NOTABLE DOCTRINES IN CRIMINAL LAW,

PROCEDURE AND EVIDENCE

Atty. Jerome J. Jarales
Cagayan de Oro City

People v. Fernando Monjey Rosario, et al.

G.R. No. 146689, September 27, 2002, En Banc

Question: A met B with blood-stained clothes hurriedly coming out of the

room still holding a knife dripping with blood. A entered the room and saw
his wife lifeless on the floor with blood still oozing from a stab wound on her
chest. There was no other person in the room which had only one door for
ingress and egress. By a chain of unbroken circumstantial evidence, there can
be no other conclusion than that B and B alone, and no other, could have
stabbed A's wife to death. After initial cross-examination by defense counsel,
however, A failed and refused to return to court for the continuation of his
cross-examination. Despite the insistence of the defense counsel to pursue
his cross-examination and the repeated warnings from the trial court that it
would be constrained to strike out and disregard his testimony should he fail
to appear again, the witness stubbornly refused to return to court for his
cross-examination. The trial court nonetheless found convicted guilty of
Murder. Is the judgment correct?

Answer: No. The accused was not afforded adequate opportunity to cross-
examine, not of his own design but because of the unexplained failure of the
witness to appear on the succeeding four (4) scheduled hearings despite
repeated warnings from the court. As may be noted, the defense counsel was
barely through with his preliminary questions at the initial stage of his cross-
examination. In fact, the defense counsel repeatedly manifested his desire to
further cross-examine the witness as counsel still had "important matters" to
clear up with the witness regarding some "conflicting testimonies."

Aside from the unexplained non-appearance of the "principal witness" at his

scheduled cross-examination no less than four (4) times, the chain of
circumstances brought out by the witness is too weak - not unbroken to
incriminate the accused in the crime charged. The possibility of other people
being responsible therefor is not remote considering that it supposedly
happened in a wide open ricefield freely accessible to people from all walks
of life.

. . . In conscience and in absolute fidelity to our trust, we cannot agree to

what would amount to a blatant misuse of the strong arm of the law, in
complete disregard of the constitutional guaranties of the accused. Where
the life of a human being - who is presumed to be innocent - is at stake, we
should require nothing less than proof beyond reasonable doubt. And if
proof is by circumstantial evidence, the circumstances must be established to
form an unbroken chain of events leading to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the
author of the crime. Otherwise, indubilis reus est absolvendus. All doubts
must be resolved in favor of the accused.

Question: Is the right to cross examination absolute?

Answer: Yes. It bears stressing that the cross-examination of a witness is an

absolute right, not a mere privilege, of the party against whom he is called.
With regard to the accused, it is a right guaranteed by the fundamental law
as part of due process. Article III, Sec. 14, par. (2), of the 1987 Constitution
specifically mandates that "the accused shall enjoy the right to meet the
witnesses face to face," and Rule 115, Sec. 1, par. (f), of the 2000 Rules of
Criminal Procedure enjoins that in all criminal prosecutions the accused shall
be entitled to confront and cross-examine the witnesses against him at the
trial.

Question: What is the purpose of cross examination?

Answer: Cross-examination serves as a safeguard to combat unreliable
testimony, providing means for discrediting a witness' testimony, and is in the
nature of an attack on the truth and accuracy of his testimony. The purpose
of cross-examination, however, is not limited to bringing out a falsehood,
since it is also a leading and searching inquiry of the witness for further
disclosure touching the particular matters detailed by him in his direct
examination, and it serves to sift, modify, or explain what has been said, in
order to develop new or old facts in a view favorable to the cross-examiner.
The object of cross-examination therefore is to weaken or disprove the case
of ones adversary, and break down his testimony in chief, test the
recollection, veracity, accuracy, honesty and bias or prejudice of the witness,
his source of information, his motives, interest and memory, and exhibit the
improbabilities of his testimony.

In other words, the ultimate purpose of cross-examination is to test the truth

or falsity of the statements of a witness during direct examination.

Unfortunately, for the accused, these objectives of cross-examination were

never attained in this case because of the continued failure and refusal of
witness to appear for his cross-examination. How can the truth be
ascertained if the cross-examination is not completed?

Question: What should be done as regards the uncompleted testimony of a

witness?

Answer: The basic rule is that the testimony of a witness given on direct
examination should be stricken off the record where there was no adequate
opportunity for cross-examination.

Question: Are there exceptions to this rule?

Answer: Of course, there are notable modifications to the basic rule which
make its application essentially on a case-to-case basis. Thus, where a party
had the opportunity to cross-examine a witness but failed to avail himself of
it, he necessarily forfeits his right to cross-examine and the testimony given
by the witness on direct examination will be allowed to remain on record [See
People v. Seneris, et al., G. R. No. L-48883, 6 August 1980, 99 SCRA 92]. But
when the cross-examination is not or cannot be done or completed due to
causes attributable to the party offering the witness, or to the witness himself,
the uncompleted testimony is thereby rendered incompetent and
inadmissible in evidence. The direct testimony of a witness who dies before
the conclusion of the cross-examination can be stricken only insofar as not
covered by the cross-examination, and the absence of a witness is not
enough to warrant striking of his testimony for failure to appear for further
cross-examination where the witness has already been sufficiently cross-
examined, which is not true in the present case, or that the matter on which
further cross-examination is sought is not in controversy.

Question: In this case, should the case be remanded to trial court for further
proceedings?

Answer: A proposal has been expressed for the remand of this case to the
trial court for further proceedings, apparently to enable the prosecution to
prove again what it failed to prove in the first instance. We cannot agree
because it will set a dangerous precedent. Aside from its being unprocedural,
it would open the floodgates to endless litigations because whenever an
accused is on the brink of acquittal after trial, and realizing its inadequacy,
the prosecution would insist to be allowed to augment its evidence which
should have been presented much earlier. This is a criminal prosecution, and
to order the remand of this case to the court a quo to enable the prosecution
to present additional evidence would violate the constitutional right of the
accused to due process, and to speedy determination of his case. The
lamentable failure of the prosecution to fill the vital gaps in its evidence, while
prejudicial to the State and the private offended party, should not be treated
by this Court with indulgence, to the extent of affording the prosecution a
fresh opportunity to refurbish its evidence.

In fine, we are not unmindful of the gravity of the crime charged; but justice
must be dispensed with an even hand. Regardless of how much we want to
punish the perpetrators of this ghastly crime and give justice to the victim
and her family, the protection provided by the Bill of Rights is bestowed upon
all individuals, without exception, regardless of race, color, creed, gender or
political persuasion - whether privileged or less privileged - to be invoked
without fear or favor. Hence, the accused deserves no less than an acquittal;
ergo, he is not called upon to disprove what the prosecution has not proved.

--------------------

Question: What is so-called sweetheart cross examination?

Answer: A “sweetheart cross-examination” occurs where the co-defendant

parties (in a civil case) are completely aligned in interest, and the cross
examination can be used by the co-defendant to elicit information that the
main defendant couldn’t get in direct examination. Sweetheart cross-
examinations are discouraged if not altogether disallowed, based on a
generally accepted rule that courts may not permit cross-examination where
it’s unfair. Courts acknowledged that in complex litigation parties may be
adverse on some issues and not on others and that fair practice requires it to
be vigilant of sweetheart cross-examination in these circumstances. It is
further suggested that there would be no probative value in conducting
cross-examination of the witness for a defendant by a co-defendant and
vice-versa as the two parties have extensive common interests.
Sweetheart cross-examination concerns could be handled at trial
where the Court must identify when and on what issue a party is adverse in
interest to determine what kind of questioning is allowed in any event. Thus,
if there is any adversity between the co-defendants, it’s unlikely to be a
sweetheart cross.

It has been observed that evidence of one party to a complex

litigation may be treated as though it is the evidence of another party to the
same action, even where the parties are adverse in interest on some issues.

In Canadian Natural Resources Limited v ShawCor Ltd, 2016 ABQB 21,

the Court of Queen’s Bench of Alberta opined thus:
 . . . In multi-party litigation, each defendant may be adverse to
another defendant on some issues and aligned with that same
defendant on others. So too might a plaintiff and a defendant be
aligned or adverse on different issues against another defendant.
In all cases, fair practice requires vigilance by the Court to ensure
that, in a trial, there is no “sweetheart” cross-examination
occurring. That kind of an examination occurs where one party is
allowed to cross-examine another party’s witness where their
interests are aligned, not adverse. In Trizec Equities Limited,
Mason J. of this Court, reviewed a number of authorities which
indicate that the overarching principle is fairness and that a Court
must identify when and on what issue a party is adverse in
interest to determine what kind of questioning, at a trial, is
allowed. . .

Question: What is the Boulevard Rule?

Answer: The Boulevard rule is a principle in United States traffic law

which states that the driver of a vehicle entering a highway from a
smaller road or entrance (called the unfavored driver) must stop and
yield the right of way to all oncoming highway traffic (the favored
drivers).[Black's Law Dictionary, 7th ed. 1999]

The rule often comes into play in road accident cases, when a court
must determine if a driver is negligent in causing a collision, due to his
breach of the duty of care imposed by the rule on the unfavored driver.

Maryland is among the U.S. states which follow this rule, but not all
states have similar provisions in statutes or case law. [Md.
Transportation Code § 21-403]
New York applies the rule to traffic entering public roads from private
driveways or alleys, but not where public roads intersect. [N.Y. Vehicle &
Traffic Code § 1143]
Question: What is the Brady disclosure doctrine?

Answer: The doctrine is based on the the case of Brady v.

Maryland[373 U.S. 83 (1963)] where it was held that the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution. In said case, the petitioner was convicted of murder
committed in the course of robbery and sentenced to death. He later
learned that the prosecution suppressed an extrajudicial confession
made by his accomplice who admitted he did the actual killing. The US
Supreme Court granted a new trial and remanded the case but only on
the question of punishment. [See Dissenting Opinion of Villarama, Jr., J.,
and the Separate and Concurring Opinion of Sereno, J., in Antonio
Lejano v. People of the Philippines, G.R. No. 176389, and People of the
Philippines v. Hubert Jeffrey P. Webb, et al. G.R. No. 176864, December
14, 2010, En Banc]

The Brady disclosure consists of exculpatory or impeaching

information and evidence that is material to the guilt or innocence or to
the punishment of a defendant. The suppression by the prosecution of
evidence favorable to a defendant who has requested it violates due
process. The prosecutor must disclose evidence or information that
would prove the innocence of the defendant or would enable the
defense to more effectively impeach the credibility of government
witnesses. Evidence that would serve to reduce the defendant's
sentence must also be disclosed by the prosecution.

The Brady doctrine is a pretrial discovery rule that was

established by the United States Supreme Court in Brady v. Maryland.
The rule requires that the prosecution must turn over all exculpatory
evidence to the defendant in a criminal case. Exculpatory evidence is
evidence that might exonerate the defendant.

Not all exculpatory evidence is required to be disclosed by Brady

but only evidence that is "material to guilt or punishment, with
"material" evidence being defined as such as to create a reasonable
probability that disclosure of the evidence would have changed the
outcome of the proceeding. The prosecutor is not obligated to
personally review police files in search of exculpatory information when
the defendant asks for it but to allow reasonable access. Thus the term
'Brady violation' is sometimes used to refer to any breach of the broad
obligation to disclose exculpatory evidence - that is, to any suppression
of so-called 'Brady material' - although strictly speaking, there is never a
real 'Brady violation' unless the nondisclosure was so serious that there
is a reasonable probability that the suppressed evidence would have
produced a different verdict."

Question: What is the castle doctrine?

Answer: The “Castle Doctrine” is a long-standing American legal

concept arising from English Common Law that provides that one's
abode is a special area in which one enjoys certain protections and
immunities, that one is not obligated to retreat before defending
oneself against attack, and that one may do so without fear of
prosecution. [The "New Jersey Self Defense Law", May 6, 2008].

In the Philippines the relevant constitutional provisions are found in

Sections 2 and 3 [2], Article III of the 1987 Constitution which read as
follows:
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
 except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.

Sec. 3. xxx

(2) Any evidence obtained in violation of this or the

preceding section shall be inadmissible for any purpose in any
proceeding.

In People v. Armando Compacion, G.R. No. 124442, July 20, 2001, the
Supreme Court held:

Said constitutional provisions are safeguards against reckless,

malicious and unreasonable invasion of privacy and liberty. The Court,
in Villanueva v. Querubin,[48 SCRA 345 (1972)] underscored their
importance:

It is deference to ones personality that lies at the core of this

right, but it could be also looked upon as a recognition of a
constitutionally protected area, primarily ones home, but not
necessarily thereto confined [Cf. Hoffa v. United States, 385 U.S.
293 (1966)]. What is sought to be guarded is a man‘s prerogative
to choose who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the choice of
who shall be welcome but likewise in the kind of objects he
wants around him. There the state, however powerful, does not
as such have access except under the circumstances above
noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any invasion
of his dwelling and to respect the privacies of his life [Cf.
 Schmerber v. California, 384 US 757, Brennam, J. and Boyd v.
United States, 116 US 616, 630]. In the same vein, Landynski in his
authoritative work could fitly characterize this constitutional right
as the embodiment of a spiritual concept: the belief that to value
the privacy of home and person and to afford its constitutional
protection against the long reach of government is no less than
to value human dignity, and that his privacy must not be
disturbed except in case of overriding social need, and then only
under stringent procedural safeguards.[Id., at 350.]

As a legal precept, the privacy of an individual takes its bearing

from common law which recognized a mans house as his castle,
impregnable, often, even to its own officers engaged in the execution of
its commands. See Dissenting Opinion of Ynares-Santiago, J., in KMU, et
al., v. The Director General, National Economic Development Authority,
et al., G.R. No. 167798, April 19, 2006, En Banc]

Question: What is known as the Wheel Conspiracy and the Chain

Conspiracy?

Answer: In the American jurisdiction, the presence of several accused in

multiple conspiracies commonly involves two structures: (1) the so-
called wheel or circle conspiracy, in which there is a single person or
group (the hub) dealing individually with two or more other persons or
groups (the spokes); and (2) the chain conspiracy, usually involving the
distribution of narcotics or other contraband, in which there is
successive communication and cooperation in much the same way as
with legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and
consumer. [Jose Jinggoy E. Estrada v. Sandiganbayan, G.R. No. 148965,
February 26, 2002, En Banc, per Puno, J.]
 [LaFave & Scott, Criminal Law, Second Edition, Hornbook
Series, pp. 550-551 [1986]. There is a third type referred to as the
enterprise conspiracy introduced by the Racketeer Influence and
Corrupt Organizations (RICO) Act of 1970, a law enacted to
eradicate organized crime in the United States (18 U.S.C. Sec.
1961 et seq.). Under the RICO, it is unlawful for any person
employed by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such enterprises affairs through a pattern of racketeering activity
or collection of unlawful debt. Racketeering activity includes a
great variety of serious criminal conduct, such as murder,
kidnapping, arson, robbery, bribery, extortion and drug dealing,
and for there to be a pattern there must be at least two such acts
within a 10-year span. The RICO has its own conspiracy provision.

In United States v. Elliot, 571 F 2d 880 [5th Cir. 1978], it was

held that the RICO created a substantive offense by tying
together diverse parties and crimes. It is irrelevant that each
defendant participated in the enterprises affairs through
different, even unrelated crimes, so long as it may be reasonably
inferred that each crime was intended to further the enterprises
affairs (at 902-903). The Elliot approach has been sharply
criticized by legal commentators. Elliot made certain affairs of an
enterprise a new substantive offense in addition to the
underlying racketeering activity. The requirement remains that
the activities making up a multiple criminal conspiracy must be
connected, and the term enterprise as applied by Elliot did not
supply the connection. Recent trend rejects the ideas espoused
in Elliot and returns to traditional conspiracy principles in
determining complicity in multi-defendant RICO prosecutions.
LaFave & Scott, supra at 554 citing United States v. Griffin, 660 F
2d 996 [4th Cir.1981], United States v. Errico, 635 F 2d 152 [2d Cir.
1980], United States v. Anderson, 626 F 2d 1358 [8th Cir. 1980].]
 There is no denying the fact that the plunder of an entire nation
resulting in material damage to the national economy is made up of a
complex and manifold network of crimes. In the crime of plunder,
therefore, different parties may be united by a common purpose. In the
case at bar, the different accused and their different criminal acts have a
commonality to help the former President amass, accumulate or acquire
ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information
alleged the different participation of each accused in the conspiracy.
The gravamen of the conspiracy charge, therefore, is not that each
accused agreed to receive protection money from illegal gambling, that
each misappropriated a portion of the tobacco excise tax, that each
accused ordered the GSIS and SSS to purchase shares of Belle
Corporation and receive commissions from such sale, nor that each
unjustly enriched himself from commissions, gifts and kickbacks; rather,
it is that each of them, by their individual acts, agreed to participate,
directly or indirectly, in the amassing, accumulation and acquisition of
ill-gotten wealth of and/or for former President Estrada.

From a reading of the Amended Information, the case at bar

appears similar to a wheel conspiracy. The hub is former President
Estrada while the spokes are all the accused, and the rim that encloses
the spokes is the common goal in the overall conspiracy, i.e., the
amassing, accumulation and acquisition of ill-gotten wealth.

Other concepts:

A hub-and-spokes conspiracy is a conspiracy in which several parties

("spokes") enter into an unlawful agreement with a leading party
("hub").
It is a legal doctrine of United States antitrust and criminal law. [See
Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939); Kotteakos v.
United States, 328 U.S. 750 (1946).] The United States Court of Appeals
for the First Circuit explained the concept in these terms:
 In a "hub-and-spoke conspiracy," a central mastermind, or "hub,"
controls numerous "spokes," or secondary co-conspirators. These co-
conspirators participate in independent transactions with the individual
or group of individuals at the "hub" that collectively further a single,
illegal enterprise. [United States v. Newton, 326 F.3d 253, 255 n.2 (1st
Cir. 2003).]

A closely related concept to the hub-and-spoke conspiracy, or a

variation on it, is the chain conspiracy, which is linear rather than wheel-
shaped. In United States v. Bruno, 88 people were alleged to be
members of a single conspiracy to import, sell and possess narcotics.
The evidence was that over a substantial period of time a conspiracy
existed embracing a great number of persons. The object of the
conspiracy was to smuggle narcotics into New York and distribute them
to addicts both in New York and in Texas and Louisiana. "This required
the cooperation of four groups of persons: the smugglers who imported
the drugs; the middlemen who paid the smugglers and distributed to
retailers; and two groups of retailers — one in New York and one in
Texas and Louisiana — who supplied the addicts." [United States v.
Bruno, 105 F.2d 921 (2d Cir. 1939) (L. Hand, J.)]

Other notes:

Question: What is the three-fold purpose of the Constitutional right of

the accused to be informed of the nature and cause of the accusation
against him?

Answer: The constitutional guaranty has a three-fold purpose: First, to

furnish the accused with such a description of the charge against him as
will enable him to make his defense; second, to avail himself of his
conviction or acquittal for protection against a further prosecution for
the same cause; and third, to inform the court of the facts alleged, so
that it may decide whether they are sufficient in law to support a
conviction. A violation of this right prevents the conviction of the
accused with the crime charged in the Information. [U.S. v. Karelsen, 3
Phil. 223, 226 (1904), citing United States v. Cruikshank, 92 US 542, cited
in People v. Rommel Dela Cruz, G.R. No. 175929, December 16, 2008]

CONSUMMATED OR ATTEMPTED RAPE?

FACTS:
According to Corazon, Primo was forcing his penis into Crysthels
vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko
iyan!" and boxed him several times. He evaded her blows and pulled up
his pants. He pushed Corazon aside when she tried to block his path.
Corazon then ran out and shouted for help thus prompting her brother,
a cousin and an uncle who were living within their compound, to chase
the accused. Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of
their compound until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on
Crysthel’s body as her hymen was intact and its orifice was only 0.5 cm.
in diameter.
Primo Campuhan had only himself for a witness in his defense.
He maintained his innocence and assailed the charge as a mere scheme
of Crysthel's mother who allegedly harbored ill will against him for his
refusal to run an errand for her. He asserted that in truth Crysthel was in
a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was
in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He
got mad but restrained himself from hitting back when he realized she
was a woman. Corazon called for help from her brothers to stop him as
he ran down from the second floor.
 Vicente, Corazon's brother, timely responded to her call for help
and accosted Primo. Vicente punched him and threatened to kill him.
Upon hearing the threat, Primo immediately ran towards the house of
Conrado Plata but Vicente followed him there. Primo pleaded for a
chance to explain as he reasoned out that the accusation was not true.
But Vicente kicked him instead. When Primo saw Vicente holding a
piece of lead pipe, Primo raised his hands and turned his back to avoid
the blow. At this moment, the relatives and neighbors of Vicente
prevailed upon him to take Primo to the barangay hall instead, and not
to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial
court on 27 May 1997 found him guilty of statutory rape, sentenced him
to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and
the costs.
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."

[People v. Primo Campuhan, G.R. No. 129433, March 30, 2000, En Banc,
Bellosillo, J.]

On 3 April 1990 this Court in People v. Orita [People v. Ceilito

Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184 SCRA 105] finally did
away with frustrated rape [People v. Eriia, 50 Phil. 998 (1927)] and
allowed only attempted rape and consummated rape to remain in our
statute books.

The instant case lurks at the threshold of another emasculation of

the stages of execution of rape by considering almost every attempt at
sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that concept
may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any
restraint, since after all any attempted fornication would be considered
consummated rape and punished as such. A mere strafing of the citadel
of passion would then be considered a deadly fait accompli, which is
absurd.

In Orita we held that rape was consummated from the moment

the offender had carnal knowledge of the victim since by it he attained
his objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the
acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court
further held that entry of the labia or lips of the female organ, even
without rupture of the hymen or laceration of the vagina, was sufficient
to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a
felony directly by overt acts. The inference that may be derived
therefrom is that complete or full penetration of the vagina is not
required for rape to be consummated. Any penetration, in whatever
degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape

by requiring entry into the labia or lips of the female organ, even if
there be no rupture of the hymen or laceration of the vagina, to warrant
a conviction for consummated rape. While the entry of the penis into
the lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora, etc.,
the crucial doctrinal bottom line is that touching must be inextricably
viewed in light of, in relation to, or as an essential part of, the process of
penile penetration, and not just mere touching in the ordinary sense. In
other words, the touching must be tacked to the penetration itself. The
importance of the requirement of penetration, however slight, cannot
be gainsaid because where entry into the labia or the lips of the female
genitalia has not been established, the crime committed amounts
merely to attempted rape.

Verily, this should be the indicium of the Court in determining

whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would exist
between the two, despite the fact that penalty-wise, this distinction,
threadbare as it may seem, irrevocably spells the difference between life
and death for the accused - a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on
the other. And, arguing on another level, if the case at bar cannot be
deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape
would no longer be possible in light of the view of those who disagree
with this ponencia?

The pudendum or vulva is the collective term for the female

genital organs that are visible in the perineal area, e.g., mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal orifice,
etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the
labia majora or the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner
surface is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered for rape to
be consummated, and not merely for the penis to stroke the surface of
the female organ. Thus, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of
the female organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.

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 our mind, the case at bar merely constitutes a
"shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion."

A review of the records clearly discloses that the prosecution

utterly failed to discharge its onus of proving that Primo’s penis was
able to penetrate Crysthel’s vagina however slight. Even if we grant
arguendo that Corazon witnessed Primo in the act of sexually molesting
her daughter, we seriously doubt the veracity of her claim that she saw
the inter-genital contact between Primo and Crysthel. When asked what
she saw upon entering her children’s room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without
explaining her relative position to them as to enable her to see clearly
and sufficiently, in automotive lingo, the contact point. It should be
recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position, which Corazon described
thus:

Q: How was Primo holding your daughter?

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

Corazon insists that Primo did not restrain himself from pursuing
his wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with mans instinct of

self-preservation to remain where he is and persist in satisfying his lust
even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For,
the normal behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short,
provided more than enough opportunity for Primo not only to desist
from but even to conceal his evil design.
 What appears to be the basis of the conviction of the accused
was Crysthel's answer to the question of the court -

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ,
she readily said, "No." Thus -

Q: But did his penis penetrate your organ?

A: No, sir.

This testimony alone should dissipate the mist of confusion that

enshrouds the question of whether rape in this case was consummated.
It has foreclosed the possibility of Primo’s penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
penetration, obviously induced by a question propounded to her who
could not have been aware of the finer distinctions between touching
and penetration. Consequently, it is improper and unfair to attach to
this reply of a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of worldly
sophistication, an adult interpretation that because the penis of the
accused touched her organ there was sexual entry. Nor can it be
deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia
of her pudendum as the prosecution failed to establish sufficiently that
Primo made efforts to penetrate Crysthel. Corazon did not say, nay, not
even hint that Primo's penis was erect or that he responded with an
erection. On the contrary, Corazon even narrated that Primo had to
hold his penis with his right hand, thus showing that he had yet to attain
an erection to be able to penetrate his victim.

Antithetically, the possibility of Primo’s penis having breached

Crysthels vagina is belied by the child's own assertion that she resisted
Primo’s advances by putting her legs close together; consequently, she
did not feel any intense pain but just felt "not happy" about what Primo
did to her. Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray
ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on
the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible.
None was shown in this case. Although a child's testimony must be
received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of
the accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.

Lastly, it is pertinent to mention the medico legal officer's finding

in this case that there were no external signs of physical injuries on
complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although
the absence of complete penetration of the hymen does not negate the
possibility of contact, she clarified that there was no medical basis to
hold that there was sexual contact between the accused and the victim.

In cases of rape where there is a positive testimony and a

medical certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard
of the manifest variance in the medical certificate, would be productive
of unwarranted or even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted
rape from consummated rape will significantly disappear.
 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.

Malversation

People v. Zenaida Maamo and Juliet O. Silor, GRN 201917, Dec 01, 2016,
Caguioa, J.

. . . to be found guilty of Malversation, the Prosecution has the burden

to prove the following essential elements: (a) The offender is a public
officer; (b) The offender has custody or control of funds or property by
reason of the duties of his office; ( c) The funds or property involved are
public funds or property for which the offender is accountable; and ( d)
The offender has appropriated, taken or misappropriated, or has
consented to, or through abandonment or negligence, permitted the
taking by another person of, such funds or property.

In sum, what is necessary for conviction is sufficient proof that the

accountable officer had received public funds, that he did not have
them in his possession when demand therefor was made, and that he
could not satisfactorily explain his failure to do so.

Notably, Article 217 of the RPC provides that the failure of a public
officer to have duly forthcoming any public funds with which he is
chargeable upon demand by any duly authorized officer gives rise to
the presumption that he has put such missing funds to personal use. As
this Court clarified in Estino v. People, while demand is not an element
of Malversation, it is a requisite for the application of the presumption.
Hence, absent such presumption, the accused may still be proven guilty,
albeit based on direct evidence of Malversation. Otherwise stated, to
support a ·conviction for the crime, the Prosecution must nonetheless
present evidence clearly evincing misappropriation of public funds.

Moreover, as argued by the Petitioners, the mere absence of a name in

the Time Book and Payroll does not automatically translate to the non-
existence of the alleged worker. Contrary to the conclusions of the SB,
there are other "logical explanation[s]" for such omission, one of which
is the explanation proffered by the Petitioners, i.e., that what was
presented during trial were the third original carbon copies on which
the carbon paper did not work to copy those names listed on the first
page. Indeed, it is also entirely possible that the person responsible
simply forgot to write down the name of the payee-laborer even as he
secured their signatures.

xxxx

Certainly, the allegation that Petitioners hired "ghost employees" must

be weighed against the fact that Time Book and Payrolls were found to
be in order. x x x

All told, we cannot subscribe to the conclusion of the SB that the blanks
next to the signatures are, by themselves alone, enough to prove that
Petitioners committed Malversation through Falsification by feigning the
said signatures. This Court is not prepared to deprive Petitioners of their
liberty with finality simply on the basis of a superficial deficiency in Time
Books and Payrolls.