NORBERTO CRUZ y BARTOLOME, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. BERSAMIN, J.: G.R. No. 166441. October 8, 2014

Topic: Indeterminate Offense – It is one where the purpose of the offender in performing an act is not certain. In this case, the SC held that preparatory acts of the accused would not render him guilty of a felony, because such acts have no direct connection to rape. An attempt to commit an indeterminate offense is not a juridical fact from the standpoint of Penal Code. (See Ruling Par. 4)

 

Stages of Rape – Article 335 (Ruling Par. 1) and the penetration of the penis into the vagina, before the interruption, as held in People vs. Dominguez (Ruling, Par. 4 and 6)

1.    PETITION for review on certiorari of a decision of the Court of Appeals.

2.    The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims.

 

a.    Criminal Case No. 2388 Attempted Rape

On December 21, 1993, at about 2 A.M., 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 the accused.

b.    Criminal Case No. 2389 Acts of Lasciviousness

On December 21, 1993, at about 3 A.M, the accused with lewd design touched the vagina of BBB against the latter’s will and with no other purpose but to satisfy his lascivious desire.

 

3.    The version of the prosecution stated that Norberto and his wife employed AAA and BBB to help them in selling their plastic wares and glass wares in La Union. Petitioner’s wife and their driver went back to Manila to get more goods. While sleeping, AAA felt that somebody was on top of her mashing her breast and touching her private part. Norberto ordered her not to scream or she will be killed. AAA fought back and Norberto was not able to pursue his lustful desires. AA left the tent to seek for help. When she returned to their tent, she saw Norberto touching the private parts of BBB. This prompted Norberto to leave the tent.

4.    Norberto denies the commission of the crime alleging that he could not possibly do the acts as there were many people preparing for the “simbang gabi”. He further assails the credibility AAA for the crime of rape, alleging that the complaints were filed only for the purpose of extorting money from him.

RTC: guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS

CA: affirmed the conviction of the petitioner for attempted rape but acquitted him of the acts of lasciviousness due to the insufficiency of the evidence

 

Issue: Is petitioner guilty of attempted rape against AAA?

RULING: NO

1.    Article 335 of the Revised Penal Code, states how rape is committed:

Article 335. When and how rape is committed.—Rape is committed by having carnal knowledge of a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; andWhen the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.

 

2.    The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge is defined simply as “the act of a man having sexual bodily connections with a woman,” which explains why the slightest penetration of the female genitalia consummates the rape. Rape is consummated once the penis capable of consummating the sexual act touches the external genitalia of the female.

 

3.    Rape in its frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under Article 6 of the Revised Penal Code (RPC) are that: (1) the offender has performed all the acts of execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the perpetrator’s will.

 

4.    In attempted rape, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. In People v. Dominguez, Jr.: “The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption.”

 

5.    His perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony. His preparatory acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and the other for himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable under the Revised Penal Code for as long as they remained equivocal or of uncertain significance, because by their equivocality no one could determine with certainty what the perpetrator’s intent really was.

 

-       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. 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 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.

 

6.    The difference between attempted rape and acts of lasciviousness is the offender’s intent to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of lasciviousness. Attempted rape is committed when the “touching” of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the external genitalia of the female. Without such showing, only the felony of acts of lasciviousness is committed.

 

7.    The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of this can be seen in People v. Bugarin, the accused was held liable only for acts of lasciviousness because the intent to commit rape “is not apparent from the act described,” and the intent to have sexual intercourse with her was not inferable from the act of licking her genitalia.

 

 

Decision: Petitioner Norberto Cruz y Bartolome guilty of acts of lasciviousness.