CASE: People v Caoili jurisprudence provides that an accused charged in the

Information with rape by sexual intercourse cannot be

FACTS:
Victim AAA testified that her father Caoili sexually
molested her at their house. He kissed her lips,
touched and mashed her breast, inserted the fourth
finger of his left hand into her vagina, and made a
push and pull movement into her vagina with such
finger for 30 minutes. AAA felt excruciating pain
during and after the ordeal. He also boxed her on the
stomach, as well as beat and hit her with a piece of
wood when she disobeyed him when she proceeded
to the house of her uncle.
ISSUE + HOLDING:
WoN Caoili was convicted of a crime necessarily
included in the offense charged in the information and
embraced within the same article of RA 8353.
Yes, he can. The prosecution has established rape by
sexual assault. Accused Noel Go Caoili is guilty of
Lascivious Conduct under RA 7610 Sec. 5(b).
RA 8353 or the “Anti-Rape Law of 1997” amended Art.
355 of the RPC, reclassifying rape as a crime against
persons and introducing rape by “sexual assault” as
differentiated from rape through “carnal knowledge”
or rape through “sexual intercourse”. Thus, rape
under the RPC can be committed in two ways.
Through AAA’s testimony, the prosecution was able to
prove that Caoili molested his own daughter,
committing rape by sexual assault under Art. 266-A
par. 2 of the RPC.
found guilty of rape by sexual assault, even if the
latter crime was proven during trial (because of the
substantial distinctions between these two modes of
rape).
Caoili can also be convicted of the crime of lascivious
conduct under RA 7610 Sec.5(b), such law applying
when the victims of abuse are those “persons below
18 years of age or those over but are unable to fully
take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or
condition”. At the time of the commission of the
lascivious act, AAA was only about 12 years old.
The elements of sexual abuse under Section 5(b) of
R.A. No. 7610 are as follows:
(1) The accused commits the act of sexual intercourse
or lascivious conduct;
(2) The said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18
years of age.
Applying the variance doctrine, Caoili can be held
guilty of the lesser crime of Lascivious Conduct
performed on a child under Section 5(b) of R.A. No.
7610, which was the offense proved, as it is included
in rape (the offense charged).

The Court also provided that when a rape victim's

testimony on the manner she was molested is
straightforward and is corroborated by the medical
findings of the examining physician, as in this case, the
same is sufficient to support a conviction for rape. The
Court also gives full weight and credit to the
testimonies of child victims. Further, if the rape is
committed by a close kin (such as a father), it is not
necessary for actual force or intimidation to be
employed.

Here, the prosecution proved the crime of rape by

sexual assault under Art. 266-A par. 2 of the RPC, but
Caoili cannot be convicted of said crime. Rape by
sexual assault is not absorbed in rape through sexual
intercourse.

The variance doctrine was also discussed in the case,

which allows for the conviction of an accused for a
crime proved which is different from, but necessarily
included in the crime charged. However,
CASE: People v Buensuceso also aggravated by abuse of superior strength, which
is absorbed by treachery.
FACTS:
On April 1967, the accused allegedly conspired to
shoot Pareso Angeles by taking advantage of their
official positions and superior strengths. They shot
him using their service revolvers, inflicting him with
several gunshots and causing his death.

Prosecution’s version
While prosecution witness Apolonio Salvador was in
his store in Bataan, he saw Patrolman (Pat.) Aguilar
and Tayag going towards the municipal. The latter two
then went to the office of the chief of police. In such
office were Pat. Mallo and Pat. Mallari. A heated
argument later took place between Aguilar and Tayag,
with Pat. Fidel de la Criz later arriving. Tayag later
hurriedly left the office, but was followed by Aguilar,
Mallari, and de la Cruz.

Aguilar later fired his gun, causing Tayag to retreat

backwards until he reached the fence of the plaza.
When he neared the fence, Aguilar aimed his gun and
fired, hitting Tayag above the right knew. Tayag
continued to run towards his house, but Mallari
intercepted him. There were later several successive
gun shots, and after the commotion Tayag was seen
lying near the back of a jeep. De la Cruz took the knife
from Tayag and gave it to Buensuceso.

ISSUE + HOLDING:
The positive findings confirm prosecution witness
Apolonio Salvador’s declaration that they were in the
vicinity of the crime at the time of its occurrence.
Upon examination, their left hands were positive for
nitrates. Aguilar followed the victim right after the
latter hurriedly left the office of the Chief of Police,
later firing him above the right knee.

There is also ample evidence establishing that Aguilar,

Buensuceso, Izon, and Joson fired their guns at the
victim hitting him on different parts of his body. It was
not established as to which wound was inflicted by
each accused, but where the victim died as a result of
wounds received from several persons acting
independently of each other, without it being shown
which wound was inflicted by each assailant, all of the
assailants are liable for the death of the victim.

The crime here is murder qualified by treachery.

When the victim was already retreating backwards, he
was shot above his right knee and immobilized. Even
so, he was still shot at successively as shown by the
wounds he received. The means employed tended
directly and specially to insure the execution of the
crime without risk to themselves arising from any
defense the victim might have made. Such killing was
CASE: People v Dulay
FACTS:
At 1 in the morning, Juvelyn, then 13, was sleeping in
her home in Pasig. While asleep, she sensed someone
touching her private parts. She woke up and saw her
father touching her. She moved away but he held her
tightly against him. He put his finger inside her vaigna
and peeled off her short pants and panty. He later
pulled down his own shorts and briefs and went on
top of her.
He inserted his penis inside, causing Juvelyn pain. She
pleaded for him to stop doing it, but he said it would
not take long. Juvelyn wanted to shout for her help,
was scared that her father would hurt her two
younger sisters. The following night, the father raped
her again. He did the same acts several more times.
One night, Juvelyn refused to have sex with him, and
so the father angrily went on a drinking spree with his
friends. He later struck her with a hammer, and
Juvelyn’s mother tried to pacify him to no avail. The
mother, daughter, and other children later fled the
house.
ISSUE + HOLDING:
WoN resistance by the victim is required to prove lack
of consent to rape
Yes, it is. Accused Dulay stands charged with rape
under Art. 335 (RPC) as amended by RA 8353, or the
Anti-Rape Law of 1997. On Dec. 31 1993, Art. 335
(RPC) was amended by RA 7659. Rape was then
committed by having carnal knowledge of a woman:
1) By using force or intimidation
2) When the woman is deprived of reason or
otherwise unconscious or
3) When the woman is under 12 yrs of age or is
demented
On Oct 22 1997, Art. 335 was further amended by RA
8353 (The Anti-Rape Law of 1997). It reclassified rape
to a crime against persons, and expanded rape to
include other forms of sexual assault on a person. It
also removed certain aspects of the law prejudicial to
women and which posed barriers to prosecution. It
added a fourth mode of committing rape on a woman,
which is “by fraudulent machination or grave abuse of
authority” and on the provision for statutory rape,
also added that the same may be committed even
though none of the three other modes are present. It
also introduced as rape other forms of sexual assault
which may be committed not only to women but also
men. (Refer to “Relevant laws for Art. 266-A).
"Article 266-A. Rape; When and How Committed. —
Rape is Committed
1. By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or
otherwise unconscious;
c) By means of fraudulent machination or grave abuse
of authority; and
d) When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present.
2. By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another
person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another
person."
In this case, the 25 informations charged Dulay with
rape committed by force, threat, and intimidation
(under RA 8353 (1a), in other words Art. 266-A (1a)).
If the rape is made by force, violence or intimidation,
it is self evident that it was made against or without
the victim's consent. To prove lack of consent, the law
requires resistance by the victim, and RA 8353
specifies the kind of resistance and it’s proof (check
relevant laws; Art. 266-D)
“Article 266-D. Presumptions — Any physical overt act
manifesting resistance against the act of rape in any
degree from the offended party, or where the
offended party is so situated as to render her/him
incapable of giving valid consent, may be accepted as
evidence in the prosecution of the acts punished
under Article 266-A."
Any physical overt act manifesting resistance against
the rape in any degree from the victim is admissible as
evidence of lack of consent. Tenacious resistance,
however, is not required. Neither is a determined and
persistent physical struggle on the part of the victim
necessary.
Here, Juvelyn’s testimony was clear and
straightforward. Her claim of sexual violation was also
supported by the medico-legal report stating that the
victim had shallow and deep healed lacerations.
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