1. CRIMINAL LAW; RAPE; FORCE. — When force is an element of the crime of rape, it need not be irresistible; "it need but be present, and so long as it brings about the desired result, all consideration of whether it was more or less irresistible, is beside the point." (Supreme Court of Spain, May 14, 1878; 5 Viada, 5th ed., p. 224, quest. 8.)

The crime of which the defendant has been convicted is that of rape. Upon appeal he makes several assignments of error as committed by the court below in its judgment.

The first of these refers to the violence and intimidation alleged in the information, and which are, according to law the alternately essential elements of the offense charged. The defense contends that neither of these elements has been established. But, as the offended girl truthfully stated, she defended herself against the accused as long as she could, but he overpowered and held her till her strength gave out, and then accomplished his vicious purpose. These particulars suffice to show that the perverse act was accomplished through violence, against the girl’s will, and in spite of her manifest resistance. As far back as May 14, 1878, the Supreme Court of Spain held (5 Viada, 5th ed., page 224, point 8) that when force is an element of the crime of rape, it need not be irresistible; "it need but be present, and so long as it brings about the desired result, all consideration of whether it was more or less irresistible, is beside the point."cralaw virtua1aw library

The defense argues the improbability of the crime being committed in the place and manner stated by the complaining witness. The place appears to be set far enough away from the houses and out of sight, the view from those houses being obscured by a clump of bamboos. The place to which the complaining witness referred in the passage cited by the defense (pages 10 and 19, t.s.n.) is not the place where the crime was committed but that where the carabao she was looking after was tied. The testimony of Pascual Pitaliano, invoked by the defense, cannot be given credit, weakened and contradicted as it is by the testimony of Jacinto Almenar and Marcelo Hembra, who affirmed that the former at the time was not present where the alleged rape was committed.

The defense says that the testimony of the complaining witness stands uncorroborated. We do not find it so. The statements of her mother, to whom whe went weeping after the outrage, her torn dress, and the result of the physical examination, are sufficient corroboration.

Counsel de oficio thinks the explanation given by Olimpia Arguelles for not having cried out, inconsistent. We find no such defect in her testimony. She testified that she lost consciousness through fright. With reference to the extravasation of the blood, it should be remembered that the examination was made the third day after the crime; and furthermore, the extravasation may have been beyond the scope of the examination.

Finally, the trial court is said to have erred in refusing to credit the exculpatory evidence presented by the defendant. We have carefully examined the testimony for the defense, and are unconvinced. We have already stated why we consider Pascual Pitaliano’s testimony untrustworthy.

As for Juan Pame and Fausto Batucan, they are manifestly partial to the defendant. Although Juan Pame is a relative of the complaining witness, the defendant is a relative of Pame’s wife, besides being his agent in the tuba business. Fausto Batucan, in his anxiety to favor the defense, was led into testifying that so far was the accused from having committed the acts imputed to him by the complaining witness and her mother, that he refused to sign the record of the investigation, Exhibit 3 (page 40, t.s.n.); but when that document was presented in evidence, it bore the signature of the defendant, which was identified by Batucan himself (pages 91 and 92, ditto). The testimony of Hilarion Puntilan is improbable. The statement that the next day the mother of the complaining witness, while passing in front of his house, told him that she attached little importance to what had happened to her daughter, and that if she went to court about it, it was because she was induced to do so by Quell, — is far-fetched. We can find no reason why the mother of the offended girl should, on that occasion, gloss over the defendant’s guilt.

As for the latter’s testimony, we find it to be unsupported and contradicted in its main points. Alleging that he did not commit the crime charged, the defendant attributes the attitude of the complaining witness and her mother to Quell’s influence, who also testified in rebuttal for the prosecution. It is true that Quell did not try to conceal his interest in the defendant’s prosecution, whether out of a civic spirit or out of less exalted motives; but the record does not show that the accusation of the offended girl and her mother against the defendant was not true or spontaneous and moved by a just desire to see the person responsible for their disgrace punished. Therefore, although witness Fausto Batucan attempted to show that these women indicated that they preferred not to press their complaint, because it involved such a trivial matter — the record shows that it was the barrio lieutenant Batucan who was interested in terminating his investigation of the case by proposing an amicable settlement between the parties — it appears that the mother of the complaining witness left no stone unturned in order to secure the record of the investigation. Exhibit 3, and present it to the chief of police, thereby insisting upon her daughter’s right, notwithstanding the fact that the contents, which she did not appear to know, did not include everything which she and her daughter had said to Batucan, the barrio lieutenant. Had she known its contents, we doubt very much whether she would have shown it to the chief of police.

The defendant states that it was not he but Gregorio Alcornoque who had unlawful intercourse with the complaining witness. Doctor De Veyra who made the physical examination found upon her person marks of violence indicating coition within the last five days, and that examination took place on November 8, 1930. The appellant sought to explain away those traces of violence by saying that on November 4, 1930, or two days before the act complained of, he surprised the offended girl and Gregorio Alcornoque in a compromising position. Not only did the complaining witness deny this, but Gregorio Alcornoque himself, who was presented as a witness for the prosecution in rebuttal and publicly admitted that he had sexual relations with Olimpia Arguelles, unmistakably and repeatedly assured the court during the trial that he was not with the offended girl on November 4, 1930, because he had broken off his relations with her some three months ago. (Testimony given on December 12, 1930.)

This physiological detail revealed by the physical examination, stands out as a mute but eloquent fact in the midst of other evidence in the case, pointing to the appellant as the perpetrator of the outrage in question.

We find no modifying circumstances in the case; but we note that the defendant should not have been sentenced to acknowledge the offspring, if there by any, because, being a married man, his civil status forbids it.

Wherefore, finding no reason in the record to alter the judgment appealed from except as above indicated, it is hereby affirmed in its entirety with the exception of the acknowledgment of the offspring, which is hereby cancelled, with costs against the appellant. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.



IMPERIAL, J., dissenting:chanrob1es virtual 1aw library

The evidence, as I take it, has not established the appellant’s guilt beyond a reasonable doubt. I shall proceed to analyze it.

The only direct testimony for the prosecution was furnished by Dr. Emilio De Veyra, who is president of the sanitary health district, the alleged victim Olimpia Arguelles, and her mother Simona Arguelles. The exhibits are of little importance for, by themselves they do not prove the crime charged, being no more than the medical certificate, the dress of the complaining witness, and a sketch of the place.

The first witness, a physician by profession, testified that at 10 o’clock in the morning of November 8, 1930, at the request of the chief of police of Jaro, Leyte, he made a physical examination of Olimpia Arguelles; that he found no lesion or mark of violence on her body except in the vulvar region; that the labia majora were tumid, and the labia minora slightly affected with hyper