People vs.

Pancho (November 27, 2003)

For Criminal Case No. 837-M-96 (For Rape)

"That in or about the month of August, 1994, in the municipality of Malolos, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully
and feloniously, by means of force, threats and intimidation and with lewd designs, have carnal knowledge of said
Michelle L. dela Torre, 11 years of age, against her will and without her consent.

 On August 1, 1994, at around 6:00 o’clock in the morning, Michelle, who was then only ten years old, went
home after spending the night at her aunt’s house. While she was about to undress, appellant suddenly
dragged her and forced her to lie down on the floor. Although frightened, she struggled by kicking and
boxing him. However, he forcibly removed her clothes and underwear. Then he took off his clothing.
Appellant started kissing and holding her breast and eventually had carnal knowledge of her. She felt pain
when he inserted his organ into her vagina which bled. She tried to resist but he held her both arms. He was
on top of her making push and pull movements for four (4) minutes. Then he dressed up, threatening to kill
her should she complain or tell anyone about the incident.
 Appellant heavily relies on the virgo intacta theory. 19 He disregards Dr. Daniel’s testimony that there are
two types of hymen: (1) one that remains intact even though there is penetration; (2) the other is lacerated
after penetration. 20 We have ruled that in rape cases the absence of fresh lacerations does not preclude
the finding of rape, 21 especially when the victim is of tender age. 22 Moreover, laceration of the hymen is
not an element of the crime of rape. 23 Hymenal rupture or any indication of vaginal laceration or genital
injury is not necessary for the consummation of rape. 24 Its absence does not negate a finding of forced
sexual coitus. 25 For the rule is well settled that rape is consummated by the slightest penile penetration of
the labia majora or pudendum of the female organ. 26 Indeed, the evidentiary weight of the medical
examination of the victim, as well as the medical certificate, is merely corroborative in character and is not
an indispensable element for conviction for rape. 27
 17 It bears stressing that Michelle, a girl of tender years, innocent and guileless, cannot be expected to
brazenly impute a crime so serious as rape to her step-father if it were not true.

For Criminal Case No. 838-M-96 (For Attempted Rape):

"That in or about the month of December, 1995, in the municipality of Malolos, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously, by means of force, threats and intimidation and with lewd designs, have carnal knowledge of said
Michelle L. dela Torre, 11 years of age, against her will and without her consent.

 Sometime in December, 1995 at the family’s new residence at Bayugo, Meycauayan, Bulacan, appellant
arrived from work. When Michelle opened the door and saw him, she got scared. While he was approaching
her, she managed to hit him. Then she attempted to jump out of the window, but he dragged her by her
feet. At that instance, her uncle (Tito Onio) suddenly arrived. Immediately, appellant stopped, thus
thwarting his bestial desire.
 In the instant case, appellant was merely holding complainant’s feet when her Tito Onio arrived. Thus, it
would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is
attempted rape.
 There is no attempted rape in this case because the accused just dragged the victim and held her feet,
which are not indicative of an intent or attempt to rape the victim.

After sometime, Michelle mustered enough courage to report the incidents to her mother, but the latter casually
ignored her. So, she turned to her grandmother Natividad Lacanilao, who brought her, sometime in February, 1996,
to the National Bureau of Investigation (NBI) for examination by a medico-legal officer.

WHEREFORE, the Decision dated June 19, 1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, in Criminal
Case No. 837-M-96, convicting appellant Manolito Pancho of rape and sentencing him to suffer the penalty of
reclusion perpetua is AFFIRMED, with the MODIFICATION that he is ordered to pay the victim, Michelle dela Torre,
P50,000.00 as civil indemnity, and P50,000.00 as moral damages.

In Criminal Case No. 838-M-96, the trial court’s judgment convicting the appellant of attempted rape is REVERSED
AND SET ASIDE and a new one is entered ACQUITTING him of the crime charged.

People vs. Lamahang (91 Phil 703)

 Attempted or not

Attempted trespass

The accused Aurelio Lamahang was caught by policeman Jose Tomambing in the act of making an opening with an
iron bar on the wall of a store, and succeeded in breaking one board and in unfastening another from the wall. The
crime committed was not attempted robbery but only attempted trespass to dwelling, since based on the facts
established, his intention was to enter by means of force into the said store against the will of its owner.

 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.
 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.
 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:
 Under article 280 of the Revised Penal Code, the 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

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.
 US v. Eduave (36 Phil. 209, February 2, 1917)

FACTS:

Defendant Protasio Eduave is the querido of the victim’s mother. Eduave attacked the victim from behind using a
bolo creating a gash 8 1/2 inches long and 2 inches deep because the latter accused defendant of having commiting
rape against said victim. Upon thinking that he has already killed the victim, he threw the body into the bushes and
left.

ISSUE/S:

What is the crime committed by Eduave?

HELD:

Accused is guilty of frustrated murder. The fact that Eduave attacked the victim from behind, in a vital portion of the
body, shows treachery qualifying it as murder. The crime was not consummated because the elements of the crime’s
execution and accomplishment were not complete as the victim did not die. Neither was the crime an attempted
one because the accused’s actions has already passed the subjective phase, that is, there was no external force
preventing defendant from performing all the acts of execution necessary to commit the felony. Consequently, the
victim did not die because an external element has prevented such death after Eduave has performed all the
necessary acts of execution that would have caused the death of the victim.

 The motive of the crime was that the accused was incensed at the girl for the reason that she had
theretofore charged him criminally before the local officials with having raped her and with being the cause
of her pregnancy. He was her mother’s querido and was living with her as such at the time the crime here
charged was committed.
 An attempted felony is defined thus: "There is an attempt when the offender commences the commission of
the felony directly by overt acts, and does not perform all the acts of execution which constitute the felony
by reason of some cause or accident other than his own voluntarily desistance."
 The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the
acts which should have resulted in the consummated crime and voluntarily desisted from further acts. A
crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should
produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted
by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the commission of the crime and the moment when
all of the acts have been performed which should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by same cause apart from his from his voluntary
desistance.
 To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense.
he is interrupted and compelled to desist by the intervention of outside causes before the subjective phase
is passed.On the other hand, in case of frustrated crimes the subjective phase is completely passed.
Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by reason of the intervention of causes
independent of the will of the offender. he did all that was necessary to commit the crime. If the crime did
not result as a consequence it was due to something beyond his control.
 Valenzuela vs. People (525 SCRA 306, June 21, 2007)
Consummated Theft

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.

The elements of theft as provided for in Art. 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.

Doctrine: 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.

FACTS: Sometime in May 1994, petitioner and Jovy Calderon were sighted outside SM North EDSA by security
guard Lorenzo Lago, unloading cases of detergent Tide Ultramatic on an open parking space. Minutes later,
petitioner loaded the cartons of detergent while Calderon was looking into a taxi and procedeed to leave the
parking area. Lago stopped the cab, checked the cartons, and asked for a receipt but Valezuela and Calderon
reacted a fled on foot. The same were apprehended on the scene and the stolen merchandise recovered was
worth P12,090.

The two pleaded not guilty. Valenzuela said that he was with a friend to buy snacks when they heard a gunshot fired
by Lago. Calderon, on the other hand, said that he was with his cousin when he heard a gunshot fired by Lago that
caused everyone to flee on the viscinity.

RTC convicted the appellants guilty of consumated theft. CA affirmed. Petitioner contends that he was only guilty of
frustrated theft since at the time he was apprefended, he was never placed in a position to freely dispose the articles
stolen.
s 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.

ISSUE: WON Valenzuela is guilty of consumated theft.

RULING: YES.

The crime is consummated. 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. There was no need
of an intent to permanently deprive the owner of his property to constitute an unlawful taking.

So long as the descriptive circumstances that qualify the taking are present, 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.

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.
JOVITO CANCERAN v. PEOPLE, GR No. 206442, 2015-07-01

Topic: Double Jeopardy

Facts:

In an Information, Jovito Canceran was accused of frustrated theft for allegedly stealing 14 cartons of Pond’s White
Beauty Cream valued at P28,627.20, belonging to Ororama Mega Center. Having performed 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 the items.

Canceran 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.

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.”
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 affirmed with modification the September 20, 2007 judgment of the RTC.

Issues:

1] Whether Canceran should be acquitted in the crime of theft as it was not charged in the information;

2] Whether there was double jeopardy.

Ruling:

1. 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, however, 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 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 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 Pond’s 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.

2. No double jeopardy when the first jeopardy never attached

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

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. 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.
 People vs. Orita ART. 6: STAGES OF EXECUTION

Complainant Cristina S. Abayan was a 19‐year old freshman student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.

…somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of
another boarder. She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to
the second floor. With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs. When they reached the second floor, he commanded her to look for a
room. With the Batangas knife still poked to her neck, they entered complainant's room. Upon entering the room,
appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed
himself. He then ordered complainant to take off her clothes. Scared, she took off her T‐shirt. Then he pulled off her
bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold
his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p.
23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part
again of his penis was inserted into her vagina.

At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid) Accused
pled not guilty but the trial court found and convicted the accused of frustrated rape.

In his appeal, the accused assigns the following errors:

1.) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and

2.) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

ISSUE: WON the accused's conviction for frustrated rape is proper. i.e.,

WON the frustrated stage applies to the crime of rape.

RULING:

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains
his purpose and, from that moment also all the essential elements of the offense have been accomplished.
Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the
crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez,
49 Phil. 980; People v. Royeras, G.R. No. L‐31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L‐32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential.

Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53
Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed.

The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable
how the frustrated stage in rape can ever be committed.

Decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape. Of course, we are aware of our earlier pronouncement in the case of
People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion
that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the
law‐making body to include the crime of frustrated rape in the amendments introduced by said laws.
 People vs. Eriña (50 Phil 998)

50 Phil. 998

OSTRAND, J.:

Frustrated rape

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the crime of
consummated rape and sentencing him to suffer seventeen years, four months and one day of reclusion temporal,
with the accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of the mother and the sister of the child.
The physician who examined the genital organ of the child a few hours after the commission of the crime found a
slight inflammation of the exterior parts of the organ, indicating that an,effort had been made to enter the vagina,
but in testifying before the court he expressed doubts as to whether the entry had been effected. The mother of
the child testified that she found its genital organ covered with a sticky substance, but that cannot be considered
conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that, therefore, the offense committed should be treated only
as abusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but
such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the
labia. In the case of Kenney vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party
was a child of the age of 3 years and 8 months, the testimony of several physicians was to the effect that the labia of
the privates of a child of that age can be entered by a man's male organ to the hymen and the defendant was found
guilty of the consummated crime of rape.

There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is
entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he
was living in the house of the parents of the child as their guest, the aggravating circumstance of abuse of
confidence existed and the penalty must therefore be imposed in its maximum degree.

The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of
frustrated rape,and is sentenced to suffer twelve years of prision mayor, with the accessory penalties prescribed by
law, and with the costs in both instances. So ordered.

People vs. Arnulfo Chavez Orande

Consummated Rape
Thus, it is consummated rape. Also, perfect penetration is not essential in consummating rape, mere or any
penetration of the female organ by the male organ is sufficient.

Facts:

Jessica Castro charged the plaintiff Arnulfo Orande for raping her four times between 1994 to 1996 while the
former was still a minor (between 9-12 years old). The complainant contends that all were executed by means of
threat and intimidation, threatening her of feat if she resists. RTC convicted Orande two counts of simple rape, one
statutory and one frustrated. The accused appealed that the court had a grave error on convicting him of frustrated
rape despite the fact that there is no such crime.

Issue:

WON there is a crime of frustrated rape?

Ruling:

The court said no, there is no crime of frustrated rape. In People vs. Orita, it was reiterated that in the crime
of rape, the moment the offender has carnal knowledge of his victim, he actually attains his purpose and from that
moment, all the elements of the crime is consummated. Since the offender has performed the last act necessary to
the crime, there is nothing more left to be done by the offender. Thus, it is consummated rape. Also, perfect
penetration is not essential in consummating rape, mere or any penetration of the female organ by the male
organ is sufficient. Necessarily, when there is no penetration of the female organ, the rape is considered attempted
because not all acts of execution was performed. Considering all the elements and manner of execution of the crime
of rape and all jurisprudence on the mater, it is hardly conceivable how the frustrated stage can be committed.
WHEREFORE, the court ruled that the RTC commited an error on convicting Orande the crime of frustrated rape, for
in fact, the rape was consummated. Hence, Orande should be found guilty of consummated rape rather that
frustrated

PEOPLE OF THE PHILIPPINES vs REGIE LABIAGA (G.R. No. 202867, July 15, 2013)

Attempted Murder

Laws Applicable: RPC Art. 6

Ponente: Justice Antonio Carpio

Doctrine: In frustrated murder, there must be evidence showing that the wound would have been fatal were it not
for timely medical intervention. 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 Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder

FACTS: Sometime in December of 2003 in Iloilo, accused Regie Labiaga (Regie) and three others conspired,
confederated and helped one another, with an unlicensed firegun, willfully and unlawfully shot Judy Conde (Jojo) in
different parts of her breast whiched caused her death thereafter. The same individuals also conspired to kill
Gregorio Condea and later succeeded.

Appellant said that the shooting of Conde was an act of self-defense Conde challenged him to a gunfight. RTC ruled
out his defense.

RTC convicted the appelant of murder adn frustrated murder. CA affirmed the decision with modifications as to civil
indemnities.

ISSUE: WON Regie is guilty of frustrated murder.

RULING: NO. In frustrated murder, there must be evidence showing that the wound would have been fatal were it
not for timely medical intervention. 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. 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:

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.