G.R. No. 166441, October 08, 2014
NORBERTO CRUZ Y BARTOLOME, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
Criminal Case No. 2388
That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation commenced the commission of rape directly by overt acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15) years old, was sleeping inside the tent along Bangar-Luna Road, the said accused remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said offended party.
CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 o'clock in the morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB]4 against the latter's will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice of said offended party.
CONTRARY TO LAW.5
xxx [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and glass wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they will have a place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold.
On December 21, 1993, at around 1:00 o'clock in the morning, AAA and BBB went to sleep. Less than an hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered her not to scream or she'll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not to tell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of BBB. AAA saw her companion awake but her hands were shaking. When she finally entered the tent, Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building. An old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station where he personally confronted his accusers. When Norberto's wife, Belinda, arrived at the police station, an argument ensued between them.
On December 22, 1993, at around 2:20 o'clock in the morning, the police investigator ordered the complainants to return at 6:00 o'clock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against Norberto.
In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused maintains that it was not possible for him to commit the crimes hurled against him. On the date of the alleged incident, there were many people around who were preparing for the "simbang gabi". Considering the location of the tents, which were near the road and the municipal hall, he could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and BBB would scream, the policemen in the municipal hall could hear them. He believes that the reason why the complainants filed these cases against him was solely for the purpose of extorting money from him.
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively.
With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory penalties provided for by law and to pay the victim AAA the amount of P20,000.00 as moral damages.
With regard to the crime of ACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties provided for by law, and to pay the victim BBB the amount of P10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by reason of the two cases is counted in his favor.
In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it had been consummated would have been reclusion perpetua pursuant to Article 335 of the Revised Penalty Code, as amended by Republic Act No. 7659. The penalty two degrees lower than reclusion perpetua is prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period of prision mayor in the absence of any mitigating or aggravating circumstance and the minimum shall be within the range of the penalty next lower to that prescribed for the offense which in this case is prision correctional in any of its periods.
We also find that the trial court correctly assessed the amount of P20,000.00 by way of moral damages against the accused-appellant. In a rape case, moral damages may be awarded without the need of proof or pleading since it is assumed that the private complainant suffered moral injuries, more so, when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there is not enough evidence to support such accusation. BBB did not testify and neither her sworn statement was formally offered in evidence to support the charge for acts of lasciviousness.
In this case, the evidence adduced by the prosecution is insufficient to substantiate the charge of acts of lasciviousness against the accused-appellant. The basis of the complaint for acts of lasciviousness is the sworn statement of BBB to the effect that the accused-appellant likewise molested her by mashing her breast and touching her private part. However, she was not presented to testify. While AAA claims that she personally saw the accused touching the private parts of BBB, there was no testimony to the effect that such lascivious acts were without the consent or against the will of BBB.11
In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner beyond reasonable doubt.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code, xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense, x x x x.
"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 (action fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts of execution (action 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. Acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless."15
1. By using force or intimidation;chanrobleslaw
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
x x x x
[T]ouching when applied to rape cases docs not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ, xxxx Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold emphasis supplied)chanroblesvirtuallawlibrary
1Rollo, pp. 38-49; penned by Associate Justice Eliezer R. Delos Santos (deceased), and concurred in by Associate Justice Delilah Vidallon-Magtolis (retired) and Associate Justice Arturo D. Brion (now a Member of the Court).
2 The real name of the offended party is withheld pursuant to Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004); and A.M. No. 04-10-11-SC effective November 15, 2004 (Rule on Violence Against Women and Their Children). See also People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA419, 421-423.
3Rollo, p. 51.
4 The real name of the offended party is also withheld for the reason stated in note 2.
5Rollo, pp. 51-52.
6 Supra note 1, at 39-41.
7 Supra note 1, at 41.
8Rollo, pp. 51-58.
9 Id. at 57-58.
10 Supra note 1.
11 Id. at 47-49.
12 Id. at 19-23.
13 Section 1 of Rule 45, Rules of Court states:
Section 1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.
14 61 Phil. 703(1935).
15 Id. at 705-707.
16People v. Orita, G.R. No. 88724, April 3, 1990, 184 SCRA 105, 1 13, citing Black's Law Dictionary, Fifth Edition, p. 193.
17 People v. Jalosjos, G.R. Nos. 132875-876, November 16, 2001, 369 SCRA 179, 202.
18 G.R. Nos. 129433, March 30, 2000, 329 SCRA 270, 280-282.
19 Supra note 16.
20 50 Phil. 998 (1927).
21 Id. at 114.
22 G.R. No. 143468-71, January 24, 2003, 396 SCRA 62, 94-95.
23 Feria & Gregorio, Comments on the Revised Penal Code, First Edition (1958), Central Book Supply, Inc., Manila, p. 29., to wit:An act is defined as any bodily movement or a process whereby an individual puts his organism into motion. In order to produce some change or effect in the external world, it being unnecessary that the same be actually produced as the possibility of its production is sufficient. Mere thoughts and ideas, no matter how immoral or heinous they may be, cannot constitute a felony because the act must be external, and internal acts are beyond the sphere of criminal law.24 Id. at 78-79.
25cralawred G.R. No. 180914, November 24, 2010, 636 SCRA 134, 158.
26 Article 338 of the Revised Penal Code defines simple seduction as the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit.
27People v. Lizada, supra note 22 at 95.
28 I Feria & Gregorio, supra note 23, at 78-79, which opines that equivocal preparatory acts remain unpunished unless the Revised Penal Code penalizes them (e.g., conspiracy and proposal to commit a felony in certain cases (Article 8, Revised Penal Code); mere possession with intent to use of instruments or implements adaptable for the commission of counterfeiting (Article 176, paragraph 2, Revised Penal Code); and possession of picklocks or similar tools adapted to the commission of robbery (Article 304, Revised Penal Code).
29People v. Mendoza, G.R. Nos. 152589 and 152758, January 31, 2005, 450 SCRA 328, 333.
30People v. Jalosjos, supra, note 17.
31People v. Dadulla, G.R. No. 172321, February 9, 2011, 642 SCRA 432, 443; citing People v. Collado, G.R. Nos. 135667-70, March 1, 2001, 353 SCRA 381,392.
32People v. Lizada, supra note 22 at 93.
33 Id. at 94.
34 G.R. Nos. 110817-22, June 13,1997, 273 SCRA 384 401
36 Article 2217, Civil Code.
37 Article 2219. Moral damages may be recovered in the following and analogous cases: xxxx (3) Seduction, abduction, rape, or other lascivious acts; xxxx
38People v. Dominguez, Jr., supra, note 25, at 164-165.
40People v. Maglente, G.R. No. 201445, November 27, 2013, 711 SCRA 142, 161; People v. Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA 436, 459.