045. People v.

Erinia

G.R. No. L-26298/20 January 1927/En Banc/Appeal from CFI Manila

People of the Philippines petitioner
Julian Erinia respondent
Decision by J. Ostrand, Digest by Angelo Zantua

Short Version: The court held that there was only attempted rape as the entry of the
labia was not proven.

Facts:
CFI Manila convicted Erinia of consummated rape.
The victim was 3 years and 11 months old. The evidence is conclusive that Erinia
endeavored to have carnal intercourse with the victim. However, there may be
some doubt whether there was successful penetration before Erinia was disturbed
by the timely intervention of the victims mother and sister.
The physical exam done a few hours after the crime only yielded a slight
inflammation of the exterior parts of the organ, indicating that an effort had been
made to enter the vagina. When the physician testified, he expressed doubts as to
whether there was an entry. The mother testified in having found her childs genital
organ covered with a sticky substance.

Issue: WON there was an attempted rape or consummated rape? Attempted rape.
Ruling: CFI Decision modified into attempted rape.

Ratio:
The court did not agree with the suggestion that penetration was impossible
because the child was of such tender age. That since rape was impossible of
consummation, the offense should only be abusos deshonestos. While it is probably
true that a complete penetration was impossible, such penetration is not essential
to the commission of the crime. Penetration of the labia is sufficient.

Citation of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where
the offended party was a child of 3 years and 8 months. Several physicians testified
that the labia of a child of that age can be entered by a man's male organ to the
hymen. The defendant was found guilty of the consummated rape.

Since there is no conclusive evidence of penetration of the genital organ of the

victim, the defendant is entitled to the benefit of the doubt and can only be found
guilty of frustrated rape. The court also held that the sticky substance cannot be
considered conclusive evidence of penetration.

Voting: Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

Malcolm dissenting
Consummated rape according to the evidence, the findings of CFI, and SC decisions.
The case is on all fours with the case of Kenney vs. State (65 L. R. A., 316)
previously cited.