Criminal Law 1 Cases
Republic of the Philippines and consummation. The attempt to commit an indeterminate offense,
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
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 prision correccional and to an additional penalty of ten years
and one day of prision mayor for being an habitual delinquent, with the
accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of
Iloilo, caught the accused in the act of making an opening with an iron
bar on the wall of a store of cheap goods located on the last named
street. At that time the owner of the store, Tan Yu, was sleeping inside
with another Chinaman. 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.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our 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
inasmuch as its nature in relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code. 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. 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; it is necessary
to prove that said beginning of execution, if carried to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. 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. 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 as a logical conclusion
that his evident intention was to enter by means of force said store
against the will of its owner. That his final objective, once he succeeded
in entering the store, was to rob, to cause physical injury to the inmates,
or to commit any other offense, there is nothing in the record to justify a
concrete finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of
the action intended (accion fin) cannot exactly be ascertained,
but the same must be inferred from the nature of the acts
executed (accion medio). Hence, the necessity that these acts be
such that by their very nature, by the facts to which they are
related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show
without any doubt, that they are aimed at the consummation of a
1

crime. Acts susceptible of double interpretation , that is, in favor
as well as against the culprit, and which show an innocent as well
as a punishable act, must not and can not furnish grounds by
themselves for attempted nor frustrated crimes. 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, in order to avoid regrettable instances of injustice,
that the mind be able to directly infer from them the intention of
the perpetrator to cause a particular injury. This must have been
the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of
the felony directly by overt acts, that is to say, that the acts
performed must be such that, without the intent to commit an
offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
acts leading to the commission of the offense, are not punished except
when they are aimed directly to its execution, and therefore they must
have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of
March 21, 1892 — that in order to declare that such and such
overt acts constitute an attempted offense it is necessary that
their objective be known and established, or that said acts be of
such nature that they themselves should obviously disclose the
criminal objective necessarily intended, said objective and
finality to serve as ground for the designation of the offense: . . . .
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 (People vs. Tayag and Morales, 59 Phil.,
606, and decisions of the Supreme Court of Spain therein cited). 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. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an
iron bar forced the wall of said store by breaking a board and
unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the
Criminal Law 1 Cases
policeman on beat Jose Tomambing, who upon hearing the noise
produced by the breaking of the wall, promptly approached the accused
... ." Under the circumstances of this case the prohibition of the owner or
inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil.,
509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs.
Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) 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. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the
very fact which in this case constitutes the offense of attempted trespass
to dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not
exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding
to attempted trespass to dwelling is to degrees lower (art. 51),
or, arresto mayor in its minimum and medium periods. Because of the
presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period.
Pursuant to article 29 of the same Code, the accused is not entitled to
credit for one-half of his preventive imprisonment.
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.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
2

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr.
assails and seeks the reversal of the January 13, 1999 decision1 of the
Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March
31, 1999 resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial
Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991
charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December
1991 in Manila and within the jurisdiction of this Honorable Court, the
above-named accused, by forcefully covering the face of Martina Lourdes
T. Albano with a piece of cloth soaked in chemical with dizzying effects,
did then and there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention to have
carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own
spontaneous desistance, said acts being committed against her will and
consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel,
pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.
Criminal Law 1 Cases
To prove its case, the prosecution presented thirteen (13) witnesses.
Among them were private complainant Martina Lourdes Albano
(Malou), and her classmates, Joseph Bernard Africa, Rommel Montes,
Renato Alagadan and Christian Alcala. Their testimonies, as narrated in
some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter
"Building", …) along A.H. Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a
medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at
around 10:30. Outside, right in front of her bedroom door, her maid,
Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell
of chemical on a piece of cloth pressed on her face. She struggled but
could not move. Somebody was pinning her down on the bed, holding
her tightly. She wanted to scream for help but the hands covering her
mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993,
p. 33). Still, MALOU continued fighting off her attacker by kicking him
until at last her right hand got free. With this …the opportunity
presented itself when she was able to grab hold of his sex organ which
she then squeezed.
The man let her go and MALOU went straight to the bedroom door and
roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that:
"may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was
she did not, however, know. The only thing she had made out during
their struggle was the feel of her attacker’s clothes and weight. His upper
garment was of cotton material while that at the lower portion felt
smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts
… Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala,
Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying,
MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress
was stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the
window with grills which she had originally left opened, another
3

window inside her bedroom was now open. Her attacker had fled from
her room going through the left bedroom window (Ibid, Answers to
Question number 5; Id), the one without iron grills which leads to Room
306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her
classmate …, was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN,
July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO
arrived at the Building at 1:30 in the early morning of December 13,
1991, wearing a white t-shirt with “‘…a marking on the front of the T-
shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the
word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9)
and black shorts with the brand name “Adidas” (TSN, October 16, 1992,
p.7) and requested permission to go up to Room 306. This Unit was
being leased by Ansbert Co and at that time when CHITO was asking
permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and
when CHITO could not, S/G Ferolin initially refused [but later, relented]
…. S/G Ferolin made the following entry in the security guard’s logbook
…:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have
(sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let
him inter (sic) for the reason that he will be our tenant this coming
summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Criminal Law 1 Cases
Joseph was already inside Room 306 at 9 o’clock in the evening of
December 12, 1991. xxx by the time CHITO’s knocking on the door woke
him up, …. He was able to fix the time of CHITO’s arrival at 1:30 A.M.
because he glanced at the alarm clock beside the bed when he was
awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white
T-shirt (Ibid., p. 23) when he let the latter in. …. It was at around 3
o’clock in the morning of December 13, 1991 when he woke up again
later to the sound of knocking at the door, this time, by Bernard Baptista
(Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was
shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph
was finally able to talk to CHITO …. He mentioned to the latter that
something had happened and that they were not being allowed to get
out of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his
gray bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there.
xxx.
People from the CIS came by before 8 o’clock that same morning …. They
likewise invited CHITO and Joseph to go with them to Camp Crame
where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court
that in the afternoon of December 13, 1991, after their 3:30 class, he and
his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were
called to the Building and were asked by the CIS people to look for
anything not belonging to them in their Unit. While they were outside
Room 310 talking with the authorities, Rommel Montes (Loyloy),
another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp.
44-45) from inside their unit which they did not know was there and
4
 Criminal Law 1 Cases

surrender the same to the investigators. When he saw the gray bag, xxx xxx xxx:
Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he
had seen the latter usually bringing it to school inside the classroom 1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
(Ibid, p. 45).
xxx xxx xxx
In their presence, the CIS opened the bag and pulled out its contents,
among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. Exh ‘C’ – One (1) night dress colored salmon pink.
7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts,
an underwear, and socks (Ibid). 2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants Exh. ‘D’ – One (1) printed handkerchief.
(Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s
because CHITO had lent the very same one to him …. The t-shirt with Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
CHITO’s fraternity symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in December.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
That CHITO left his bag inside Room 310 in the morning of December 13, PURPOSE OF LABORATORY EXAMINATION:
1991, was what consisted mainly of Renato R. Alagadan’s testimony.
To determine the presence of volatime (sic), non-volatile and/or metallic
xxx xxx xxx. poison on the above stated specimens.
The colored gray bag had a handle and a strap, was elongated to about FINDINGS:
11/4 feet and appeared to be full but was closed with a zipper when
Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary,
Toxicological examination conducted on the above stated specimens
Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock
gave the following results:
that afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not
until later that night at past 9 o’clock in Camp Crame, however, did Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Renato know what the contents of the bag were.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
xxx xxx xxx.
CONCLUSION:
The forensic Chemist, Leslie Chambers, of the Philippine National Police
Crime Laboratory in Camp Crame, having acted in response to the Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in
written request of PNP Superintendent Lucas M. Managuelod dated bracket added)
December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and submitted…. Her For its part, the defense presented, as its main witness, the petitioner
Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, himself. He denied committing the crime imputed to him or making at
thus: any time amorous advances on Malou. Unfolding a different version of
the incident, the defense sought to establish the following, as culled from
"SPECIMEN SUBMITTED: the same decision of the appellate court:

5

In December of 1991, CHITO was a medical student of … (UST). With
Robert Chan and Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity …. MALOU, …, was known to him being also a
medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the
prescribed barong tagalog over dark pants and leather shoes, arrived at
their Fraternity house located at … Dos Castillas, Sampaloc, Manila at
about 7 o’clock in the evening of December 12, 1991. He was included in
the entourage of some fifty (50) fraternity members scheduled for a
Christmas gathering at the house of their senior fraternity brother, Dr.
Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool ….
Soon after, … the four (4) presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt
and long pants when he was dunked. Perla Duran, …, offered each … dry
clothes to change into and CHITO put on the white t-shirt with the
Fraternity’s symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white
t-shirt with the symbol TAU Sigma Phi, black short pants with stripe,
socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with
Robert Chan and Alberto at more or less past 1 A.M. of December 13,
1991 and proceeded to the Building which they reached at about 1:30
A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-
shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room
306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at
his watch, approached. Because of this, CHITO also looked at his own
watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially
refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in,
already about ten (10) minutes had lapsed since CHITO first arrived
(Ibid., p. 25).
Criminal Law 1 Cases
CHITO went up the floor, found the key left for him by Joseph behind the
opened jalousie window and for five (5) minutes vainly tried to open the
door until Rommel Montes, … approached him and even commented:
"Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29).
Rommel tried to open the door of Unit 306 … but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while
knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …,
at last answered the door. Telling him, "Ikaw na ang bahala diyan"
Joseph immediately turned his back on CHITO and went inside the
bedroom. CHITO , …changed to a thinner shirt and went to bed. He still
had on the same short pants given by Perla Duran from the fraternity
party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He
was already in his school uniform when, around 6:30 A.M, Joseph came
to the room not yet dressed up. He asked the latter why this was so and,
without elaborating on it, Joseph told him that something had happened
and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom
MALOU was not able to identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of
the Building …. When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano,
father of MALOU, then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was
told to dress up and the two (2) of them, CHITO and Joseph, were
brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph
inside his room and talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
6

Both CHITO and Joseph were taken to Prosecutor Abesamis who later
instructed them to undergo physical examination at the Camp Crame
Hospital ….. At the hospital, … CHITO and Joseph were physically
examined by a certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped
short pants lent to him by Perla Duran (Exhibit "8-A", Original Records,
p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal Abesamis for inquest.
One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of
Fiscal Abesamis who, however, made no effort to ask CHITO if the items
thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO
denied putting in his gray bag which he had left at Room 306 in the early
evening of December 12, 1991 before going to the fraternity house. He
likewise disavowed placing said black Adidas short pants in his gray bag
when he returned to the apartment at past 1:00 o’clock in the early
morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he
dressed up at about 6 o’clock in the morning to go to school and brought
his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13,
1991, he was not aware that his gray bag ever contained any black short
Adidas pants (Ibid). He only found out for the first time that the black
Adidas short pants was alluded to be among the items inside his gray
bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity
brothers, Alberto Leonardo and Robert Chan, who both testified being
with CHITO in the December 12, 1991 party held in Dr. Duran’s place at
Greenhills, riding on the same car going to and coming from the party
and dropping the petitioner off the Celestial Marie building after the
party. Both were one in saying that CHITO was wearing a barong tagalog,
with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the
said building, also testified seeing CHITO between the hours of 1:30 and
2:00 A.M. of December 13, 1991 trying to open the door of Room 306
while clad in dark short pants and white barong tagalog.
Criminal Law 1 Cases
On the other hand, Perla Duran confirmed lending the petitioner the pair
of short pants with stripes after the dunking party held in her father’s
house.8 Presented as defense expert witness was Carmelita Vargas, a
forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied.9
On December 14, 1994, the trial court rendered its decision10 convicting
petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing,
the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty
beyond reasonable doubt of the crime of attempted rape as principal and
as charged in the information and hereby sentences him to suffer an
imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND
ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the accessory penalties provided by
law, and for the accused to pay the offended party Martina Lourdes T.
Albano, the sum of P50,000.00 by way of Moral and exemplary damages,
plus reasonable Attorney’s fees of P30,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was
docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated
January 13, 1999, affirmed the trial court’s judgment of conviction, to
wit:
WHEREFORE, finding no basis in fact and in law to deviate from the
findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the
CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
7

1. In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent sufficient,
competent and convincing evidence to prove the offense
charged.
2. In convicting petitioner of attempted rape on the basis merely
of circumstantial evidence since the prosecution failed to satisfy
all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the
petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his
case.
5. In awarding damages in favor of the complainant despite the
fact that the award was improper and unjustified absent any
evidence to prove the same.
6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not been
met, hence, he should be acquitted on the ground that the offense
charged against him has not been proved beyond reasonable
doubt.
Otherwise stated, the basic issue in this case turns on the question on
whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted
rape.
After a careful review of the facts and evidence on record in the light of
applicable jurisprudence, the Court is disposed to rule for petitioner’s
acquittal, but not necessarily because there is no direct evidence
pointing to him as the intruder holding a chemical-soaked cloth who
pinned Malou down on the bed in the early morning of December 13,
1991.
Positive identification pertains essentially to proof of identity and not
per se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may
identify a suspect or accused as the offender as an eyewitness to the very
Criminal Law 1 Cases
act of the commission of the crime. This constitutes direct evidence.
There may, however, be instances where, although a witness may not
have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator
of a crime as when, for instance, the latter is the person or one of the
persons last seen with the victim immediately before and right after the
commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence.13 In the
absence of direct evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are usually
committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted under all circumstances, the
prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision
reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial
evidence is sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven;
and
c) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms
part of circumstantial evidence, which, when taken together with the
other pieces of evidence constituting an unbroken chain, leads to only
fair and reasonable conclusion, which is that petitioner was the intruder
in question.
We quote with approval the CA’s finding of the circumstantial evidence
that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had
access to the room of MALOU as Room 307 where he slept the night over
8

had a window which allowed ingress and egress to Room 306 where
MALOU stayed. Not only the Building security guard, S/G Ferolin, but
Joseph Bernard Africa as well confirmed that CHITO was wearing a black
"Adidas" shorts and fraternity T-shirt when he arrived at the
Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
it was dark during their struggle, MALOU had made out the feel of her
intruder’s apparel to be something made of cotton material on top and
shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot
where witness Renato Alagadan saw CHITO leave it, were discovered the
most incriminating evidence: the handkerchief stained with blue and
wet with some kind of chemicals; a black "Adidas" satin short pants; and
a white fraternity T-shirt, also stained with blue. A different witness, this
time, Christian Alcala, identified these garments as belonging to CHITO.
As it turned out, laboratory examination on these items and on the
beddings and clothes worn by MALOU during the incident revealed that
the handkerchief and MALOU’s night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had
been pressed.
This brings the Court to the issue on whether the evidence adduced by
the prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s
face the piece of cloth soaked in chemical while holding her body tightly
under the weight of his own, had commenced the performance of an act
indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under
the law, for there can not be any other logical conclusion other than that
the petitioner intended to ravish Malou after he attempted to put her to
an induced sleep. The Solicitor General, echoing what the CA said, adds
that if petitioner’s intention was otherwise, he would not have lain on
top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man
who has carnal knowledge or intercourse with a woman under any of
the following circumstances: (1) By using force or intimidation; (2)
When the woman is deprived of reason or otherwise unconscious; and
Criminal Law 1 Cases
(3) When the woman is under twelve years of age or is demented. Under
Article 6, in relation to the aforementioned article of the same code, rape
is attempted when the offender commences the commission of rape
directly by overt acts and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking
thru Justice Claro M. Recto in People vs. Lamahang,17 stated that "the
attempt which the Penal Code punishes is that which has a logical
connection 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." Absent the unavoidable
connection, like the logical and natural relation of the cause and its
effect, as where the purpose of the offender in performing an act is not
certain, meaning the nature of the act in relation to its objective is
ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal
Code.18
There is absolutely no dispute about the absence of sexual intercourse or
carnal knowledge in the present case. The next question that thus comes
to the fore is whether or not the act of the petitioner, i.e., the pressing of
a chemical-soaked cloth while on top of Malou, constitutes an overt act
of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too
strained to construe petitioner's act of pressing a chemical-soaked cloth
in the mouth of Malou which would induce her to sleep as an overt act
that will logically and necessarily ripen into rape. As it were, petitioner
did not commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized that
petitioner was fully clothed and that there was no attempt on his part to
undress Malou, let alone touch her private part. For what reason
9

petitioner wanted the complainant unconscious, if that was really his
immediate intention, is anybody’s guess. The CA maintained that if the
petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next
step that the petitioner would have taken if the victim had been
rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have
to come later. His sexual organ is not yet exposed because his intended
victim is still struggling. Where the intended victim is an educated
woman already mature in age, it is very unlikely that a rapist would be in
his naked glory before even starting his attack on her. He has to make
her lose her guard first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a
practice disfavored under the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot substitute for proof required
to establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of
the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the accused
must have commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not
completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing
her, mashing her breasts, inserting his hand inside her panty and
touching her sexual organ, while admittedly obscene and detestable acts,
do not constitute attempted rape absent any showing that petitioner
actually commenced to force his penis into the complainant’s sexual
organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
Criminal Law 1 Cases
xxx, appellant was merely holding complainant’s feet when his Tito Onio
arrived at the alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the
feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is
innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified about the pressing against
her face of the chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her down. Verily, while the series
of acts committed by the petitioner do not determine attempted rape, as
earlier discussed, they constitute unjust vexation punishable as light
coercion under the second paragraph of Article 287 of the Revised Penal
Code. In the context of the constitutional provision assuring an accused
of a crime the right to be informed of the nature and cause of the
accusation,24 it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him
to make his defense. As aptly observed by then Justice Ramon C. Aquino,
there is no need to allege malice, restraint or compulsion in an
information for unjust vexation. As it were, unjust vexation exists even
without the element of restraint or compulsion for the reason that this
term is broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy or
irritate an innocent person.25 The paramount question is whether the
offender’s act causes annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed.26 That
Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she
filed a case for attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article
287 of the Revised Penal Code is arresto menor or a fine ranging from
₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming
that of the Regional Trial Court of Manila, is hereby REVERSED and SET
ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros,
10
 Criminal Law 1 Cases

Jr. of the charge for attempted rape. Petitioner, however, is adjudged ARTEMIO V. PANGANIBAN
GUILTY of light coercion and is accordingly sentenced to 30 days of Chief Justice
arresto menor and to pay a fine of ₱200.00, with the accessory penalties
thereof and to pay the costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

( On Leave )
RENATO C. CORONA
ANGELINA SANDOVAL-GUTIERREZ*
Asscociate Justice
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in

consultation before the case was assigned to the writer of the opinion of
the Court’s Division.

REYNATO S .PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division

Chairman's Attestation, it is hereby certified that the conclusions in the
above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

11