EN BANC
THE PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
143468-71
January 24, 2003
-versus-
FREEDIE LIZADA
ALIAS
"FREDIE LIZADA",
Accused-Appellant.
D E C I S I O N
CALLEJO,
SR., J.:
This is an automatic
review of the Decision[1]
of the Regional Trial Court of Manila, Branch 54, finding
accused-appellant
Freedie Lizada guilty beyond reasonable doubt of four (4) counts of
qualified
rape and meting on him the death penalty for each count.chanrobles virtuallaw libraryred
I. The
Charges
Accused-appellant[2]
was charged with four (4) counts of qualified rape under four separate
Informations. The accusatory portion of each of the four
Informations
reads:
"That sometime in August
1998 in the City of Manila, Philippines, the said accused, with lewd
designs,
did then and there willfully, unlawfully and feloniously, by means of
force,
violence and intimidation upon the person of one ANALIA ORILLOSA y
AGOO,
by then and there embracing her, kissing and touching her private
parts,
thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having
carnal knowledge with the said ANALIA ORILLOSA y AGOO, against her will
and consent.chanrobles virtuallaw libraryred
Contrary to law.chanrobles virtual law library
XXX
That on or about November
5, 1998, in the City of Manila, Philippines, the said accused, with
lewd
designs, did then and there willfully, unlawfully and feloniously, by
means
of force, violence and intimidation upon the person of one ANALIA
ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her
private
parts, thereafter removing her skirt and panty, placing himself on top
of her and trying to insert his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her
will and consent.chanrobles virtuallaw libraryred
Contrary to law.chanrobles virtual law library
XXX
That on or about October
22, 1998, in the City of Manila, Philippines, the said accused, with
lewd
designs, did then and there willfully, unlawfully and feloniously, by
means
of force, violence and intimidation upon the person of one ANALIA
ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her
private
parts, thereafter removing her skirt and panty, placing himself on top
of her and trying to insert his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her
will and consent.
Contrary to law.chanrobles virtual law library
XXX
That on or about September
15, 1998, in the City of Manila, Philippines, the said accused, with
lewd
designs, did then and there willfully, unlawfully and feloniously, by
means
of force, violence and intimidation upon the person of one ANALIA
ORILLOSA
Y AGOO, by then and there embracing her, kissing and touching her
private
parts, thereafter removing her skirt and panty, placing himself on top
of her and trying to insert his penis into her vagina and succeeded in
having carnal knowledge with the said ANALIA ORILLOSA Y AGOO,
against
her will and consent.cralaw:red
Contrary to law."[3]
The four (4) Informations
were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392
and
99-171393, respectively.cralaw:red
Accused-appellant was
arraigned on April 15, 1999, assisted by counsel de parte and entered a
plea of not guilty to each of the charges.[4]A
joint
trial then ensued.
II.
Evidence
of the Prosecution[5]
Ricardo Orillosa and
his wife,Rose
Orillosa, natives of San Isidro, Bohol, had three (3) children, namely:
Analia, who was born on December 18, 1985;[6]
Jepsy, who was 11 years old, and Rossel, who was nine years old.
However, the couple decided to part ways and live separately.
Rose
left Bohol and settled in Manila with her young children. She
worked
as a waitress to make both ends meet.cralaw:red
In 1994, Rose met accused-appellant. They
decided to live together as husband and wife at No. 1252 Jose Abad
Santos
Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her
job as a waitress. She secured a loan, bought a truck and used it
for her business.cralaw:red
In the meantime, Rose
secured a loan anew and used the proceeds thereof to put up a video
shop
in her house. She sold Avon products from house to house to
augment
her income. Whenever she was out of their house, Rossel and
Analia
took turns in tending the video shop and attending to customers.cralaw:red
Sometime in 1996, Analia
was in her room when accused-appellant entered. He laid on top of
her, removed her T-shirt and underwear. He then inserted his
finger
in her vagina. He
removed his finger and inserted his penis in her vagina.
Momentarily,
she felt a sticky substance coming out from his penis. She also
felt
pain in her sex organ. Satiated, accused-appellant dismounted but
threatened to kill her if she divulged to anyone what he did to
her.
Accused-appellant then returned to his room. The incident lasted
less than one hour. Petrified by the threats on her life, Analia
kept to herself what happened to her.[7]
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.chanrobles virtuallaw libraryred
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. Rose
arrived
home at 6:00 p.m. However, Analia did not divulge to her mother
what
accused-appellant had just done to her.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
Analia ignored the invectives
and threats of accused-appellant and stayed in the video shop. When
Rose
returned, a heated argument ensued between accused-appellant and
Analia.
Rose sided with her paramour and hit Analia.This
prompted Analia to shout. "Ayoko na, ayoko na." Shortly
thereafter,
Rose and Analia left the house on board the motorcycle driven by her
mother
in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some
tapes which had not yet been returned. When Rose inquired from
her
daughter what she meant by her statement, "ayoko na, ayoko na," she
told
her mother that accused-appellant had been touching the sensitive parts
of her body and that he had been on top of her. Rose was shocked
and incensed. The two proceeded to Kagawad Danilo Santos to have
accused-appellant placed under arrest. On November 10, 1998, the
two proceeded to the Western Police District where Analia gave her
Affidavit-Complaint
to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante.She
related to the police investigator that accused-appellant had touched
her
breasts and arms in August, 1998, September 15, 1998, October 22, 1998
and on November 5, 1998, at 3:00 p.m. Analia then submitted
herself
to genitalia examination by Dr. Armie Umil, a medico-legal officer of
the
NBI. The medico-legal officer interviewed Analia, told him that
she
was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.[8]chanrobles virtuallaw libraryred
Dr.
Umil prepared and signed a report on "Living Case No. MO-98-1265" which
contained her findings during her examination on Analia, thus:
"x x x
Fairly nourished, conscious,coherent,
cooperative, ambulatory subject. Breasts, developed,
hemispherical,
firm. ----, brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7
cms. in diameter.cralaw:red
No extragenital physical
injuries noted.cralaw:red
GENITAL EXAMINATION:chanrobles virtuallaw libraryred
Pubic hair, fully grown,
moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular
mucosa, pinkish. Hymen, tall, thick, intact. Hymenal
orifice
measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities,
prominent.chanrobles virtuallaw libraryred
CONCLUSIONS:chanrobles virtuallaw libraryred
1). No evident sign
of extragenital physical injuries noted on the body of the subject at
the
time of examination.chanrobles virtuallaw libraryred
2). Hymen, intact and
its orifice small (1.5 cms. in diameter) as to preclude complete
penetration
by an average-sized adult Filipino male organ in full erection without
producing any genital injury."[9]chanrobles virtuallaw libraryred
Subsequently,Analia
told her mother that "mabuti na lang iyong panghihipo lang ang sinabi
ko."
When Rose inquired from her daughter what she meant by her statement,
Analia
revealed to her mother that accused-appellant had sexually abused
her.
On December 15, 1998, Analia executed a "Dagdag na Salaysay ng
Paghahabla"
and charged accused-appellant with rape.[10]chanrobles virtuallaw libraryred
III. The
Defenses
and Evidence of Accused-Appellant
Accused-appellant testified
in his defense.He
declared that after a month of courtship, he and Rose agreed in 1994 to
live together as husband and wife. He was then a utility worker
with
the Navotas Branch of the Philippine Banking Corporation. Rose,
on
the other hand, was a waitress at the Golden Bird beer house at Rizal
Avenue,
Manila.cralaw:red
Accused-appellant denied
having raped Analia.He
claimed that he loved the children of Rose as if they were his own
children.
He took care of them, as in fact he cooked and prepared their food
before
they arrived home from school. At times, he ironed their school
uniforms
and bathed them, except Analia who was already big. Analia was
hard-headed
because she disobeyed him whenever he ordered her to do some
errands.
Because of Analia’s misbehavior, accused-appellant and Rose oftentimes
quarreled.Rose
even demanded that accused-appellant leave their house. Another
irritant
in his and Rose’s lives were the frequent visits of the relatives of
her
husband.cralaw:red
Sometime in 1997, accused-appellantwas
retrenched from his employment and received a separation pay of
P9,000.00
which he used to put up the VHS Rental and Karaoke from which he earned
a monthly income of P25,000.00. While living together,
accused-appellant
and Rose acquired two colored television sets, two VHS Hi-fi recorders,one
VHS player, one washing machine, one scooter motor, two VHS rewinders,
one sala set, one compact disc player and many other properties.cralaw:red
Accused-appellant ventured
that Rose coached her children Analia and Rossel to testify against him
and used them to fabricate charges against him because Rose wanted to
manage
their business and take control of all the properties they acquired
during
their coverture. Also, Rose was so exasperated because he had no
job.
IV. The Verdict
On May 29, 2000, the
trial court rendered judgment against accused-appellant finding him
guilty
beyond reasonable doubt of four (4) counts of rape, defined and
penalized
in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code,
and
meted on him the death penalty for each count. The dispositive
portion
of the decision reads:chanrobles virtuallaw libraryred
"From all the evidence
submitted by the prosecution, the Court concludes that the accused is
guilty
beyond reasonable doubt of the crime charged against him in these four
(4) cases, convicts him thereof, and sentences him to DEATH PENALTY in
each and every case as provided for in the seventh paragraph, no. 1,
Article
335 of the Revised Penal Code.chanrobles virtuallaw libraryred
SO ORDERED."[11]
V. Assigned
Errors
of the Trial Court
Accused-appellant assailed
the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY
ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND SUCH FAILURE
IS A REVERSIBLE ERROR."[12]
XXX
THE TRIAL COURT GRAVELY
ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS OF RAPE
DESPITE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]
VI. Findings of
the
Court
On the first assignment
of error, accused-appellant contends that the decision of the trial
court
is null and void as it failed to comply with the requirements of
Section
14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the
1997 Rules of Civil Procedure, as amended. He avers that the
court
a quo made no findings of facts in its decision. The trial court
merely summarized the testimonies of the witnesses of the prosecution
and
those of accused-appellant and his witnesses, and forthwith set forth
the
decretal portion of said decision. The trial court even failed to
state in said decision the factual and legal basis for the imposition
of
the supreme penalty of death on him. The Solicitor General, on
the
other hand, argues that there should be no mechanical reliance on the
constitutional
provision. Trial courts may well-nigh synthesize and simplify
their
decisions considering that courts are harassed by crowded dockets and
time
constraints. Even if the trial court did not elucidate the
grounds
as the legal basis for the penalties imposed, nevertheless the decision
is valid. In any event, the Solicitor General contends that
despite
the infirmity of the decision, there is no need to remand the case to
the
trial court for compliance with the constitutional requirement as the
Court
may resolve the case on its merits to avoid delay in the final
disposition
of the case and afford accused-appellant his right to a speedy trial.chanrobles virtuallaw libraryred
The contention of accused-appellant
is well-taken. Article VIII, paragraph 14 of the 1987
Constitution
provides that "no decision shall be rendered by any court without
expressing
therein clearly and distinctly the facts and the law on which it is
based."
This requirement is reiterated and implemented by Rule 120, Section 2
of
the 1985 Rules on Criminal Procedure, as amended, which reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"SEC. 2. Form and
contents
of judgment.The
judgment must be written in the official language, personally and
directly
prepared by the judge and signed by him and shall contain clearly and
distinctly
a statement of the facts proved or admitted by the accused and the law
upon which the judgment is based.cralaw:red
If it is of conviction,
the judgment shall state (a) the legal qualification of the offense
constituted
by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b)
the
participation of the accused in the commission of the offense, whether
as principal, accomplice,or
accessory after the fact; (c) the penalty imposed upon the accused; and
(d) the civil liability or damages caused by the wrongful act to be
recovered
from the accused by the offended party, if there is any, unless the
enforcement
of the civil liability by a separate action has been reserved or
waived."[14]
The purpose of the provision
is to inform the parties and the person reading the decision on how it
was reached by the court after consideration of the evidence of the
parties
and the relevant facts, of the opinion it has formed on the issues, and
of the applicable laws.The
parties must be assured from a reading of the decision of the trial
court
that they were accorded their rights to be heard by an impartial and
responsible
judge.[15]
More substantial reasons for the requirement are:
"For one thing, the
losing party must be given an opportunity to analyze the decision so
that,
if permitted, he may elevate what he may consider its errors for review
by a higher tribunal.For
another, the decision if well-presented and reasoned, may convince the
losing party of its merits and persuade it to accept the verdict in
good
grace instead of prolonging the litigation with a useless appeal. A
third
reason is that decisions with a full exposition of the facts and the
law
on which they are based, especially those coming from the Supreme
Court,
will constitute a valuable body of case law that can serve as useful
references
and even as precedents in the resolution of future controversies."[16]chanrobles virtuallaw libraryred
The trial court is mandated
to set out in its decision the facts which had been proved and its
conclusions
culled therefrom, as well as its resolution on the issues and the
factual
and legal basis for its resolution.[17]Trial
courts should not merely reproduce the respective testimonies of
witnesses
of both parties and come out with its decretal conclusion.chanrobles virtuallaw libraryred
In this case, the trial
court failed to comply with the requirements under the Constitution and
the Rules on Criminal Procedure. It merely summarized the
testimonies
of the witnesses of the prosecution and of accused-appellant on directand
cross examinations and merely made referral to the documentary evidence
of the parties then concluded that, on the basis of the evidence of the
prosecution, accused-appellant is guilty of four (4) counts of rape and
sentenced him to death, on each count.cralaw:red
The trial court even
failed to specifically state the facts proven by the prosecution based
on their evidence, the issues raised by the parties and its resolution
of the factual and legal issues, as well as the legal and factual bases
for convicting accused-appellant of each of the crimes charged.
The
trial court rendered judgment against accused-appellant with the curt
declaration
in the decretal portion of its decision that it did so based on the
evidence
of the prosecution. The trial court swallowed hook, line and
sinker
the evidence of the prosecution. It failed to explain in its
decision
why it believed and gave probative weight to the evidence of the
prosecution. Reading
the decision of the trial court, one is apt to conclude that the trial
court ignored the evidence of accused-appellant. The trial court
did not even bother specifying the factual and legal bases for its
imposition
of the supreme penalty of death on accused-appellant for each count of
rape. The trial court merely citedseventh
paragraph, no. 1, Article 335 of the Revised Penal Code. The
decision
of the trial court is a good example of what a decision, envisaged in
the
Constitution and the Revised Rules of Criminal Procedure, should not be.cralaw:red
The Court would normally
remand the case to the trial court because of the infirmity of the
decision
of the trial court, for compliance with the constitutional
provision.
However, to avert further delay in the disposition of the cases, the
Court
decided to resolve the cases on their merits considering that all the
records
as well as the evidence adduced during the trial had been elevated to
the
Court.[18]
The parties filed their respective briefs articulating their respective
stances on the factual and legal issues.chanrobles virtuallaw libraryred
In reviewing rape cases,
this Court is guided by the following principles: (1) to accuse a man
of
rape is easy but to disprove it is difficult though the accused may be
innocent; (2) considering the nature of things, and only two persons
are
usually involved in the crime of rape, the testimony of the complainant
should be scrutinized with great caution; (3) the evidence for the
prosecution
must stand or fall on its own merits and not be allowed to draw
strength
from the weakness of the evidence of the defense.[19]
By the very nature of the crime of rape, conviction or acquittal
depends
almost entirely on the credibility of the complainant’s testimony
because
of the fact that usually only the participants can testify as to its
occurrence.
However, if the accused raises a sufficient doubt as to any material
element
of the crime, and the prosecution is unable to overcome it with its
evidence,
the prosecution has failed to discharge its burden of proving the guilt
of the accused beyond cavil of doubt and hence, the accused is entitled
to an acquittal.chanrobles virtuallaw libraryred
Anent the second assignment
of error, we will resolve the same for convenience, as follows:chanrobles virtuallaw libraryred
Re:
CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15,
1998)
chanrobles virtuallaw libraryred
Accused-appellant avers
that the prosecution failed to adduce the requisite quantum of evidence
that he raped the private complainant precisely on September 15, 1998
and
October 22, 1998. Moreover, the medical findings of Dr. Armie
Umil
show that the hymen of the private complainant was intact and its
orifice
so small as to preclude complete penetration by an average size adult
Filipino
male organ in full erection without producing any genital injury.
The physical evidence belies private complainant’s claim of having been
deflowered by accused-appellant on four different occasions. The
Office of the Solicitor General, for its part, contends that the
prosecution
through the private complainant proved the guilt of accused-appellant
for
the crime charged on both counts.chanrobles virtuallaw libraryred
The contention of accused-appellant
does not persuade the Court. The private complainant testified
that
since 1996, when she was only eleven years old, until 1998, for two
times
a week, accused-appellant
used to place himself on top of her and despite her tenacious
resistance,
touched her arms, legs and sex organ and inserted his finger and penis
into her vagina. In the process, he ejaculated.
Accused-appellant
threatened to kill her if she divulged to anyone what he did to her.[20]
chanrobles virtuallaw libraryred
Although private
complainant
did not testify that she was raped on September 15, 1998 and October
22,
1998, nevertheless accused-appellant may be convicted for two counts of
rape, in light of the testimony of private complainant.chanrobles virtuallaw libraryred
It bears stressing that
under the two Informations, the rape incidents are alleged to have been
committed "on or about September 15, 1998" and "on or about October 22,
1998." The words "on or about" envisage a period, months or even
two or four years before September 15, 1998or
October 22, 1998. The prosecution may prove that the crime
charged
was committed on or about September 15, 1998 and on or about October
22,
1998.chanrobles virtuallaw libraryred
In People vs. Gianan,[21]this
Court affirmed the conviction of accused-appellant of five (5) counts
of
rape, four of which were committed in December 1992 (two counts) and
one
each in March and April, 1993 and in November, 1995 and one count of
acts
of lasciviousness committed in December 1992, on a criminal complaint
for
multiple rape, viz:chanrobles virtuallaw libraryred
"That sometime in November
1995, and some occasions prior and/or subsequent thereto, in the
Municipality
of Dasmariñas, Province of Cavite, and within the jurisdiction
of
this Honorable Court, the above-named accused, with lewd designs,
taking
advantage of his superior strength over the person of his own twelve
(12)
year old daughter, and by means of force, violence and intimidation,
did,
then and there, willfully, unlawfully and feloniously, have repeated
carnal
knowledge of Myra M. Gianan, against her will and consent, to her
damage
and prejudice."[22]chanrobles virtuallaw libraryred
On the contention of
accused-appellant in said case that his conviction for rape in December
1992 was so remote from the date (November 1995) alleged in the
Information,
so that the latter could no longer be considered as being "as
near
to the actual date at which the offense was committed" as provided
under
Section 11, Rule 110 of the Rules on Criminal Procedure, as amended,
this
Court held:
"Accused-appellant
nevertheless argues that his conviction for rape in December 1992 is so
remote from the date (November 1995) alleged in the information, so
that
the latter could no longer be considered as being "as near to the
actual
date at which the offense was committed" as provided under Rule 110,
§11.cralaw:red
This contention
is also untenable. In People v. Garcia, this Court upheld a
conviction
for ten counts of rape based on an information which alleged that the
accused
committed multiple rape "from November 1990 up to July 21, 1994," a
time
difference of almost four years which is longer than that involved in
the
case at bar. In any case, as earlier stated, accused-appellant’s
failure to raise a timely objection based on this ground
constitutes
a waiver of his right to object."[23]
Moreover, when the private
complainant testified on how accused-appellant defiled her two times a
week from 1996 until 1998, accused-appellant raised nary a whimper of
protest.
Accused-appellant even rigorously cross-examined the private
complainant
on her testimony on direct examination. The presentation by the
prosecution,
without objection on the part of accused-appellant, of evidence of rape
committed two times a week from 1996 until 1998 (which includes
September
15, 1998 and October 22, 1998) to prove the charges lodged against him
constituted a waiver by accused-appellant of his right to object to any
perceived infirmity in, and in the amendment of, the aforesaid
Informations
to conform to the evidence adduced by the prosecution.cralaw:red
The barefaced fact that
private complainant remained a virgin up to 1998 does not preclude her
having been repeatedly sexually abused by accused-appellant. The
private complainant being of tender age, it is possible that the
penetration
of the male organ went only as deep as her labia. Whether or not
the hymen of private complainant was still intact has no substantial
bearing
on accused-appellant’s commission of the crime.[24]
Even the slightest penetration of the labia by the male organ or the
mere
entry of the penis into the aperture constitutes consummated
rape.
It is sufficient that there be entrance of the male organ within the
labia
of the pudendum.[25]
In People vs. Baculi, cited in People vs. Gabayron,[26]
we held that there could be a finding of rape even if despite repeated
intercourse over a period of four years, the complainant still retained
an intact hymen without injury. In these cases, the private
complainant
testified that the penis of accused-appellant gained entry into her
vagina:
Fiscal Carisma
(continuing)
After your underwear
was removed by the accused, what happened next?
Witness:
He laid himself on top
of me, sir.cralaw:red
Q
What did he do while he was on top of you?
A
He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q
Can you please describe more specifically what is this and I quote
"Pinatong
nya yong ano nya" and where did he place it?
A
His organ, sir.
Q
Where did he place his organ?
A
In my organ, sir. (sa ari ko po.)chan
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chan
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Q
At this very juncture madam witness, what did you feel?chan
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A
I felt pain, sir, and I also felt that there was a sticky substance
that
was coming out, sir.[27]chan
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chan
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We agree with
accused-appellant
that he is guilty only of two counts of simple rape, instead of
qualified
rape. The evidence on record shows that accused-appellant is the
common-law husband of Rose, the mother of private complainant.
The
private complainant, as of October 1998, was still 13 years old, and
under
Article 335 as amended by Republic Act 7659, the minority of the
private
complainant, concurring with the fact that accused-appellant is the
common-law
husband of the victim’s mother, is a special qualifying circumstance
warranting
the imposition of the death penalty.[28]
However, said circumstance was not alleged in the Informations as
required
by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which
was given retroactive effect by this Court because it is favorable to
the
accused.[29]
Hence, even if the prosecution proved the special qualifying
circumstance
of minority of private complainant and relationship, the
accused-appellant
being the common-law husband of her mother, accused-appellant is guilty
only of simple rape. Under the given law, the penalty for simple
rape is reclusion perpetua. Conformably with current jurisprudence,
accused-appellant
is liable to private complainant for civil indemnity in the amount of
P50,000.00
and moral damages in the amount of P50,000.00 for each count of rape,
or
a total of P200,000.00.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Re:
Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime
committed
on or about August 1998 and November 5, 1998)chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Accused-appellant avers
that (a) the Information in Criminal Case No. 99-171390 is defective
because
the date of the offense "on or about August 1998" alleged therein is
too
indefinite, in violation of Rule 110, Section 11 of the Revised Rules
on
Criminal Procedure which reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"Sec. 11. Date of
commission
of the offense. It is not necessary to state in the complaint or
information
the precise date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to have
been
committed on a date as near as possible to the actual date of its
commission.
(11a)"[30]
chanrobles virtuallaw libraryred
Accused-appellant
further
asserts that the prosecution failed to prove that he raped private
complainant
in August 1998. Hence, he argues, he should be acquitted of said
charge. The Office of the Solicitor General, for its part, argued
that the date "on or about August 1998" is sufficiently definite.
After all, the date of the commission of the crime of rape is not an
essential
element of the crime. The prosecution adduced conclusive proof
that
accused-appellant raped private complainant on or about August 1998, as
gleaned from her testimony during the trial.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The Court does not
agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element
of the crime. Failure to specify the exact date when the rape was
committed does not render the Information defective. The reason
for
this is that the gravamen of the crime of rape is carnal knowledge of
the
private complainant under any of the circumstances enumerated under
Article
335 of the Revised Penal Code, as amended. Significantly,
accused-appellant
did not even bother to file a motion for a bill of particulars under
Rule
116, Section 9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned under the
Information and entered a plea of not guilty to the charge without any
plaint on the sufficiency of the Information. Accused-appellant
even
adduced his evidence after the prosecution had rested its case.
It
was only on appeal to this Court that accused-appellant questioned for
the first time the sufficiency of the Information filed against
him.
It is now too late in the day for him to do so. Moreover, in
People
vs. Salalima,[31]
this Court held that:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"Failure
to specify the exact dates or time when the rapes occurred does not
ipso
facto make the information defective on its face. The reason is
obvious.
The precise date or time when the victim was raped is not an element of
the offense. The gravamen of the crime is the fact of carnal
knowledge
under any of the circumstances enumerated under Article 335 of the
Revised
Penal Code. As long as it is alleged that the offense was
committed
at any time as near to the actual date when the offense was committed
an
information is sufficient. In previous cases, we ruled that
allegations
that rapes were committed "before and until October 15, 1994,"
"sometime
in the year 1991 and the days thereafter," "sometime in November 1995
and
some occasions prior and/or subsequent thereto" and "on or about and
sometime
in the year 1988" constitute sufficient compliance with Section 11,
Rule
110 of the Revised Rules on Criminal Procedure.chanrobles virtuallaw libraryred
In
this case, although the indictments did not state with particularity
the
dates when the sexual assaults took place, we believe that the
allegations
therein that the acts were committed "sometime during the month of
March
1996 or thereabout," "sometime during the month of April 1996 or
thereabout,"
"sometime during the month of May 1996 or thereabout" substantially
apprised
appellant of the crimes he was charged with since all the elements of
rape
were stated in the informations. As such, appellant cannot
complain
that he was deprived of the right to be informed of the nature of the
cases
filed against him. Accordingly, appellant’s assertion that he was
deprived of the opportunity to prepare for his defense has no leg to
stand
on."chanrobles virtuallaw libraryred
The prosecution proved
through the testimony of private complainant that accused-appellant
raped
her two times a week in 1998. As in Criminal Cases Nos. 99-171392
and 99-171393, accused-appellant is guilty only of simple rape.chanrobles virtuallaw libraryred
As to the crime of rape
subject of Criminal Case No. 99-171391, accused-appellant avers that he
is not criminally liable of rape. We agree with
accused-appellant.
The collective testimony of private complainant and her younger brother
Rossel was that on November 5, 1998, accused-appellant who was wearing
a pair of short pants but naked from waist up, entered the bedroom of
private
complainant, went on top of her, held her hands, removed her panty,
mashed
her breasts and touched her sex organ. However, accused-appellant
saw Rossel peeping through the door and dismounted. He berated
Rossel
for peeping and ordered him to go back to his room and to sleep.
Accused-appellant then left the room of the private complainant.
The testimony of private complainant on direct examination reads:
"Fiscal Carisma:
Q
In between 1996 and August 1997?
A
Yes, sir, sometimes two (2) times a week.cralaw:red
Q
In November of 1998, do you recall of any unusual experience that
happened
to you again?
A
Yes, sir.cralaw:red
Q
What was this unusual experience of yours?
A
He laid himself on top of me, sir.cralaw:red
Q
You said "he" whom are you referring to?
A
Freedie Lizada Jakosalem, sir.cralaw:red
Q
The same person you pointed to earlier?
A
Yes, sir.cralaw:red
Q
You said he placed himself on top of you in November, 1998, what did he
do while he was on top of you?
A
He’s smashing my breast and he was also touching my arms and my legs,
sir.cralaw:red
Q
What else if any madam witness?
A
He was also touching my sex organ, sir.cralaw:red
Q
What else, if any?
Atty. Estorco:
May we take note of
the same objection your honor, the prosecution - - -
Court:
Same ruling.
Let the complainant continue considering that she is crying and still
young.cralaw:red
Witness:
None else, sir.cralaw:red
Fiscal Carisma:
With what part of his
body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is
- - -
Court:
May answer.cralaw:red
Fiscal Carisma:
I will re-propound
the question, your honor.cralaw:red
You said that he touched
your sex organ, will you tell the court with what part of his body, did
he touch your sex organ?
Witness:
With his hands, sir.cralaw:red
Q
What about after November 1998 - - -was this the last incident, this
unusual
thing that you experienced from the hands of the accused was this that
last time, the one you narrated in November 1998?
A
Yes, sir."[32]chanrobles virtuallaw libraryred
On cross-examination,
the private complainant testified, thus:
"Atty. Balaba:
Q Who was that cralaw
somebody who entered the room?
A
My stepfather Freedie Lizada, sir.cralaw:red
Q
He was fully dressed at that time, during the time, is that correct?
A
Yes, sir, he was dressed then, sir.cralaw:red
Q
And he had his pants on, is that correct?
A
He was wearing a short pants, sir.cralaw:red
Q
Was it a T-shirt that he had, at that time or a polo shirt?
A
He was not wearing any shirt then, sir, he was naked.cralaw:red
Q
When you realized that somebody was entering the room were you not
afraid?
A
No, sir, I was not afraid.cralaw:red
Q
What happened when you realized that somebody entered the room, and the
one who entered was your stepfather, Freedie Lizada?
A
I did not mind him entering the room because I know that my brother was
around but suddenly I felt that somebody was holding me.cralaw:red
Q
He was holding you, where were you when he held you?
A
I was in the bed, sir, lying down.cralaw:red
Q
You were lying down?
A
Yes, sir.cralaw:red
Q
What part of the body did the accused Freedie Lizada touched you?
A
My two arms, my legs and my breast, sir.cralaw:red
Q
Do you mean to tell us that he was holding your two arms and at the
same
time your legs, is that what you are trying to tell us?
A
He held me first in my arms and then my legs, sir.cralaw:red
Q
He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your
honor, he held the arms and then the legs.cralaw:red
Court:
Already answered.cralaw:red
Atty. Balaba:
Q
Your honor, I am just trying to - -
Court:
Proceed.cralaw:red
Atty. Balaba:
Q
He held your arms with his two hands?
A
Only with one hand, sir.cralaw:red
Q
Which hand were you touched?
A
I do not know which hand, sir.cralaw:red
Q
Which arm of yours was held by Freedie Lizada?
A
I could not recall, sir.cralaw:red
Q
Which side of your body was Freedie Lizada at that time?
A
I cannot recall, sir.cralaw:red
Q
What was the position of Freedie Lizada when he held your arms?
A
He was sitting on our bed, sir.cralaw:red
Q
Which side of your bed was Freedie Lizada sitting on?
A
I do not know, sir. I cannot recall.cralaw:red
Atty. Balaba:
Can we take a recess
your honor?
Court:
How long will it take
you to finish your cross?
Atty. Balaba:chanrobles virtuallaw libraryred
We will confront the
witness with so many things your honor.chanrobles virtuallaw libraryred
Court:
Yes, that’s why I am
asking you how long will it take you to finish your cross?
Atty. Balaba:chanrobles virtuallaw libraryred
About another hour,
sir.cralaw:red
Court:
So we will be finished
by 11:15, proceed.cralaw:red
Atty. Balaba:
You cannot also remember
which leg was held by Freedie Lizada?
A
I cannot recall, sir.cralaw:red
Q
When this happened, did you not shout for help?
A
I did not ask for help, I was motioning to resist him, so that he would
go out, sir. I was struggling to free myself from him, sir.cralaw:red
Q
And you were not able to extricate yourself from him?
A
I was not able to extricate myself, sir.cralaw:red
Q
You were struggling with one arm of Lizada holding your arm, and the
other
hand was holding your leg, is that what you are trying to tell us?
A
No, sir, it’s not like that.cralaw:red
Q
Could you tell us, what happened, you did not shout for help and you
were
trying to extricate yourself, what happened?
A
He suddenly went out of the room, sir.cralaw:red
Q
Now, he went - - -
Court:
You did not shout during
that time?
A
No, your honor."[33]
Rossel, the nine-year
old brother of the private complainant corroborated in part his
sister’s
testimony. He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q
Now, on November 2, 1998 do you recall where you were at about 3:00
o’clock?
A
I was outside our house, sir.cralaw:red
Q
Where was your house again, Mr. witness, at that
time?
Where was your house at that date, time and place? At that date and
time?
A
1252 Jose Abad Santos, Tondo, Manila, sir.cralaw:red
Court:
Q
The same address?
A
Yes, sir.cralaw:red
Fiscal Carisma:
Q
On that date, time and place, do your recall where your sister Anna Lea
Orillosa was?
A
Yes, sir.cralaw:red
Q
Where was she?
A
She was sleeping, sir.chanrobles virtuallaw libraryred
Q
Now, on that date, time and place you said you were outside your house,
did you stay the whole afternoon outside your house?
A
No, sir.chanrobles virtuallaw libraryred
Q
Where did you go next?
A
Inside, sir.chanrobles virtuallaw libraryred
Q
For what purpose did you get inside your house?
A
Because I was thirsty, sir.chanrobles virtuallaw libraryred
Q
So you went to the fridge to get some water?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
And what happened as you went inside your house to get some water?chanrobles virtuallaw libraryred
A
I saw my stepfather removing the panty of my sister and he touched her
and then he laid on top of her, sir.cralaw:red
Q
Do you see your stepfather inside the courtroom now?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
Will you point to him?
A
He is the one, sir.chanrobles virtuallaw libraryred
Court Interpreter:chanrobles virtuallaw libraryred
Witness pointing to
a male person who when asked answers to the name Freedie Lizada.cralaw:red
Fiscal Carisma:chanrobles virtuallaw libraryred
Q
This thing that your father was - that your stepfather did to your
elder
sister, did you see this before or after you went to the fridge to get
some water?
A
I already got water then, sir.chanrobles virtuallaw libraryred
Q
What did you do as you saw this thing being done by your stepfather to
your elder sister?
A
I was just looking at them when he saw me, sir.chanrobles virtuallaw libraryred
Q
Who, you saw who? You are referring to the accused Freedie Lizada?
A
Yes, sir.
Q
So, what did you do as you were seen by your stepfather?
A
He scolded me, he shouted at me, he told me something and after that he
went to the other room and slept, sir.[34]chan
robles virtual law library
Rossel testified on
cross-examination, thus:chanrobles virtuallaw libraryred
"Q So you
got thirsty, is that correct, and went inside the house?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
And you took a glass of water from the refrigerator?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
And it was at this time that you saw the accused Freedie Lizada
touching
your sister?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
Where was this refrigerator located?chanrobles virtuallaw libraryred
A
In front of the room where my sister sleeps, sir.chanrobles virtuallaw libraryred
Q
So the door of your sister’s room was open?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
And --- okay, you said your sister was sleeping. What was the
position
of your sister when you said the accused removed her panty?chanrobles virtuallaw libraryred
A
She was lying straight, but she was resisting, sir.cralaw:red
Q
Were you noticed by your sister at that time?chanrobles virtuallaw libraryred
A
No, sir.cralaw:red
Q
And your sister did not call for help at that time?chanrobles virtuallaw libraryred
A
No, sir.chanrobles virtuallaw libraryred
Q
And all this time you saw the accused doing this, from the refrigerator
where you were taking a glass of water?chanrobles virtuallaw libraryred
A
Yes, sir.chanrobles virtuallaw libraryred
Q
Did you not say something to the accused?chanrobles virtuallaw libraryred
A
No, sir, I was just looking.chanrobles virtuallaw libraryred
Q
So your sister was lying down when the accused removed her panty, is
that
what you are trying to tell us?chanrobles virtuallaw libraryred
A
Yes, sir.chanrobles virtuallaw libraryred
Q
And where was the - - - and the accused saw you when he was removing
the
panty of your sister?chanrobles virtuallaw libraryred
A
Not yet, sir, but after a while he looked at the refrigerator because
he
might be thirsty.chanrobles virtuallaw libraryred
Q
So---you said the accused was touching your sister. What part of
her body was touched by the accused?chanrobles virtuallaw libraryred
A
Here, sir.chanrobles virtuallaw libraryred
Court Interpreter:chanrobles virtuallaw libraryred
Witness pointing at
the lower portion of the body.chanrobles virtuallaw libraryred
Atty. Balaba:chanrobles virtuallaw libraryred
Q
You saw with what hand was the accused touching your sister?
A
Yes, sir.chanrobles virtuallaw libraryred
Q
What hand was he touching your sister?
A
This hand, sir.cralaw:red
Court Interpreter:
Witness raising his
right hand.chanrobles virtuallaw libraryred
Atty. Balaba:
Q
And which part of your sister’s body was the accused touching with his
right hand? Your sister’s body was the accused touching with his right
hand?
A
Her right leg, sir.cralaw:red
Q
How about his left hand, what was the accused doing with his left hand?
A
Removing her panty, sir.cralaw:red
Q
Removing her?
A
Panty, sir.cralaw:red
Q
Which hand of your sister was being removed with the left hand of the
accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague,
your honor.
Atty. Balaba:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Because he said that
removing the hand ---chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Fiscal Carisma:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
He said removing the
panty.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Atty. Balaba:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Is that panty? I’m
sorry.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Q
So, the accused was touching with his right hand the left thigh of your
sister ---chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Fiscal Carisma:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The right thigh.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Atty. Balaba:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Q
Rather the right thigh of your sister and with his left hand removing
the
panty, is that what you are telling to tell us?
A
Yes, sir.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Q
And your sister all the time was trying to ---was struggling to get
free,
is that not correct?
A
Yes, sir, she was resisting. (witness demonstrating)chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Q
She was struggling --- was the accused able to remove the panty?
A
Yes, sir.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Q
And all the time you were there looking with the glass of water in your
hand?
A
Yes, sir."[35]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
In light of the
evidence
of the prosecution, there was no introduction of the penis of
accused-appellant
into the aperture or within the pudendum of the vagina of private
complainant.
Hence, accused-appellant is not criminally liable for consummated rape.[36]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The issue that now
comes to fore is whether or not accused-appellant is guilty of
consummated
acts of lasciviousness defined in Article 336 of the Revised Penal Code
or attempted rape under Article 335 of the said Code, as amended in
relation
to the last paragraph of Article 6 of the Revised Penal Code. In
light of the evidence on record, we believe that accused-appellant is
guilty
of attempted rape and not of acts of lasciviousness.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Article 336 of the
Revised Penal Code reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"Art. 336. Acts of
Lasciviousness. Any person who shall commit any act of lasciviousness
upon
other persons of either sex, under any of the circumstances mentioned
in
the preceding article, shall be punished by prision correccional."[37]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
For an accused to be
convicted of acts of lasciviousness, the prosecution is burdened to
prove
the confluence of the following essential elements:
chanrobles virtuallaw libraryred
"1. That
the offender commits any act of lasciviousness or lewdness.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
2.
That it is done under any of the following circumstances:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
a. By using force or intimidation; orchanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
b. When the offended party is deprived of reason or otherwise
unconscious;
orchanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
c. When the offended party is under 12 years of age."[38]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"Lewd" is defined as
obscene, lustful, indecent, lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is
carried
on a wanton manner.[39]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The last paragraph
of Article 6 of the Revised Penal Code reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"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."chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The essential elements
of an attempted felony are as follows:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"1. The
offender commences the commission of the felony directly by overt acts;chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
2. He
does not perform all the acts of execution which should produce the
felony;chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
3. The
offender’s act be not stopped by his own spontaneous desistance;chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
4. The
non-performance of all acts of execution was due to cause or accident
other
than his spontaneous desistance."[40]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The first requisite
of an attempted felony consists of two elements, namely:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"(1) That
there be external acts;chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
(2) Such
external acts have direct connection with the crime intended to be
committed."[41]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
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 by the things connected
therewith,
that they are aimed at the consummation of the offense. This
Court
emphasized in People vs. Lamahang[51]
that:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"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]
chanrobles virtuallaw libraryred
If the malefactor does
not perform all the acts of execution by reason of his spontaneous
desistance,
he is not guilty of an attempted felony.[53]
The law does not punish him for his attempt to commit a felony.[54]
The rationale of the law, as explained by Viada:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"La Ley, en efecto,
no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo.
Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito
por actos exteriores, se detiene, por un sentimiento libre y
espontaneo,
en el borde del abismo, salvo esta. Es un llamamiento al
remordimiento,
a la conciencia, una gracia un perdon que concede la Ley al
arrepentimiento
voluntario."[55]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
As aptly elaborated
on by Wharton:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"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]
chanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
In light of the facts
established by the prosecution, we believe that accused-appellant
intended
to have carnal knowledge of private complainant. The overt acts
of
accused-appellant proven by the prosecution were not mere preparatory
acts.
By the series of his overt acts, accused-appellant had commenced the
execution
of rape which, if not for his spontaneous desistance, will ripen into
the
crime of rape. Although accused-appellant desisted from
performing
all the acts of execution however his desistance was not spontaneous as
he was impelled to do so only because of the sudden and unexpected
arrival
of Rossel. Hence, accused-appellant is guilty only of attempted
rape.[58]
In a case of similar factual backdrop as this case, we held:chanrobles virtuallaw libraryredry
"Applying the foregoing
jurisprudence and taking into account Article 6 of the Revised Penal
Code,
the appellant can only be convicted of attempted rape. He
commenced
the commission of rape by removing his clothes, undressing and kissing
his victim and lying on top of her. However, he failed to perform
all the acts of execution which should produce the crime of rape by
reason
of a cause other than his own spontaneous desistance, i.e., by the
timely
arrival of the victim’s brother. Thus, his penis merely touched
Mary
Joy’s private organ. Accordingly, as the crime committed by the
appellant
is attempted rape, the penalty to be imposed on him should be an
indeterminate
prison term of six (6) years of prision correccional as minimum to
twelve
(12) years of prision mayor as maximum."
chanrobles virtuallaw libraryred
The penalty for
attempted
rape is prision mayor which is two degrees lower than reclusion
perpetua.[59]
Accused-appellant should be meted an indeterminate penalty the minimum
of which should be taken from prision correccional which has a range of
from six months and one day to six years and the maximum of which shall
be taken from the medium period of prision mayor which has a range of
from
eight years and one day to ten years, without any modifying
circumstance.
Accused-appellant is also liable to private complainant for moral
damages
in the amount of P25,000.00.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
IN LIGHT OF ALL THE
FOREGOING, the Decision of the Regional Trial Court of Manila, Branch
54,
is SET ASIDE. Another judgment is hereby rendered as follows:
chanrobles virtuallaw libraryred
1. In Criminal
Case No. 99-171390, accused-appellant is hereby found guilty beyond
reasonable
doubt of simple rape under Article 335 of the Revised Penal Code as
amended
and is hereby meted the penalty of reclusion perpetua.
Accused-appellant
is also hereby ordered to pay private complainant Analia Orillosa the
amounts
of P50,000.00 by way of civil indemnity and P50,000.00 by way of
moral damages;chanrobles virtuallaw libraryred
2. In Criminal
Case No. 99-171391, accused-appellant is hereby found guilty of
attempted
rape under Article 335 of the Revised Penal Code as amended in relation
to Article 6 of the said Code and is hereby meted an indeterminate
penalty
of from six years of prision correccional in its maximum period, as
minimum
to ten years of prision mayor in its medium period, as maximum.
Accused-appellant
is hereby ordered to pay private complainant Analia Orillosa the amount
of P25,000.00 by way of moral damages; andchanrobles virtuallaw libraryred
3. In Criminal
Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found
guilty
beyond reasonable doubt of two counts of simple rape, defined in
Article
335 of the Revised Penal Code as amended and is hereby meted the
penalty
of reclusion perpetua for each count. Accused-appellant is hereby
ordered to pay to private complainant Analia Orillosa the amount of
P50,000.00
by way of civil indemnity and the amount of P50,000.00 by way of moral
damages for each count, or a total amount of P200,000.00.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J.,
Puno, Vitug, Mendoza,Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez,
Carpio, Austria-Martinez,
Corona, Carpio-Morales,
and Azcuna, JJ., concur.chan
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Bellosillo, J., on
leave.chan
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____________________________
Endnotes:
[1]
Penned by Judge Manuel T. Muro.chanrobles virtuallaw libraryred
[2]
Accused-appellant was charged under the name 'Freedie Lizada.
[3]
Original records, pp. 1-4.chanrobles virtuallaw libraryred
[4]
Id., at 73.chanrobles virtuallaw libraryred
[5]
The prosecution presented four witnesses, namely, Analia Orillosa, Rose
Orillosa, Rossel Orillosa & Dr. Armie Umil.
[6]
Exhibit 'A.'chanrobles virtuallaw libraryred
[7]
Exhibit '2.'chanrobles virtuallaw libraryred
[8]
Exhibit 'C.'chanrobles virtuallaw libraryred
[9]
Supra.chanrobles virtuallaw libraryred
[10]
Exhibit '2.'chanrobles virtuallaw libraryred
[11]
Records, p. 147. (The name of accused-appellant is erroneously stated
as
'Fredie' Lizada.)
[12]
Rollo, p. 51.chanrobles virtuallaw libraryred
[13]
Id., at 53.chanrobles virtuallaw libraryred
[14]
Supra.chanrobles virtuallaw libraryred
[15]
Francisco vs. Permskul, et al., 173 SCRA 327 (1989).
[16]
Vide Note 14.chanrobles virtuallaw libraryred
[17]
Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975).chanrobles virtuallaw libraryred
[18]
People vs. Bugarin, 273 SCRA 384 (1997).chanrobles virtuallaw libraryred
[19]
People vs. Sta. Ana, 291 SCRA 188 (1998).chanrobles virtuallaw libraryred
[20]
TSN, Orillosa, June 3, 1999, pp. 8-28.chanrobles virtuallaw libraryred
[21]
340 SCRA 481 (2000).chanrobles virtuallaw libraryred
[22]
Ibid., p. 489.chanrobles virtuallaw libraryred
[23]
Ibid., p. 488.chanrobles virtuallaw libraryred
[24]
People vs. Cabingas, et al., 329 SCRA 21 (2000).chanrobles virtuallaw libraryred
[25]
People vs. Borja, 267 SCRA 370 (1997).chanrobles virtuallaw libraryred
[26]
278 SCRA 78 (1997).chanrobles virtuallaw libraryred
[27]
TSN, Orillosa, June 3, 1999, pp. 11-12.chanrobles virtuallaw libraryred
[28]
People vs. Torio, 318 SCRA 345 (1999).chanrobles virtuallaw libraryred
[29]
People vs. Alcala, 307 SCRA 330 (1999).chanrobles virtuallaw libraryred
[30]
Id., supra.chanrobles virtuallaw libraryred
[31]
363 SCRA 192 (2001).chanrobles virtuallaw libraryred
[32]
TSN, Orillosa, June 3, 1999, pp. 18-20.chanrobles virtuallaw libraryred
[33]
TSN, Orillosa, June 7, 1999, pp. 39-45.chanrobles virtuallaw libraryred
[34]
TSN, Orillosa, June 28, 1999, pp. 6-10.chanrobles virtuallaw libraryred
[35]
TSN, Orillosa, June 28, 1999, pp. 13-20.chanrobles virtuallaw libraryred
[36]
People vs. Campuhan, 329 SCRA 270 (2000).
[37]
Id., supra.chanrobles virtuallaw libraryred
[38]
Id., supra.chanrobles virtuallaw libraryred
[39]
People vs. Tayag, 329 SCRA 491 (2000).
[40]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra.
[41]
Id., supra, p. 98.chanrobles virtuallaw libraryred
[42]
Id., supra, pp. 98-99.chanrobles virtuallaw libraryred
[43]
People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing
Wharton.
[44]
People vs. Gibson, 94 Cal. App. 2d. 468.
[45]
Wharton, Criminal Law, Vol. 1, 12 ed. 287.
[46]
Vide Note 32, p. 47.chanrobles virtuallaw libraryred
[47]
Wharton, Criminal Law, idem, supra, p. 293.chanrobles virtuallaw libraryred
[48]
Reyes, Revised Penal Code, supra, p. 97.chanrobles virtuallaw libraryred
[49]
People vs. Lamahang, 62 Phil. 703 (1935).chanrobles virtuallaw libraryred
[50]
1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935).
[51]
See note 48.chanrobles virtuallaw libraryred
[52]
Ibid., p. 707.chanrobles virtuallaw libraryred
[53]
Spontaneous means proceeding from natural feeling or native tendency
without
external constraint; synonymous with impulsive, automatic and
mechanical.
(Webster, Third New International Dictionary,
p. 2204).chanrobles virtuallaw libraryred
[54]
Reyes, idem, supra, p. 104.chanrobles virtuallaw libraryred
[55]
Aquino, Revised Penal Code, Vol. 1, 1987 ed.chanrobles virtuallaw libraryred
[56]
Wharton, Criminal Law, Vol. 1, pp. 307-308, supra.
[57]
Reyes, Revised Penal Code, supra, p. 105.chanrobles virtuallaw libraryred
[58]
People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001.
[59]
Article 51, Revised Penal Code.chanrobles virtuallaw libraryred |