Lazarte vs Sandiganbayan
The bag taken by the man was brought to the tricycle of accused
Peopls vs. Delim
People vs. Comadre
Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and
proposal to commit felony are punishable only in the cases in which the
law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.
Not mere presence & transcends companionship:
People v. Joselito del Rosario
ISSUE: Can the accused be considered part of the conspiracy when he
drove his co-accused away from the scene of the crime?
FACTS:
1. Joselito del Rosario y Pascual, Ernesto Marquez alias “Jun,”
Virgilio Santos alias “Boy Santos” and John Doe alias “Dodong”
were charged with the special complex crime of Robbery with
Homicide for having robbed Virginia Bernas, a 66-year old
businesswoman, of P200,000.00 in cash and jewelry and on the
occasion thereof shot and killed her
2. Eyewitness Alonzo saw two (2) men and a woman grappling for
possession of a bag. After taking hold of the bag one of the two
men armed with a gun started chasing a man who was trying to
help the woman, while the other snatcher kicked the woman
sending her to the ground. Soon after, the armed man returned and
while the woman was still on the ground he shot her on the head.
3.
del Rosario where someone inside received the bag. The armed
man then sat behind the driver while his companion entered the
sidecar and the tricycle sped away. Alonzo gave chase and was
able to get the plate number of the tricycle. He also recognized the
driver, after which he went to the nearest police headquarters and
reported the incident
4. Joselito del Rosario’s version of the incident: At around 5:30 in
the afternoon he was hired for P120.00 by a certain “Boy” Santos,
his co-accused. Their original agreement was that he would drive
him to a cockpit at the Blas Edward Coliseum. However despite
their earlier arrangement Boy Santos directed him to proceed to
the market place to fetch “Jun” Marquez and “Dodong” Bisaya.
Del Rosario agreed.
5. Marquez and Bisaya boarded in front of the parking lot of Merced
Drugstore at the public market. Subsequently, he was asked to
proceed and stop at the corner of Burgos and General Luna Sts.
where Bisaya alighted on the pretext of buying a cigarette. The
latter then accosted the victim Virginia Bernas and grappled with
her for the possession of her bag. Jun Marquez alighted from the
tricycle to help “Dodong” Bisaya. Accused del Rosario tried to
leave and seek help but “Boy Santos” who stayed inside the
tricycle prevented him from leaving and threatened in fact to shoot
him.
6. Upon arriving at Dicarma, the three (3) men alighted and warned
del Rosario not to inform the police authorities about the incident
otherwise he and his family would be harmed. Del Rosario then
went home. Because of the threat, however, he did not report the
matter to the owner of the tricycle nor to the barangay captain and
the police
RULING:
1. On the issue of conspiracy, the trial court anchored del Rosario’s
conviction on his participation in the orchestrated acts of the co-
accused. According to the trial court, del Rosario facilitated the
 escape of the other malefactors from the crime scene and 6. WHEREFORE, the decision of the Regional Trial Court of
conspiracy between accused and his passengers was evident Cabanatuan City convicting accused JOSELITO DEL ROSARIO
because “while the grappling of the bag, the chasing of the helper Y PASCUAL of Robbery with Homicide and sentencing him to
of the victim and the shooting that led to the death of Virginia death, is REVERSED and SET ASIDE, and the accused is
Bernas were happening, accused Joselito del Rosario was riding ACQUITTED of the crime charged. His immediate RELEASE
on his tricycle and the engine of the motor was running;” from confinement is ordered unless held for some other lawful
2. We disagree with the trial court. A conspiracy in the statutory cause. In this regard, the Director of Prisons is directed to report to
language exists when two or more persons come to an agreement the Court his compliance herewith within five (5) days from
concerning the commission of a felony and decide to commit it. receipt hereof.
The objective of the conspirators is to perform an act or omission
punishable by law. That must be their intent. There is need for
“concurrence of wills” or “unity of action and purpose” or for
“common and joint purpose and design.” Its manifestation could
be shown by “united and concerted action.”
3. In the instant case, while del Rosario admits that he was at the
locus criminis as he was the driver of the getaway vehicle, he
nonetheless rebuts the imputation of guilt against him by asserting
that he had no intent to rob and kill since he was not given any
briefing thereof. He was merely hired by Boy Santos to drive to an
agreed destination and he was prevented at gunpoint from leaving
the scene of the crime since he was ordered to help them escape.
4. The fact that del Rosario was with the other accused when the
crime was committed is insufficient proof to show cabal (secret
group?). Mere companionship does not establish conspiracy. The
only incriminating evidence against del Rosario is that he was at
the scene of the crime but he has amply explained the reason for
his presence and the same has not been successfully refuted by the
prosecution.
5. As stated earlier, he feared for his safety and security because of
the threat made by his co-accused that he would be killed should
he shout for help. No complicity can be deduced where there is
absolutely no showing that the accused directly participated in the
overt act of robbing and shooting although he was with the
persons who robbed and killed the victim

People vs. De Vera (Labrador)
GR No.| Date | J. Surname| Proposal and Conspiracy: Lookout’s liability
PLAINTIFF-APPELLEE:
DEFENDANT-APPELLANT:
SUMMARY:
Four were accused in the crime of murder when they shot the victim in a
grassy place. This case talks about whether one of the accused is
considered a principal/conspirator or merely an accomplice.
DOCTRINE:
The Revised Penal Code provides that a conspiracy exists when “two or
more persons come to an agreement concerning the commission of a
felony and decide to commit it.– To prove conspiracy, the prosecution
must establish the following three requisites: “(1) that two or more persons
came to an agreement, (2) that the agreement concerned the commission
of a crime, and (3) that the execution of the felony [was] decided upon.
FACTS:
1. Bernardino Cacao saw a car passing by, driven by victim Frederick
Capulong together with four (4) other passengers. Cacao did not at
first notice anything unusual inside the car while it passed by him,
but then he heard unintelligible voices coming from the car as it was
cruising around Denver Loop Street. His curiosity taking [the]
better part of him, Cacao walked to the opposite side of the road
from where he saw the car already parked.
2. Moments later, he saw the victim dragged out of the car by Florendo
and brought to a grassy place. Florendo was holding a gun. Upon
reaching the grassy spot, Florendo aimed and fired the gun at the
victim, hitting him between the eyes. After the shooting, Florendo
and his companions fled in different directions.
3. The policemen went around the subdivision to look for possible
suspects and saw Edwin de Vera. Explaining the mud stains on his
pants, appellant declared that he was a victim of a hold-up.
Suspicious [of] his conduct, the policemen brought appellant to
Station and turned him over to the desk officer for investigation.
4. De Vera admitted being [with the] group which perpetrated the
crime, and implicated Roderick Garcia.
5. Based on the testimony of Eyewitness Bernardino Cacao, the trial
court ruled that it was indeed Kenneth Florendo who had actually
shot the victim, Roderick Capulong. The trial court convicted De
Vera as a principal, however, because “the scientific and forensic
findings on the criminal incident directly and substantially
confirmed the existence of conspiracy among the four”
6. In ruling that there was conspiracy between Florendo, Castro,
Garcia and Appellant De Vera, the trial court relied mainly on the
testimony of Eyewitness Cacao. Specifically, it based its
conclusions on the following facts: accused was seen with the other
accused inside the victim’s car; the victim was clearly struck with a
blunt object while inside the car, and it was unlikely for Florendo to
have done it all by himself; moreover, it was impossible for De Vera
and Garcia to have been unaware of Florendo’s dark design on
Roderick.
ISSUES:
1. Whether or not De Vera should be convicted only as an accomplice, not
as a conspirator- YES.
RATIO:
Cacao testified that he saw Appellant De Vera in the car, where an
altercation later occurred. Thereafter, he saw Florendo drag out of the
vehicle an apparently disabled Capulong and shoot the victim in the head
moments later. Cacao’s testimony contains nothing that could inculpate
appellant. Aside from the fact that he was inside the car, no other act was
imputed to him. Mere presence does not amount to conspiracy. Indeed, the
trial court based its finding of conspiracy on mere presumptions, and not on
solid facts indubitably indicating a common design to commit murder. Such
suppositions do not constitute proof beyond reasonable doubt.
De Vera knew of Kenneth Florendo’s malevolent intention. His companions
were armed that day, a fact which revealed the unmistakable plan of the
group. De Vera cooperated with the other accused in the commission of the
crime by placing himself at a certain distance from Kenneth and the victim
in order to act as a lookout
De Vera’s presence was not innocuous (was not harmless). Knowing that
Florendo intended to kill the victim and that the three co-accused were
carrying weapons, he had acted as a lookout to watch for passersby. He was
not an innocent spectator; he was at the locus criminis in order to aid and
abet the commission of the crime. These facts, however, did not make him
a conspirator; at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when “two or
more persons come to an agreement concerning the commission of a felony
and decide to commit it.
The Court has held that in most instances, direct proof of a previous
agreement need not be established, for conspiracy may be deduced from the
acts of the accused pointing to a joint purpose, concerted action and
community of interest.
On the other hand, the Revised Penal Code defines accomplices as “those
persons who, not being included in Article 17, cooperate in the execution
of the offense by previous or simultaneous acts. To hold a person liable as
an accomplice, two elements must be present: (1) the “community of
criminal design; that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his purpose;– and (2) the
performance of previous or simultaneous acts that are not indispensable to
the commission of the crime.
Once conspiracy is proven, the liability is collective and not individual. The
act of one of them is deemed the act of all. In the case of an accomplice, the
liability is one degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and
agree with the criminal design. Conspirators, however, know the criminal
intention because they themselves have decided upon such course of action.
Accomplices come to know about it after the principals have reached the
decision, and only then do they agree to cooperate in its execution.
Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its
accomplishment. Conspirators are the authors of a crime; accomplices are
merely their instruments who perform acts not essential to the perpetration
of the offense.
Appellant De Vera knew that Kenneth Florendo had intended to kill
Capulong at the time, and he cooperated with the latter. But he himself did
not participate in the decision to kill Capulong; that decision was made by
Florendo and the others. He joined them that afternoon after the decision to
kill had already been agreed upon. Significantly, the plan to kill could have
been accomplished without him. It should be noted further that he alone was
unarmed that afternoon. Florendo and Garcia had guns, and Castro had a
baseball bat.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De
Vera is CONVICTED as an accomplice, not as a principal, in the crime of
murder. He is sentenced to an indeterminate prison term of 8 years and 1
day of prision mayor as minimum, to 14 years 8 months and 1 day of
reclusion temporal as maximum.
Attempt
RPC, Art. 51, 55 & 57 (Reyes, pp. 710-714)
R.A. No. 8484, Sec. 12
RULING:
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated and attempted,
are punishable.
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a
felony directly or over acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than this own spontaneous desistance.
Never passes subjective phase:
U.S. v. Eduave
ISSUE: Is the accused guilty of attempted or frustrated homicide?
FACTS:
1. The accused rushed upon the girl suddenly and struck her from
behind, in part at least, with a sharp bolo, producing a frightful
gash in the lumbar region and slightly to the side eight and one-
half inches long and two inches deep, severing all of the muscles
and tissues of that part.
2. The motive of the crime was that the accused was incensed
(angry) at the girl for the reason that she had charged him with
having raped her and with being the cause of her pregnancy. He
was her mother's querido and was living with her as such at the
time the crime here charged was committed.
1. We are of the opinion that the crime was frustrated and not
attempted murder
2. Article 3 of the Penal Code defines a frustrated felony as follows:
"A felony is frustrated when the offender performs all the
acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it
by reason of causes independent of the will of the
perpetrator."
An attempted felony is defined thus:
"There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does
not perform all the acts of execution which constitute the
felony by reason of some cause or accident other than his
own voluntarily desistance."
3. The crime cannot be attempted murder. This is clear from the fact
that the defendant performed all of the acts which should have
resulted in the consummated crime and voluntarily desisted from
further acts.
4. In case of an' attempt the offender never passes the subjective
phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes.
5. On the other hand, in case of frustrated crimes the subjective phase
is completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If the
crime did not result as a consequence it was due to something
beyond his control.
6. The subjective phase is that portion of the acts constituting the
crime included between the act which begins the commission of
 the crime and the last act performed by the offender which, with
the prior acts, should result in the consummated crime.
7. It may also be said to be that period occupied by the acts of the
offender over which he has control—that period between the point
where he begins and the point where he voluntarily desists. If
between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase
has not been passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated.
8. That the case before us is frustrated is clear. The penalty should
have been thirteen years of cadena temporal there being neither
aggravating nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.
Indeterminate offense; Logical relation to a concrete offense; inchoate as
to other possible offense:
People v. Lamahang
ISSUE: Whether or not Lamahang should be guilty of attempted robbery
or attempted trespass to dwelling.
FACTS:
1. The defendant Aurelio Lamahang is before this court on appeal
from a decision of the Court of First Instance of Iloilo, finding him
guilty of attempted robbery and sentencing him to suffer two years
and four months of prisión correccional and to an additional
penalty of ten years and one day of prisión mayor f or being an
habitual delinquent, with the accessory penalties of the law, and to
pay the costs of the proceeding.
2. Lamahang was caught in the act of making an opening with an
iron bar on the wall of a store of cheap. At that time the owner of
the store, Tan Yu, was sleeping inside with another Chinaman.
3. The accused had only succeeded in breaking one board and in
unfastening another from the wall, when the policeman showed
up, who instantly arrested him and placed him under custody.
RULING:
1. Attempted trespass to dwelling. It is the Court’s 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.
2. 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.
3. There is no doubt that in the case at bar it was the intention of the
accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of
policeman Tomambing, did not develop beyond the first steps of
its execution.
4. 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.
5. Thus, in case of robbery, in order that the simple act of entering by
means of force or violence another person's dwelling may be
considered an attempt to commit this offense, it must be shown
that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another.
6. In the instant case, there is nothing in the record from which such
purpose of the accused may reasonably be inferred. From the fact
established and stated in the decision, that the accused on the day
in question was making an opening by means of an iron bar on the
wall of Tan Yu's store, it may only be inferred that he was going to
rob Tan Yu.
7. The relation existing between the facts submitted for appreciation
and the offense which said facts are supposed to produce must be
direct; the intention must be ascertained from the facts and
therefore it is necessary that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury.
8. In view of the foregoing, we are of the opinion, and so hold that
the fact under consideration does not constitute attempted robbery
but attempted trespass to dwelling. Under article 280 of the
Revised Penal Code, this offense is committed when a private
person shall enter the dwelling of another against the latter's will.
9. Against the accused must be taken into consideration the
aggravating circumstances of nighttime and former convictions,—
inasmuch as the record shows that several final judgments for
 robbery and theft have been rendered against him—and in his
favor, the mitigating circumstance of lack of instruction.
10. Wherefore, the sentence appealed from is revoked and the accused
is hereby held guilty of attempted trespass to dwelling, committed
by means of force, with the aforesaid aggravating and mitigating
circumstances and sentenced to three months and one day of
arresto mayor, with the accessory penalties thereof and to pay the
costs
Overt acts and necessary causal relation with intended crime; Attempted,
consummated rape or acts of lasciviousness
Cruz v. People
ISSUE: Whether or not the petitioner’s climbing on top of the undressed
AAA such that they faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape.
FACTS:
1. The petitioner was charged in the RTC with attempted rape and
acts of lasciviousness involving different victims. RTC & CA
ruling: Attempted rape
2. Norberto Bartolome and [his wife] Belinda Cruz were engaged in
the selling of plastic wares and glass wares in different
municipalities around the country. Norberto and Belinda employed
AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta.
3. 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. She fought back and kicked
Norberto twice. Norberto was not able to pursue his lustful desires.
4. 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.
5. Cruz argued that AAA and BBB filed these cases against him for
the purpose of extorting money from him.
RULING:
1. No. There is an attempt, according to Article 6 of the Revised
Penal Code, 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 this own spontaneous desistance.
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.
3. In other words, rape is consummated once the penis indeed
touches the labias or slides into the female organ, and not merely
stroked the external surface.
4. Rape in its frustrated stage is a physical impossibility, considering
that the requisites of a frustrated felony are that: (1) the offender
has performed all the acts of execution which would produce the
felony. If he has performed all acts of execution, then it is
consummated.
5. Rape admits of an attempted stage. It is necessary 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.
6. In attempted rape, therefore, the concrete felony is rape, but the
offender does not perform all the acts of execution of having
carnal knowledge.
7. Inferring from the facts of the case that rape, and no other, was his
intended felony would be highly unwarranted. This was so, despite
his lust for and lewd designs towards her being fully manifest.
Such circumstances remained equivocal, or “susceptible of double
interpretation,”
8. It is obvious that the fundamental 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.
9. Attempted rape is committed, therefore, when the “touching” of
the vagina by the penis is coupled with the intent to penetrate.
Without such showing, only the felony of acts of lasciviousness is
committed.
10. His embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of evidence
showing his erectile penis being in the position to penetrate her
when he was on top of her deterred any inference about his intent
to lie with her. At most, his acts reflected lewdness and lust for
her.
11. 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.
12. WHEREFORE, the Court FINDS and PRONOUNCES petitioner
NORBERTO CRUZ y BARTOLOME guilty of ACTS OF
LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him
with the indeterminate sentence of three (3) months of arresto
mayor, as the minimum, to two (2) years, four (4) months and one
day of prisión correccional, as the maximum; ORDERS him to
pay moral damages of P30,000.00 and civil indemnity of
P20,000.00 to the complainant, with interest of 6% per annum on
such awards reckoned from the finality of this decision until full
payment; and DIRECTS him to pay the costs of suit.
Subjective and objective phase ; Intent to kill:
Note: Whether passing of subjective phase is determinative and not gravity
of wound
People v. Listerio
ISSUE: Is Listerio guilty of attempted or frustrated homicide?
FACTS:
1. At around 5:00 p.m., Marlon and his brother Jeonito were in Purok
4, Alabang, Muntinlupa to collect a sum of money from a certain
Tino. Having failed to collect anything from Tino, Marlon and
Jeonito then turned back. On their way back while they were
passing Tramo near Tino’s place, a group composed of Agapito
Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre
and Bonifacio Bancaya blocked their path and attacked them with
lead pipes and bladed weapons. Jeonito was stabbed from behind
and killed. Marlon was hit on the head with lead pipes.
2. Accused’s version: Accused was brought to the police station and
was handed a Sinumpaang Salaysay executed by Marlon Araque,
implicating him for the death of Jeonito Araque and the frustrated
murder of Marlon Araque. Accused-Appellant confronted Marlon
Araque as to why he was being included in the case. Marlon
Araque answered “because you 39 eject[ed] us from your house.”
RULING:
1. An overall scrutiny of the records of this case leads us to no other
conclusion than that accused-appellant is guilty as charged for
Murder in Criminal Case No. 91-5842. (Jeonito)
2. In Criminal Case No. 91-5843, wherein accused was indicted for
Frustrated Homicide (Marlon), the trial court convicted accused of
Attempted Homicide only on the basis of Dr. Manimtim’s
testimony that none of the wounds sustained by Marlon Araque
were fatal.
3. The reasoning of the lower court on this point is flawed because it
is not the gravity of the wounds inflicted which determines
whether a felony is attempted or frustrated but whether or not the
subjective phase in the commission of an offense has been passed.
4. By subjective phase is meant “[t]hat portion of the acts
constituting the crime included between the act which begins the
commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the
consummated crime. It may also be said to be that period occupied
by the acts of the offender over which he has control—that period
between the point where he begins and the point where he
voluntarily desists.
5. If between these two points the offender is stopped by reason of
any cause outside of his own voluntary desistance, the subjective
phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is
frustrated.”
6. To put it another way, in case of an attempt the offender never
passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before
the subjective phase is passed.
7. On the other hand, in case of frustrated crimes, the subjective
phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the
offender.
8. In relation to the foregoing, it bears stressing that intent to kill
determines whether the infliction of injuries should be punished as
attempted or frustrated murder, homicide, parricide or
consummated physical injuries.
9. Homicidal intent must be evidenced by acts which at the time of
their execution are unmistakably calculated to produce the death
of the victim by adequate means. Suffice it to state that the intent
to kill of the malefactors herein who were armed with bladed
weapons and lead pipes can hardly be doubted given the prevailing
facts of the case.
10. It also cannot be denied that the crime is a frustrated felony, not an
attempted offense considering that after being stabbed and clubbed
twice in the head as a result of which he lost consciousness and
fell, Marion’s attackers apparently thought he was already dead
and fled.
11. WHEREFORE, the appealed decision is AFFIRMED with the
following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral
damages in Criminal Case No. 91-5843 is DELETED;

2.] Accused-Appellant is found GUILTY beyond reasonable doubt

in Criminal Case No. 91-5843 of Frustrated Homicide and is
sentenced to suffer an indeterminate penalty of Six (6) Years of
Prision Correccional, as minimum to Ten (10) Years and One (1)
Day of Prision Mayor, as maximum.
In rape, touching the mons pubis of the pudendum:
People v. Campuhan
ISSUE:
FACTS:
1. Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel
Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the freezer
located at the second floor.
2. As Corazon was busy preparing the drinks, she heard one of her
daughters cry, “Ayo’ko, ayo’ko!” prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her
children’s room kneeling before Crysthel (4 years old) whose
pajamas or “jogging pants” and panty were already removed,
while his short pants were down to his knees.
3. According to Corazon, Primo was forcing his penis into Crysthel’s
vagina. Horrified, she cursed the accused, “P - t - ng ina mo, anak
ko iyan!” and boxed him several times. He evaded her blows and
pulled up his pants.
4. He pushed Corazon aside when she tried to block his path.
Corazon then ran out and shouted for help thus prompting her
brother, a cousin and an uncle who were living 8 within their
compound, to chase the accused. Seconds later, Primo was
apprehended.
5. Physical examination of the victim yielded negative results. No
evident sign of extra-genital physical injury was noted by the
medico-legal officer on Crysthel’s body as her hymen was intact
and its orifice was only 0.5 cm. in diameter.
6. The trial court on 27 May 1997 found him guilty of statutory rape,
sentenced him Sto the extreme penalty of death, and ordered him
to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
RULING:
1. A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo’s penis
was able to penetrate Crysthel’s vagina however slight.
2. Even if we grant arguendo that Corazon witnessed Primo in the act
of sexually molesting her daughter, we seriously doubt the
veracity of her claim that she saw the inter-genital contact between
Primo and Crysthel. When asked what she saw upon entering her
children’s room Corazon plunged into saying that she saw Primo
poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point.
3. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not
an essential ingredient, nor is the rupture of the hymen necessary;
the mere touching of the external genitalia by the penia capable of
consummating the sexual act is sufficient to constitute carnal
knowledge.
4. But the act of touching should be understood here as inherently
part of the entry of the penis into the labias of the female organ
and not mere touching alone of the mons pubis or the pudendum.
5. Touching when applied to rape cases does 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
6. 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. 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 in a case, by the ‘mere
touching of the external genitalia by the penis capable of sexual
act
7. 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.
8. It is the burden of the prosecution to establish how Corazon could
have seen the sexual contact and to shove her account into the
permissive sphere of credibility. It is not enough that she claims
that she saw what was done to her daughter. It is required that her
claim be properly demonstrated to inspire belief. The prosecution
failed in this respect, thus we cannot conclude without any taint of
serious doubt that inter-genital contact was at all achieved.
9. WHEREFORE, the Decision of the court a quo finding accused
PRIMO “SONNY” CAMPUHAN Y BELLO guilty of statutory
rape and sentencing him to death and to pay damages is
MODIFIED. He is instead found guilty of ATTEMPTED RAPE
and sentenced to an indeterminate prison term of eight (8) years
four (4) months and ten (10) days of prision mayor medium as
minimum, to fourteen (14) years ten (10) months and twenty (20)
days of reclusion temporal medium as maximum. Costs de oficio.
Attempted and consummated rape distinguished:
Cruz v. People
ISSUE: Whether or not the petitioner’s climbing on top of the undressed
AAA such that they faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape.
FACTS:
1. The petitioner was charged in the RTC with attempted rape and
acts of lasciviousness involving different victims. RTC & CA
ruling: Attempted rape
2. Norberto Bartolome and [his wife] Belinda Cruz were engaged in
the selling of plastic wares and glass wares in different
municipalities around the country. Norberto and Belinda employed
AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta.
3. 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. 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.
4. 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.
5. Cruz argued that AAA and BBB filed these cases against him for
the purpose of extorting money from him.
RULING:
1. No. There is an attempt, according to Article 6 of the Revised
Penal Code, 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 this own spontaneous desistance.
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.
3. In other words, rape is consummated once the penis capable of
consummating the sexual act touches the external genitalia of the
female. 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
4. 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 are that: (1) the offender has performed all the
acts of execution which would produce the felony.
5. Nonetheless, rape admits of an attempted stage. It is necessary 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.
6. In attempted rape, therefore, the concrete felony is rape, but the
offender does not perform all the acts of execution of having
carnal knowledge.
7. The State, to establish attempted rape, must show that his overt
acts, should his criminal intent be carried to its complete
termination without being thwarted by extraneous matters, would
ripen into rape.
8. Inferring from the facts of the case that rape, and no other, was his
intended felony would be highly unwarranted. This was so, despite
his lust for and lewd designs towards her being fully manifest.
 Such circumstances remained equivocal, or “susceptible of double
interpretation,”
9. It is obvious that the fundamental 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. 29
Attempted rape is committed, therefore, 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.
10. His embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of evidence
showing his erectile penis being in the position to penetrate her
when he was on top of her deterred any inference about his intent
to lie with her. At most, his acts reflected lewdness and lust for
her.
11. 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.
12. WHEREFORE, the Court FINDS and PRONOUNCES petitioner
NORBERTO CRUZ y BARTOLOME guilty of ACTS OF
LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him
with the indeterminate sentence of three (3) months of arresto
mayor, as the minimum, to two (2) years, four (4) months and one
day of prisión correccional, as the maximum; ORDERS him to
pay moral damages of P30,000.00 and civil indemnity of
P20,000.00 to the complainant, with interest of 6% per annum on
such awards reckoned from the finality of this decision until full
payment; and DIRECTS him to pay the costs of suit.