1. CRIMINAL PRACTICE AND PROCEDURE; JUDGMENT. — Where in the judgment rendered in criminal proceedings the crime appears to have been qualified and the preponderance of the evidence adduced by the parties thereto considered, an express declaration being made therein of the liability incurred by the accused in such terms that the appeal court in reviewing the same finds that the judgment is in accordance with the law and the merits of the case, the judgment can not be considered as null nor as affected by some essential defect.

2. ID.; CIVIL PROCEDURE; REVIEW. — The provisions of section 133 of the Code of Civil Procedure are not applicable to judgments rendered in criminal proceedings, which are always subject to review by reason of the appeal therefrom; this does not happen in civil suits, inasmuch as when a motion for a new trial has not been made under sections 146 and 497 as amended by Act No. 1596, the Supreme Court can and is therefore constrained to accept the facts as established by the court in the judgment appealed from, and for this reason section 133 of the Code of Civil Procedure requires that the judgment shall contain the facts considered as having been proven in the suit.

3. RAPE. — In connection with the crime of rape the intervention of the fiscal is necessary and indispensable for the prosecution and punishment thereof, without prejudice to the rights of the injured party.

At about 8 o’clock on the morning of June 29, 1905, Maxima Hipolito being alone at her house, situated in the pueblo of Pulilan, Bulacan, her mother having gone to attend mass, Juan Ramos called and inquired if there was anyone with her in the house; she replied that she was alone and Ramos left. Shortly thereafter at the time when said Maxima Hipolito was taking her bath, Escolastico de la Cruz suddenly appeared, but as the girl saw him approaching and indecently dressed, she leaped from the batalan or terrace where she was to the yard; the accused followed her and upon reaching her, as Maxima had not yet been able to arise from the ground after the fall, he threw himself upon her, kissed her, and tried to make her lay on her back and raise her skirt; the assaulted girl firmly resisted the efforts made by Escolastico de la Cruz, and to her loud cries Dominga Hipolito, Lucrecia Fajardo, and Estefania Garcia responded, and owing to their presence the intent of the aggressor was not carried out; other neighbors including the aforesaid Ramos, Felix de la Cruz, Victoriano Ramos, and Gregorio San Pedro, although witnessing from their respective houses what had taken place, did not render any assistance, and the accused, when seeing that the three women responded to the cries of the injured party, desisted and started to run; the three aforesaid women then helped Maxima back to her house and aided her in cleaning herself of the mud with which she was covered in consequence of the struggle with the man who assaulted her.

The facts stated above are duly proven by the testimony of the injured party and that of the three witnesses who, upon hearing their cries, went to her assistance and caught the accused as he was still struggling in the attempt to ravish her, from which he desisted only when he saw them nearing the place where he intended to commit the crime. From the particulars above set forth the offense has all the characteristics of the crime of attempted rape, defined and punished by article 438 in connection with article 66 of the Penal Code, inasmuch as the accused, though he did actually begin to carry out the crime as intended, by exterior acts tending to consummate the ravishment of Maxima Hipolito, yet his failure to commit all the acts whereby such crime might have resulted was not due to his own voluntary resistance but was on account of the sudden appearance of the three aforesaid witnesses who, attracted by the cries of the injured girl, went to her assistance.

The accused pleaded not guilty, yet notwithstanding the allegations set forth in his defense supported by the testimony of the four witnesses named Felix de la Cruz, Juan Ramos, Victoriano Ramos, and Gregorio San Pedro, the case contains sufficient evidence of his culpability as the proven author duly convicted of the crime of attempted rape, since it appears that these witnesses, who were neighbors of the injured party and who from their houses saw what was taking place, without attempting to prevent the brutal attempt by Escolastico de la Cruz, were interested in favor of the latter; when they were examined by the court they denied having witnessed the affair, showing by such conduct that they were resolved to conceal the truth and favor the accused, one of them, Juan Ramos, having inquired a short time prior to the attempt, if the girl was alone in her house. From all of the foregoing these facts clearly appear and the crime and the responsibility of its author are proven beyond all reasonable doubt.

In the commission of the crime herein neither an extenuating nor an aggravating circumstance is present; therefore the penalty which the law imposes on the author of an attempted rape should be applied in its medium degree, as was done by the court below in the judgment appealed from, which judgment moreover contains no essential defect whatever; although no statement of facts is made therein, it does show the guilt of the accused as sustained by the evidence taken at the trial. As it appears in the judgment appealed from that the crime was qualified and that the evidence adduced by both parties was considered by the lower court, this court upon review finds that the same was in accordance with the law and the merits of the case. The provisions of section 133 of the Code of Civil Procedure are not applicable to decisions in criminal cases which are subject to review by the appellate court, while in civil cases when motion for a new trial is not made on the ground of the insufficiency of the evidence, this court can not examine nor review the evidence adduced in the court below, but is obliged to accept those facts which the lower court has set forth as proven in the judgment appealed from, a fact which does not occur in criminal proceedings; therefore, the said section of the Code of Civil Procedure requires that a statement of such facts as were considered proven shall appear in the decision.

As to the intervention of the fiscal in these proceedings, the necessity for his action in the prosecution and punishment of the crime of rape, in view of the nature thereof, is unquestionable, without prejudice to the rights of the injured party, in accordance with the provisions of article 448, paragraph 2, of the Penal Code.

In view of the considerations above set forth, it is our opinion that the judgment appealed from, whereby the accused is sentenced to the penalty of three years of prision correccional, and to pay the costs, should be affirmed, provided, however, that the indemnity to the injured party shall be remitted, and that the accessory penalties of article 61 of the code shall be imposed with the costs of this instance, and it is so ordered.

Arellano, C.J., Mapa, Carson, Willard, and Tracey, JJ., concur.