Republic of the Philippines

NATIONAL PROSECUTION SERVICE

OFFICE OF THE CITY PROSECUTOR
Legazpi City

AAA

Complainants,

V-02-INV-21J-00123

For: RAPE and FRUSTRATED MURDER

-versus-

HARRY OSBORN,

Respondent.

X------------------------------------------------x

RESOLUTION

The Respondent, HARRY OSBORN, was charged of the crimes

of RAPE and FRUSTRATED MURDER in a complaint filed by herein
complainants, GWEN STACEY, a minor represented by her father,
GEORGE STACEY.

In support of her complaint, the herein complainants attached

the following documents:

1. Complaint Affidavit of Gwen Stacey;

2. Affidavit of George Stacey;
3. Affidavit of Ned Leeds;
4. Affidavit of Brgy. Captain Flint Marco;
5. Medical Certificate/Report of Dr. Otto Octavius;
6. Police Record of Events and others.

As his counter, the respondent attached the following

documents to support his denial of the allegations against him:

1. Counter-Affidavit of Harry Osborn;

2. Affidavit of Ben Parker.

Statement of Facts
 Based on the investigation conducted by the Police
Investigator, Police Chief Inspector Peter Parker, the facts of the
case are stated hereunder:

That on or about the 17th day of June 2012, at

around 2:00 in the afternoon more or less in Brgy.
Bonot, Legazpi City, Philippines, the respondent, HARRY
OSBORN, with lewd design did there and then, willfully,
unlawfully and feloniously had carnal knowledge with
the victim, GWEN STACEY, a 12-year-old minor. That
prior to the carnal act, the victim and the respondent
crossed paths in 5th Street in the said barangay.
Respondent grabbed the victim and dragged her to the
bushes along the left side of the road. He forcefully
covered her mouth with her hand, slapped her on the
face, and boxed her twice in the stomach, which
rendered the victim unconscious. Respondent, then a
there, had carnal knowledge with the victim. After
which, respondent left the victim. During that time, the
victim gained consciousness but unable to move.
That on or about an hour later, respondent came
back carrying with him a knife. That, by means of
treachery and abuse of superior strength, respondent
attacked and stabbed the victim three times in the chest
and struck her head with a rock; thus, causing her to
again lose consciousness. That on or about 18 th of
June, 2012, around past midnight, the victim’s father,
GEORGE STACEY, and some barangay officials, after a
wide search, found the body of the victim lying among
the bushes, naked from waist down with blood all over
her head and body. That due to the timely and able
medical attendance rendered to the victim, she was able
to survive and specifically identify the perpetrator as
herein respondent.

In the separate affidavits of witnesses George Stacey, the

victim’s father, and Brgy. Captain Flint Marko, they stated that on
June 17, 2012 at 10:00 in the evening, together with some barangay
tanods they started the search of the victim’s whereabouts. That
around past midnight, as they passed along 5th Street, they found a
yellow handkerchief which was recognized to be belonging to the
victim. Furthermore, they found the victim’s body lying among the
bushes. They found her naked from waist down with blood covering
her upper body and her head. They brought the victim to the nearest
hospital aboard the barangay vehicle. On their way, the victim was
slightly unconscious and was able to utter the words “with great
power comes great responsibility.” to her father. That after a week’s
confinement at the hospital, the victim specifically identifies the
perpetrator’s features but not his name. Brgy. Captain Marko was
able to identify the respondent as one Harry Osborn who lives near
the Stacey’s residence. He, together with Mr. Stacey and the
policemen, went to the residence of the Osborns. But they did not
find the respondent at his home.

In the affidavit of Ned Leeds, a resident and trisikad driver in

the same barangay, he stated that on June 17, 2012, around 3:00
in the afternoon, he was passing along 5th Street when he saw the
respondent emerging from the bushes beside the road. He noticed
that the respondent was not wearing anything from waist up and he
was holding a rolled-up shirt in his right hand. He even asked the
respondent what has happened, but the latter replied “Helikopter,
helikopter!” and walked swiftly towards opposite direction. Mr.
Leeds.

In the medical certificate/report made and signed by Dr. Otto

Octavius, it was stated that the victim suffered the following
injuries:
1. Contusion, lacerations, and hematoma in the
right frontal side of the head;
2. Petechial hemorrhages on both per-orbital areas;
3. Hematoma over the left upper arm, lateral area;
4. Three stabbed wounds and hematoma over the
upper anterior chest wall, midclavicular line;
5. Genital and peri-anal area soiled with debris and
whitish mucoid- like material; and
6. Hymenal lacerations at the 5 o’clock and 9 o’clock
position.

Dr. Otto’s impressions on the injuries stated above are multiple soft
tissue injuries, specifically in the head and chest areas, as well as
hymenal lacerations in the genitals.

As for the respondent, in his counter-affidavit, he vehemently

denied the accusations against him putting up the defense of alibi.
He stated that on June 17, 2012, at 12:00 noon, he was attending
the birthday party of his uncle, Ben Parker, in the latter’s residence
located in Rawis, Legazpi City. He further stated that he drank a
large volume of San Mig Apple liquor, making him drunk and sleepy.
That at 2:00 in the afternoon, he bade goodbye to his uncle and
drinking buddies and he went home aboarding a jeepney. He
alighted at the opening of 5th Street, Brgy. Bonot, Legazpi City. He
also stated that due to the scorching heat, he took off his t- shirt,
rolled it and held it in his right hand. As he passed along the street,
he heard whimpers behind the bushes. He went there and saw a girl
lying among the bushes, naked from the waist down with blood all
over her clothes. He also identified the girl as Gwen Stacey, the
daughter of his neighbour, George Stacey, whom he had previous
altercations. That due to shock and fear that he might be accused of
Gwen’s tragedy, he ran away from the scene towards the road. As he
emerged, he met his neighbour, Ned Leeds. The latter asked him
what is trending in Tiktok, and he replied “Helikopter, helikopter!”.
He then walked the opposite direction towards his home. Out of fear
and apprehension that he might be implicated and accused of the
incident, he ran away from home and hid for a few days.

To corroborate the counter-affidavit of the respondent, Ben

Parker, the uncle of Harry Osborn, stated in his affidavit that on
June 17, 2012 he held his birthday party at his residence Rawis,
Legazpi City. He invited his nephew, the respondent, and the latter
arrived thereat at around 12:00 noon. He also stated that his
nephew had drank with him and other drinking buddies. That on or
around 2:00 in the afternoon, his nephew bade goodbye to him and
went home.

Analyses / Findings and Recommendations

Article 266-A of the Revised Penal Code specifically states:

Art. 266-A. Rape, When and How Committed.

– Rape is committed:
1. By a man who shall have carnal knowledge of a
woman under any of the following circumstances:

x x x

b. When the offended party is deprived of reason or is

otherwise unconscious;

X x x

Based on the foregoing facts of the case before us, it is clear

then that it falls under the crime of rape. By force and intimidation,
the respondent had taken advantage of his superior strength and
employed means to weaken the defense of the victim by slapping her
face and boxing her twice in the stomach which rendered the latter
unconscious. Thereafter, respondent had carnal knowledge with the
victim, a minor, while the latter is unconscious. Such facts are proven
by the positive identification by the victim of the identity of her
perpetrator as well as the corroborative identification by the witness
Ned Leeds and the medical report presented by Dr. Otto Octavius.

Articles 248 and 250 of the Revised Penal Code specifically

state:

Art. 248. Murder. – Any person who, not falling

within the provisions of Article 246, shall kill another,
shall be guilty of murder and shall be punished by
reclusion perpetua to death if committed with any of the
following attendant circumstances:
 1. With treachery, taking advantage of superior
strength, x x x, or employing means to weaken
the defense, x x x;

x x x

Art. 250. Penalty for frustrated parricide, murder, or

homicide.

– The courts, in view of the facts of the case, may impose

upon the person guilty of the frustrated crime of parricide,
murder or homicide, defined and penalized in the preceding
articles, a penalty lower by one degree than that which should
be imposed under the provisions of Article 50.

X x x

Also, the facts of the case falls under the crime of frustrated
murder. The time element that lapsed in between, when respondent
left the victim after the commission of rape and when he returned back
to kill the latter to ensure her death, sufficiently constitute treachery on
the part of the respondent. He committed the act of killing against the
person of the victim and employed means in the execution thereof, by
hitting the victim’s head with a rock and stabbed her thrice in the
body, in order to insure the execution thereof. Thus, the crime
committed is murder. However, although the respondent has
performed all the acts of execution which would produce the crime of
murder as a consequence, nevertheless it did not produce it by reason
of causes independent of the will of the perpetrator, that is due to the
survival of the victim resulting from her timely rescue and able medical
attendance rendered to the latter which prevented her demise.
Therefore, the crime of frustrated murder is also committed under the
facts stated.

On the part of the defense of the respondent, it is a settled rule

that alibi is the weakest of all defenses because it is facile to fabricate
and difficult to disprove, and is generally rejected. For alibi to
prosper, it is not enough to prove that the defendant was somewhere
else when the crime is committed, that he must likewise demonstrate
that it was impossible for him to have been at the scene of the crime
at that time (People of the Philippines vs. Malejana, G.R no. 145002).

The defense of alibi cannot prevail over the positive

identification of the accused as the perpetrator of the crime. For it to
prosper, the accused must establish physical impossibility to have
been at the locus criminis at the time of the commission of the crime
(PP vs. Jacinto, G.R. No. 182239, March 16, 2011)
 As regards the alibi of the respondent, that he was not at the
place when the crime was committed but only thereafter as he was
passing the street, heard whimpers behind the bushes and saw the
body of the victim amongst it, such cannot be appreciated since the
respondent failed to convince that he satisfactorily sustains such
defense. Aside from the corroborative affidavit of the witness Ben
Parker submitted by the respondent, the latter presented no further
evidence to support his denial. In addition, it is a well-settled rule that
the defense of alibi cannot prevail over the positive identification by
the victim of her perpetrator, when she was able to directly, positively,
and categorically assert the identity of respondent as the one
committing the crimes of rape and frustrated murder against her.
Thus, the respondent’s defense of alibi is untenable.

WHEREFORE, IN VIEW OF THE FOREGOING, it is most

respectfully recommended that Information for the crimes of Rape
and Frustrated Murder be filed against the respondent HARRY
OSBORN.

Legazpi City, July 1, 2012.

CHARINA B. BASILONIA
Investigating Prosecutor

APPROVED BY:

Clavius Aquila Valerius Niger

Chief City Prosecutor

Copy Furnished:

(1) Harry Osborn – Brgy. Bonot, Legazpi City

(2) George Stacey - Brgy. Bonot, Legazpi City