pp. V.

LIZADA

FACTS:
Accused-appellant was charged with four (4) counts of qualified rape
under four separate Informations.
Ricardo Orillosa and his wife, Rose Orillosa, had three (3) children,
namely: Analia, who was born on December 18, 1985; Jepsy, who was
11 years old, and Rossel, who was nine years old. However, the couple
decided to part ways and live separately.
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.
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,
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.
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.
The RTC convicted the accused for 4 counts of rape.

Issue:
WON accused-appellant is guilty of rape in the case filed on Nov. 5,
1998

Ruling:

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

The first requisite of an attempted felony consists of two elements,

namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to
be committed."41
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete
offense.42 The raison d'etre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be equivocal; and this
is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal
quality remains, no one can say with certainty what the intent of the
accused is.43 It is necessary that the overt act should have been the
ultimate step towards the consummation of the design. It is sufficient if
it was the "first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are made."44 The
act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the
intended crime.45 In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense.46
Acts constitutive of an attempt to commit a felony should be
distinguished from preparatory acts which consist of devising means or
measures necessary for accomplishment of a desired object or end.47
One perpetrating preparatory acts is not guilty of an attempt to commit
a felony. However, if the preparatory acts constitute a consummated
felony under the law, the malefactor is guilty of such consummated
offense.48 The Supreme Court of Spain, in its decision of March 21,
1892, declared that for overt acts to constitute an attempted offense, it
is necessary that their objective be known and established or such that
acts be of such nature that they themselves should obviously disclose
the criminal objective necessarily intended, said objective and finality to
serve as ground for designation of the offense.49
There is persuasive authority that in offenses not consummated as the
material damage is wanting, the nature of the action intended (accion
fin) cannot exactly be ascertained but the same must be inferred from
the nature of the acts executed (accion medio).50 Hence, it is necessary
that the acts of the accused must be such that, by their nature, by the
facts to which they are related, by circumstances of the persons
performing the same, and b the things connected therewith, that they
are aimed at the consummation of the offense. This Court emphasized
in People vs. Lamahang51 that:
"The relation existing between the facts submitted for appreciation and
the offense which said facts are supposed to produce must be direct;
the intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instances of injustice, that the
mind be able to cause a particular injury."52
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is
voluntarily abandoned. There is no conceivable overt act to which the
abandoned purpose could be attached. Secondly, the policy of the law
requires that the offender, so long as he is capable of arresting an evil
plan, should be encouraged to do so, by saving him harmless in case of
such retreat before it is possible for any evil consequences to ensue.
Neither society, nor any private person, has been injured by his act.
There is no damage, therefore, to redress. To punish him after retreat
and abandonment would be to destroy the motive for retreat and
abandonment."56
It must be borne in mind, however, that the spontaneous desistance of
a malefactor exempts him from criminal liability for the intended crime
but it does not exempt him from the crime committed by him before his
desistance.57
BALEROS vs. PEOPLE
FACTS:
• Martina Lourdes Albano (Malou), a medical student of the
University of Sto. Tomas, is a tenant of Celestial Marie Building
occupying Room 307 with her maid Marvilou,
• December 12 10:30 pm: Malou slept. Her maid Marvilou slept on a
folding bed right in front of her bedroom door.
• December 13, 1991 1:00 am: Chito left the fraternity Tau Sigma Phi
party with Robert Chan and Alberto wearing a barong tagalog, with t-
shirt inside, with short pants with stripes lent by Perla Duran and
leather shoes.
• December 13, 1991 1:30 am: Chito arrived at the Building wearing a
white t-shirt with fraternity symbols and black shorts with the brand
name “Adidas” from a party. He requested permission from S/G Ferolin
to go up to Room 306 leased by Ansbert Co but at that time only Joseph
Bernard Africa was there. Although Chito could not produce the
required written authorization, he let him in because he will be a tenant
in the coming summer break. Joseph was awaken by Chito’s knock so
he glanced the alarm clock and let him. He saw him wearing dark-
colored shorts and white T-shirt.
• December 13, 1991 1:50 am: Renato Baleros, Jr. y David (Chito)
forcefully covered the face of Martina Lourdes T. Albano with a piece of
cloth soaked in chemical with dizzying effects. This awakened Malou.
She struggled but could not move because she was tightly held and
pinned down on the bed. She kicked him and got her right hand free to
squeeze his sex organ causing him to let her go. She went for the
bedroom door and woke up Marvilou. She also intercommed S/G
Ferolin saying: "may pumasok sa kuarto ko pinagtangkaan ako". Malou
proceed to Room 310 where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying and seeked
help. She saw her bed in a mess and noticed that her nightdress was
stained with blue. Aside from the window with grills which she had
originally left opened, another window inside her bedroom which leads
to Room 306 was now open.
• December 13, 1991 3:30 pm: Christian and his roommates, Bernard
and Lutgardo were asked by the CIS people to look for anything not
belonging to them in their Unit when Rommel Montes went inside and
found a grey bag.
o Christian knew right away that it belonged to Chito. It contained
white t-shirt with fraternity symbol, a Black Adidas short pants, a
handkerchief , 3 white T-shirts, an underwear and socks.
• Chito pleaded NOT Guilty
• 13 witnesses including Malou and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and Christian Alcala
o Malou: Chito was her classmate whom he rejected a week before
o Chito: He only slept and at about 6 to 6:30, Joseph told him that
something had happened and asked him to follow him to Room 310
carrying his gray bag and since no one was there they went to Room
401 where Renato Alagadan was. He left his grey bag at Room 306 the
day before.

• 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
• The trial court convicted chito with attempted rape
• CA: Affirmed

Issue: 1. won Chito is guilty of attempted rape

2. 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

RULING: NO.
 1. 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.
 2. The next 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.
PEOPLE vs. LABIAGA

FACTS:

 In Criminal Case No. 2001-1555, Labiaga, together with a certain

Alias Balatong Barcenas and Cristy Demapanag (Demapanag), was
charged with Murder with the Use of Unlicensed Firearm under
an Information, by killing Judy Conde

 The same individuals were charged with Frustrated Murder with

the Use of Unlicensed Firearm in Criminal Case No. 2002-1777,
under an Information willfully, unlawfully and feloniously attack,
assault and shoot Gregorio Conde with said unlicensed firearm,
hitting him on the posterior aspect, middle third right forearm 1
cm.

 Alias Balatong Barcenas remained at large. Both appellant and

Demapanag pled not guilty in both cases and joint trial ensued
thereafter.

 In the prosecution’s version of facts, on Dec. 23, 2000 at 7pm,

Gregorio Conde, and his two daughters, Judy and Glenelyn Conde,
were in their home at Barangay Malayu-an, Ajuy, Iloilo.
Thereafter, Gregorio stepped outside. Glenelyn was in their store,
which was part of their house.

 Shortly thereafter, Labiaga, who was approximately five meters

away from Gregorio, shot the latter. Gregorio called Judy for help.
When Judy and Glenelyn rushed to Gregorio’s aid, appellant shot
Judy in the abdomen. The two other accused were standing
behind the appellant. Appellant said, "she is already dead," and
the three fled the crime scene.

 Gregorio and Judy were rushed to the Sara District Hospital. Judy
was pronounced dead on arrival while Gregorio made a full
recovery after treatment of his gunshot wound.

 Version of the defense, Labiaga admitted that he was present

during the shooting incident on 23 December 2000, however he
claimed that he acted in self-defense. Gregorio, armed with a
shotgun, challenged him to a fight. He attempted to shoot
 appellant, but the shotgun jammed. Appellant tried to wrest the
shotgun from Gregorio, and during the struggle, the shotgun fired.
He claimed that he did not know if anyone was hit by that
gunshot.

 Demapanag claimed that at the time of the shooting, he was in

D&D Ricemill, which is approximately 14 kilometers away from
the crime scene. This was corroborated by Frederick,
Demapanag’s brother.

 The RTC acquitted cristy due to insufficient evidence. While

Labiaga was convicted w/ murder and frustrated murder.

 The CA-Cebu affirmed.

Issue: won labiaga is guilty of frustrated murder.

RULING. NO.

Article 6 of the Revised Penal Code defines the stages in the

commission of felonies:

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.

In Serrano v. People,19 we distinguished a frustrated felony from an

attempted felony in this manner:

1.) In a frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence; whereas
in an attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform all
the acts of execution.

2.) In a frustrated felony, the reason for the non-accomplishment of the

crime is some cause independent of the will of the perpetrator; on the
other hand, in an attempted felony, the reason for the non-fulfillment
of the crime is a cause or accident other than the offender’s own
spontaneous desistance.20

In frustratpoed murder, there must be evidence showing that the

wound would have been fatal were it not for timely medical
intervention.(PP. V. COSTALES) If the evidence fails to convince the
court that the wound sustained would have caused the victim’s death
without timely medical attention, the accused should be convicted of
attempted murder and not frustrated murder.

In the instant case, it does not appear that the wound sustained by
Gregorio Conde was mortal. This was admitted by Dr. Edwin Figura,
who examined Gregorio.

Since Gregorio’s gunshot wound was not mortal, we hold that appellant
should be convicted of attempted murder and not frustrated murder.
VALENZUELA vs. PEOPLE
FACTS:
While a security guard was manning his post the open parking area of a
supermarket, he saw the accused, Aristotel Valenzuela, hauling a push
cart loaded with cases of detergent and unloaded them where his co-
accused, Jovy Calderon, was waiting. Valenzuela then returned inside
the supermarket, and later emerged with more cartons of detergent.
Thereafter, Valenzuela hailed a taxi and started loading the boxes of
detergent inside. As the taxi was about to leave the security guard
asked Valenzuela for the receipt of the merchandise. The accused
reacted by fleeing on foot, but were subsequently apprehended at the
scene. The trial court convicted both Valenzuela and Calderon of the
crime of consummated theft. Valenzuela appealed before the Court of
Appeals, arguing that he should only be convicted of frustrated theft
since he was not able to freely dispose of the articles stolen. The CA
affirmed the trial court’s decision, thus the Petition for Review was filed
before the Supreme Court.

Issue: Whether or not petitioner Valenzuela is guilty of frustrated theft.

Ruling: NO
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in
the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that
the offender, once having committed all the acts of execution for theft,
is able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of
execution. This conclusion is reflected in Chief Justice Aquino’s
commentaries, as earlier cited, that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of
the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of
the property stolen delves into the concept of "taking" itself, in that
there could be no true taking until the actor obtains such degree of
control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not been
completed, the "taking not having been accomplished." Perhaps this
point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and
such consideration proves ultimately immaterial to that question.
Moreover, such issue will not apply to the facts of this particular case.
We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento,
is deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same.92 And
long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of

the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it
will be here noted that the definition does not require that the taking
should be effected against the will of the owner but merely that it
should be without his consent, a distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an
act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308
of the Revised Penal Code, theft cannot have a frustrated stage. Theft
can only be attempted or consummated.
We thus conclude that under the Revised Penal Code, there is no crime
of frustrated theft. As petitioner has latched the success of his appeal
on our acceptance of the Diño and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it
has taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract from
the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the higher reverence for
legislative intent.
PEOPLE vs. QUINANOLA,
FACTS:
Catalina, together with her cousin, Rufo and another friend Richard
were on their way home from a dance party at Bito-on Nat. Vocational
School, when Quinanola and Escuardo stopped on the waiting shed
beside Tangil Elem. School to momentarily rest. Armed with guns
presented themselves as NPA, the accused ordered the boys to lie on
the ground while Escuardo urinated on them. Quinanola, on the other
hand, brought Catalina to a nearby school and made her sit on the
ground. When she resisted, Quinanola pointed his gun at her and
threatened to kill her if she did not obey his demands. Escuardo
followed the two boys having escaped successfully while he is zipping
his pants. Quinanola ordred Escuardo to remove her pants while
Catalina resisted. Having succeeded in undressing her, quinanola
unzipped his pants and laid on top of her while Escuardo held her legs.
Quinanola started to pump, to push and pull even as Catalina still tried
to desperately escape. She felt his organ on the lips of her genitalia.
When quinanola had satisfied his lust, Escuardo took his turn by placing
himself on top of Catalina. Catalina felt the sex organ of Escuardo on the
lips of her vulva while he made a push and pull movement. The accused
immediately scampered after the ordeal.
In the physical examination conducted on Catalina, it was found that
the hymen was intact and there was no complete penetration.
the accused, in their defense, interposed alibi, ill motive on the part of
an "uncle" of the complainant, and insufficient identification.
The Trial court found the two accused guilty beyond reasonable doubt
of the crime of "frustrated rape"

Issue: won the accused are guilty of frustrated rape.

RULING:
In the context it is used in the Revised Penal Code, "carnal knowledge"
unlike its ordinary connotation of sexual intercourse, does not
necessarily require that the vagina be penetrated or that the vagina be
penetrated or that the hymen be ruptured.36 The crime of rape is
deemed consummated even when the man's penis merely enters the
labia or lips of the female organ37 or, as once so said in a case, by the
"mere touching of the external genitalia by a penis capable of
consummating the sexual act."38 In People vs. Escober,39 in convicting
a father of having raped twice his 1l-year-old daughter, the Court has
said:
While the evidence may not show full penetration on both occasions of
rape the slightest penetration is enough to consummate the offense in
fact there was vulva penetration in both cases. The fact that the hymen
was intact upon examination does not belie rape for a broken hymen is
not an essential element of rape not does the fact that the victim has
remained a virgin negate the crime. What is fundamental is that the
entrance of at least the introduction, of the male organ into the labia of
the pudendum is proved. As in the case at bar it can be said that there
was penetration although incomplete, and it was sufficient to prove
carnal knowledge of a child under twelve years of age. A medical
examination is not an indispensable element in a prosecution for rape.
The accused may be convicted on the sole basis of complainant's
testimony of credible and the findings of the medico-legal officer do not
disprove the commission of rape.

There are half measures or even quarter measures nor is their gravity
graduated by the inches of entry. Partial penile penetration is as serious
as full penetration. The rape is deemed consummated in either case. In
a manner of speaking, bombardment of the drawbridge is invasion
enough even if the troops do not succeed in entering the castle.40
(Emphasis supplied.)
In another case, People vs. Gabayton,41 where the accused has been
found guilty of raping his daughter then less than twelve years old, the
Court has observed:
Accused appellant draws attention to the fact that based on the
medico-legal findings, there is no showing that his daughter's hymen
was penetrated, nor was there any evidence of injuries inflicted.
However, jurisprudence is well-settled to the effect that for rape to be
consummated, rupture of the hymen is not necessary, nor is it
necessary that the vagina sustained a laceration especially if the
complainant is a young girl. The medical examination merely stated that
the smallness of the vaginal orifice only precludes COMPLETE
penetration. This does not mean that rape has not been committed.
The fact that there was no deep penetration of the victim's vagina and
that her hymen was intact does not negate rape, since this crime is
committed even with the slightest penetration of a woman's sex organ.
Presence of a laceration in the vagina is not an essential prerequisite to
prove that a victim has been raped. Research in medicine even points
out that negative findings are of no significance, since the hymen may
not be torn despite repeated coitus. In fact, many cases of pregnancy
have been reported in women with unruptured hymen. Entry of the
labia or lips of the female organ merely, without rupture of the hymen
or laceration of the vagina, is sufficient to warrant conviction. What
must be proven in the crime of rape is merely the introduction of the
male organ into the labia of the pudendum and not the full penetration
of the complainant's private part. As we held in Baculi: "there could still
be a finding of rape even if despite the repeated intercourse over a
period of four years the complainant still retained an intact hymen
without signs of injury." In the case at bench, Summer's testimony has
established without a doubt that accused-appellants organ managed to
come into contact with her vagina, enough to cause her pain.42
(Emphasis supplied.)
In its recent holding in People vs. Echegaray,43 the Court has declared
that "a mere knocking at the doors of the pudenda, so to speak, by the
accused's penis suffices to constitute the crime of rape as full entry into
the victim's vagina is not required to sustain a conviction."
*The trial court appellants only frustrated rape, ruled that there was no
"conclusive evidence of penetration of the genital organ of the offended
party 44 in the (a) Catalina had admitted that she did not spread her
legs and (b) the medico-legal officer's findings showed she did not
sustain any extragenital injuries and her hymenal orifice was so small
that an erect average-size penis would not have completely penetrated
it would causing laceration. It would seem that the trial court failed to
consider Catalina's testimony in its entirely.
Let it be said once again that, as the Revised Penal Code presently so
stands, there is no such crime as frustrated rape. In People vs. Orita,47
the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because
he has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil.
527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-
31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-
32996, August 21, 1974, 58 SCRA 505). We have set the uniform rule
that for the consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the
hymen or laceration of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no penetration of the female
organ (People vs. Tayaba, 62 Phil. 559, People vs. Rabadan, et al., 53
Phil. 694; Unites States vs. Garcia, 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.
Each appellant is liable for two counts of consummated rape on account
of a clear conspiracy between them shown by their obvious concerted
efforts to perpetrate, one after the other, the crime. Each of them
therefore is responsible not only for the rape committed personally by
him but also for the rape committed by the other as well.
PEOPLE VS. ORANDE
FACTS:
Orande was the common law husband of Jessica’s mother Girlie. He is a
pedicab driver, started living with Girlie and her 3 children in 1993 in
Paco, Manila. Jessica charged that she was raped by Orande 4 times
between Jan. 1994 – Nov. 1996.
1st rape – cr 159185, 9 yrs old Arpil 1994 placed himself on top of
complainant and succeeded in partially penetrating her. Jessica felt pain
in her vagina and saw it smeared with blood and semen.
2nd rape – cr 159186, 11 yrs old, march 1995 simple rape
3rd rape – cr 159184, 12 yrs old, jan. 1996 rape
4th rape – cr 159187, 12 yrs old, nov. 1996
Sometime in Mar. 1997, Jessica’s teacher Mrs. Mojica, noticed the
unusual treatment of Orande to Jessica. When confronted, jessica
confesed that she was raped several times. Mrs. Mojica called up
Jessica’s aunt and narrated to her what jessica has confessed. Mrs. Dela
cruz then accompanied jessica to the police station to file a complaint
and to the PGH to be examined. Hymen with tear.
On his defense, denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab. His live-in
partner Girlie testified that, during the purported first and second
incidents of rape, appellant was with her to buy fish in Navotas and sell
them in Paco market. Appellant argued that since Jessica disapproved
of his relationship with her mother, she had the motive to falsely accuse
him of raping her. Further, he pointed out the improbability of the
alleged first and fourth incidents of rape inasmuch as the make-up of
the room made it impossible for Jessica’s siblings not to wake up during
the commission of the crime. Appellant further contended that Jessica’s
failure to cry out for help, knowing that her mother’s relatives were in
the same house, made her story of rape unbelievable.
Trial court 2 counts of simple rape, 1 stat. rape and 1 frustrated rape.
ISSUE: WON THE RTC ERRED IN CONVICTING ACCUSED OF FRUSTRATED
RAPE.
RULING:
Regarding Criminal Case No. 97-159185 (the April 1994 rape incident),
the Court sustains appellant’s contention that there is no such crime as
frustrated rape, as we have ruled in a long line of cases. 23 Recently, in
People v. Quinanola, 24 we again reiterated the rule:chanrob1es virtual
1aw library
Let it be said once again that, as the Revised Penal Code presently so
stands, there is no such crime as frustrated rape. In People v. Orita, the
Court has explicitly pronounced:chanrob1es virtual 1aw library
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 v. Oscar, 48 Phil.
527; People v. Hernandez, 49 Phil. 980; People v. 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 Al., 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. Eriñia, 50 Phil. 998 [1927] where We found the offender guilty
of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is
a ‘stray’ decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965)
which provides, in its penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriñia
case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said
laws.chanrob1es virtua1 1aw 1ibrary

The Court is not unaware that Republic Act No. 7659, amending Article
335 of the Revised Penal Code, has retained the provision penalizing
with reclusion perpetua to death an accused who commits homicide by
reason or on the occasion of an attempted or frustrated rape. Until
Congress sees it fit to define the term frustrated rape and thereby
penalize it, the Court will see its continued usage in the statute book as
being merely a persistent lapse in language. (Emphasis ours)

Thus, it was error for the trial court to convict appellant of frustrated
rape. Besides, after a careful review of the records, we find that the
rape was in fact consummated. Jessica initially testified that, although
appellant did not succeed in inserting his penis in her vagina, she felt his
sex organ touch hers and she saw and felt semen come out of his penis
and smear her vagina. 25 In response to the clarificatory questions
asked by the prosecutor, Jessica testified that the appellant was able to
slightly penetrate her because she felt pain and her vagina bled. 26 It
has been held that, to be convicted of rape, there must be convincing
and sufficient proof that the penis indeed touched the labia or slid into
the female organ, and not merely stroked the external surface thereof.
27 Nevertheless, we have also ruled in cases where penetration is not
established that the rape is deemed consummated if the victim felt
pain, or the medico-legal examination finds discoloration in the inner
lips of the vagina, or the labia minora is already gaping with redness, or
the hymenal tags are no longer visible. 28 In the present case, the
victim testified that she felt pain and her vagina bled, indisputable
indications of slight penetration or, at the very least, that the penis
indeed touched the labia and not merely stroked the external surface
thereof. Thus, the appellant should be found guilty of (consummated)
rape and not merely frustrated or attempted rape.

Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the

penalty of death is imposed if rape is committed when the victim is
under 18 years of age and the offender is the common-law spouse of
the parent of the victim. However, the trial court was correct in not
imposing the death penalty in Criminal Case Nos. 97-159184 and 97-
159187 because the qualifying circumstances of age and relationship of
the victim to the appellant were not alleged in the information. 29
Thus, appellant can only be convicted of simple rape punishable by
reclusion perpetua under Article 335 of the Revised Penal Code.
However, in Criminal Case Nos. 97-159185 and 97-159186, the
appellant can be convicted of statutory rape also punishable by
reclusion perpetua under Article 335 of the Revised Penal Code
inasmuch as the age of Jessica was alleged in the information 30 and
duly proven during the trial by the presentation of her birth certificate.
31
FACTS:
at around 3:30 a.m. of June 16, 2003, AAA was sleeping beside her two-
year old nephew, BBB, on the floor of her sister s room, when the
appellant hugged her and kissed her nape and neck. AAA cried, but the
appellant covered her and BBB with a blanket. The appellant removed
AAA s clothes, short pants, and underwear; he then took off his short
pants and briefs. The appellant went on top of AAA, and held her
hands. AAA resisted, but the appellant parted her legs using his own
legs, and then tried to insert his penis into her vagina. The appellant
stopped when AAA s cry got louder; AAA kicked the appellant s upper
thigh as the latter was about to stand up. The appellant put his clothes
back on, and threatened to kill AAA if she disclosed the incident to
anyone. Immediately after, the appellant left the room.AAA covered
herself with a blanket and cried.
At around 6:00 a.m. of the same day, AAA s brother, CCC, went to her
room and asked her why she was lying on the floor and crying. AAA did
not answer, and instead hurled invectives at CCC. AAA went to the
house of her other brother, but the latter was not in his house. AAA
proceeded to the house of her older sister, DDD, at Block 19,
Welfareville Compound, and narrated to her what had happened.
Afterwards, AAA and her two (2) siblings went to the Women and
Children s Desk of the Mandaluyong City Police Station and reported
the incident.
For his defense, the appellant declared on the witness stand that he
hauled "filling materials" at his house, located at Block 38, Fabella
Compound, on the evening of June 15, 2003. At around 10:00 p.m., he
went to his room and slept. On the next day, the appellant,
accompanied by his mother and brother-in-law, went to the municipal
hall to ask for financial assistance for his wife who was confined in the
hospital. Upon arrival at the hospital, the doctor told him that his wife
needed blood. Immediately after, the appellant and his companions
went to Pasig City to find blood donors.
On the evening of June 16, 2003, and while the appellant was folding
the clothes of his son, two policemen entered his house and informed
him that a complaint for attempted rape had been filed against him.
The police brought him to the Criminal Investigation and Detection
Group, forced him to admit the crime, mauled him, and then placed
him in a detention cell.15ςrνll The appellant added that he filed a
complaint before the Office of the Ombudsman against the police
officers who beat him up.
The RTC convicted the appellant of rape in its decision of February 22,
2007,
The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It
explained that a slight penetration of the labia by the male organ is
sufficient to constitute rape, and held that a slight penetration took
place when the appellant s penis touched AAA s vagina as he was trying
to insert it.
The appellate court further ruled that the presence of people in the
other room did not make it impossible for the appellant to have raped
the victim, because lust is no respecter of time and place. It also held
that the victim s lack of tenacity in resisting the appellant s sexual
aggression did not amount to consent or voluntary submission to the
criminal act.

Issue: WON accused is guilty of consummated rape.

RULING: NO.
We convict him instead of attempted rape, as the evidence on record
shows the presence of all the elements of this crime.
Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a
woman with the use of force, threat or intimidation, or when she is
deprived of reason or otherwise unconscious, or when she is under 12
years of age or is demented. "Carnal knowledge is defined as the act of
a man having sexual intercourse or sexual bodily connections with a
woman. "Carnal knowledge of the victim by the accused must be
proven beyond reasonable doubt, considering that it is the central
element in the crime of rape. we find it clear that the appellant s penis
did not penetrate, but merely touched (i.e., "naidikit"), AAA s private
part. In fact, the victim confirmed on cross-examination that the
appellant did not succeed in inserting his penis into her vagina.
Significantly, AAA s Sinumpaang Salaysay, also disclosed that the
appellant was holding the victim s hand when he was trying to insert his
penis in her vagina. This circumstance coupled with the victim s
declaration that she was resisting the appellant s attempt to insert his
penis into her vagina makes penile penetration highly difficult, if not
improbable. Significantly, nothing in the records supports the CA s
conclusion that the appellant s penis penetrated, however slightly, the
victim s female organ.
Did the touching by the appellant s penis of the victim s private part
amount to carnal knowledge such that the appellant should be held
guilty of consummated rape?
In People v. Campuhan, the Court laid down the parameters of genital
contact in rape cases, thus:
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.
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. (italics
supplied)

Simply put, "rape is consummated by the slightest penile penetration

of the labia majora or pudendum of the female organ." Without any
showing of such penetration, there can be no consummated rape; at
most, it can only be attempted rape [or] acts of lasciviousness."

As earlier discussed, the prosecution failed to present sufficient and

convincing evidence to establish the required penile penetration. AAA s
testimony did not establish that the appellant s penis touched the labias
or slid into her private part. Aside from AAA s testimony, no other
evidence on record, such as a medico-legal report, could confirm
whether there indeed had been penetration, however slight, of the
victim s labias. In the absence of testimonial or physical evidence to
establish penile penetration, the appellant cannot be convicted of
consummated rape.

Article 6 of the Revised Penal Code, as amended, states that there is an

attempt when the offender commenced the commission of the crime
directly by overt acts but does not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous
desistance. In People v. Publico, we ruled that when the "touching" of
the vagina by the penis is coupled with the intent to penetrate,
attempted rape is committed; otherwise, the crime committed is
merely acts of lasciviousness.
In the present case, the appellant commenced the commission of rape
by the following overt acts: kissing AAA s nape and neck; undressing
her; removing his clothes and briefs; lying on top of her; holding her
hands and parting her legs; and trying to insert his penis into her
vagina. The appellant, however, 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., the victim's loud cries
and resistance. The totality of the appellant s acts demonstrated the
unmistakable objective to insert his penis into the victim s private parts.

A review of jurisprudence reveals that the Court has not hesitated to

strike down convictions for consummated rape when the evidence
failed to show that penetration, however slight, of the victim s vagina
took place. In People v. Bon, the Court found the appellant guilty of
attempted rape only, as there was no indication that the appellant s
penis even touched the labia of the pudendum of the victim. We
further held that the appellant could not be convicted of consummated
rape by presuming carnal knowledge out of pain.

The Court had a similar ruling in People v. Miranda, where the accused
tried to insert his penis into the victim s private parts, but was
unsuccessful, so he inserted his fingers instead. We convicted the
accused of attempted rape only due to lack of evidence to establish
that there was even a slight penile penetration. We noted, however,
that the appellant s act of inserting his fingers would have constituted
rape through sexual assault had the offense occurred after the
effectivity of the Anti-Rape Law of 1997.

In People v. Alibuyog, the victim declared that the accused placed his
penis on her vagina; and claimed that it touched her private parts. The
Court set aside the accused s conviction for rape, and convicted him of
attempted rape only, because we found the victim s testimony too
ambiguous to prove the vital element of penile penetration. We added
that the victim s testimony was "replete with repeated denial of penile
insertion."

Similarly, in People v. Quarre, the evidence for the prosecution

consisted only of the victim s testimony that the accused tried, but
failed, to insert his penis into her vagina, and she felt pain in the
process. No medico-legal examination report was presented in
evidence. Accordingly, the Court reversed the accused s conviction for
rape, and found him guilty of attempted rape only.

In People v. Ocomen, the Court also set aside the appellant s conviction
for rape because no proof was adduced of even the slightest
penetration of the female organ, aside from a general statement of the
victim that she had been "raped."

People v. Monteron is another noteworthy case where the Court set

aside the appellant s conviction for rape. In this case, the victim testified
that the accused placed his penis on top of her vagina, and that she felt
pain. In finding the accused guilty of attempted rape only, we held that
there was no showing that the accused s penis entered the victim s
vagina. We added that the pain that the victim felt might have been
caused by the accused s failed attempts to insert his organ into her
vagina.

In People v. Mariano, the accused tried to insert his penis into the
victim s vagina, but failed to secure penetration. The Court set aside the
accused s conviction for three (3) counts of rape and found him guilty of
attempted rape only. We explained the necessity of carefully
ascertaining whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape
had been consummated.
In People v. Arce, Jr.,38ςrνll the Court found the accused guilty of
attempted rape only, because the victim did not declare that there was
the slightest penetration, which was necessary to consummate rape. On
the contrary, she categorically stated that the accused was not able to
insert his penis into her private parts because she was moving her hips
away. We further ruled that the victim s attempt to demonstrate what
she meant by "idinidikit ang ari" was unavailing to prove that rape had
been consummated.

In People v. Francisco,39ςrνll the victim testified that the accused

"poked" her vagina. The Court set aside the accused s conviction for
qualified rape, and convicted him instead only of attempted rape after
failing to discern from the victim's testimony that the accused attained
some degree of penile penetration, which was necessary to
consummate rape.

In People v. Dimapilis,40ςrνll the Court refused to convict the accused

for consummated rape on the basis of the victim's testimony that she
felt the accused's penis pressed against her vagina as he tried to insert
it. We explained that in order to constitute consummated rape, there
must be entry into the vagina of the victim, even if only in the slightest
degree.

Finally, in People v. Tolentino, the Court reversed the accused s

conviction for rape and convicted him of attempted rape only, as there
was paucity of evidence that the slightest penetration ever took place.
We reasoned out that the victim s statements that the accused was
"trying to force his sex organ into mine" and "binundol-undol ang
kanyang ari" did not prove that the accused s penis reached the labia of
the pudendum of the victim s vagina.

"In rape cases, the prosecution bears the primary duty to present its
case with clarity and persuasion, to the end that conviction becomes
the only logical and inevitable conclusion." We emphasize that a
conviction cannot be made to rest on possibilities; strongest suspicion
must not be permitted to sway judgment. In the present case, the
prosecution failed to discharge its burden of proving all the elements of
consummated rape.
Norberto Cruz vs. Peopl eG.R. No. 166441, October 08,
Petitioner Norberto Bartolome and his wife were engaged in the selling
of plastic wares and glass wares in different municipalities around the
country. Norberto and his wife employed AAA and BBB to help them in
selling their wares in Bangar, La Union which was then celebrating its
fiesta. Two tents were fixed in order that they will have a place to sleep.
At around 1:00 AM, AAA and BBB went to sleep. Less than an hour later,
AAA was awakened when she felt that somebody was on top of her.
Norberto was mashing her breast and touching her private part. AAA
realized that she was divested of her clothing and that she was totally
naked. Norberto ordered her not to scream or she’ll be killed. AAA tried
to push Norberto away and pleaded to have pity on her but her pleas
fell on deaf ears. She fought back and kicked Norberto twice. Norberto
was not able to pursue his lustful desires. Norberto offered her money
and told her not to tell the incident to her mother otherwise, she will
be killed. AAA went out of the tent to seek help from the house boy but
she failed to wake him up. Thirty minutes later, when AAA returned to
their tent, she saw Norberto touching the private parts of BBB. AAA saw
her companion awake but her hands were shaking. when she finally
entered the tent, Norberto left and went outside.
Norberto was charged with attempted rape (with respect to AAA) and
acts of lasciviousness (with respect to BBB)
Norberto contends that it was not possible for him to commit the
crimes hurled against him. On the date of the alleged incident, there
were many people around who were preparing for the "simbang gabi".
Considering the location of the tents, which were near the road and the
municipal hall, he could not possibly do the dastardly acts out in the
open, not to mention the fact that once AAA and BBB would scream,
the policemen in the municipal hall could hear them. He believes that
the reason why the complainants filed these cases against him was
solely for the purpose of extorting money from him.
The RTC rendered its judgment on April 6, 2000 finding the petitioner
guilty beyond reasonable doubt of attempted rape in Criminal Case No.
2388 and acts of lasciviousness in Criminal Case No. 2389
The CA promulgated its decision affirming the conviction of the
petitioner for attempted rape in Criminal Case No. 2388, but acquitting
him of the acts of lasciviousness charged in Criminal Case No. 2389 due
to the insufficiency of the evidence

Issue: won Norberto is guilty of attempted rape

RULING: N0.
In attempted rape, the concrete felony is rape, but the offender does
not perform all the acts of execution of having carnal knowledge. If
the slightest penetration of the female genitalia consummates rape,
and rape in its attempted stage requires the commencement of the
commission of the felony directly by overt acts without the offender
performing all the acts of execution that should produce the felony, the
only means by which the overt acts performed by the accused can be
shown to have a causal relation to rape as the intended crime is to
make a clear showing of his intent to lie with the female. Accepting that
intent, being a mental act, is beyond the sphere of criminal law,23 that
showing must be through his overt acts directly connected with rape.
He cannot be held liable for attempted rape without such overt acts
demonstrating the intent to lie with the female. In short, the State, to
establish attempted rape, must show that his overt acts, should his
criminal intent be carried to its complete termination without being
thwarted by extraneous matters, would ripen into rape,24 for, as
succinctly put in People v. Dominguez, Jr.: "The gauge in determining
whether the crime of attempted rape had been committed is the
commencement of the act of sexual intercourse, i.e., penetration of
the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already
touching her genitalia with his hands and mashing her breasts when she
freed herself from his clutches and effectively ended his designs on her.
Yet, inferring from such circumstances that rape, and no other, was his
intended felony would be highly unwarranted. This was so, despite his
lust for and lewd designs towards her being fully manifest. Such
circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang, supra, such
that it was not permissible to directly infer from them the intention to
cause rape as the particular injury. Verily, his felony would not
exclusively be rape had he been allowed by her to continue, and to have
sexual congress with her, for some other felony like simple seduction (if
he should employ deceit to have her yield to him)26 could also be
ultimate felony.
We clarify that the direct overt acts of the petitioner that would have
produced attempted rape did not include equivocal preparatory acts.
The former would have related to his acts directly connected to rape as
the intended crime, but the latter, whether external or internal, had no
connection with rape as the intended crime. Perforce, his perpetration
of the preparatory acts would not render him guilty of an attempt to
commit such felony.27 His preparatory acts could include his putting up
of the separate tents, with one being for the use of AAA and BBB, and
the other for himself and his assistant, and his allowing his wife to leave
for Manila earlier that evening to buy more wares. Such acts, being
equivocal, had no direct connection to rape. As a rule, preparatory acts
are not punishable under the Revised Penal Code for as long as they
remained equivocal or of uncertain significance, because by their
equivocality no one could determine with certainty what the
perpetrator's intent really was.28

If the acts of the petitioner did not constitute attempted rape, did they
constitute acts of lasciviousness?

It is obvious that the fundamental difference between attempted rape

and acts of lasciviousness is the offender's intent to lie with the female.
In rape, intent to lie with the female is indispensable, but this element
is not required in acts of lasciviousness.29 Attempted rape is
committed, therefore, when the "touching" of the vagina by the penis is
coupled with the intent to penetrate. The intent to penetrate is
manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the
female.30 Without such showing, only the felony of acts of
lasciviousness is committed.31

Based on Article 336 of the Revised Penal Code, the felony of acts of
lasciviousness is consummated when the following essential elements
concur, namely: (a) the offender commits any act of lasciviousness or
lewdness upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived of reason or is
otherwise unconscious; or (iii) when the offended party is under 12
years of age.32 In that regard, lewd is defined as obscene, lustful,
indecent, lecherous; it signifies that form of immorality that has relation
to moral impurity; or that which is carried on a wanton manner.33

The information charged that the petitioner "remove[d] her panty and
underwear and la[id] on top of said AAA embracing and touching her
vagina and breast." With such allegation of the information being
competently and satisfactorily proven beyond a reasonable doubt, he
was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly
manifest his intent to lie with her. The lack of evidence showing his
erectile penis being in the position to penetrate her when he was on
top of her deterred any inference about his intent to lie with her. At
most, his acts reflected lewdness and lust for her.

The intent to commit rape should not easily be inferred against the
petitioner, even from his own declaration of it, if any, unless he
committed overt acts directly leading to rape. A good illustration of this
can be seen in People v. Bugarin,34 where the accused was charged
with attempted rape through an information alleging that he, by means
of force and intimidation, "did then and there willfully, unlawfully and
feloniously commence the commission of the crime of Rape directly by
overt acts, by then and there kissing the nipples and the vagina of the
undersigned [complainant], a minor, and about to lay on top of her, all
against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some
causes other than his own spontaneous desistance, that is, undersigned
complainant push[ed] him away." The accused was held liable only for
acts of lasciviousness because the intent to commit rape "is not
apparent from the act described," and the intent to have sexual
intercourse with her was not inferable from the act of licking her
genitalia. The Court also pointed out that the "act imputed to him
cannot be considered a preparatory act to sexual intercourse."