Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of
Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall
of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was
sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and
the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation 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. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store
by means of violence, passing through the opening which he had started to make on the wall, in order to commit an
offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried 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. Thus, in case of robbery, in
order that the simple act of entering by means of force or violence another person's dwelling may be considered an
attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record
from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan
Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force
said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob,
to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a
concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such
 that by their very nature, by the facts to which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith, they must show without any doubt, that they
are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish
grounds by themselves for attempted nor frustrated crimes. 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 directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to
say, that the acts performed must be such that, without the intent to commit an offense, they would be
meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the
offense, are not punished except when they are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare
that such and such overt acts constitute an attempted offense it is necessary that their objective be known
and established, or that said 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 the designation of
the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute
attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions
of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is
committed when a private person shall enter the dwelling of another against the latter's will. The accused may be
convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by
breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the
noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this
case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509'
U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25
Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and
former convictions, — inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall
should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this
case constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed
with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280,
par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51),
or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances
and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the
same Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced
to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

 SECOND DIVISION

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January
13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution2 denying petitioner’s motion for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal
Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads
as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or accident other than his own
spontaneous desistance, said acts being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on
the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following
facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson Street,
Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical
student of the University of Sto. Tomas [UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her
bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on
her face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She
wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN,
July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got
free. With this …the opportunity presented itself when she was able to grab hold of his sex organ which she then
squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom,
MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not,
however, know. The only thing she had made out during their struggle was the feel of her attacker’s clothes and
weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p.
17). He … was wearing a t-shirt and shorts … Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and
Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN, July 5, 1993,
pp. 13-14). Aside from the window with grills which she had originally left opened, another window inside her
bedroom was now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers
to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993,
p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a week prior to
the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and
she rejected him. …. (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early
morning of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek
letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p.
9) and black shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up
to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to
enter, only Joseph Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially
refused [but later, relented] …. S/G Ferolin made the following entry in the security guard’s logbook …:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit
#-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he
said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa
(Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s
knocking on the door woke him up, …. He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he
glanced at the alarm clock beside the bed when he was awakened by the knock at the door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in.
…. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window
through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO …. He
mentioned to the latter that something had happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so
Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and Joseph to go
with them to Camp Crame where the two (2) were questioned ….

An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of December 13,
1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to look for anything not belonging to them in their Unit. While they were
outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to
search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from
inside their unit which they did not know was there and surrender the same to the investigators. When he saw the
gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing
it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu
(sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear,
and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit
"D-3) to be CHITO’s because CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity
symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of
Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was
closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato
went back to Room 310 at around 3 to 4 o’clock that afternoon along with some CIS agents, they saw the bag at the
same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in
Camp Crame, however, did Renato know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having
acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991,
(Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and
submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime
imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the
defense sought to establish the following, as culled from the same decision of the appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto Leonardo, he was
likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …, was known to him being also a medical student
at the UST at the time.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over dark pants
and leather shoes, arrived at their Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock
in the evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members
scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John
Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4) presidential
nominees of the Fraternity, CHITO included, were being dunked one by one into the pool. xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla
Duran, …, offered each … dry clothes to change into and CHITO put on the white t-shirt with the Fraternity’s symbol
and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black
short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and
Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at
about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks,
and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached. Because of this,
CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused
CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed
since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5)
minutes vainly tried to open the door until Rommel Montes, … approached him and even commented: "Okey ang
suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 … but was
likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door. Telling him,
"Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO ,
…changed to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and, without
elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to
the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS men came
to the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of
MALOU, then asked him for the key to Room 306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them,
CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him for 30
minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical
examination at the Camp Crame Hospital ….. At the hospital, … CHITO and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip ….

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran
(Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought
before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no
effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left
at Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 o’clock in the
early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the
morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991,
he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first
time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon,
when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert
Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills,
riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie
building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the
said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to
open the door of Room 306 while clad in dark short pants and white barong tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking
party held in her father’s house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry
instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30)
seconds without tearing nor staining the cloth on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and
accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D.
Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as
charged in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS,
TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina
Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s
fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s
judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision
appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March
31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent
sufficient, competent and convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution
failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and
contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified
absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not
been met, hence, he should be acquitted on the ground that the offense charged against him has not been proved
beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the
ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is
disposed to rule for petitioner’s acquittal, but not necessarily because there is no direct evidence pointing to him as
the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December
13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the
very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect
or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have actually witnessed the very
act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a
crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately
before and right after the commission of the crime. This is the second type of positive identification, which forms part
of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious
felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to
prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient
for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when
taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as
such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room
307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU
stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO
was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her
intruder’s apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO
leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some
kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different
witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical
while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of
an intent or attempt to rape the victim. It is argued that petitioner’s actuation thus described is an overt act
contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended
to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said,
adds that if petitioner’s intention was otherwise, he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse
with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is
demented. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the
offender commences the commission of rape directly by overt acts and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or accident other than his own spontaneous
desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs.
Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical
and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not
certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case.
The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of
pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and
that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner
wanted the complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding
on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been
rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet
exposed because his intended victim is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He
has to make her lose her guard first, or as in this case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in
criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of
an accused beyond reasonable doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out
that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an
attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the
victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight,
is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his
hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the
complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus,
it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted
rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised
Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of
the nature and cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory acts
for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without
the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct
which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent
person.25 The paramount question is whether the offender’s act causes annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed.26 That Malou, after the incident in question, cried while
relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted
rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.

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

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is
hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the
charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced
to 30 days of arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 198400 October 7, 2013

FE ABELLA y PERPETUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26, 2010 and August
11, 2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN affirming with modifications the
conviction4 by the Regional Trial Court RTC) of Misamis Oriental, Cagayan de Oro City, Branch 39 of Fe Abella y
Perpetua petitioner) for the crime of frustrated homicide committed against his younger brother, Benigno Abella
Benigno). The RTC sentenced the petitioner to suffer an indeterminate penalty of six 6) years and one 1) day to
eight 8) years of prision mayor as minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as
maximum, and to pay Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the medical expenses he
incurred, plus the costs of suit.5 The CA concurred with the RTC’s factual findings. However, the CA modified the
penalty imposed to six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8)
years and one (1) day of prision mayor in its medium period as maximum. The CA also deleted the RTC’s award in
favor of Benigno of (a) ₱10,000.00 as actual damages corresponding to the medical expenses allegedly incurred;
and (b) ₱100,000.00 as consequential damages. In lieu of the preceding, the CA ordered the petitioner to pay
Benigno ₱30,000.00 as moral damages and ₱10,000.00 as temperate damages.6

Antecedent Facts

On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was charged with
frustrated homicide in an Information7 which reads:

That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli, Canitoan, Cagayan
de Oro City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any
justifiable cause, did then and there willfully, unlawfully and feloniously and with intent to kill, attack, assault, harm
and hack one, BENIGNO ABELLA y PERPETUA, with the use of a scythe, hitting the latter’s neck, thereby inflicting
the injury described below, to wit:

• hacking wound left lateral aspect neck; and

• incised wound left hand dorsal aspect thus performing all the acts of execution which would produce the
crime of homicide as a consequence, but nevertheless, did not produce it by reason of some cause or
causes independent of the will of the accused, that is the timely and able intervention of the medical
attendance rendered to the said victim.

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was only arrested by agents of the National
Bureau of Investigation on October 7, 2002.9

During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus proceeded.
The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s wife; (c)
Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente13 (Dr.
Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to
Benigno after the latter was hacked by the petitioner.

The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching
television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring
trouble in a nearby store. Benigno and Amelita found the petitioner fighting with Alejandro and a certain Dionisio
Ybañes (Dionisio). Benigno was able to convince the petitioner to go home. Benigno and Amelita followed suit and
along the way, they dropped by the houses of Alejandro and Dionisio to apologize for the petitioner’s conduct.

Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two scythes, one in
each of his hands. Benigno instructed Alejandro and Dionisio to run away and the latter two complied. The petitioner
wanted to enter Alejandro’s house, but Benigno blocked his way and asked him not to proceed. The petitioner then
pointed the scythe, which he held in his left hand, in the direction of Benigno’s stomach, while the scythe in the right
hand was used to hack the latter’s neck once.14 Benigno fell to the ground and was immediately taken to the
hospital15 while the petitioner ran to chase Alejandro.16 Benigno incurred an expense of more than ₱10,000.00 for
hospitalization, but lost the receipts of his bills.17 He further claimed that after the hacking incident, he could no
longer move his left hand and was thus deprived of his capacity to earn a living as a carpenter.18

Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm"; and (b) an
"incised wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the hospital on September 6, 1998
and was discharged on September 23, 1998.20 From Dr. Ardiente’s recollection, since the scythe used in the
hacking was not sterile, complications and infections could have developed from the big and open wounds
sustained by Benigno, but fortunately did not.21

The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a friend of the
petitioner; and (c) Urbano Cabag24 (Urbano).

The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he
and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the
hacking incident occurred, is about four (4) hours drive away. Fernando testified that on September 6, 1998, he saw
the petitioner gathering woods to make a hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the
petitioner drinking tuba in the store of Clarita Perpetua.26

The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the Judgment27 reads:

WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient to prove the
guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding petitioner Fe Abella GUILTY beyond
reasonable doubt of the crime of Frustrated Homicide as defined and penalized by Article 249 in relation to Article
50 and Art. 6 of the Revised Penal Code. Accordingly, petitioner Fe Abella is hereby sentenced to suffer an
indeterminate penalty of Six (6) years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10)
years and One (1) day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant
Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred; to pay the sum
of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs.

SO ORDERED.28

The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were presented to
corroborate the petitioner’s claim that he was nowhere at the scene of the hacking incident on September 6, 1998.
Fernando and Urbano’s testimonies were riddled with inconsistencies. The RTC accorded more credence to the
averments of the prosecution witnesses, who, without any ill motives to testify against the petitioner, positively,
categorically and consistently pointed at the latter as the perpetrator of the crime. Besides, medical records show
that Benigno sustained a wound in his neck and his scar was visible when he testified during the trial.
The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred despite the
prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to pay ₱100,000.00 as
consequential damages, but the RTC did not explicitly lay down the basis for the award.

The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution failed to
prove by clear and convincing evidence the existence of intent to kill which accompanied the single hacking blow
made on Benigno’s neck. The petitioner argued that the hacking was merely accidental especially since he had no
motive whatsoever which could have impelled him to hurt Benigno, and that the infliction of merely one wound
negates intent to kill.

The CA Ruling

On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioner’s conviction for the
crime of frustrated homicide ratiocinating that:

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission
of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed;
and (e) the words uttered by the offender at the time the injuries are inflicted by him on the victim.

Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno with deadly
weapons, two scythes. The petitioner’s blow was directed to the neck of Benigno. The attack on the unarmed and
unsuspecting Benigno was swift and sudden. The latter had no means, and no time, to defend himself.

Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno suffered from a
hack wound on the left neck, and an incised wound on the left hand palm. He said that the wounds might have been
caused by a sharp, pointed and sharp-edged instrument, and may have resulted to death without proper medical
attendance. Benigno was hospitalized for about a month because of the injuries. The location of the wound (on the
neck) shows the nature and seriousness of the wound suffered by Benigno. It would have caused his death, had it
not been for the timely intervention of medical science.31 (Citations omitted and emphasis supplied)

However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6) years of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium period, as
maximum."32 The CA explained that:

Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide is reclusion
temporal , or twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the same Code, the penalty
for a frustrated crime is one degree lower than that prescribed by law. Thus, frustrated homicide is punishable by
prision mayor , or six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law,
absent any mitigating or aggravating circumstances, the maximum of the indeterminate penalty should be taken
from the medium period of prision mayor . To determine the minimum of the indeterminate penalty, prision mayor
should be reduced by one degree, which is prision correccional , with a range of six (6) months and one (1) day to
six (6) years. The minimum of the indeterminate penalty may be taken from the full range of prision
correccional.33(Citation omitted)

The CA also deleted the RTC’s order for the payment of actual and consequential damages as there were no
competent proofs to justify the awards. The CA instead ruled that Benigno is entitled to ₱30,000.00 as moral
damages and ₱10,000.00 as temperate damages,34 the latter being awarded when some pecuniary loss has been
incurred, but the amount cannot be proven with certainty.35

Issue

Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the RTC and the CA
erred in rendering judgments which are not in accordance with law and applicable jurisprudence and which if not
corrected, will cause grave injustice and irreparable damage to the petitioner.37

In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if considered,
would justify either his acquittal or the downgrading of his conviction to less serious physical injuries. The petitioner
points out that after the single hacking blow was delivered, he ran after Alejandro and Dionisio leaving Benigno
behind. Had there been an intent to kill on his part, the petitioner could have inflicted more wounds since at that
time, he had two scythes in his hands. Further, the CA erred in finding that the hacking blow was sudden and
unexpected, providing Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with
weapons on hand. Benigno could not have been unaware of the danger facing him, but he knew that the petitioner
had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the former was accidentally hit
with the latter’s scythe.

The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a conviction from
attempted murder to physical injuries as proper considering that homicidal intent was absent when the accused shot
the victim once and did not hit a vital part of the latter’s body.39

Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the neck and
incised wound in the hand. Such being the case, death could not have resulted. The neck wound was not "so
extensive because it did not involve a big blood vessel on its vital structure" while the incised wound in the hand,
which only required cleansing and suturing, merely left a slight scarring.40 Besides, Benigno was only confined for
seventeen (17) days at the hospital and the injuries he sustained were in the nature of less serious ones.

In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition. The OSG
stresses that the petitioner raises factual issues, which call for a re-calibration of evidence, hence, outside the ambit
of a petition filed under Rule 45 of the Rules of Court. Moreover, the petitioner’s argument that the development of
infections or complications on the wounds is a necessary factor to determine the crime committed is specious. The
petitioner’s intent to kill Benigno can be clearly inferred from the nature of the weapon used, the extent of injuries
inflicted and the circumstances of the aggression. Benigno could have died had there been no timely medical
assistance rendered to him.

If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and Dionisio, a
kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of the body would have been
sufficient. However, the petitioner hacked Benigno’s neck with an unsterile scythe, leaving behind a big, open and
gaping wound.

This Court’s Ruling

The instant petition raises factual issues which are beyond the scope of a petition filed under Rule 45 of the Rules of
Court.

Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas42 is instructive anent what is the subject of review in a
petition filed under Rule 45 of the Rules of Court, viz:

A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of
law. It is only in exceptional circumstances that we admit and review questions of fact.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a
question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law,
the question must not involve an examination of the probative value of the evidence presented by the litigants or any
of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances.
Once it is clear that the issue invites a review of the evidence presented, the question posed is one of
fact.43(Citations omitted)

In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the petitioner had a
homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds the latter sustained could have
caused his death had there been no prompt medical intervention. These questions are patently factual in nature
requiring no less than a re-calibration of the contending parties’ evidence.

It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of exceptions,
among which is, "when the judgment of the CA is premised on a misapprehension of facts or a failure to notice
certain relevant facts that would otherwise justify a different conclusion x x x."44 However, the factual backdrop and
circumstances surrounding the instant petition do not add up to qualify the case as falling within the exceptions.

Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the instant petition is
susceptible to denial.

To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt:
(1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the
accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all
the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without
medical intervention or attendance.45

In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The prosecution
has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. And the intent
to kill is often inferred from, among other things, the means the offender used and the nature, location, and number
of wounds he inflicted on his victim.46

The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill Benigno. The
petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal intent is absent in a case where
the accused shot the victim only once when there was an opportunity to do otherwise. The petitioner belabors his
claim that had he intended to kill Benigno, he could have repeatedly hacked him to ensure the latter’s death, and not
leave right after the blow to chase Alejandro instead.

The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician
certified that the injury would require medical attendance for ten days, but the victim was in fact promptly discharged
from the hospital the following day.

In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in
his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is possible to have
complications resulting from these injuries because the wounds were extensive and they were big and they were
open wounds, so there is a possibility of infections resulting from these kinds of wounds, and the instrument used
was not a sterile instrument contaminated with other things."48 No complications developed from Benigno’s wounds
which could have caused his death, but he was confined in the hospital for a period of 17 days from September 6,
1998 to September 23, 1998.

From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s
neck was determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require
imagination to figure out that a single hacking blow in the neck with the use of a scythe could be enough to
decapitate a person and leave him dead. While no complications actually developed from the gaping wounds in
Benigno’s neck and left hand, it perplexes logic to conclude that the injuries he sustained were potentially not fatal
considering the period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser
degree of medical attention.

This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he
pursued Alejandro instead and refrained from further hacking Benigno. What could have been a fatal blow was
already delivered and there was no more desistance to speak of. Benigno did not die from the hacking incident by
reason of a timely medical intervention provided to him, which is a cause independent of the petitioner’s will.1âwphi1

All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of
the crime charged.

The Court modifies the award of damages.

As to the civil liability of the petitioner, the CA was correct in deleting the payment of the consequential damages
awarded by the trial court in the absence of proof thereof. Where the amount of actual damages cannot be
determined because of the absence of supporting receipts but entitlement is shown by the facts of the case,
temperate damages may be awarded.49 In the instant case, Benigno certainly suffered injuries, was actually
hospitalized and underwent medical treatment. Considering the nature of his injuries, it is prudent to award
temperate damages in the amount of ₱25,000.00, in lieu of actual damages.50

Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00.51 There is sufficient
basis to award moral damages as ordinary human experience and common sense dictate that such wounds inflicted
on Benigno would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injury.52

WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010 and August 11
2011, respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are AFFIRMED with MODIFICATIONS.
The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the offended party moral damages in the amount of
₱25,000.00 and temperate damages in the amount of ₱25,000.00. Further, the monetary awards for damages shall
be subject to interest at the legal rate of six percent ( 6%) p r annum from the date of finality of this Decision until
fully paid.53

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 202867 July 15, 2013

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
REGIE LABIAGA, Appellant.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of Appeals-Cebu (CA-
Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the Joint Decision2 dated 10
March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-155)
convicting Regie Labiaga alias "Banok" (appellant) of murder and Criminal Case No. 2002-1777 convicting appellant
of frustrated murder.

The Facts

In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an Information3 which reads:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot JUDY
CONDE alias ‘JOJO’ with said unlicensed firearm, hitting her and inflicting gunshot wounds on the different parts of
her breast which caused her death thereafter.

CONTRARY TO LAW.

The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in Criminal Case No.
2002-1777, under an Information4 which states:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another,
armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means of treachery and with
evident premeditation, did then and there 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. In diameter;
thereby performing all the acts of execution which would produce the crime of Murder as a consequence, but
nevertheless did not produce it by reason of causes independent of the will of the accused; that is by the timely and
able medical assistance rendered to said Gregorio Conde which prevented his death.

CONTRARY TO LAW.

Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases and joint
trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in Criminal Case No.
2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obañana and Dr. Edwin Jose Figura, the physicians at
the Sara District Hospital where the victims were admitted. The defense, on the other hand, presented appellant,
Demapanag, and the latter’s brother, Frederick.

Version of the prosecution

The prosecution’s version of the facts is as follows: At around 7:00 p.m. on 23 December 2000, 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, appellant, 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.

Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated that her death was caused by
"cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound."5

Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that Gregorio sustained a
gunshot wound measuring one centimeter in diameter in his right forearm and "abrasion wounds hematoma
formation" in his right shoulder.6

Version of the defense

Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed, however,
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 Ruling of the RTC

In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant, however, was
convicted of murder and frustrated murder. The dispositive portion of the Joint Decision reads:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with accessory penalty provided by law, to pay the heirs of Judy Conde
₱50,000.00 as civil indemnity, without subsidiary imprisonment in case of insolvency and to pay the costs.

In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt
of the crime of Frustrated Murder and hereby sentences the said accused to a prison term ranging from six (6) years
and one (1) day of prision mayor as minimum to ten (10) years and one (1) day of reclusion temporal as maximum,
together with the necessary penalty provided by law and without subsidiary imprisonment in case of insolvency and
to pay the costs.

Accused’s entire period of detention shall be deducted from the penalty herein imposed when the accused serves
his sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy
Demapanag from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.7

The Ruling of the CA-Cebu

Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in convicting the appellant of the
crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt."8 The CA-Cebu,
however, upheld the conviction for murder and frustrated murder.

The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC in Criminal Case
No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:

The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It did not award
moral damages. Nonetheless, the trial court should have awarded both, considering that they are two different kinds
of damages. For death indemnity, the amount of ₱50,000.00 is fixed "pursuant to the current judicial policy on the
matter, without need of any evidence or proof of damages. Likewise, the mental anguish of the surviving family
should be assuaged by the award of appropriate and reasonable moral damages."9

The dispositive portion of the Decision of the CA-Cebu reads:

WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of the
Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The dispositive portion
of the said Joint Decision should now read as follows:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with the accessory penalty provided by law, to pay the heirs of Judy Conde
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and to pay the costs.

In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable doubt
of the crime of Frustrated Murder and hereby sentences the said accused to suffer the indeterminate penalty of
eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal, as maximum, together with the accessory penalty provided by law, to pay Gregorio Conde
₱25,000.00 as moral damages and ₱25,000.00 as exemplary damages, without subsidiary imprisonment in case of
insolvency and to pay the costs Accused(’s) entire period of detention shall be deducted from the penalty herein
imposed when the accused serves his sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused Cristy
Demapanag from custody unless he is being held for some other valid or lawful cause.

SO ORDERED.

SO ORDERED.10

Hence, this appeal.

The Ruling of the Court

Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of attempted murder
and not frustrated murder. We uphold appellant’s conviction in Criminal Case No. 2001-1555 for murder, but modify
the civil indemnity awarded in Criminal Case No. 2001-1555, as well as the award of moral and exemplary damages
in both cases.

Justifying circumstance of self-defense

Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the CA-Cebu.
This Court, in People v. Damitan,11 explained that:

When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to prove by
clear and convincing evidence the elements of his defense. However, appellant’s version of the incident was
uncorroborated. His bare and self-serving assertions cannot prevail over the positive identification of the two (2)
principal witnesses of the prosecution.12

Appellant’s failure to present any other eyewitness to corroborate his testimony and his unconvincing demonstration
of the struggle between him and Gregorio before the RTC lead us to reject his claim of self-defense. Also, as
correctly pointed out by the CA-Cebu, appellant’s theory of self-defense is belied by the fact that:

x x x The appellant did not even bother to report to the police Gregorio’s alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the following morning, he did
not also inform the police that what happened to Gregorio was merely accidental.13

Appellant’s claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also
implausible.

In contrast, we find that the Condes’ account of the incident is persuasive. Both the CA-Cebu and the RTC found
that the testimonies of the Condes were credible and presented in a clear and convincing manner. This Court has
consistently put much weight on the trial court’s assessment of the credibility of witnesses, especially when affirmed
by the appellate court.14 In People v. Mangune,15 we stated that:

It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken
by the trial court because of its unique opportunity to observe the witnesses first hand and to note their demeanor,
conduct, and attitude under grilling examination. These are important in determining the truthfulness of witnesses
and in unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness’ credibility, and the trial court has the opportunity to
take advantage of these aids.16

Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with arbitrariness
or oversight or misapprehension of relevant facts, the same must be sustained by this Court.

Attempted and Frustrated Murder

Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the victim was
not afforded any opportunity to defend himself or resist the attack.17 The existence of treachery is not solely
determined by the type of weapon used. If it appears that the weapon was deliberately chosen to insure the
execution of the crime, and to render the victim defenseless, then treachery may be properly appreciated against
the accused.18

In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge shotgun
against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to fend off the offender.

We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in Criminal
Case No. 2002-1777.

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 frustrated murder, there must be evidence showing that the wound would have been fatal were it not for timely
medical intervention.21 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 after the shooting incident:

Prosecutor Con-El:

Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the patient
when you examined him?

A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.

xxxx

Court (to the witness)

Q: The nature of these injuries, not serious?

A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect right
shoulder.22

Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted of attempted murder
and not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty for attempted
murder shall be two degrees lower than that prescribed for consummated murder under Article 248, that is, prision
correccional in its maximum period to prision mayor in its medium period. Section 1 of the Indeterminate Sentence
Law provides:

x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal
Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for
the offense.1âwphi1

Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and one (1) day
of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium period.

Award of damages

In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the lower court in
both cases. In Criminal Case No. 2001-1555, this Court hereby awards ₱75,000.00 as civil indemnity23 and
₱30,000.00 as exemplary damages.24 The award of ₱50,000.00 as moral damages in the foregoing case is
sustained. Appellant is also liable to pay ₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages, in
relation to Criminal Case No. 2002-1777.

WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC
No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant Regie Labiaga is GUILTY
of Attempted Murder and shall suffer an indeterminate sentence ranging from two (2) years, four (4) months and one
(1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum, and
pay ₱40,000.00 as moral damages and ₱30,000.00 as exemplary damages. In Criminal Case No. 2001-1555,
appellant shall pay ₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary
damages.

SO ORDERED.
 G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
DECISION
TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes
having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged
guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition
rests on a common theory expounded in two well-known decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.3 A more cursory treatment of the question was followed in
1929, in People v. Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives occasion for us to finally and
fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information6 charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM)
complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open
parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand.
Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized from the duo were four
(4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods
with an aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the
day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by
Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by
his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy
snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading
them to head out of the building to check what was transpiring. As they were outside, they were suddenly "grabbed"
by a security guard, thus commencing their detention.12 Meanwhile, petitioner testified during trial that he and his
cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused
him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to
the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he
and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the prosecutor’s office where he was charged
with theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler" of GMS
Marketing, "assigned at the supermarket" though not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses and established the convictions
on the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of Appeals,
causing the appellate court to deem Calderon’s appeal as abandoned and consequently dismissed. Before the
Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen.20 However, in its Decision
dated 19 June 2003,21 the Court of Appeals rejected this contention and affirmed petitioner’s conviction.22 Hence
the present Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified to only of
Frustrated Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his
actual participation in the theft of several cases of detergent with a total value of ₱12,090.00 of which he was
charged.25 As such, there is no cause for the Court to consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the
given facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions rendered many years
ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of this
Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they have
not yet been expressly adopted as precedents by this Court. For whatever reasons, the occasion to define or
debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations,29 and studied in criminal law classes as textbook
examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say that Diño and Flores are doctrinal, such
conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a
supermarket checkout counter or a parking area pay booth, may easily call for the application of Diño and Flores.
The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Diño
and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system.
The time is thus ripe for us to examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.

III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to "frustrated theft," it
is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its execution and accomplishment are present." 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." Finally, it is
attempted "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."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the
crime included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime.31 After that point has been breached, the subjective
phase ends and the objective phase begins.32 It has been held that if the offender never passes the subjective
phase of the offense, the crime is merely attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies
on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission
of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each
crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a
crime is attempted only would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession
that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the
felony itself was actually produced by the acts of execution. The determination of whether the felony was "produced"
after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the
statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a
crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can
be no crime when the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in se,36
mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent,"37 and
"essential for criminal liability."38 It follows that the statutory definition of our mala in se crimes must be able to
supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on constitutionally protected rights."39 The criminal statute
must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the
language of the law expressly provide when the felony is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony,
a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For
example, the statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making it
clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are
spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but without violence
against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s
consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits
or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm
products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which
theft may be committed.41 In the present discussion, we need to concern ourselves only with the general definition
since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the
definition, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property
of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property belonging to
another against the will of the owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves)
the property of another."44 However, with the Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing."47 However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking48 or an intent to permanently
deprive the owner of the stolen property;49 or that there was no need for permanency in the taking or in its intent, as
the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there
was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment
petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure
motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the will of the perpetrator." There are clearly two determinative
factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of
the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code52 as
to when a particular felony is "not produced," despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly
is the felony of theft "produced." Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law — that theft is already "produced" upon the "tak[ing of]
personal property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom
House. At no time was the accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction."54 Based apparently on those two circumstances, the trial
court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was
decisive, and holding instead that the accused was guilty of consummated theft, finding that "all the elements of the
completed crime of theft are present."55 In support of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the
case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales
and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by
two guards who were stationed in another room near-by. The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of
the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in
all these cases had been able to obtain full possession of the personal property prior to their apprehension. The
interval between the commission of the acts of theft and the apprehension of the thieves did vary, from "sometime
later" in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the
theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman."58 In rejecting
the contention that only frustrated theft was established, the Court simply said, without further comment or
elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the
fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this
case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Diño and Flores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped
by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that
he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and
retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but
the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without further investigation or checking."60 This point was
deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that
"the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la
cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of
the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution had been performed, but before the
loot came under the final control and disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that
of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again
by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances [herein] and in [Diño]."64 Such conclusion is
borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company,
issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to
the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered
that the "empty" sea van had actually contained other merchandise as well.65 The accused was prosecuted for theft
qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of
Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed
out that there was no intervening act of spontaneous desistance on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of
frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance" between Diño and Flores then before
it. The prosecution in Flores had sought to distinguish that case from Diño, citing a "traditional ruling" which
unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its contents
at once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the van
were still within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same time, the
Court of Appeals conceded that "[t]his is entirely different from the case where a much less bulk and more common
thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect would have been had that alternative
circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether the crime of theft
was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Diño or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied
in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been
"free disposition," as in the case where the chattel involved was of "much less bulk and more common x x x, [such]
as money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the
stolen articles even if it were more or less momentary. Or as stated in another case[69 ], theft is consummated upon
the voluntary and malicious taking of property belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This
ruling seems to have been based on Viada’s opinion that in order the theft may be consummated, "es preciso que
se haga en circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states 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."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings.
People v. Batoon73 involved an accused who filled a container with gasoline from a petrol pump within view of a
police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court
found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Diño, the Court of
Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the
use or benefit that the thieves expected from the commission of the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony."77 Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated
theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself,
the question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As
we undertake this inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping
the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police.
After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only
two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence. They were not able to carry the
coconuts away from the plantation due to the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who
may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of
execution which should have produced the felon as a consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all the acts of execution," though not producing the felony
as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the
non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes
that the crime was frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the
crime was only attempted, especially given that the acts were not performed because of the timely arrival of the
owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such
passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required
no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot
see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also
by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious
argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.
V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place. The
definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los
artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the
Codigo Penal Español de 1995, the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is
not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps
was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal
de España. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually utilized by Viada to answer the question
whether frustrated or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa
ajena, viéndose sorprendido, la arroja al suelo."83 Even as the answer was as stated in Diño, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that decision’s factual predicate occasioning the
statement was apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón pointed out
the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro
que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervención de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos disponer
de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el culpale no
llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia
de frustración cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo
antes expuesto, son hurtos consumados.86

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la
disposición del agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente.
El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought that questioned whether
theft could truly be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la consumación
del hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the
acts necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us
to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court that there is no crime of
frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective,
as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that
theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of
statute or precedent that must compel us to adopt the Diño and Flores doctrines, the answer has to be in the
negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of
the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime,
and ordain its punishment.88 The courts cannot arrogate the power to introduce a new element of a crime which
was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in
Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To
restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation of persons or force upon things.90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latter’s consent. While the Diño/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.

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.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact
that the owners have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to freely dispose of
the stolen property frustrates the theft — would introduce a convenient defense for the accused which does not
reflect any legislated intent,95 since the Court would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the
number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the
manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility
or edibility of the stolen item would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in
such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has
been produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later
Flores was ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to
reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this
Court.

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.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
 G.R. No. 206442 July 1, 2015
JOVITO CANCERAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012 Decision1 and the
March 7, 2013 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified
the September 20, 2007 Judgment3 of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro City
(RTC), in Criminal Case No. 2003-141, convicting petitioner Jovito Canceran (Canceran) for consummated Theft.
The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was charged with
"Frustrated Theft." The Information reads:

That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery Department,
Lapasan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, Jovito Canceran, conspiring, confederating together and mutually helping one another with his co-accused
Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr., a Unilever Philippines merchandiser both of Ororama
Mega Center, with intent to gain and without the knowledge and consent of the owner thereof, did then and there
wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream valued at
₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus, performing all
the acts of execution which would produce the crime of theft as a consequence but, nevertheless, did not produce it
by reason of some cause independent of accused’s will, that is, they were discovered by the employees of Ororama
Mega Center who prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, to the
damage and prejudice of the Ororama Mega Center.

Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4

Version of the Prosecution

To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security guard; and
William Michael N. Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega Center (Ororama),as its
witnesses. Through their testimonies, the prosecution established that on or about October 6, 2002, Ompoc saw
Canceran approach one of the counters in Ororama; that Canceran was pushing a cart which contained two boxes
of Magic Flakes for which he paid ₱1,423.00; that Ompoc went to the packer and asked if the boxes had been
checked; that upon inspection by Ompoc and the packer, they found out that the contents of the two boxes were not
Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that Canceran
hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Canceran stumbled as he attempted to
ride a jeepney; that after being questioned, he tried to settle with the guards and even offered his personal effects to
pay for the items he tried to take; that Arcenio refused to settle; and that his personal belongings were deposited in
the office of Arcenio.

Version of the Defense

Canceran vehemently denied the charges against him. He claimed that he was a promo merchandiser of La
Tondeña, Inc. and that on October 6, 2002, he was in Ororama to buy medicinefor his wife. On his way out, after
buying medicine and mineral water, a male person ofaround 20 years of age requested him to pay for the items in
his cart at the cashier; that he did not know the name of this man who gavehim ₱1,440.00 for payment of two boxes
labelled Magic Flakes; that he obliged with the request of the unnamed person because he was struck by his
conscience; that he denied knowing the contents of the said two boxes; that after paying at the cashier, he went out
of Ororama towards Limketkai to take a jeepney; that three persons ran after him, and he was caught; that he was
brought to the 4th floor of Ororama, where he was mauled and kicked by one of those who chased him; that they
took his Nokia 5110 cellular phone and cash amounting to ₱2,500.00; and that Ompoc took his Seiko watch and
ring, while a certain Amion took his necklace.6
Canceran further claimed that an earlier Information for theft was already filed on October 9,2002 which was
eventually dismissed. In January 2003, a second Information was filed for the same offense over the same incident
and became the subject of the present case.7

The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable doubt of
consummated Theft in line with the ruling of the Court in Valenzuela v. People8 that under Article 308 of the Revised
Penal Code (RPC),there is no crime of "Frustrated Theft." Canceran was sentenced to suffer the indeterminate
penalty of imprisonment from ten (10) years and one (1) day to ten (10) years, eight (8) months of prision mayor, as
minimum, to fourteen (14) years, eight (8) months of reclusion temporal, as maximum.9

The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported by sufficient and
convincing evidence and no disinterested witness was presented to corroborate his claims. As such, his denial was
considered self-serving and deserved no weight. The trial court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge Maximo Paderanga was already dismissed, was not
persuasive. The dismissal was merely a release order signed by the Clerk of Court because he had posted bail.

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time. The CA held
that there could be no double jeopardy because he never entered a valid plea and so the first jeopardy never
attached.11

The CA also debunked Canceran’s contention that there was no taking because he merely pushed the cart loaded
with goods to the cashier’s booth for payment and stopped there. The appellate court held that unlawful taking was
deemed complete from the moment the offender gained possession of the thing, even if he had no opportunity to
dispose of the same.12

The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the penalty ranging from
two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years, eight (8)
months and one (1) day of prision mayor, as maximum. Canceran moved for the reconsideration of the said
decision, but his motion was denied by the CA in its March 7, 2013 resolution.

Hence, this petition.

As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether Canceran
should be acquitted in the crime of theft as it was not charged in the information; and 2] whether there was double
jeopardy.

Canceran argues that the CA erred in affirming his conviction. He insists that there was already double jeopardy as
the first criminal case for theft was already dismissed and yet he was convicted in the second case. Canceran also
contends that there was no taking of the Ponds cream considering that "the information in Criminal Case No. 2003-
141 admits the act of the petitioner did not produce the crime of theft."13 Thus, absent the element of taking, the
felony of theft was never proved.

In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double jeopardy as the first
jeopardy never attached. The trial court dismissed the case even before Canceran could enter a plea during the
scheduled arraignment for the first case. Further, the prosecution proved that all the elements of theft were present
in this case.

In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was already
bonded and ready to enter a plea. It was the RTC who decided that the evidence was insufficient or the evidence
lacked the element to constitute the crime of theft. He also stressed that there was no unlawful taking as the items
were assessed and paid for.
The Court's Ruling

The Court finds the petition partially meritorious.

Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.

No less than the Constitution guarantees the right of every person accused in a criminal prosecution to be informed
of the nature and cause of accusation against him.16 It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information. The main purpose of requiring the various elements of a
crime to be set out in the information is to enable the accused to suitably prepare his defense. He is presumed to
have no independent knowledge of the facts that constitute the offense.17

Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property; (2) the property
belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the
consent of the owner; and (5) the taking away is accomplished without violence or intimidation against person or
force upon things. "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."18

"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."19

A careful reading of the allegations in the Information would show that Canceran was charged with "Frustrated
Theft" only. Pertinent parts of the Information read:

x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White
Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N.
Arcenio, thus performing all the acts of execution which would produce the crime of theft as a consequence, but
nevertheless, did not produce it by reason of some cause independent of accused’s will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge Canceran of
consummated Theft because the indictment itself stated that the crime was never produced. Instead, the Information
should be construed to mean that Canceran was being charged with theft in its attempted stage only. Necessarily,
Canceran may only be convicted of the lesser crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the complaint or
information and on which he was tried. It matters not how conclusive and convincing the evidence of guilt may be,
an accused cannot be convicted in the courts of any offense, unless it is charged in the complaint or information on
which he is tried, or necessarily included therein. He has a right to be informed as to the nature of the offense with
which he is charged before he is put on trial, and to convict him of an offense higher than that charged in the
complaint or information on which he is tried would be an unauthorized denial of that right."20 Indeed, an accused
cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information
filed against him.21 An offense charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information, constitute the latter.22

The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage. In this case,
although the evidence presented during the trial prove the crime of consummated Theft, he could be convicted of
Attempted Theft only. Regardless of the overwhelming evidence to convict him for consummated Theft, because the
Information did not charge him with consummated Theft, the Court cannot do so as the same would violate his right
to be informed of the nature and cause of the allegations against him, as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption
or preamble of the information nor from the specification of the law alleged to have been violated – these being
conclusions of law – but by the actual recital of facts in the complaint or information."23 In the case of Domingo v.
Rayala,24 it was written:

What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or
part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of
the crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged in
such form as is sufficient to enable a person of common understanding to know what offense is intended to be
charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does
not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in
the information. What facts and circumstances are necessary to be included therein must be determined by
reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to
suitably prepare his defense.25

In the subject information, the designation of the prosecutor of the offense, which was "Frustrated Theft," may be
just his conclusion. Nevertheless, the fact remains that the charge was qualified by the additional allegation, "but,
nevertheless, did not produce it by reason of some cause independent of accused’s will, that is, they were
discovered by the employees of Ororama Mega Center who prevented them from further carrying away said 14
cartons of Ponds White Beauty Cream, x x x.26 This averment, which could also be deemed by some as a mere
conclusion, rendered the charge nebulous. There being an uncertainty, the Court resolves the doubt in favor of the
accused, Canceran, and holds that he was not properly informed that the charge against him was consummated
theft.

No double jeopardy when

the first jeopardy never
attached

Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.

No person shall be twice put in jeopardy for punishment for the same offense. The rule of double jeopardy has a
settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is
terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter
cannot again be charged with the same or identical offense. This principle is founded upon the law of reason, justice
and conscience.27

Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and he, already
bonded, was ready to enter a plea. It was the RTC who decided that there was insufficient evidence to constitute the
crime of theft.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached
prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be
for the same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the accused.28

Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the RTC.1âwphi1
Even assuming that he was able to raise the issue of double jeopardy earlier, the same must still fail because legal
jeopardy did not attach. First, he never entered a valid plea. He himself admitted that he was just about to enter a
plea, but the first case was dismissed even before he was able to do so. Second, there was no unconditional
dismissal of the complaint. The case was not terminated by reason of acquittal nor conviction but simply because he
posted bail. Absent these two elements, there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and medium periods.29 The penalty lower by
two degrees than that prescribed by law for the consummated felony shall be imposed upon principals in an attempt
to commit a felony.30 The basis for reduction of penalty by two degrees is the penalty prescribed by law for the
consummated crime. Also, when the offenses defined in the RPC are punished with a penalty composed of two
periods, like in the crime of theft, the penalty lower by one degree is formed by two periods to be taken from the
same penalty prescribed.31

Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the penalty shall be the
maximum period of the penalty prescribed in. the same paragraph, because the value of the things stolen exceeded
₱22,000.00. In other words, a special aggravating circumstance shall affect the imposable penalty.

Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of Arresto Mayor
Minimum to Arresto Mayor Medium. In view of the special aggravating circumstance under Article 309 (1), the
maximum penalty should be Arresto Mayor Maximum to Prision Correccional Minimum in its maximum period.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March 7, 2013
Resolution of the Court of Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds
accused Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted Theft.

Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from Four (4) Months
of Arresto Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision Correccional, as maximum.

SO ORDERED.
 G.R. No. 188979 September 5, 2012
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.
DECISION
BRION, J.:

This is an appeal from the June 15, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 02759.
TheCA affirmed the February 22, 2007 decision2

of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant Christopher Pareja guilty
beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua.

THE CASE

The prosecution charged the appellant before the RTC with the crime of rape under an Amended Information that
reads:

That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously lie and have
carnal knowledge of AAA,3 13 years of age, sister of the common law spouse of accused, against her will and
consent, thus debasing and/or demeaning the intrinsic worth and dignity of the victim thereby prejudicing her normal
development as a child.4

The evidence for the prosecution disclosed that 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.5 AAA cried, but the appellant covered her and BBB with a blanket.6 The appellant removed AAA’s
clothes, short pants, and underwear; he then took off his short pants and briefs.7 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.8 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.9 AAA covered herself with a blanket and
cried.10

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.11 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.13 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.15 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, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY beyond reasonable doubt
of the crime of RAPE and hereby sentences him as he is hereby sentenced to suffer the penalty of reclusion
perpetua; and to indemnify the victim, AAA, the amount of ₱ 50,000.00 as moral damages and ₱ 50,000.00 as civil
indemnity.

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.18

In his brief,19 the appellant argued that the lower courts erred in convicting him for the crime of rape, as the
prosecution failed to prove even the slightest penetration of his penis into the victim’s vagina. He added that the
victim’s testimony was incredible and contrary to human experience.

THE COURT’S RULING

We find that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt of the crime of
consummated rape. 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.20 "Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily
connections with a woman."21 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.

In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:

FISCAL TRONCO:

Q: You said that the three of you then was (sic) sleeping on the floor, what is it that happened on that particular
day and time that is unusual?
A: It was like somebody was embracing me or hugging me, ma’am.
Q: When you felt that some (sic) is embracing and hugging you, what did you do?
A: I didn’t mind it because I thought that the person beside me just moved and when he made the movement, it’s
like that I was embraced, ma’am.
Q: Whom are you referring to?
A: My brother-in-law, ma’am.
Q: And after that, what else happened, if any, AAA?
A: Before that happened, my nephew cried and so I picked him up and put him on my chest and after a while, I
slept again and brought him down again and then "dumapa po ako" and I felt that somebody was kissing my nape,
ma’am.
Q: Were you able to see who was that somebody kissing your nape?
A: When I tried to evade, I looked on my side where the room was not that dark that I could not see the person
and so, I saw that it was my brother-in-law, ma’am.
xxxx
Q: When you saw that it was your brother-in-law kissing your nape while you were on a prone position, what else
happened, if any?
A: He kissed my neck, ma’am.
Q: What was your position while he was kissing your neck?
A: I was on my side at that time and I was also crying, ma’am.
xxxx
Q: Why were you crying at that time while he was kissing your neck?
A: I was afraid of what will happen next, ma’am.
Q: Aside from that incident that he was kissing your neck, was there any other previous incident that happened?
A: Yes, ma’am.
xxxx
Q: What incident was that?
A: At that time, my brother-in-law covered me and my nephew with a blanket and he tried to get my clothes off,
ma’am.
Q: When did this happen, AAA?
A: Also on said date, ma’am.
Q: You said that he covered you and your nephew with a blanket and then taking (sic) off your clothes?
A: Yes, ma’am.
xxxx
Q: Was he able to take off your clothes?
A: Yes, ma’am.
Q: What particular clothing was he able to take off?
A: My short pants and underwear, ma’am.
Q: While he was taking off your short pants and your underwear, what did you do, if any?
A: I tried to fight him off, ma’am.
xxxx
Q: You said that he was trying to take off your clothes and undergarments, what was your position at that time?
A: I was lying down, ma’am.
Q: What about him?
A: He was on my lap, ma’am.
xxxx
Q: You said that you saw him take off his short pants?
A: Yes, ma’am.
xxxx
Q: Did he also take off his brief?
A: Yes, ma’am.
xxxx
Q: And after that what happened, AAA?
A: After removing his undergarments, he suddenly brought his body on top of me and he held my hands. At that
time I was crying and still resisting and then he was trying to get my legs apart. I was still resisting at that time, and
at some point in time I felt weak and he was able to part my legs, ma’am.
Q: Could you please tell us how did (sic) he able to part your legs?
A: He did that with his legs while he was holding my hands, ma’am.
Q: And when he was able to part your legs, what happened next?
A: He tried to insert his sexual organ but he was not able to do so, ma’am.
Q: How did you know that he was trying to insert his sexual organ?
A: "Naidikit po niya sa ari ko."
Q: Which part of your body was he able to touch his sexual organ? (sic)
A: On my sexual organ, ma’am.
xxxx
Q: You mentioned earlier that he was not able to penetrate your private part, AAA?
A: Yes, ma’am.
Q: So, what happened after that?
A: I cried and then while I was resisting, I hit my wrist on the wall and my wrist was "nagasgas," ma’am.
xxxx
Q: And were you able to successfully resist?
A: Yes, ma’am, I was able to kicked (sic) his upper thigh, ma’am.23 (italics supplied; emphasis ours)
From the foregoing, 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 Salaysay24 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,25 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.26 (italics supplied)

Simply put, "rape is consummated by the slightest penile penetration of the labia majora or pudendum of the female
organ."27 Without any showing of such penetration, there can be no consummated rape; at most, it can only be
attempted rape [or] acts of lasciviousness."28
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,29 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,30 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,31 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,32 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,34 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,35 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. Monteron36 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,37 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.,38 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,39 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,40 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,41 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."42 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.

The Proper Penalty and Indemnities

Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape is two degrees lower than the
prescribed penalty of reclusion perpetua for consummated rape. Two degrees lower from reclusion perpetua is
prision mayor whose range is six (6) years and one (1) day to 12 years. Without any attendant aggravating or
mitigating circumstances and applying the Indeterminate Sentence Law, the maximum of the penalty to be imposed
upon the appellant is prision mayor in its medium period, while the minimum shall be taken from the penalty next
lower in degree, which is prision correccional whose range is six (6) months and one (1) day to six (6) years, in any
of its periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of six (6) years of prision
correccional, as minimum, to 10 years of prision mayor, as maximum.

In addition, we order the appellant to pay the victim ₱ 30,000.00 as civil indemnity, ₱ 25,000.00 as moral damages
and ₱ 10,000.00 as exemplary damages, in accordance with prevailing jurisprudence on attempted rape cases.

WHEREFORE, premises considered, the June 15, 2009 decision of the Court of Appeals in CA-G.R. CR HC No.
02759 is MODIFIED, as follows:

The appellant's conviction for the crime of rape is VACATED, and

(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime of ATTEMPTED RAPE;
(2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of prision correccional, as minimum, to 10
years of prision mayor, as maximum; and
(3) we ORDER him to PAY the victim the amounts of ₱ 30,000.00 as civil indemnity; ₱ 25,000.00 as moral damages;
and ₱ 10,000.00 as exemplary damages.

SO ORDERED.
 G.R. No. 166441 October 8, 2014
NORBERTO CRUZ y BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:

The intent of the offender to lie with the female defines the distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not.
Only the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top
of a naked female does not constitute attempted rape without proof of his erectile penis being in a position to
penetrate the female's vagina.

The Case

This appeal examines the decision promulgated on July 26, 2004,1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC),
and imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages
of ₱20,000.00 to AAA,2 the victim.

Antecedents

The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2388

Attempted Rape

That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna
Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by
means of force and intimidation commenced the commission ofrape directly byovert acts, to wit: While private
complainant AAA, an unmarried woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road,
the said accused remove her panty and underwear and lay on top of said AAA embracing and touching her vagina
and breast with intent of having carnal knowledge of her by means of force, and if the accused did not accomplish
his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but
because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and
prejudice of said offended party.

CONTRARY TO LAW.

Criminal Case No. 2389

Acts of Lasciviousness

That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the Bangar-Luna
Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully,
unlawfully and feloniously touch the vagina of [BBB]4 against the latter’s will and with no other purpose but to satisfy
his lascivious desire to the damage and prejudice of said offended party.

CONTRARY TO LAW.

Version of the Prosecution

The CA summarized the version of the Prosecution as follows:

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and
glass wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed
AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From
Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by
Norberto. The young girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the
name of "Jess".

Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of
Maroon enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they
will have a place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold.

On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less thanan 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 totell the incident to
her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (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 wereshaking. When she finally entered the tent, Norberto left and went outside.

Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they
were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building.
An old woman pointed to them the place.

In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman
by the name of "Sabas".

They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station
where he personally confronted his accusers. When Norberto’s wife, Belinda, arrived at the police station, an
argument ensued between them.

On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the complainants to
return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and
worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.

On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against
Norberto.

Version of the Defense

The petitioner denied the criminal acts imputed to him. His version was presented in the assailed decision of the
CA,7 as follows:

In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused
maintains 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.
Judgment of the RTC

After the joint trial of the two criminal cases, 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. 2389,8 to wit:

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO
CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF
LASCIVIOUSNESS as defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of
the Revised Penal Code respectively. With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences
the accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS
PRISION CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory
penalties provided for by law and to pay the victim AAA the amount of ₱20,000.00 as moral damages.

With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties provided for
by law, and to pay the victim BBBthe amount of ₱10,000.00 as moral damages.

The preventive imprisonment suffered by the accused by reason of the two cases is counted in his favor.

SO ORDERED.

Decision of the CA

On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape despite the
dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify.

On July 26, 2004, 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,10 holding thusly:
In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even slightly, the
overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned.

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two (2)
degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it had been
consummated would have been reclusion perpetuapursuant to Article 335 of the Revised Penalty Code, as
amended by Republic Act No. 7659. The penalty two degrees lower than reclusion perpetuais prision mayor.

Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period of prision
mayorin the absence of any mitigating or aggravating circumstance and the minimum shall be within the range of
the penalty nextlower to that prescribed for the offense which in this case is prision correccionalin any of its periods.

We also find that the trial court correctly assessed the amount of ₱20,000.00 by way of moral damages against the
accused-appellant. In a rape case, moral damages may be awarded without the need of proof or pleading since it is
assumed that the private complainant suffered moral injuries, more so, when the victim is aged 13 to 19.

Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify and neither her sworn statement was formally offered in
evidence to support the charge for acts of lasciviousness.

In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of acts of
lasciviousness against the accusedappellant. The basis of the complaint for acts of lasciviousness is the sworn
statement of BBB to the effectthat the accused-appellant likewise molested her by mashing her breast and touching
her private part. However, she was not presented to testify. While AAA claims that she personally saw the accused
touching the private parts of BBB, there was no testimony to the effect that suchlascivious acts were without the
consent or against the will of BBB.

Issues

In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with jurisprudence,
particularly:

I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner beyond
reasonable doubt.

Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA still continued
working for him and his wife until December 30, 1994 despite the alleged attempted rape in the early morning of
December 21, 1994, thereby belying his commission of the crime against her; that he could not have undressed her
without rousing her if she had gone to sleep only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they struggled was also inconceivable unless
she either consented to his act and yielded to his lust, or the incident did not happen at all, being the product only of
her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to
penetrate her; and that she and her mother demanded from him ₱80,000.00 as settlement, under threat that she
would file a case against him.

On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that cast doubt on her
veracity.

Ruling of the Court

The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only questions of law. No review of the
findings of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest respect for the
factual findings of the trial court, its assessment of the credibility of witnesses and the probative weight of their
testimonies and the conclusions drawn from its factual findings, particularly when they are affirmed by the CA.
Judicial experience has shown, indeed, that the trial courts are in the best position to decideissues of credibility of
witnesses, having themselves heard and seen the witnesses and observed firsthand their demeanor and
deportment and the manner of testifying under exacting examination. As such, the contentionsof the petitioner on
the credibility of AAA as a witness for the State cannot beentertained. He thereby raises questions of fact that are
outside the scope of this appeal. Moreover, he thereby proposes to have the Court, which is not a trier of facts,
review the entire evidence adduced by the Prosecution and the Defense.

Conformably with this limitation, our review focuses only on determining the question of law of whether or not the
petitioner’s climbing on top of the undressed AAA such thatthey faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge
ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the
said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting
the criminal attempt of said accused to the damage and prejudice of said offended party."

There is an attempt, according to Article 6 of the Revised Penal Code, 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 this own spontaneous desistance. In People v.
Lamahang,14 the Court, speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt
acts would constitute anattempted felony, to wit:

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation 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. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the
logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into
one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if
carried 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. x x x x.

"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting,
the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the
nature of the acts of execution (accion medio). Hence, the necessity that these acts be such that by their very
nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime.
Acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent
aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes.
The relation existing between the facts submitted for appreciation and the offense of which said facts are supposed
to produce must be direct; the intention must be ascertainedfrom the facts and therefore it is necessary, in order to
avoid regrettable instance of injustice, that the mind be able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order
for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to
say, that the acts performed must be such that, withoutthe intent to commit an offense, they would be meaningless."

To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law
on rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was
Article 335 of the Revised Penal Code, which pertinently provided as follows:

Article335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under
any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived ofreason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.

xxxx

The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge isdefined simply as
"theact of a man having sexual bodily connections with a woman,"16 which explains why the slightest penetration of
the female genitalia consummates the rape. In other words, rape is consummated once the peniscapable of
consummating the sexual act touches the external genitalia of the female.17 In People v. Campuhan,18 the Court
has defined the extent of "touching" by the penis in rape in the following terms:

[T]ouching 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 indeedtouched 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" bythe penis, are by their natural situsor location beneath the mons
pubisor 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 pudendumor vulvais 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 pubisis the
rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the
labia majoraor 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 majorais the labia minora.
Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. xxxx Thus, a grazing of the surface of the female organ or touching
the mons pubisof 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 pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]

It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v. Eriñia20 whereby the
offender was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital
organ of the offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving
case law on rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the
requisites of a frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all
the acts of execution which would produce the felony; and (2) that the felony is not produced due to causes
independent of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal
knowledge of his victim, because from that moment all the essential elements of the offense have been
accomplished, leaving nothing more to be done by him.

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt actsfor purposes of
the attempted stage has been explained in People v. Lizada:

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. The raison d’etrefor the law requiring a direct overtact 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.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." 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. In the words of Viada, the overt acts
must have an immediate and necessary relation to the offense. (Bold emphasis supplied)

In attempted rape, therefore, 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 actswithout 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 withoutsuch 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 criminalintent 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.:25 "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 thatrape, 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 rapehad 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 Codefor 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.

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’sintent 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.

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is consummated whenthe
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 ofreason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age.32 In that regard, lewdis 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.

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 actdescribed," 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."

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and one day to four (4) years and two (2) months. Applying
the Indeterminate Sentence Law, the minimum of the penalty should come from arresto mayor, the penalty next
lower than prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity by his
lewdness.1âwphi1 "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for
omission." Indeed, Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that end, the Court, upon its appreciation of the record,
decrees that ₱30,000.00 is a reasonable award of moral damages.38 In addition, AAA was entitled to recover civil
indemnity of ₱20,000.00.

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a part of the
damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full payment.

WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS
OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3)
months of arresto mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as
the maximum; ORDERS him to pay moral damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the
complainant, with interest of 6% per annum on such awards reckoned from the finality of this decision until full
payment; and DIRECTS him to pay the costs of suit.

SO ORDERED.