People vs. Lizada G.R. No. 143468-71 January 24, 2003

on

 TOPIC: Preparatory Act

 

FACTS

On August 1998, the petitioner did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation Analia Orillosa, his stepdaughter, by embracing, kissing, and touching her private parts. He then proceeded with carnal knowedge to remove her skirt and panty and placed himself on top of her and tried to insert his penis into her vagina. This allegation was repeated four times in a different occasions.

However, medical examination revealed that Analia’s hymen was intact, and the other parts of her vagina was not injured due to an insertion of average-sized adult Filipino male organ in full erection.

The testimony of Rossel, Analia’s brother, also proved that no insertion of penis happened because the petitioner stopped after he saw her.

Hence, petitioner was charged for four counts of qualified rape under four separate information. RTC accused guilty beyond reasonable doubt of the crime charged against him and sentenced to Death Penalty in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.

However, petitioner averred in his brief that the prosecution failed to prove his guilt beyond reasonable doubt and that the testimony of Rossel was not taken into consideration in the decision.

ISSUE

Whether or not  Lizada is guilty of acts of lasciviousness only.

HELD

 No, the accused-appellant is guilty of attempted rape and not of acts of lasciviousness.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. The essential elements of an attempted felony are as follows:

  1. The offender commences the commission of the felony directly by overt acts;
  2. He does not perform all the acts of execution which should produce the felony;
  3. The offenders act be not stopped by his own spontaneous desistance;
  4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.

If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty of an attempted felony. The law does not punish him for his attempt to commit a felony.

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the victim’s brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the crime committed by the appellant is attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum.

Comments

Post a Comment