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name
Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was – that your stepfather did to your elder sister,
did you see this before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your
elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he
went to the other room and slept, sir.”34[34]
Rossel testified on cross-examination, thus:
“Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching
your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sister’s room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of
your sister when you said the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where
you were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that
what you are trying to tell us?
A Yes, sir.
34 [34]
Q And where was the - - - and the accused saw you when he was removing
the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might
be thirsty.
Q So---you said the accused was touching your sister. What part of her body
was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sister’s body was the accused touching with his right
hand? Your sister’s body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the
accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I’m sorry.
Q So, the accused was touching with his right hand the left thigh of your sister
---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the
panty, is that what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that
not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.”35[35]
In light of the evidence of the prosecution, there was no introduction of the
penis of accused-appellant into the aperture or within the pudendum of the
vagina of private complainant. Hence, accused-appellant is not criminally liable
for consummated rape. 36[36]
The issue that now comes to fore is whether or not accused-appellant is

guilty of consummated acts of lasciviousness defined in Article 336 of the
Revised Penal Code or attempted rape under Article 335 of the said Code, as
amended in relation to the last paragraph of Article 6 of the Revised Penal Code.
In light of the evidence on record, we believe that accused-appellant is guilty of
attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
“Art. 336. Acts of Lasciviousness.—Any person who shall commit any act
of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by prision
correccional.”37[37]
35 [35]
36 [36]
People vs. Campuhan, 329 SCRA 270 (2000).
37 [37]
Id., supra.
For an accused to be convicted of acts of lasciviousness, the prosecution is
burdened to prove the confluence of the following essential elements:
“1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age.”38[38]
“Lewd” is defined as obscene, lustful, indecent, lecherous. It signifies that
form of immorality which has relation to moral impurity; or that which is carried on
a wanton manner. 39[39]
The last paragraph of Article 6 of the Revised Penal Code reads:

“There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.”
The essential elements of an attempted felony are as follows:
“1. The offender commences the commission of the felony directly by overt
acts;
2. He does not perform all the acts of execution which should produce the
felony;
3. The offender’s 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[40]
The first requisite of an attempted felony consists of two elements, namely:
“(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed.”41[41]
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere planning
or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete
38 [38]
Id., supra.
39 [39]
People vs. Tayag, 329 SCRA 491 (2000).
40 [40]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra.
41 [41]
Id., supra, p. 98.
offense. The raison d’etre for the law requiring a direct overt act is that, in a
42[42]
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
43[43]
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
44[44]
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
45[45]
Viada, the overt acts must have an immediate and necessary relation to the
offense. 46[46]
Acts constitutive of an attempt to commit a felony should be distinguished

from preparatory acts which consist of devising means or measures necessary
for accomplishment of a desired object or end. One perpetrating preparatory
47[47]
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. The Supreme Court of Spain, in its decision of
48[48]
March 21, 1892, declared that for overt acts to constitute an attempted offense, it
is necessary that their objective be known and established or such that acts be
of such nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as ground for
designation of the offense. 49[49]
There is persuasive authority that in offenses not consummated as the

material damage is wanting, the nature of the action intended (accion fin) cannot
exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio). Hence, it is necessary that the acts of the accused
50[50]
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
42 [42]
Id., supra, pp. 98-99.
43 [43]
People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing Wharton.
44 [44]
People vs. Gibson, 94 Cal. App. 2d. 468.
45 [45]
Wharton, Criminal Law, Vol. 1, 12 ed. 287.
46 [46]
Vide Note 32, p. 47.
47 [47]
Wharton, Criminal Law, idem, supra, p. 293.
48 [48]
Reyes, Revised Penal Code, supra, p. 97.
49 [49]
People vs. Lamahang, 62 Phil. 703 (1935).
50 [50]
1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935).
therewith, that they are aimed at the consummation of the offense. This Court
emphasized in People vs. Lamahang that: 51[51]
“The relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to
avoid regrettable instances of injustice, that the mind be able to cause a
particular injury.”52[52]
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony. The law does
53[53]
not punish him for his attempt to commit a felony. The rationale of the law, as
54[54]
explained by Viada:
“La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen
que castigarlo. Si el autor de la tentativa, despues de haber comenzado a
ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y
espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al
remordimiento, a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento voluntario.”55[55]
As aptly elaborated on by Wharton:
“First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned purpose
could be attached. Secondly, the policy of the law requires that the offender, so
long as he is capable of arresting an evil plan, should be encouraged to do so,
by saving him harmless in case of such retreat before it is possible for any evil
consequences to ensue. Neither society, nor any private person, has been
injured by his act. There is no damage, therefore, to redress. To punish him
after retreat and abandonment would be to destroy the motive for retreat and
abandonment.”56[56]
It must be borne in mind, however, that the spontaneous desistance of a
malefactor exempts him from criminal liability for the intended crime but it does
not exempt him from the crime committed by him before his desistance. 57[57]
In light of the facts established by the prosecution, we believe that accused-

appellant intended to have carnal knowledge of private complainant. The overt
acts of accused-appellant proven by the prosecution were not mere preparatory
51 [51]
See note 48.
52 [52]
Ibid., p. 707.
53 [53]
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).
54 [54]
Reyes, idem, supra, p. 104.
55 [55]
Aquino, Revised Penal Code, Vol. 1, 1987 ed.
56 [56]
Wharton, Criminal Law, Vol. 1, pp. 307-308, supra.
57 [57]
Reyes, Revised Penal Code, supra, p. 105.
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. In a case of similar factual
58[58]
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 victim’s brother. Thus, his penis merely touched Mary Joy’s
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
59[59]
penalty the minimum of which should be taken from prision correccional which
has a range of from six months and one day to six years and the maximum of
which shall be taken from the medium period of prision mayor which has a range
of from eight years and one day to ten years, without any modifying
circumstance. Accused-appellant is also liable to private complainant for moral
damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Manila, Branch 54, is SET ASIDE. Another judgment is hereby
rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty
beyond reasonable doubt of simple rape under Article 335 of the Revised Penal
Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia
Orillosa the amounts of P50,000.00 by way of civil indemnity and P50,000.00 by
way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty
of attempted rape under Article 335 of the Revised Penal Code as amended in
relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as
minimum to ten years of prision mayor in its medium period, as maximum.
Accused-appellant is hereby ordered to pay private complainant Analia Orillosa
the amount of P25,000.00 by way of moral damages; and,
58 [58]
People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001.
59 [59]
Article 51, Revised Penal Code.
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is
hereby found guilty beyond reasonable doubt of two counts of simple rape,
defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is
hereby ordered to pay to private complainant Analia Orillosa the amount of
P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of
moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
Morales, and Azcuna, JJ., concur.
Bellosillo, J., on leave.
Stages of Execution
CHAPTER IV: STAGES OF EXECUTION
The crime of rape, like other felonies, used to have three stages of
execution, namely: attempted, frustrated and consummated.
Philippine jurisprudence, however, has long abandoned the frustrated
stage in the crime of rape. Thus, to date, only the Erinia case (50 Phil
998) stands as the first and only decision in this jurisdiction on
frustrated rape.
(No. 26298. January 20, 1927)
THE PEOPLE OF THE PHilIPPINES ISJANDS, plaintiff and appellee, vs.

Julia Erinia Y. Vinolla, defendant and appellant.
This is an appeal from a judgement of the Court of First Instance of

Manila finding the defendant guilty of the crime of consummated rape
and sentencing him to suffer seventeen years, four month and one day
of reclusion temporal, with the accessory penalties provided by law
and to pay the costs.
The victim of the crime was a child of 3 years and 11 month and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he
succeeded in penetrating the vagina before being disturbed by the
timely intervention of the mother and the sister of the child. The
physician who examined the genital organ of the child a few hours
after the commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an effort had been made to
enter the vagina, but in testifying before the court he expressed
doubts as to whether the entry had been effected. The mother of the
child testified that she found its genital orgun covered with a sticky
substance, but that cannot be considered conclusive evidence of
penetration.
It has been suggested that the child was of such tender age that
penetration was impossible; that the crime of rape consequently was
impossible of consummation and that therefore, the offense committed
should be treated only as abusos deshonestos. We do not think so. It
is probably true that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it is
sufficient if there is a penetration of the labia. In the case of Kenney
vs. State (Tex. Crim. App.), 79 S.W., 81r65 LR.A., 316) where the
offended party was a child of the age of 3 years and 8 months, the
testimony of several physicians was to the effect that the labia of the
privates of a child of that age can be entered by a man's male organ to
the hymen and the defendant was found guilty of the consummated
crime of rape.
There being no conclusive evidence of penetration of the genital organ

of the offended party, the defendant is entitled to the benefit of the
doubt and can only be found guilty of frustrated rape, but in view of
the fact that he was living in the house of the parents of the child as
their guest, the aggravating circumstance of abuse of confidence
existed and the penalty must therefore be imposed in its maximum
degree.
The judgement appealed from is modified and the defendant-appellant

is hereby found guilty of the crime of frustrated rape and is sentenced
to suffer twelve years of prison mayor, with the accessory penalties
prescribed by law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez, and Villa- Real., concur.
MALCOM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years and 11

month of age. It is consammated rape according to the evidence of
record, the findings of the trial judge, and our decisions. (People vs.
Hernandez (1925), 49 Phil., 980; People vs. Oscar (1925), 48 Phil.,
527). The instant case is on all forms with the case of Kenney vs.
State (65 L.R.A., 316), cited in the majority decision. In the Kenney
case, the penalty was death, and here for this horrible crime, should
be placed in the maximum degree, or seventeen years, four months,
and one day inaprisoaunent, as imposed by the trial court.
Accordingly, my vote is for affirmance of the judgement.
Judgement modified.
The above decision has not been reiterated in subsequent decisions.

Hence, the Supreme Court has considered it "stray" "Taking into
account the nature, elements and maimer of execution of the crime of
rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can be committed." (People vs. Orita, 184
SCRA 105).
In abandoning the frustrated stage in the crime of rape, ;he Supreme

Court explained:
"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 of 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 next preceding
paragraphs shall be present.
"xxx".
Carnal knowledge is defined as the act of a man in having sexual

bodily connection with a woman (Black’s Law Dictionary, Fifth Edition,
p. 193). "On the other hand, Article 6 of the same Code Provides:
"ART. 6. Consummated, frustrated, and attempted felonies.-

Consummated felonies as well as those which are frustrated and
attempted, are punishable.
"A felony is consummated when all the elements necessary for its
execution and accomplishment are present and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it
by reason of causes independent of the will of the perpetrator.
"There is an attempt when the offender commences the commission of
a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance."
"Correlating these two provisions, there is no debate that the

attempted and consummated stages apply to the crime of rape. Our
concern now is whether or not the frustrated stage applies to the
crime of rape.
"The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony
and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave,
36 Phil 209, 212, Justice Moreland set a distinction between attempted
and frustrated felonies which is readily understood even by law
students: V'xxx A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from performing all
of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a
foreign force or agency which intervenes and compels him to stop prior
to the moment when he has performed all the acts which should
produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding
further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the
moment when all of the acts have been performed which should result
in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance."
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 v.
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 v. Tayaba, 62 Phil. 559;
People v. Rabadan, et at., 53 Phil. 694; United States v. 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 v. Erinia, 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 oUended 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 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 Erinia case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the
amendments introduced by said laws."
"In concluding that there is conclusive evidence of penetration of the

genital organ of the victim, the trial court relied on the testimony of
Dr. Zamora when he "categorically declared that the findings in the
vulva does not give a concrete disclosure of penetration. As a matter
of fact, he tossed back to the offended party the answer as to whether
or not there actually was penetration."(p. 53, Rob) Furthermore, the
trial court stated (p 57, Rob):
x x It cannot be insensible to the findings in the medical certificate

(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether there was penetration
or not. It is true, and the Court is not oblivious, that conviction for
rape could proceed from the uncorroborated testimony of the offended
party and that a medical certificate is not necessary (People v.
Royeras, People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The
testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind
of the court. It should be stressed that in cases of rape where there Is
a positive testimony and medical certificate, both should in all respect,
compilment each other, for otherwise to rely on the testimony alone in
utter disregard of the manifest variance in the medical certificate,
would be productive of mischievous results."
"There alleged variance between the testimony of the victim and the
medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion,
as in inflammation) and tender. It bears emphasis that Dr. Zamora did
not rule out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that
there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
"Q Was the penis inserted on the vagina? "A It entered but only a
portion of it." x x x
"Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
"A I inserted his penis into my vagina.
"Q And was it inserted?
"A Yes, only a little."
The fact is that in a prosecution for rape, the accused may be

convicted even on the sole basis of the victim's testimony if credible
(People v. Tabago G.R. No. 69778, November 8, 1988, 167 SCRA 65;
People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA
569; People v. Taduyo, G.R. Nos. L.3792829, September 29, 1987,
154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is an indispensable element in the prosecution of
this case" (People v.Alfonso, supra).
Attempted Rape
Necessarily, rape is attempted if there is no penetration of the female's

organ (People vs. Tayabas, 62 Phil. 559; People vs. Rabadan, et al.,
53 Phil., 694; United States vs. Garcia, 9 Phil. 443).
Where the accused seized the complaining witness and attempted to
throw her to the ground under circumstances showing a purpose to
ravish her forcibly, but desisted by reason of the strenuous resistance
which she offered, and also because of the approach of persons
attracted by her scream, the offense is attempted rape (United States
vs. Estrada, 24 Phil. 401
With the use of force and despite the woman's resistance, the accused
lifted the hem of her skirt, embraced, hugged and kissed her, desisting
only when she screamed and stood up, attempted rape is committed
(People vs. Ching Suy Siong, et al., 96 Phil. 975).
Consummated Rape
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 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 (People vs. Orita, supra).
For the consummation of the crime of rape, it is not essential that

there be complete penetration of the female organ. Neither is it
essential that there be rupture of the hymen or laceration of the
vagina. It is sufficient if the labia be penetrated (People vs. Oscar 48
Phil. 527; People vs. Hernandez, 49 Phil. 980). Perfect penetration is
not essential (People vs. Orita, supra). The slightest penetration of the
pudenda is quite sufficient (People vs. Rosell, 191 SCRA 679).
"To prove a charge of rape, it is not necessary to prove a rupture of

the hymen; nor is it necessary to show that there was a laceration of
the vagina which usually results from first time copulation, espeeiahly
with young girls (People vs. Lomibao, 55 Phil. 616). Neither is
complete penetration necessary. In view of the tender age of the
victim, penetration may indeed be impossible". (People vs. Erinia,
supra)
Absence of spermatozoa in the vagina or thereabouts does not negate

the commission of rape (People vs. Yambao, 193 SCRA 571). Presence
of marks or signs of physical violence or injuries on the victim's body is
not necessary for rape to be committed (People vs. Feliciano, 195
SCRA 19; People vs. Arenas, 198 SCRA 172), and the fact that the
victim remained a virgin does not negate rape either (People vs.
Castro, 196 SCRA 679).
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES,
and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial
Court, Branch 28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092,
finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed
Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious
Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the
penalty of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA,

REYNALDO CANASARES, RONALDO CANASARES, and
SIMPLICIO CANASARES, whose maternal surnames, dated and
places of birth cannot be ascertained of the crime of ROBBERY WITH
SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL
DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of
the Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused,
conspiring and confederating among themselves, working together
and helping one another, armed with guns and handgrenade and with
the use of violence or intimidation employed on the person of Severino
Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and
there wilfully, unlawfully and criminally take and carry away, with intent
of gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's
Citizen wrist watch and assorted jewelries, all valued at P50,000.00;
that on the occasion and by reason of said robbery, Mary Choco
suffered serious physical injuries under paragraph 2 of Article 263,
Bienvenido Salvilla likewise suffered serious physical injuries and
Reynaldo Canasares also suffered physical injuries; that the said
accused also illegally detained, at the compound of the New Iloilo
Lumber Company, Iznart Street, Iloilo City, Severino Choco,
owner/proprietor of said Lumber Company, Mary Choco, Mimie
Choco, who is a minor, being 15 years of age, and Rodita Hablero,
who is a salesgirl at said Company; that likewise on the occasion of
the robbery, the accused also asked and were given a ransom money
of P50,000.00; that the said crime was attended by aggravating
circumstances of band, and illegal possession of firearms and
explosives; that the amount of P20,000.00, the ransom money of
P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches,
one (1) .38 caliber revolver and one (1) live grenade were recovered
from the accused; to the damage and prejudice of the New Iloilo
Lumber Company in the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo
Lumber Yard at about noon time. The plan was hatched about two days before. The
accused were armed with homemade guns and a hand grenade. When they entered
the establishment, they met Rodita Hablero an employee thereat who was on her
way out for her meal break and announced to her that it was a hold-up. She was
made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a
minor 15 years of age, and told the former that all they needed was money. Hearing
this, Severino told his daughter, Mary, to get a paper bag wherein he placed
P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant.
Thereafter, Severino pleaded with the four accused to leave the premises as they
already had the money but they paid no heed. Instead, accused Simplicio Canasares
took the wallet and wristwatch of Severino after which the latter, his two daughters,
and Rodita, were herded to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four
accused also took turns eating while the others stood guard. Then, Appellant told
Severino to produce P100,000.00 so he and the other hostages could be released.
Severino answered that he could not do so because it was a Saturday and the banks
were closed.
In the meantime, police and military authorities had surrounded the premises of the
lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo
City, negotiated with the accused using a loud speaker and appealed to them to
surrender with the assurance that no harm would befall them as he would
accompany them personally to the police station. The accused refused to surrender
or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the
negotiations. In her dialogue with the accused, which lasted for about four hours,
Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them
P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday.
Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going out of the office. When they were out of the
door, one of the accused whose face was covered by a handkerchief, gave a key to
Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to
Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita
was later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to
appeal to the accused to surrender peacefully but they refused. UItimatums were
given but the accused did not budge. Finally, the police and military authorities
decided to launch an offensive and assault the place. This resulted in injuries to the
girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo
Canasares. Mary suffered a "macerated right lower extremity just below the knee" so
that her right leg had to be amputated. The medical certificate described her
condition as "in a state of hemorrhagic shock when she was brought in to the
hospital and had to undergo several major operations during the course of her
confinement from April 13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he
and his co-accused entered the lumber yard and demanded money from the owner
Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he
placed on the counter of the office of the lumber yard. He admitted that he and his
co-accused kept Severino, his daughters, and Rodita inside the office. He
maintained, however, that he stopped his co-accused from getting the wallet and
wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were
never touched by them. He claimed further that they had never fired on the military
because they intended to surrender. Appellant's version also was that during the
gunfire, Severino's daughter stood up and went outside; he wanted to stop her but
he himself was hit by a bullet and could not prevent her. Appellant also admitted the
appeals directed to them to surrender but that they gave themselves up only much
later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each
of the accused "to suffer the penalty of reclusion perpetua, with the accessory
penalties provided by law and to pay the costs."
Appellant Salvilla's present appeal is predicated on the following Assignments of

Error:
1. The lower court erred in holding that the crime charged was
consummated and in not holding that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating

circumstance of voluntary surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as

distinguished from an attempt requires asportation or carrying away, in addition to
the taking, In other words, the crime of robbery/theft has three consecutive stages: 1)
the giving 2) the taking and 3) the carrying away or asportation And without
asportation the crime committed is only attempted" (Memorandum for Appellant
Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a taking of personal

property belonging to another. This is known as the element of asportation the
essence of which is the taking of a thing out of the possession of the owner without
his privity and consent and without the animus revertendi (Aquino, Revised Penal
Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no
robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking" has not. And
this is because neither he nor his three co-accused touched the P5,000.00 given by
Severino nor the latter's wallet or watch during the entire incident; proof of which is
that none of those items were recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard
employee, testified that upon demand by Appellant, Severino put P20,000.00 inside
a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio
Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00
from Mayor Caram, Rodita declared that the Mayor handed the amount to her after
she (the Mayor) had opened the padlocked door and that she thereafter gave the
amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet
and wristwatch were within the dominion and control of the Appellant and his co-
accused and completed the taking.
The State established a "taking" sufficient to support a conviction of

robbery even though the perpetrators were interrupted by police and
so did not pick up the money offered by the victim, where the
defendant and an accomplice, armed with a knife and a club
respectively, had demanded the money from the female clerk of a
convenience store, and the clerk had complied with their instructions
and placed money from the register in a paper bag and then placed
the bag on the counter in front of the two men; these actions brought
the money within the dominion and control of defendant and
completed the taking. (Johnson vs. State, 432 So 2d 758).
"Severance of the goods from the possession of the owner and

absolute control of the property by the taker, even for an instant,
constitutes asportation (Adams vs. Commonwealth, 154 SW 381;
State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE
2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no opportunity to

dispose of the personalities taken. That fact does not affect the nature of the crime,
From the moment the offender gained possession of the thing, even if the culprit had
no opportunity to dispose of the same, the unlawful taking is complete (Reyes,
Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires possession of

the property, even if for a short time, and it is not necessary that the
property be taken into the hands of the robber, or that he should have
actually carried the property away, out of the physical presence of the
lawful possessor, or that he should have made his escape with it"
(People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644;
People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not

merely attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because
the place was dark since the doors were closed and there were no windows. It will
be recalled, however, that Rodita was one of the hostages herself and could observe
the unfolding of events. Her failure to mention the taking in her sworn statement
would not militate against her credibility, it being settled that an affidavit is almost
always incomplete and inaccurate and does not disclose the complete facts for want
of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152
SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her
credibility. The defense has not proven that she was actuated by any improper
motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of
witnesses in respect of which the findings of the Trial Court are entitled to great
weight as it was in a superior position to assess the same in the course of the trial
(see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People
vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-
accused cannot be considered in their favor to mitigate their liability. To be
mitigating, a surrender must have the following requisites: (a) that the offender had
not been actually arrested; (b) that the offender surrendered himself to a person in
authority or to his agent; and (c) that the surrender was voluntary (People vs.
Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these
requirements. They were, indeed, asked to surrender by the police and military
authorities but they refused until only much later when they could no longer do
otherwise by force of circumstances when they knew they were completely
surrounded and there was no chance of escape. The surrender of the accused was
held not to be mitigating as when he gave up only after he was surrounded by the
constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30
April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982,
113 SCRA 167). Their surrender was not spontaneous as it was motivated more by
an intent to insure their safety. And while it is claimed that they intended to
surrender, the fact is that they did not despite several opportunities to do so. There is
no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the
accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of

the linked offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with
Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in
conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with
the Trial Court that a complex crime under Article 48 of the Revised Penal Code has
been committed such that the penalty for the more serious offense of Serious Illegal
Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be
imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries
(Art. 294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for
committing the other." The term "necessary means" does not connote indispensable
means for if it did then the offense as a "necessary means" to commit another would
be an indispensable element of the latter and would be an ingredient thereof. The
phrase "necessary means" merely signifies that one crime is committed to facilitate
and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987
ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this
case, the crime of Serious Illegal Detention was such a "necessary means" as it was
selected by Appellant and his co-accused to facilitate and carry out more effectively
their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-
66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but
acquitted in the case for Serious Illegal Detention and where it was held that "the
detention is absorbed in the crime of robbery." For one, in Astor, there were two (2)
separate Informations filed, one for Robbery and another for Serious Illegal
Detention. In the present case, only one Information was filed charging the complex
offense. For another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police. Not so in
this case, where the detention was availed of as a means of insuring the
consummation of the robbery. Further, in Astor, the detention was only incidental to
the main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the
police at the scene of the crime, they would have not anymore
detained the people inside since they have already completed their
job. Obviously, appellants were left with no choice but to resort to
detention of these people as security, until arrangements for their safe
passage were made. This is not the crime of illegal detention
punishable under the penal laws but an act of restraint in order to
delay the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal
Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a
robbery case were detained in the course of robbery, the detention is
absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In
the case at bar, the detention was only incidental to the main crime of
robbery, and although in the course thereof women and children were
also held, that threats to kill were made, the act should not be
considered as a separate offense. Appellants should only be held
guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but
was a necessary means to commit the same. After the amount of P20,000.00 was
handed to Appellant, the latter and his co-accused still refused to leave. The victims
were then taken as hostages and the demand to produce an additional P100,000.00
was made as a prerequisite for their release. The detention was not because the
accused were trapped by the police nor were the victims held as security against the
latter. The detention was not merely a matter of restraint to enable the malefactors to
escape, but deliberate as a means of extortion for an additional amount. The police
and other authorities arrived only much later after several hours of detention had
already passed. And, despite appeals to appellant and his co-accused to surrender,
they adamantly refused until the amount of P100,000.00 they demanded could be
turned over to them. They even considered P50,000.00, the amount being handed to
them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil.
265 [1907] where the restraint was for no other purpose than to prevent the victims
from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085
[1953] where the victims were taken to a place one kilometer away and shot in order
to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953];
People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and
where the victims were only incidentally detained so that the detention was deemed
absorbed in robbery.
In other words, unlike in the above cases, the elements of the offense of Serious
Illegal Detention are present in this case. The victims were illegally deprived of their
liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified
circumstance in Article 267 (3), were among those detained. The continuing
detention was also for the purpose of extorting ransom, another listed circumstance
in Article 267 (last parag.) not only from the detained persons themselves but even
from the authorities who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental to the
robbery but a necessary means employed to facilitate it, the penalty imposed by the
Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate

costs.
SO ORDERED.
Paras, Padilla Sarmiento and Regalado JJ., concur.

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PEOPLE VS.

JUDGMENT MODIFIED TO ATTEMPTED RAPE

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

This is an automatic review of the Decision of the Regional Trial Court of

Manila, Branch 54, finding accused-appellant Freedie Lizada guilty beyond

four separate Informations. The accusatory portion of each of the four

II. Evidence of the Prosecution 5[5]

Rossel Orillosa & Dr. Armie Umil.

Sometime in August 1997, accused-appellant entered again the room of

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of

IV. The Verdict

V. Assigned Errors of the Trial Court

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the

merely reproduce the respective testimonies of witnesses of both parties and

the factual and legal issues.

conviction or acquittal depends almost entirely on the credibility of the

proved the special qualifying circumstance of minority of private complainant and

The issue that now comes to fore is whether or not accused-appellant is

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

majority of cases, the conduct of the accused consisting merely of acts of

Acts constitutive of an attempt to commit a felony should be distinguished

acts is not guilty of an attempt to commit a felony. However, if the preparatory

There is persuasive authority that in offenses not consummated as the

In light of the facts established by the prosecution, we believe that accused-

backdrop as this case, we held:

CHAPTER IV: STAGES OF EXECUTION

(No. 26298. January 20, 1927)

THE PEOPLE OF THE PHilIPPINES ISJANDS, plaintiff and appellee, vs.

This is an appeal from a judgement of the Court of First Instance of

There being no conclusive evidence of penetration of the genital organ

The judgement appealed from is modified and the defendant-appellant

In my opinion, the accused is guilty of raping a child 3 years and 11

The above decision has not been reiterated in subsequent decisions.

In abandoning the frustrated stage in the crime of rape, ;he Supreme

"ART. 335. When and how rape is committed. - Rape is committed by

"1. By using force of intimidation;

"2. When the woman is deprived of reason or otherwise unconscious;

Carnal knowledge is defined as the act of a man in having sexual

"ART. 6. Consummated, frustrated, and attempted felonies.-

"Correlating these two provisions, there is no debate that the

"In concluding that there is conclusive evidence of penetration of the

x x It cannot be insensible to the findings in the medical certificate

The fact is that in a prosecution for rape, the accused may be

Necessarily, rape is attempted if there is no penetration of the female's

For the consummation of the crime of rape, it is not essential that

"To prove a charge of rape, it is not necessary to prove a rupture of

Absence of spermatozoa in the vagina or thereabouts does not negate

G.R. No. 86163 April 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Solicitor General for plaintiff-appellee.

Resurreccion S. Salvilla for defendant-appellant.

The Information filed against them reads:

The undersigned City Fiscal accuses BIENVENIDO SALVILLA,

The evidence for the prosecution may be re-stated as follows:

Appellant Salvilla's present appeal is predicated on the following Assignments of

2. The lower court erred in not appreciating the mitigating

The defense contends that "The complete crime of larceny (theft/robbery) as

There is no question that in robbery, it is required that there be a taking of personal

The State established a "taking" sufficient to support a conviction of

"Severance of the goods from the possession of the owner and