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ph/
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO FORMIGONES, defendant-appellant.
Luis Contreras for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the
appellant guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of the
deceased in the amount of !,""", and to pay the costs. The follo#ing facts are not disputed.
In the month of $ovem%er, &'(), the defendant *%elardo Formigones #as living on his farm in
+ahao, ,i%manan, municipality of Sipocot, Camarines Sur, #ith his #ife, -ulia *gricola, and his five
children. From there they #ent to live in the house of his half-%rother, .acarias Formigones, in the
%arrio of +inahian of the same municipality of Sipocot, to find employment as harvesters of palay.
*fter a%out a month/s stay or rather on 0ecem%er !1, &'(), late in the afternoon, -ulia #as sitting at
the head of the stairs of the house. The accused, #ithout any previous 2uarrel or provocation
#hatsoever, too3 his %olo from the #all of the house and sta%%ed his #ife, -ulia, in the %ac3, the
%lade penetrating the right lung and causing a severe hemorrhage resulting in her death not long
thereafter. The %lo# sent -ulia toppling do#n the stairs to the ground, immediately follo#ed %y her
hus%and *%elardo #ho, ta3ing her up in his arms, carried her up the house, laid her on the floor of
the living room and then lay do#n %eside her. In this position he #as found %y the people #ho came
in response to the shouts for help made %y his eldest daughter, Irene Formigones, #ho #itnessed
and testified to the sta%%ing of her mother %y her father.
Investigated %y the Consta%ulary, defendant *%elardo signed a #ritten statement, 45hi%it 0, #herein
he admitted that he 3illed The motive #as admittedly of jealousy %ecause according to his statement
he used to have 2uarrels #ith his #ife for the reason that he often sa# her in the company of his
%rother .acarias6 that he suspected that the t#o #ere maintaining illicit relations %ecause he noticed
that his had %ecome indifferent to him 7defendant8.
0uring the preliminary investigation conducted %y the justice of the peace of Sipocot, the accused
pleaded guilty, as sho#n %y 45hi%it 4. *t the trial of the case in the Court of First Instance, the
defendant entered a plea of not guilty, %ut did not testify. 9is counsel presented the testimony of t#o
guards of the provincial jail #here *%elardo #as confined to the effect that his conduct there #as
rather strange and that he %ehaved li3e an insane person6 that sometimes he #ould remove his
clothes and go star3 na3ed in the presence of his fello# prisoners6 that at times he #ould remain
silent and indifferent to his surroundings6 that he #ould refused to ta3e a %ath and #ash his clothes
until forced %y the prison authorities6 and that sometimes he #ould sing in chorus #ith his fello#
prisoners, or even alone %y himself #ithout %eing as3ed6 and that once #hen the door of his cell #as
opened, he suddenly darted from inside into the prison compound apparently in an attempt to regain
his li%erty.
The appeal is %ased merely on the theory that the appellant is an im%ecile and therefore e5empt
from criminal lia%ility under article &! of the :evised enal Code. The trial court rejected this same
theory and #e are inclined to agree #ith the lo#er court. *ccording to the very #itness of the
defendant, 0r. Francisco ;ome<, #ho e5amined him, it #as his opinion that *%elardo #as suffering
only from fee%lemindedness and not im%ecility and that he could distinguish right from #rong.
In order that a person could %e regarded as an im%ecile #ithin the meaning of article &! of the
:evised enal Code so as to %e e5empt from criminal lia%ility, he must %e deprived completely of
reason or discernment and freedom of the #ill at the time of committing the crime. The provisions of
article &! of the :evised enal Code are copied from and %ased on paragraph &, article 1, of the old
enal Code of Spain. Conse2uently, the decisions of the Supreme Court of Spain interpreting and
applying said provisions are pertinent and applica%le. =e 2uote -udge ;uillermo ;uevara on his
Commentaries on the :evised enal Code, (th 4dition, pages (! to (>:
The Supreme Court of Spain held that in order that this e5empting circumstances may %e
ta3en into account, it is necessary that there %e a complete deprivation of intelligence in
committing the act, that is, that the accused %e deprived of reason6 that there %e no
responsi%ility for his o#n acts6 that he acts #ithout the least discernment6
&
that there %e a
complete a%sence of the po#er to discern, or that there %e a total deprivation of freedom of
the #ill. For this reason, it #as held that the im%ecility or insanity at the time of the
commission of the act should a%solutely deprive a person of intelligence or freedom of #ill,
%ecause mere a%normality of his mental faculties does not e5clude imputa%ility.
!
The Supreme Court of Spain li3e#ise held that deaf-muteness cannot %e e2ualed to
im%ecility or insanity.
The allegation of insanity or im%ecility must %e clearly proved. =ithout positive evidence that
the defendant had previously lost his reason or #as demented, a fe# moments prior to or
during the perpetration of the crime, it #ill %e presumed that he #as in a normal condition.
*cts penali<ed %y la# are al#ays reputed to %e voluntary, and it is improper to conclude that
a person acted unconsciously, in order to relieve him from lia%ility, on the %asis of his mental
condition, unless his insanity and a%sence of #ill are proved.
*s to the strange %ehaviour of the accused during his confinement, assuming that it #as not feigned
to stimulate insanity, it may %e attri%uted either to his %eing fee%leminded or eccentric, or to a mor%id
mental condition produced %y remorse at having 3illed his #ife. From the case of ?nited
States vs. @a2uilar 7!A hil. 118, #e 2uote the follo#ing sylla%us:
Testimony of eye-#itnesses to a parricide, #hich goes no further than to indicate that the
accused #as moved %y a #ay#ard or hysterical %urst of anger or passion, and other
testimony to the effect that, #hile in confinement a#aiting trial, defendant acted
a%sentmindedly at times, is not sufficient to esta%lish the defense of insanity. The conduct of
the defendant #hile in confinement appears to have %een due to a mor%id mental condition
produced %y remorse.
*fter a careful study of the record, #e are convinced that the appellant is not an im%ecile. *ccording
to the evidence, during his marriage of a%out &) years, he has not done anything or conducted
himself in any#ay so as to #arrant an opinion that he #as or is an im%ecile. 9e regularly and
dutifully cultivated his farm, raised five children, and supported his family and even maintained in
school his children of school age, #ith the fruits of his #or3. Bccasionally, as a side line he made
copra. *nd a man #ho could feel the pangs of jealousy to ta3e violent measure to the e5tent of 3illing
his #ife #hom he suspected of %eing unfaithful to him, in the %elief that in doing so he #as
vindicating his honor, could hardly %e regarded as an im%ecile. =hether or not his suspicions #ere
justified, is of little or no import. The fact is that he %elieved her faithless.
+ut to sho# that his feeling of jealousy had some color of justification and #as not a mere product of
hallucination and a%errations of a disordered mind as that an im%ecile or a lunatic, there is evidence
to the follo#ing effect. In addition to the o%servations made %y appellant in his #ritten statement
45hi%it 0, it is said that #hen he and his #ife first #ent to live in the house of his half %rother,
.acarias Formigones, the latter #as living #ith his grandmother, and his house #as vacant.
9o#ever, after the family of *%elardo #as settled in the house, .acarias not only fre2uented said
house %ut also used to sleep there nights. *ll this may have aroused and even partly confirmed the
suspicions of *%elardo, at least to his #ay of thin3ing.
The appellant has all the sympathies of the Court. 9e seems to %e one of those unfortunate %eings,
simple, and even fee%leminded, #hose faculties have not %een fully developed. 9is action in pic3ing
up the %ody of his #ife after she fell do#n to the ground, dead, ta3ing her upstairs, laying her on the
floor, and lying %eside her for hours, sho#s his feeling of remorse at having 3illed his loved one
though he thought that she has %etrayed him. *lthough he did not e5actly surrender to the
authorities, still he made no effort to flee and compel the police to hunt him do#n and arrest him. In
his #ritten statement he readily admitted that he 3illed his #ife, and at the trial he made no effort to
deny or repudiate said #ritten statement, thus saving the government all the trou%le and e5pense of
catching him, and insuring his conviction.
*lthough the deceased #as struc3 in the %ac3, #e are not prepared to find that the aggravating
circumstance of treachery attended the commission of the crime. It seems that the prosecution #as
not intent or proving it. *t least said aggravating circumstance #as not alleged in the complaint either
in the justice of the peace court or in the Court of First Instance. =e are inclined to give him the
%enefit of the dou%t and #e therefore declined to find the e5istence of this aggravating circumstance.
Bn the other hand, the fact that the accused is fee%leminded #arrants the finding in his favor of the
mitigating circumstance provided for in either paragraph 1 or paragraph ' of article &> of the :evised
enal Code, namely that the accused is Csuffering some physical defect #hich thus restricts his
means of action, defense, or communication #ith his fello# %eings,C or such illness Cas #ould
diminish the e5ercise of his #ill po#er.C To this #e may add the mitigating circumstance in paragraph
) of the same article, D that of having acted upon an impulse so po#erful as naturally to have
produced passion or o%fuscation. The accused evidently 3illed his #ife in a fit of jealousy.
=ith the presence of t#o mitigating circumstances #ithout any aggravating circumstance to offset
them, at first #e thought of the possi%le applica%ility of the provisions of article )(, paragraph E of
the :evised enal Code for the purpose of imposing the penalty ne5t lo#er to that prescri%ed %y
article !() for parricide, #hich is reclusion perpetua to death. It #ill %e o%served ho#ever, that article
)( refers to the application of penalties #hich contain three periods #hether it %e a single divisi%le
penalty or composed of three different penalties, each one of #hich forms a period in accordance
#ith the provisions of articles A) and AA, #hich is not true in the present case #here the penalty
applica%le for parricide is composed only of t#o indivisi%le penalties. Bn the other hand, article )> of
the same Code refers to the application of indivisi%le penalties #hether it %e a single divisi%le
penalty, or t#o indivisi%le penalties li3e that of reclusion perpetua to death. It is therefore clear that
article )> is the one applica%le in the present case.
aragraph !, rule > of said article )> provides that #hen the commission of the act is attended %y
some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall %e
applied. Interpreting a similar legal provision the Supreme Court in the case of nited States vs.
Guevara 7&" hil. >A8, involving the crime of parricide, in applying article 1", paragraph ! 7rule > of
the old enal Code8 #hich corresponds to article )>, paragraph ! 7rule > of the present :evised
enal Code8, thru Chief -ustice *rellano said the follo#ing:
*nd even though the court should ta3e into consideration the presence of t#o mitigating
circumstances of a 2ualifying nature, #hich it can not afford to overloo3, #ithout any
aggravating one, the penalty could not %e reduced to the ne5t lo#er to that imposed %y la#,
%ecause, according to a ruling of the court of Spain, article 1" a%ove-mentioned does not
contain a precept similar to that contained in :ule E of article 1& 7no# :ule E, art. )( of the
:ev. enal Code.8 70ecision of Septem%er >", &1A'.8
Fet, in vie# of the e5cessive penalty imposed, the strict application of #hich is inevita%le and
#hich, under the la#, must %e sustained, this court no# resorts to the discretional po#er
conferred %y paragraph ! of article ! of the enal Code6 and.
Therefore, #e affirm the judgment appealed from #ith costs, and here%y order that a proper
petition %e filed #ith the e5ecutive %ranch of the ;overnment in order that the latter, if it %e
deemed proper in the e5ercise of the prerogative vested in it %y the sovereign po#er, !a"
reduce the penalt" to that of the next lo#er.
Then, in the case of $eople vs. Casta%eda 7)" hil. )"(8, another parricide case, the Supreme Court
in affirming the judgment of conviction sentencing defendant to reclusion perpetua, said that
not#ithstanding the numerous mitigating circumstances found to e5ist, inasmuch as the penalty for
parricide as fi5ed %y article !() of the :evised enal Code is composed of t#o indivisi%le penalties,
namely, reclusion perpetua to death, paragraph > of article )> of the said Code must %e applied. The
Court further o%served:
=e are li3e#ise convinced that appellant did not have that malice nor has e5hi%ited such
moral turpitude as re2uires life imprisonment, and therefore under the provisions of article E
of the :evised enal Code, #e respectfully invite the attention of the Chief 45ecutive to the
case #ith a vie# to e5ecutive clemency after appellant has served an apprecia%le amount of
confinement.
In conclusion, #e find the appellant guilty of parricide and #e here%y affirm the judgment of the lo#er
court #ith the modification that the appellant #ill %e credited #ith one-half of any preventive
imprisonment he has undergone. *ppellant #ill pay costs.
Follo#ing the attitude adopted and the action ta3en %y this same court in the t#o cases a%ove cited,
and %elieving that the appellant is entitled to a lighter penalty, this case should %e %rought to the
attention of the Chief 45ecutive #ho, in his discretion may reduce the penalty to that ne5t lo#er
to reclusion perpetua to death or other#ise apply e5ecutive clemency in the manner he sees fit.
~ ~ ~
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
D E C I S I O N
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita
[1]
finally did away with frustrated rape
[2]
and allowed only
attempted rape and onsummated rape to remain in our statute !oo"s. #he instant ase lur"s at the
threshold of another emasulation of the sta$es of e%eution of rape !y onsiderin$ almost every attempt
at se%ual violation of a woman as onsummated rape& that is& if the ontrary view were to !e adopted. #he
dan$er there is that that onept may send the wron$ si$nal to every roamin$ lothario& whenever the
opportunity !ares itself& to !etter intrude with limati gusto& sans any restraint& sine after all any
attempted forniation would !e onsidered onsummated rape and punished as suh. A mere strafing of
the citadel of passion would then !e onsidered a deadly fait accompli& whih is a!surd.
'n Orita we held that rape was onsummated from the moment the offender had arnal "nowled$e of the
vitim sine !y it he attained his o!(etive. All the elements of the offense were already present and
nothin$ more was left for the offender to do& havin$ performed all the ats neessary to produe the rime
and aomplish it. )e ruled then that perfet penetration was not essential* any penetration of the female
or$an !y the male or$an& however sli$ht& was suffiient. #he Court further held that entry of the labia or
lips of the female or$an& even without rupture of the hymen or laeration of the va$ina& was suffiient to
warrant onvition for onsummated rape. )e distin$uished onsummated rape from attempted rape
where there was no penetration of the female or$an !eause not all ats of e%eution were performed as
the offender merely ommened the ommission of a felony diretly !y overt ats.
[3]
#he inferene that
may !e derived therefrom is that omplete or full penetration of the va$ina is not re+uired for rape to !e
onsummated. Any penetration& in whatever de$ree& is enou$h to raise the rime to its onsummated
sta$e.
,ut the Court in Orita larified the onept of penetration in rape !y re+uirin$ entry into the labia or lips
of the female or$an& even if there !e no rupture of the hymen or laeration of the va$ina& to warrant a
onvition for onsummated rape. )hile the entry of the penis into the lips of the female or$an was
onsidered synonymous with mere touching of the e%ternal $enitalia& e.$.& labia majora& labia minora&
et.&
[-]
the ruial dotrinal !ottom line is that touching must !e ine%tria!ly viewed in li$ht of& in relation
to& or as an essential part of& the proess of penile penetration& and not just mere touching in the ordinary
sense. 'n other words& the touching must !e ta"ed to the penetration itself. #he importane of the
re+uirement of penetration& however sli$ht& annot !e $ainsaid !eause where entry into the labia or the
lips of the female $enitalia has not !een esta!lished& the rime ommitted amounts merely to attempted
rape.
.erily& this should !e the indicium of the Court in determinin$ whether rape has !een ommitted either in
its attempted or in its onsummated sta$e* otherwise& no su!stantial distintion would e%ist !etween the
two& despite the fat that penalty/wise& this distintion& thread!are as it may seem& irrevoa!ly spells the
differene !etween life and death for the aused / a relusive life that is not even perpetua !ut
only temporal on one hand& and the ultimate e%termination of life on the other. And& ar$uin$ on another
level& if the ase at !ar annot !e deemed attempted !ut onsummated rape& what then would onstitute
attempted rape0 1ust our field of hoie !e thus limited only to onsummated rape and ats of
lasiviousness sine attempted rape would no lon$er !e possi!le in li$ht of the view of those who
disa$ree with this ponencia0
On 22 1ay 1992 Primo Campuhan y ,ello was found $uilty of statutory rape and sentened !y the
ourt a quo to the e%treme penalty of death&
[3]
hene this ase !efore us on automati review under Art.
333 of the 4evised Penal Code as amended !y 4A 2539.
[5]
As may !e ulled from the evidene on reord& on 23 April 1995& at around - o6lo" in the afternoon&
1a. Cora7on P. Pamintuan& mother of four 8-9/year old Crysthel Pamintuan& went down from the seond
floor of their house to prepare 1ilo hoolate drin"s for her two 829 hildren. At the $round floor she met
Primo Campuhan who was then !usy fillin$ small plasti !a$s with water to !e fro7en into ie in the
free7er loated at the seond floor. Primo was a helper of Conrado Plata :r.& !rother of Cora7on. As
Cora7on was !usy preparin$ the drin"s& she heard one of her dau$hters ry& ;Ayo'ko, ayo'ko<;
[2]
promptin$
Cora7on to rush upstairs. #hereupon& she saw Primo Campuhan inside her hildren6s room "neelin$
!efore Crysthel whose pa(amas or ;(o$$in$ pants; and panty were already removed& while his short pants
were down to his "nees.
Aordin$ to Cora7on& Primo was forin$ his penis into Crysthel6s va$ina. =orrified& she ursed the
aused& ;P - t - ng ina mo, anak ko iyan<; and !o%ed him several times. =e evaded her !lows and pulled
up his pants. =e pushed Cora7on aside when she tried to !lo" his path. Cora7on then ran out and shouted
for help thus promptin$ her !rother& a ousin and an unle who were livin$ within their ompound& to
hase the aused.
[>]
?eonds later& Primo was apprehended !y those who answered Cora7on@s all for
help. #hey held the aused at the !a" of their ompound until they were advised !y their nei$h!ors to
all the barangay offiials instead of detainin$ him for his misdeed. Physial e%amination of the vitim
yielded ne$ative results. Ao evident si$n of e%tra/$enital physial in(ury was noted !y the medio/le$al
offier on Crysthel6s !ody as her hymen was intat and its orifie was only 0.3 m. in diameter.
Primo Campuhan had only himself for a witness in his defense. =e maintained his innoene and assailed
the har$e as a mere sheme of Crysthel@s mother who alle$edly har!ored ill will a$ainst him for his
refusal to run an errand for her.
[9]
=e asserted that in truth Crysthel was in a playin$ mood and wanted to
ride on his !a" when she suddenly pulled him down ausin$ !oth of them to fall down on the floor. 't
was in this fallen position that Cora7on haned upon them and !eame hysterial. Cora7on slapped him
and aused him of rapin$ her hild. =e $ot mad !ut restrained himself from hittin$ !a" when he
reali7ed she was a woman. Cora7on alled for help from her !rothers to stop him as he ran down from the
seond floor.
.iente& Cora7on@s !rother& timely responded to her all for help and aosted Primo. .iente punhed
him and threatened to "ill him. Bpon hearin$ the threat& Primo immediately ran towards the house of
Conrado Plata !ut .iente followed him there. Primo pleaded for a hane to e%plain as he reasoned out
that the ausation was not true. ,ut .iente "i"ed him instead. )hen Primo saw .iente holdin$ a
piee of lead pipe& Primo raised his hands and turned his !a" to avoid the !low. At this moment& the
relatives and nei$h!ors of .iente prevailed upon him to ta"e Primo to the barangay hall instead& and not
to maul or possi!ly "ill him.
Althou$h Primo Campuhan insisted on his innoene& the trial ourt on 22 1ay 1992 found him $uilty of
statutory rape& sentened him to the e%treme penalty of death& and ordered him to pay his
vitim P30&000.00 for moral dama$es& P23&000.00 for e%emplary dama$es& and the osts.
#he aused Primo Campuhan seriously assails the redi!ility of 1a. Cora7on Pamintuan. =e ar$ues that
her narration should not !e $iven any wei$ht or redene sine it was puntured with implausi!le
statements and impro!a!ilities so inonsistent with human nature and e%periene. =e laims that it was
truly inoneiva!le for him to ommit the rape onsiderin$ that Crysthel6s youn$er sister was also in the
room playin$ while Cora7on was (ust downstairs preparin$ 1ilo drin"s for her dau$hters. #heir presene
alone as possi!le eyewitnesses and the fat that the episode happened within the family ompound where
a all for assistane ould easily !e heard and responded to& would have !een enou$h to deter him from
ommittin$ the rime. ,esides& the door of the room was wide open for any!ody to see what ould !e
ta"in$ plae inside. Primo insists that it was almost inoneiva!le that Cora7on ould $ive suh a vivid
desription of the alle$ed se%ual ontat when from where she stood she ould not have possi!ly seen the
alle$ed touching of the se%ual or$ans of the aused and his vitim. =e asserts that the a!sene of any
e%ternal si$ns of physial in(uries or of penetration of Crysthel6s private parts more than !olsters his
innoene.
'n onvitin$ the aused& the trial ourt relied +uite heavily on the testimony of Cora7on that she saw
Primo with his short pants down to his "nees "neelin$ !efore Crysthel whose pa(amas and panty were
supposedly ;already removed; and that Primo was ;forin$ his penis into Crysthel6s va$ina.; #he
$ravamen of the offense of statutory rape is arnal "nowled$e of a woman !elow twelve 8129& as provided
in Art. 333& par. 839& of the 4evised Penal Code. Crysthel was only four 8-9 years old when se%ually
molested& thus raisin$ the penalty& from reclusion perpetua to death& to the sin$le indivisi!le penalty of
death under 4A 2539& ?e. 11& the offended party !ein$ !elow seven 829 years old. )e have said often
enou$h that in onludin$ that arnal "nowled$e too" plae& full penetration of the va$inal orifie is not
an essential in$redient& nor is the rupture of the hymen neessary* the mere touching of the e%ternal
$enitalia !y the penis apa!le of onsummatin$ the se%ual at is suffiient to onstitute arnal "nowled$e.
[10]
,ut the at of touching should !e understood here as inherently part of the entry of the penis into
the labias of the female or$an and not mere touching alone of the mons pubis or the pudendum.
'n People v. e la Pe!a
"##$
we larified that the deisions findin$ a ase for rape even if the atta"er6s
penis merely touhed the e%ternal portions of the female $enitalia were made in the onte%t of the
presene or e%istene of an eret penis apa!le of full penetration. )here the aused failed to ahieve an
eretion& had a limp or flaid penis& or an oversi7ed penis whih ould not fit into the vitim@s va$ina& the
Court nonetheless held that rape was onsummated on the !asis of the vitim@s testimony that the aused
repeatedly tried& !ut in vain& to insert his penis into her va$ina and in all li"elihood reahed the labia of
her pudendum as the vitim felt his or$an on the lips of her vulva&
[12]
or that the penis of the aused
touhed the middle part of her va$ina.
[13]
#hus& touching when applied to rape ases does not simply mean
mere epidermal ontat& stro"in$ or $ra7in$ of or$ans& a sli$ht !rush or a srape of the penis on the
e%ternal layer of the vitim6s va$ina& or the mons pubis& as in this ase. #here must !e suffiient and
onvinin$ proof that the penis indeed touched the labias or slid into the female or$an& and not merely
stroked the e%ternal surface thereof& for an aused to !e onvited of onsummated rape.
[1-]
As
the labias& whih are re+uired to !e ;touhed; !y the penis& are !y their natural situs or
loation !eneath the mons pubis or the va$inal surfae& to touh them with the penis is to attain some
de$ree of penetration !eneath the surfae& hene& the onlusion that touhin$ the labia majora or
the labia minora of the pudendum onstitutes onsummated rape.
#he pudendum or vulva is the olletive term for the female $enital or$ans that are visi!le in the perineal
area& e.$.& mons pubis& labia majora& labia minora& the hymen& the litoris& the va$inal orifie& et.
#he mons pubis is the rounded eminene that !eomes hairy after pu!erty& and is instantly visi!le within
the surfae. #he ne%t layer is the labia majora or the outer lips of the female or$an omposed of the outer
onve% surfae and the inner surfae. #he s"in of the outer onve% surfae is overed with hair folliles
and is pi$mented& while the inner surfae is a thin s"in whih does not have any hair !ut has many
se!aeous $lands. Ciretly !eneath the labia majora is the labia minora.
[13]
:urisprudene ditates that
the labia majora must !e entered for rape to !e onsummated&
[15]
and not merely for the penis to stro"e
the surfae of the female or$an. #hus& a $ra7in$ of the surfae of the female or$an or touhin$ the mons
pubis of the pudendum is not suffiient to onstitute onsummated rape. A!sent any showin$ of the
sli$htest penetration of the female or$an& i.e.& touhin$ of either labia of the pudendum !y the penis& there
an !e no onsummated rape* at most& it an only !e attempted rape& if not ats of lasiviousness.
:udiial depition of onsummated rape has not !een onfined to the oft/+uoted ;touhin$ of the female
or$an&;
[12]
!ut has also pro$ressed into !ein$ desri!ed as ;the introdution of the male or$an into
the labia of thepudendum&;
[1>]
or ;the !om!ardment of the draw!rid$e.;
[19]
,ut& to our mind& the ase at
!ar merely onstitutes a ;shellin$ of the astle of or$asmi poteny&; or as earlier stated& a ;strafin$ of the
itadel of passion.;
A review of the reords learly disloses that the proseution utterly failed to dishar$e its onus of
provin$ that Primo6s penis was a!le to penetrate Crysthel6s va$ina however sli$ht. Dven if we
$rant arguendo that Cora7on witnessed Primo in the at of se%ually molestin$ her dau$hter& we seriously
dou!t the veraity of her laim that she saw the inter/$enital ontat !etween Primo and Crysthel. )hen
as"ed what she saw upon enterin$ her hildren6s room Cora7on plun$ed into sayin$ that she saw Primo
po"in$ his penis on the va$ina of Crysthel without e%plainin$ her relative position to them as to ena!le
her to see learly and suffiiently& in automotive lin$o& the ontat point. 't should !e realled that when
Cora7on haned upon Primo and Crysthel& the former was alle$edly in a "neelin$ position& whih
Cora7on desri!ed thusE
FE =ow was Primo holdin$ your dau$hter0
AE 8#he witness is demonstratin$ in suh a way that the hest of the aused is pinnin$ down the vitim&
while his ri$ht hand is holdin$ his penis and his left hand is spreadin$ the le$s of the vitim9.
't an reasona!ly !e drawn from the fore$oin$ narration that Primo6s "neelin$ position rendered an
un!ridled o!servation impossi!le. Aot even a vanta$e point from the side of the aused and the vitim
would have provided Cora7on an uno!struted view of Primo6s penis supposedly reahin$ Crysthel6s
e%ternal $enitalia& i.e.& labia majora& labia minora& hymen& litoris& et.& sine the le$s and arms of Primo
would have hidden his movements from Cora7on6s si$ht& not to disount the fat that Primo6s ri$ht hand
was alle$edly holdin$ his penis there!y !lo"in$ it from Cora7on6s view. 't is the !urden of the
proseution to esta!lish ho& Cora7on ould have seen the se%ual contact and to shove her aount into
the permissive sphere of redi!ility. 't is not enou$h that she laims that she saw what was done to her
dau$hter. 't is re+uired that her laim !e properly demonstrated to inspire !elief. #he proseution failed in
this respet& thus we annot onlude without any taint of serious dou!t that inter-genital contact was at
all ahieved. #o hold otherwise would !e to resolve the dou!t in favor of the proseution !ut to run
rou$hshod over the onstitutional ri$ht of the aused to !e presumed innoent.
Cora7on insists that Primo did not restrain himself from pursuin$ his wi"ed intention despite her timely
appearane& thus $ivin$ her the opportunity to fully witness his !eastly at.
)e are not persuaded. 't is inonsistent with man6s instint of self/preservation to remain where he is and
persist in satisfyin$ his lust even when he "nows fully well that his dastardly ats have already !een
disovered or witnessed !y no less than the mother of his vitim. Gor& the normal !ehavior or reation of
Primo upon learnin$ of Cora7on6s presene would have !een to pull his pants up to avoid !ein$ au$ht
literally with his pants down. #he interval& althou$h relatively short& provided more than enou$h
opportunity for Primo not only to desist from !ut even to oneal his evil desi$n.
)hat appears to !e the !asis of the onvition of the aused was Crysthel@s answer to the +uestion of the
ourt /
FE Cid the penis of Primo touh your or$an0
AE Hes& sir.
,ut when as"ed further whether his penis penetrated her or$an& she readily said& ;Ao.; #hus /
FE ,ut did his penis penetrate your or$an0
AE Ao& sir.
[20]
#his testimony alone should dissipate the mist of onfusion that enshrouds the +uestion of whether rape in
this ase was onsummated. 't has forelosed the possi!ility of Primo6s penis penetrating her va$ina&
however sli$ht. Crysthel made a ate$orial statement denyin$ penetration&
[21]
o!viously indued !y a
+uestion propounded to her who ould not have !een aware of the finer distintions
!etween touching and penetration. Conse+uently& it is improper and unfair to attah to this reply of a four
8-9/year old hild& whose voa!ulary is yet as underdeveloped as her se% and whose lan$ua$e is !ereft of
worldly sophistiation& an adult interpretation that !eause the penis of the aused touched her or$an
there was se%ual entry. Aor an it !e dedued that in tryin$ to penetrate the vitim@s or$an the penis of the
aused touched the middle portion of her va$ina and entered the labia of her pudendumas the
proseution failed to esta!lish suffiiently that Primo made efforts to penetrate Crysthel.
[22]
Cora7on did
not say& nay& not even hint that Primo@s penis was eret or that he responded with an eretion.
[23]
On the
ontrary& Cora7on even narrated that Primo had to hold his penis with his ri$ht hand& thus showin$ that he
had yet to attain an eretion to !e a!le to penetrate his vitim.
Antithetially& the possi!ility of Primo6s penis havin$ !reahed Crysthel6s va$ina is !elied !y the hild@s
own assertion that she resisted Primo6s advanes !y puttin$ her le$s lose to$ether*
[2-]
onse+uently& she
did not feel any intense pain !ut (ust felt ;not happy; a!out what Primo did to her.
[23]
#hus& she only
shouted ;Ayo'ko, ayo'ko<; not ;Aray ko, aray ko<; 'n ases where penetration was not fully esta!lished&
the Court had anhored its onlusion that rape nevertheless was onsummated on the vitim@s testimony
that she felt pain& or the medio/le$al findin$ of discoloration in the inner lips of the vagina, or the labia
minora &as already gaping &ith redness, or the hymenal tags &ere no longer visible.
[25]
Aone was shown
in this ase. Althou$h a hild@s testimony must !e reeived with due onsideration on aount of her
tender a$e& the Court endeavors at the same time to harness only what in her story appears to !e true&
autely aware of the e+ually $uaranteed ri$hts of the aused. #hus& we have to onlude that even on the
!asis of the testimony of Crysthel alone the aused annot !e held lia!le for onsummated rape* worse&
!e sentened to death.
Iastly& it is pertinent to mention the medio le$al offier@s findin$ in this ase that there were no e%ternal
si$ns of physial in(uries on omplainin$ witness6 !ody to onlude from a medial perspetive that
penetration had ta"en plae. As Cr. Aurea P. .illena e%plained& althou$h the a!sene of omplete
penetration of the hymen does not ne$ate the possi!ility of contact& she larified that there was no
medial !asis to hold that there was se%ual ontat !etween the aused and the vitim.
[22]
'n ases of rape where there is a positive testimony and a medial ertifiate& !oth should in all respets
omplement eah other* otherwise& to rely on the testimonial evidene alone& in utter disre$ard of the
manifest variane in the medial ertifiate& would !e produtive of unwarranted or even mishievous
results. 't is neessary to arefully asertain whether the penis of the aused in reality entered the
la!ial threshold of the female or$an to aurately onlude that rape was onsummated. Gailin$ in this&
the thin line that separates attempted rape from onsummated rape will si$nifiantly disappear.
Bnder Art. 5& in relation to Art. 333& of the 4evised Penal Code& rape is attempted when the offender
ommenes the ommission of rape diretly !y overt ats& and does not perform all the ats of e%eution
whih should produe the rime of rape !y reason of some ause or aident other than his own
spontaneous desistane. All the elements of attempted rape / and only of attempted rape / are present in
the instant ase& hene& the aused should !e punished only for it.
#he penalty for attempted rape is two 829 de$rees lower than the imposa!le penalty of death for the
offense har$ed& whih is statutory rape of a minor !elow seven 829 years. #wo 829 de$rees lower
is reclusion temporal& the ran$e of whih is twelve 8129 years and one 819 day to twenty 8209 years.
Applyin$ the 'ndeterminate ?entene Iaw& and in the a!sene of any miti$atin$ or a$$ravatin$
irumstane& the ma%imum of the penalty to !e imposed upon the aused shall !e ta"en from the
medium period of reclusion temporal& the ran$e of whih is fourteen 81-9 years& ei$ht 8>9 months and 819
day to seventeen 8129 years and four 8-9 months& while the minimum shall !e ta"en from the penalty ne%t
lower in de$ree& whih is prision mayor& the ran$e of whih is from si% 859 years and one 819 day to
twelve 8129 years& in any of its periods.
WHEREFORE& the Ceision of the ourt a quo findin$ aused P4'1O ;?OAAH; CA1PB=AA H
,DIIO $uilty of statutory rape and sentenin$ him to death and to pay dama$es is MODIFIED. =e is
instead found $uilty of A##D1P#DC 4APD and sentened to an indeterminate prison term of ei$ht 8>9
years four 8-9 months and ten 8109 days of prision mayor medium as minimum& to fourteen 81-9 years ten
8109 months and twenty 8209 days ofreclusion temporal medium as ma%imum. Costs de oficio.
J J J
GLORIA A. SAMEDRA LACANILAO and PLUTARCO CADURNIGARA, petitioners,
vs. COURT OF APPEALS, EUSEBIO C. ENCARNACION and Sps. RAMON and TERESITA A.
ACEBO, respondents.
D E C I S I O N
PADILLA, J.:
#his is a petition for review on certiorari under 4ule -3 of the 4ules of Court of the deision
K
of the
Court of Appeals in CA/L.4. C. Ao. 22932 dated 2- :uly 1993 whih affirmed& with modifiations& the
deision of the trial ourt dismissin$ petitioners@ 8then plaintiffs9 omplaint for la" of merit.
#he fats are not in disputeE
Private respondent Duse!io C. Dnarnaion 8hereinafter& Dnarnaion9 owned a parel of residential land
in 'ri$a ?t.& Ia Ioma& Fue7on City with an area of 150 s+uare meters. 'n the 1930s& a house was
onstruted on a 100 s+uare meter portion of said lot !y Ceo$raia la #orre& with the onsent of
Dnarnaion. #he house was eventually !ou$ht !y Lloria A. ?. Iaanilao and her ommon/law hus!and&
Pa!lo& where they esta!lished their residene. On 12 ?eptem!er 1953& Pa!lo Iaanilao and Dnarnaion
entered into a ontrat of lease over the 100 s+. meter portion oupied !y Pa!lo@s house stipulatin$ a
monthly rental of P2-.00. Darlier& Dnarnaion had also leased the 50 s+uare meter portion of his lot to
petitioner Plutaro Cadurni$ara.
?ine then petitioners Iaanilao and Cadurni$ara have !een in possession of the lot under ontrats of
lease with owner Dnarnaion and had reli$iously paid rentals thereon up to Aovem!er 19>>.
'n Aovem!er 19>2& Dnarnaion offered to sell the lot to Iaanilao and Cadumi$ara. After months of
ne$otiation& Dnarnaion a$reed& !y mid/1ay 19>>& to sell the property to petitioners for
P120&000.00. ?ine petitioners were not ready to pay the whole amount& they re+uested for an e%tension
of one 819 month& or up to 13 :une 19>> to pay the ontrat prie and for Dnarnaion to e%eute a Ceed
of A!solute ?ale in their favor. Dnarnaion a$reed.
1eanwhile& on 11 :une 19>>& fire hit the Fue7on City hall and one of the offies !adly !urned was that of
the 4e$ister of Ceeds. Conse+uently& thousands of ori$inal opies of ertifiates of title& Dnarnaion@s
title inluded& went into ashes.
Petitioners failed to pay the purhase prie of P120&000.00 on 13 :une 19>>. #hereafter& representatives
of Dnarnaion offered to sell the property to private respondents 4amon and #eresita Ae!o. #he latter
a$reed to !uy the property for P1-3&000.00. #he Ae!os paid P20&000.00 as earnest money to
Dnarnaion on 1> Au$ust 19>>& and paid the !alane in full on 13 Aovem!er 19>>. Conse+uently&
Dnarnaion e%euted a Ceed of A!solute ?ale of the property in their favor. #he deed was provisionally
reorded in the Dntry ,oo" of the 4e$ister of Ceeds as P.D. Aos. 325/322 dated 23 Aovem!er 19>> and
duly insri!ed on the dorsal part of the owners dupliate of #ransfer Certifiate of #itle Ao. 20-335.
On 19 Aovem!er 19>>& the Ae!os& throu$h ounsel& sent petitioners a notie to vaate informin$ them
a!out the sale !y Dnarnaion of the entire property 8lot9 in their favor.
A$$rieved& petitioners filed a omplaint with the !aran$ay for alle$ed violation of tenant@s ri$ht to
purhase the lot under ?e. 5& P.C. 1312. After failin$ to seure any settlement of the ontroversy&
petitioners stopped payin$ rentals on the lot and filed a omplaint !efore the 4e$ional #rial Court& ,ranh
55& Fue7on City to annul the deed of sale e%euted !y Dnarnaion in favor of the Ae!os and to ompel
Dnarnaion to e%eute a deed of sale in their 8petitioners9 favor.
After trial& the trial ourt rendered (ud$ment dismissin$ the omplaint& the dispositive part of whih readsE
;)=D4DGO4D& (ud$ment is here!y rendered dismissin$ the omplaint.
On the ounterlaim& plaintiffs are here!y ordered (ointly and severallyE
a. to pay Duse!io C. Dnarnaion the sum of P10&000.00 as moral dama$es and P3&000.00 as e%emplary
dama$es*
!. to pay the spouses 4amon and #eresita Ae!o the sum of P10&000.00 as moral dama$es& and P3&000.00
as e%emplary dama$es*
. to pay the spouses Ae!os the sum of P3&000.00 as and for attorney@s fees.; 84#C ,ranh >5& F.C.
Ceision& p.2* 4ollo, p.159
#he evidene !efore the trial ourt show that Dnarnaion denied havin$ a$reed to sell his property to
petitioners. On the other hand& petitioners offered only parole evidene to esta!lish that Dnarnaion
;ver!ally a$reed to sell the lot in +uestion.;
Applyin$ Artiles 133> and 1-03 Ao. 28e9 of the Civil Code& the trial ourt ruled that even
assumin$ arguendo that the parties 8Dnarnaion and petitioners9 entered into a ver!al ontrat to sell& the
ontrat is& however& unenforea!le. =ene& there is no !asis to annul the deed of sale !etween
Dnarnaion and the Ae!os.
On appeal& the Court of Appeals affirmed the trial ourt@s deision !ut deleted the award of dama$es and
attorney@s fees in favor of private respondents.
'n their petition at !ar& petitioners alle$e that the Court of Appeals erredE
'
;M M M )=DA '# GA'IDC #O =OIC #=D CDGDACAA#? ?POB?D? ACD,O )D4D AO# 'A
LOOC GA'#= )=DA #=DH ,OBL=# #=D P4OPD4#H ,D'AL GBIIH A)A4D PIA'A#'GG?
=A.D ?B,?#AA#'AI 'A#D4D?# AAC )D4D '44DPA4A,IH P4D:BC'CD8C9 ,H #=D ?AID 'A
#=D'4 GA.O4.;
''
@M M M )=DA '# =DIC& #=D APPDIIAA# GA'IDC #O PAH #=D PB4C=A?D P4'CD #O
APPDIIDD DACA4AAC'OA* =DACD& #=D ?A'C APPDIIDD C'C AO# AL4DD #O #=D ?AID.;
[1]
#he petition is not impressed with merit.
't is readily apparent that petitioners are raisin$ issues of fat in their petition. 'n a petition for review
under 4ule -3 only +uestions of law may !e raised and they must !e distintly set forth. #he $eneral rule
is that findin$s of fat of the lower ourts 8inludin$ the Court of Appeals9 are final and onlusive and
will not !e reviewed on appeal e%ept 819 when the onlusion is a findin$ $rounded entirely on
speulations surmises or on(etures* 829 when the inferene made is manifestly mista"en& a!surd or
impossi!le* 839 when there is $rave a!use of disretion* 8-9 when the (ud$ment is !ased on a
misapprehension of fats* and 839 when the Court of Appeals& in ma"in$ its findin$s went !eyond the
issues of the ase and the same are ontrary to the admission of !oth appellant and appellee.
[2]
'n the ase at !ar& the +uestion of law is whether or not petitioners& on the !asis of a ver!al ontrat to sell
!y Dnarnaion& o!tained an enforea!le ri$ht to !uy Dnarnaion@s property superior to that of the
Ae!os who laim the same property !y virtue of a deed of a!solute sale in their favor e%euted !y
Dnarnaion.
't is well esta!lished that where the seller promised to e%eute a deed of a!solute sale upon ompletion of
payment of the purhase prie !y the !uyer& the a$reement is a ontrat to sell.
[3]
'n ontrats to sell&
where ownership is retained !y the seller until payment of the prie in full& suh payment is a positive
suspensive ondition& failure of whih is not really a !reah !ut an event that prevents the o!li$ation of
the vendor to onvey title in aordane with Artile 11>- of the Civil Code.
[-]
Artile 13-3 of the Civil Code also provides that ;where the o!li$ation of either party to a ontrat of sale
is su!(et to any ondition whih is not performed& suh party may refuse to proeed with the ontrat or
he may waive performane of the ondition.;
#he Court upholds the findin$s of the Court of Appeals that private respondent Dnarnaion ver!ally
a$reed to sell the lot to petitioners for P120&000.00 to !e paid on 13 :une& 19>> and that petitioners failed
to pay on said date throu$h no fault of Dnarnaion who thereupon proeeded to e%tra(udiially terminate
the oral ontrat.
#he Court also notes that while the ontrat !etween petitioners and Dnarnaion was unenforea!le
under Artile 1-03 28e9 of the Civil Code& petitioners were allowed to prove its e%istene and to demand
speifi performane !eause private respondents did not invo"e said law in their pleadin$s and even
ross/e%amined petitioners on the e%istene of the ver!al ontrat.
,ut assumin$ arguendo that private respondents waived the operation of the statute of frauds& petitioners
still failed to dishar$e the !urden of presentin$ evidene to prove that they were ready to fulfill the
ondition 8of full payment9 imposed on the o!li$ation to sell. #his fatual matter has !een amply
resolved !y the CA in favor of private respondents and an no lon$er !e distur!ed on appeal.
#he Court is not unmindful of the fat that petitioners have !een oupyin$ the lot as lessees for almost
three 839 deades. #hey ould have o!tained a ri$ht of first refusal in their ontrats of lease with
Dnarnaion or ould have onsi$ned the purhase prie in ourt when Dnarnaion alle$edly refused to
e%eute the deed of sale in their favor.
#his Court& while aware of its e+uity (urisdition& is first and foremost& a ourt of law. =ene& while
e+uity mi$ht tilt on the side of the petitioners& the same annot !e enfored so as to overrule a positive
provision of law in favor of private respondents.
WHEREFORE, premises onsidered& the petition is here!y CDA'DC and the deision of the Court of
Appeals& for la" of any reversi!le error& is AGG'41DC in toto.
J J J