Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
Legazpi City

GWEN STACEY, represented by his father, V-02-INV-21J-00123

GEORGE STACEY,
Complainants,

For: RAPE and

FRUSTRATED
MURDER

-versus-

HARRY OSBORN,
Respondent.

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RESOLUTION

The Respondent, HARRY OSBORN, was charged of the

crimes of RAPE and FRUSTRATED MURDER in a complaint filed
by herein complainant, 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 17 th 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 5 th 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 10, 2012.

MARK KEVIN A.
ARROCO
Assistant City
Prosecutor

APPROVED BY:

JOVENCIO J. JADIE JR.

Chief City Prosecutor

Copy Furnished:

(1) Harry Osborn – Brgy. Bonot, Legazpi

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