SECOND DIVISION
[G.R. No. 26298. January 20, 1927.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. JULIAN ERIÑIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.
Attorney-General Jaranilla for appellee.
SYLLABUS
1. CRIMINAL LAW, RAPE OF A CHILD. — The crime of rape may be
committed upon a child of the age of 3 years and 11 months.
DECISION
OSTRAND, J : p
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 Kenney 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 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 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 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 imprisonment, as imposed by
the trial court. Accordingly, my vote is for affirmance of the judgment.
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