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Supreme Court: Hermogenes Caluag For Appellant. Attorney-General Jaranilla For Appellee

This document summarizes a Supreme Court of the Philippines case from 1927. [1] The defendant was found guilty of raping a 3-year-old child but the court had doubts there was full penetration. [2] While penetration is not required for rape, penetration of the labia is sufficient. [3] Given the doubts, the court found the defendant guilty of the lesser crime of frustrated rape and sentenced him to 12 years in prison, citing abuse of confidence as an aggravating circumstance.

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Janeen Zamudio
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105 views2 pages

Supreme Court: Hermogenes Caluag For Appellant. Attorney-General Jaranilla For Appellee

This document summarizes a Supreme Court of the Philippines case from 1927. [1] The defendant was found guilty of raping a 3-year-old child but the court had doubts there was full penetration. [2] While penetration is not required for rape, penetration of the labia is sufficient. [3] Given the doubts, the court found the defendant guilty of the lesser crime of frustrated rape and sentenced him to 12 years in prison, citing abuse of confidence as an aggravating circumstance.

Uploaded by

Janeen Zamudio
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.


Attorney-General Jaranilla for appellee.

OSTRAND, J.:

This is an appeal from a judgment 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 months 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 months old 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 organ 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 Kenny vs. State ([Tex.
Crim. App.], 79 S. W., 817; 65 L. R. 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 her 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 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 judgment 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 prision mayor, with the accessory
penalties prescribed by law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

In my opinion, the accused is guilty of raping a child 3 years and 11 months of age. It is
consummated 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 fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the majority
decision. In the Kenny 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 imprisonment, as
imposed by the trial court. Accordingly, my vote is for affirmance of the judgment.

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