CHAPTER IV: STAGES OF EXECUTION

The crime of rape, like other felonies, used to have three stages of execution, namely: attempted, frustrated and consummated. Philippine jurisprudence, however, has long abandoned the frustrated stage in the crime of rape. Thus, to date, only the Erinia case (50 Phil 998) stands as the first and only decision in this jurisdiction on frustrated rape.

(No. 26298. January 20, 1927)

THE PEOPLE OF THE PHilIPPINES ISJANDS, plaintiff and appellee, vs. Julia Erinia Y. Vinolla, defendant and appellant.

This is an appeal from a judgement of the Court of First Instance of Manila finding the defendant guilty of the crime of consummated rape and sentencing him to suffer seventeen years, four month and one day of reclusion temporal, with the accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 month and the evidence is conclusive that the defendant endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagina before being disturbed by the timely intervention of the mother and the sister of the child. The physician who examined the genital organ of the child a few hours after the commission of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been made to enter the vagina, but in testifying before the court he expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its genital orgun covered with a sticky substance, but that cannot be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently was impossible of consummation and that therefore, the offense committed should be treated only as abusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the labia. In the case of Kenney vs. State (Tex. Crim. App.), 79 S.W., 81r65 LR.A., 316) where the offended party was a child of the age of 3 years and 8 months, the testimony of several physicians was to the effect that the labia of the privates of a child of that age can be entered by a man’s male organ to the hymen and the defendant was found guilty of the consummated crime of rape.

There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the aggravating circumstance of abuse of confidence existed and the penalty must therefore be imposed in its maximum degree.

The judgement appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prison mayor, with the accessory penalties prescribed by law, and with the costs in both instances. So ordered. Johnson, Street, Villamor, Romualdez, and Villa- Real., concur. MALCOM, J., dissenting:

In my opinion, the accused is guilty of raping a child 3 years and 11 month of age. It is consammated rape according to the evidence of record, the findings of the trial judge, and our decisions. (People vs. Hernandez (1925), 49 Phil., 980; People vs. Oscar (1925), 48 Phil., 527). The instant case is on all forms with the case of Kenney vs. State (65 L.R.A., 316), cited in the majority decision. In the Kenney case, the penalty was death, and here for this horrible crime, should be placed in the maximum degree, or seventeen years, four months, and one day inaprisoaunent, as imposed by the trial court. Accordingly, my vote is for affirmance of the judgement.

Judgement modified.

The above decision has not been reiterated in subsequent decisions. Hence, the Supreme Court has considered it “stray”“Taking into account the nature, elements and maimer of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can be committed.” (People vs. Orita, 184 SCRA 105).

In abandoning the frustrated stage in the crime of rape, ;he Supreme Court explained:

“ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

“1. By using force of intimidation;

“2. When the woman is deprived of reason or otherwise unconscious; and

“3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the next preceding paragraphs shall be present.

"xxx".

Carnal knowledge is defined as the act of a man in having sexual bodily connection with a woman (Black’s Law Dictionary, Fifth Edition, p. 193).
“On the other hand, Article 6 of the same Code Provides:

“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 by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.”

“Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape.

“The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator’s will. In the leading case of United States v. Eduave, 36 Phil 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students: V“xxx A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.”

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559; People v. Rabadan, et at., 53 Phil. 694; United States v. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.“Of course, We are aware of our earlier pronouncement in the case of People v. Erinia, 50 Phil. 998 (1927) where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the oUended party. However, it appears that this is a “stray” decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Erinia case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.”

“In concluding that there is conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he “categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration.” (p. 53, Rob) Furthermore, the trial court stated (p 57, Rob):

x x It cannot be insensible to the findings in the medical certificate (Exhibit “A”) as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras, People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there Is a positive testimony and medical certificate, both should in all respect, compilment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results.”

“There alleged variance between the testimony of the victim and the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

“Q Was the penis inserted on the vagina?
“A It entered but only a portion of it.” x x x
“Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?
“A I inserted his penis into my vagina.
“Q And was it inserted?
“A Yes, only a little.”

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim’s testimony if credible (People v. Tabago G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L.3792829, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora’s testimony is merely corroborative and is an indispensable element in the prosecution of this case” (People v.Alfonso, supra).

Attempted Rape

Necessarily, rape is attempted if there is no penetration of the female’s organ (People vs. Tayabas, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil., 694; United States vs. Garcia, 9 Phil. 443).

Where the accused seized the complaining witness and attempted to throw her to the ground under circumstances showing a purpose to ravish her forcibly, but desisted by reason of the strenuous resistance which she offered, and also because of the approach of persons attracted by her scream, the offense is attempted rape (United States vs. Estrada, 24 Phil. 401

With the use of force and despite the woman’s resistance, the accused lifted the hem of her skirt, embraced, hugged
and kissed her, desisting only when she screamed and stood up, attempted rape is committed (People vs. Ching Suy Siong, et al., 96 Phil. 975).

Consummated Rape

In the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and from that moment all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated (People vs. Orita, supra).

For the consummation of the crime of rape, it is not essential that there be complete penetration of the female organ. Neither is it essential that there be rupture of the hymen or laceration of the vagina. It is sufficient if the labia be penetrated (People vs. Oscar 48 Phil. 527; People vs. Hernandez, 49 Phil. 980). Perfect penetration is not essential (People vs. Orita, supra). The slightest penetration of the pudenda is quite sufficient (People vs. Rosell, 191 SCRA 679).

“To prove a charge of rape, it is not necessary to prove a rupture of the hymen; nor is it necessary to show that there was a laceration of the vagina which usually results from first time copulation, espeeiahly with young girls (People vs. Lomibao, 55 Phil. 616). Neither is complete penetration necessary. In view of the tender age of the victim, penetration may indeed be impossible”. (People vs. Erinia, supra)

Absence of spermatozoa in the vagina or thereabouts does not negate the commission of rape (People vs. Yambao, 193 SCRA 571). Presence of marks or signs of physical violence or injuries on the victim’s body is not necessary for rape to be committed (People vs. Feliciano, 195 SCRA 19; People vs. Arenas, 198 SCRA 172), and the fact that the victim remained a virgin does not negate rape either (People vs. Castro, 196 SCRA 679).