50. Baleros Jr vs People Montes, Renato Alagadan and Christian Alcala.
Their testimonies, as
G.R. No. 138033. February 22, 2006.*
RENATO BALEROS, JR., petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr.
assails and seeks the reversal of the January 13, 1999 decision 1 of
the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in
its March 31, 1999 resolution2 denying petitioner’s motion for
reconsideration.
The assailed decision affirmed an earlier decision of the Regional
Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-
101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty
of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991
charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13
December 1991 in Manila and within the jurisdiction of this Honorable
Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical
with dizzying effects, did then and there willfully, unlawfully and
feloniously commenced the commission of rape by lying on top of her
with the intention to have carnal knowledge with her but was unable to
perform all the acts of execution by reason of some cause or accident
other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by
counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses.
Among them were private complainant Martina Lourdes Albano
(Malou), and her classmates, Joseph Bernard Africa, Rommel
narrated in some detail in the decision of the CA, established the
following facts:
Like most of the tenants of the Celestial Marie Building (hereafter
"Building", …) along A.H. Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was
a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at
around 10:30. Outside, right in front of her bedroom door, her maid,
Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the
smell of chemical on a piece of cloth pressed on her face. She
struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the
hands covering her mouth with cloth wet with chemicals were very
tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her
attacker by kicking him until at last her right hand got free. With this …
the opportunity presented itself when she was able to grab hold of his
sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door
and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin
that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8).
Who it was she did not, however, know. The only thing she had made
out during their struggle was the feel of her attacker’s clothes and
weight. His upper garment was of cotton material while that at the
lower portion felt smooth and satin-like (Ibid, p. 17). He … was
wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala,
Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying,
MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress
was stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from
the window with grills which she had originally left opened, another
window inside her bedroom was now open. Her attacker had fled from
her room going through the left bedroom window (Ibid, Answers to
Page 1 of 9
Question number 5; Id), the one without iron grills which leads to
Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her
classmate …, was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN,
July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p.
22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO
arrived at the Building at 1:30 in the early morning of December 13,
1991, wearing a white t-shirt with “‘…a marking on the front of the T-
shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the
word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9)
and black shorts with the brand name “Adidas” (TSN, October 16,
1992, p.7) and requested permission to go up to Room 306. This Unit
was being leased by Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard Africa was in the
room.
He asked CHITO to produce the required written authorization and
when CHITO could not, S/G Ferolin initially refused [but later,
relented] …. S/G Ferolin made the following entry in the security
guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have
(sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I
let him inter (sic) for the reason that he will be our tenant this coming
summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991
was corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of
December 12, 1991. xxx by the time CHITO’s knocking on the door
woke him up, …. He was able to fix the time of CHITO’s arrival at 1:30
A.M. because he glanced at the alarm clock beside the bed when he
was awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and
white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at around
3 o’clock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard
Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat
was shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991,
Joseph was finally able to talk to CHITO …. He mentioned to the latter
that something had happened and that they were not being allowed to
get out of the building. Joseph also told CHITO to follow him to Room
310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his
gray bag. xxx. None was in Room 310 so Joseph went to their yet
another classmate, Renato Alagadan at Room 401 to see if the others
were there. xxx.
People from the CIS came by before 8 o’clock that same morning ….
They likewise invited CHITO and Joseph to go with them to Camp
Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in
Court that in the afternoon of December 13, 1991, after their 3:30
class, he and his roommates, Bernard Baptista and Lutgardo Acosta
(Gary) were called to the Building and were asked by the CIS people
to look for anything not belonging to them in their Unit. While they
were outside Room 310 talking with the authorities, Rommel Montes
(Loyloy), another roommate of his, went inside to search the Unit.
Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag
Page 2 of 9
cloth type (Ibid, pp. 44-45) from inside their unit which they did not "SPECIMEN SUBMITTED:
know was there and surrender the same to the investigators. When he
saw the gray bag, Christian knew right away that it belonged to xxx xxx xxx:
CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to
school inside the classroom (Ibid, p. 45). 1) One (1) small white plastic bag marked ‘UNIMART’ with the
following:
In their presence, the CIS opened the bag and pulled out its contents,
among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, xxx xxx xxx
p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-
shirts, an underwear, and socks (Ibid). Exh ‘C’ – One (1) night dress colored salmon pink.

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants 2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
(Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s
because CHITO had lent the very same one to him …. The t-shirt with Exh. ‘D’ – One (1) printed handkerchief.
CHITO’s fraternity symbol, CHITO used to wear on weekends, and
the handkerchief he saw CHITO used at least once in December.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
That CHITO left his bag inside Room 310 in the morning of December
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
13, 1991, was what consisted mainly of Renato R. Alagadan’s
testimony.
PURPOSE OF LABORATORY EXAMINATION:
xxx xxx xxx.
To determine the presence of volatime (sic), non-volatile and/or
metallic poison on the above stated specimens.
The colored gray bag had a handle and a strap, was elongated to
about 11/4 feet and appeared to be full but was closed with a zipper
when Renato saw it then (Ibid, pp. 19-20). At that time Christian, FINDINGS:
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4
o’clock that afternoon along with some CIS agents, they saw the bag Toxicological examination conducted on the above stated specimens
at the same place inside the bedroom where Renato had seen CHITO gave the following results:
leave it. Not until later that night at past 9 o’clock in Camp Crame,
however, did Renato know what the contents of the bag were. Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile
poison.
xxx xxx xxx.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
The forensic Chemist, Leslie Chambers, of the Philippine National
Police Crime Laboratory in Camp Crame, having acted in response to CONCLUSION:
the written request of PNP Superintendent Lucas M. Managuelod
dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in
conducted laboratory examination on the specimen collated and bracket added)
submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p.
112) reads in part, thus:
Page 3 of 9
For its part, the defense presented, as its main witness, the petitioner
himself. He denied committing the crime imputed to him or making at
any time amorous advances on Malou. Unfolding a different version of
the incident, the defense sought to establish the following, as culled
from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With
Robert Chan and Alberto Leonardo, he was likewise a member of the
Tau Sigma Phi Fraternity …. MALOU, …, was known to him being
also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing
the prescribed barong tagalog over dark pants and leather shoes,
arrived at their Fraternity house located at … Dos Castillas,
Sampaloc, Manila at about 7 o’clock in the evening of December 12,
1991. He was included in the entourage of some fifty (50) fraternity
members scheduled for a Christmas gathering at the house of their
senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North
Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool
…. Soon after, … the four (4) presidential nominees of the Fraternity,
CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt
and long pants when he was dunked. Perla Duran, …, offered each …
dry clothes to change into and CHITO put on the white t-shirt with the
Fraternity’s symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a
white t-shirt with the symbol TAU Sigma Phi, black short pants with
stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the
party with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which they
reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling
bag containing "white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the
previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin,
looking at his watch, approached. Because of this, CHITO also looked
at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G
Ferolin initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him
in, already about ten (10) minutes had lapsed since CHITO first
arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind
the opened jalousie window and for five (5) minutes vainly tried to
open the door until Rommel Montes, … approached him and even
commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid.,
pp. 26-29). Rommel tried to open the door of Unit 306 … but was
likewise unsuccessful. CHITO then decided to just call out to Joseph
while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph,
…, at last answered the door. Telling him, "Ikaw na ang bahala diyan"
Joseph immediately turned his back on CHITO and went inside the
bedroom. CHITO , …changed to a thinner shirt and went to bed. He
still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up
…. He was already in his school uniform when, around 6:30 A.M,
Joseph came to the room not yet dressed up. He asked the latter why
this was so and, without elaborating on it, Joseph told him that
something had happened and to just go to Room 310 which CHITO
did.
At Room 310, CHITO was told by Rommel Montes that somebody,
whom MALOU was not able to identify, went to the room of MALOU
and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of
the Building …. When two (2) CIS men came to the unit asking for
Renato Baleros, CHITO presented himself. Congressman Rodolfo B.
Albano, father of MALOU, then asked him for the key to Room 306….
xxx xxx xxx
Page 4 of 9
The CIS men looked inside the bedroom and on the windows. Joseph
was told to dress up and the two (2) of them, CHITO and Joseph,
were brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked
Joseph inside his room and talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who
later instructed them to undergo physical examination at the Camp
Crame Hospital ….. At the hospital, … CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to
strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black
striped short pants lent to him by Perla Duran (Exhibit "8-A", Original
Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in
the morning of December 13, 1991. The next time that he saw it was
between 8 to 9 P.M. when he and Joseph were brought before Fiscal
Abesamis for inquest. One of the CIS agents had taken it there and it
was not opened up in his presence but the contents of the bag were
already laid out on the table of Fiscal Abesamis who, however, made
no effort to ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO
denied putting in his gray bag which he had left at Room 306 in the
early evening of December 12, 1991 before going to the fraternity
house. He likewise disavowed placing said black Adidas short pants
in his gray bag when he returned to the apartment at past 1:00 o’clock
in the early morning of December 13, 1991 (TSN, June 16, 1994, p.
24), nor when he dressed up at about 6 o’clock in the morning to go to
school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any
time on December 13, 1991, he was not aware that his gray bag ever
contained any black short Adidas pants (Ibid). He only found out for
the first time that the black Adidas short pants was alluded to be
among the items inside his gray bag late in the afternoon, when he
was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s
fraternity brothers, Alberto Leonardo and Robert Chan, who both
testified being with CHITO in the December 12, 1991 party held in Dr.
Duran’s place at Greenhills, riding on the same car going to and
coming from the party and dropping the petitioner off the Celestial
Marie building after the party. Both were one in saying that CHITO
was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party.7 Rommel Montes,
a tenant of Room 310 of the said building, also testified seeing CHITO
between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying
to open the door of Room 306 while clad in dark short pants and white
barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the
pair of short pants with stripes after the dunking party held in her
father’s house.8 Presented as defense expert witness was Carmelita
Vargas, a forensic chemistry instructor whose actual demonstration in
open court showed that chloroform, being volatile, evaporates in thirty
(30) seconds without tearing nor staining the cloth on which it is
applied.9
On December 14, 1994, the trial court rendered its
decision10 convicting petitioner of attempted rape and accordingly
sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the
foregoing, the Court finds the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the crime of attempted
rape as principal and as charged in the information and hereby
sentences him to suffer an imprisonment ranging from FOUR (4)
YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision
Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for
the accused to pay the offended party Martina Lourdes T. Albano, the
sum of P50,000.00 by way of Moral and exemplary damages, plus
reasonable Attorney’s fees of P30,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Page 5 of 9
Aggrieved, petitioner went to the CA whereat his appellate recourse
was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision
dated January 13, 1999, affirmed the trial court’s judgment of
conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the
findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by
the CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent
sufficient, competent and convincing evidence to prove the
offense charged.
2. In convicting petitioner of attempted rape on the basis
merely of circumstantial evidence since the prosecution failed
to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict
the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his
case.
5. In awarding damages in favor of the complainant despite
the fact that the award was improper and unjustified absent
any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not
been met, hence, he should be acquitted on the ground that
the offense charged against him has not been proved beyond
reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on
whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted
rape.
After a careful review of the facts and evidence on record in the light
of applicable jurisprudence, the Court is disposed to rule for
petitioner’s acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked
cloth who pinned Malou down on the bed in the early morning of
December 13, 1991.
Positive identification pertains essentially to proof of identity and not
per se to that of being an eyewitness to the very act of commission of
the crime. There are two types of positive identification. A witness
may identify a suspect or accused as the offender as an eyewitness to
the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a
witness may not have actually witnessed the very act of commission
of a crime, he may still be able to positively identify a suspect or
accused as the perpetrator of a crime as when, for instance, the latter
is the person or one of the persons last seen with the victim
immediately before and right after the commission of the crime. This is
the second type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and
under condition where concealment is highly probable. If direct
evidence is insisted under all circumstances, the prosecution of
vicious felons who committed heinous crimes in secret or secluded
places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions
when circumstantial evidence may be sufficient for conviction. The
provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial
evidence is sufficient for conviction if –
Page 6 of 9
 a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven;
and
c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms
part of circumstantial evidence, which, when taken together with the
other pieces of evidence constituting an unbroken chain, leads to only
fair and reasonable conclusion, which is that petitioner was the
intruder in question.
We quote with approval the CA’s finding of the circumstantial
evidence that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He
had access to the room of MALOU as Room 307 where he slept the
night over had a window which allowed ingress and egress to Room
306 where MALOU stayed. Not only the Building security guard, S/G
Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was
wearing a black "Adidas" shorts and fraternity T-shirt when he arrived
at the Building/Unit 307 at 1:30 in the morning of December 13, 1991.
Though it was dark during their struggle, MALOU had made out the
feel of her intruder’s apparel to be something made of cotton material
on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot
where witness Renato Alagadan saw CHITO leave it, were discovered
the most incriminating evidence: the handkerchief stained with blue
and wet with some kind of chemicals; a black "Adidas" satin short
pants; and a white fraternity T-shirt, also stained with blue. A different
witness, this time, Christian Alcala, identified these garments as
belonging to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during the
incident revealed that the handkerchief and MALOU’s night dress both
contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the
chemical-soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced
by the prosecution has established beyond reasonable doubt the guilt
of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on
Malou’s face the piece of cloth soaked in chemical while holding her
body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the
victim. It is argued that petitioner’s actuation thus described is an
overt act contemplated under the law, for there can not be any other
logical conclusion other than that the petitioner intended to ravish
Malou after he attempted to put her to an induced sleep. The Solicitor
General, echoing what the CA said, adds that if petitioner’s intention
was otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a
man who has carnal knowledge or intercourse with a woman under
any of the following circumstances: (1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise unconscious;
and (3) When the woman is under twelve years of age or is
demented. Under Article 6, in relation to the aforementioned article of
the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the
acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking
thru Justice Claro M. Recto in People vs. Lamahang, 17 stated that "the
attempt which the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is the
beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the
offender in performing an act is not certain, meaning the nature of the
act in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a juridical
fact from the standpoint of the Penal Code.18
There is absolutely no dispute about the absence of sexual
intercourse or carnal knowledge in the present case. The next
Page 7 of 9
question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or
deed, indicating the intention to commit a particular crime, more than
a mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be
too strained to construe petitioner's act of pressing a chemical-soaked
cloth in the mouth of Malou which would induce her to sleep as an
overt act that will logically and necessarily ripen into rape. As it were,
petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be
overemphasized that petitioner was fully clothed and that there was
no attempt on his part to undress Malou, let alone touch her private
part. For what reason petitioner wanted the complainant unconscious,
if that was really his immediate intention, is anybody’s guess. The CA
maintained that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the appellate court
even anticipated the next step that the petitioner would have taken if
the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will
have to come later. His sexual organ is not yet exposed because his
intended victim is still struggling. Where the intended victim is an
educated woman already mature in age, it is very unlikely that a rapist
would be in his naked glory before even starting his attack on her. He
has to make her lose her guard first, or as in this case, her
unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a
practice disfavored under the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable
doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner
of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution
to produce the felony. Thus, for there to be an attempted rape, the
accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other
than his own spontaneous desistance, the penetration, however,
slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and
kissing her, mashing her breasts, inserting his hand inside her panty
and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing
that petitioner actually commenced to force his penis into the
complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito
Onio arrived at the alleged locus criminis. Thus, it would be stretching
to the extreme our credulity if we were to conclude that mere holding
of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is
innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified about the pressing
against her face of the chemical-soaked cloth and having struggled
after petitioner held her tightly and pinned her down. Verily, while the
series of acts committed by the petitioner do not determine attempted
rape, as earlier discussed, they constitute unjust vexation punishable
as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision
assuring an accused of a crime the right to be informed of the nature
and cause of the accusation,24 it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which he was proceeded
against. To be sure, the information against petitioner contains
Page 8 of 9
sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation.
As it were, unjust vexation exists even without the element of restraint
or compulsion for the reason that this term is broad enough to include
any human conduct which, although not productive of some physical
or material harm, would unjustly annoy or irritate an innocent
person.25 The paramount question is whether the offender’s act
causes annoyance, irritation, torment, distress or disturbance to the
mind of the person to whom it is directed. 26 That Malou, after the
incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was disturbed, if not
distressed by the acts of petitioner.
WHEREFORE, the assailed Decision of the Court of Appeals
affirming that of the Regional Trial Court of Manila, is hereby
REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape.
Petitioner, however, is adjudged GUILTY of light coercion and is
accordingly sentenced to 30 days of arresto menor and to pay a fine
of ₱200.00, with the accessory penalties thereof and to pay the costs.
SO ORDERED.
CANCIO C. GARCIA 
Associate Justice
——o0o——

The penalty for coercion falling under the second paragraph of Article
287 of the Revised Penal Code is arresto menor or a fine ranging
from ₱5.00 to ₱200.00 or both.

Page 9 of 9