G.R. No. 1661. April 19, 1905

In a complaint dated November 15,1902, Feliciano Villarosa was
charged by the provincial fiscal of Nueva Ecija with the crime of rape
committed as follows: That on the 11th day of the same month the
defendant, taking advantage of his physical superiority, did commit
rape upon the person of the girl Primitiva Domingo, of the age of about
12 years, resulting in serious injury to her, according to the medical
examination; that the act was committed in the country and in the midst
of plantations in the barrio of Ahia, town of San Isidro, in said
province; all contrary to law.

The case having come on for trial by virtue of the aforesaid
complaint, the court, in view of the results of the evidence adduced
therein, on July 28,1903, rendered judgment whereby the defendant,
Feliciano Villarosa, was sentenced to the penalty of eighteen years of reclusion temporal
and the accessories set forth in article 59 of the Penal Code, to give
the injured party as indemnity the sum of 500 pesos, to indemnify her
in the sum of 10 pesos for medical expenses, without subsidiary penalty
on account of the character of the principal penalty imposed, and to
pay the costs. From this judgment the defendant appealed.

From the evidence adduced during the trial it appears that the
outraged child, Primitiva Domingo, after being sworn, stated that she
did not know how old she was on July 28,1903; that on the afternoon of
November 12,1902, between 12 and 1 o’clock, she was going to the town
of San Isidro to sell some fish; and on the road the defendant met her
and bought the fish which she carried, and that as she did not have
change for 50 cents, the value of the fish sold, the defendant took her
to his house and from there, leading her by the hand, took her to the
interior of a woods, where he laid her down on the ground and forcibly
had intercourse with her, and as a result of the violence which he used
on her she was prevented from attending to her ordinary work for a long
time. She added that she knew the defendant previously; that when he
released her the witness went back to her house to tell her mother
about the occurrence, but did not know where her effects went, having
lost 1 real and 4 quartos (15 cents); that while en route to the woods
she did not meet anybody and her aggressor did not speak to her; that
she could not liberate herself from him, notwithstanding the efforts
she made. Juan Domingo, the father of the girl, stated that when he
returned to his house on the evening of the said day, the 12th, his
daughter told him about the occurrence; that he found his daughter in
bed and unable to arise and suffering from hemorrhage; that as a
consequence of the rape of which she was the victim and which was
committed by the defendant in an uninhabited place, his daughter was
obliged to remain in bed for more than two weeks; that he did not
remember the date of her birth. Cipriano Binuya, a neighbor of the
injured girl, said that he was present when the girl Primitiva pointed
out the defendant as the one who had raped her, when the defendant was
brought to her bed led by the police. It also appears by the
certificate made by the physician, Hilario Jacinto, president of the
municipal board of health, who examined the outraged girl two or three
hours after the commission of the rape, which certificate was
identified by him during the trial, that the injured party was very
depressed; that she suffered from frequent fainting spells at the least
motion; that her hypogastrium, limbs, hips, pelvis, and muscles were
sore; * * * that the girl was confined to her bed for more than fifteen
days, during which time he attended her, with an expenditure of 10
pesos for medicine. He also stated that the girl appeared to be about
11 or 12 years of age.

From the facts above related it appears proven that the child
Primitiva, 11 or 12 years of age, was forcibly raped by a man of middle
age, full of vigor, in the midst of a woods, resulting in injury of
some seriousness to her genital organs, with abundant hemorrhage, which
compelled her to stay in bed for two weeks under medical treatment.

Article 438 of the Penal Code, among other things, says the following:

“Rape is committed by lying with a woman in any of the following
cases: If force or intimidation shall be used; if she is under 12 years
of age.”

The certificate of baptism of the girl is absent from the record,
but it appears, however from expert examination that the injured child
was, at the date the crime was committed, about 11 or 12 years old.
This age appears to some extent confirmed by the material and physical
results produced on her by the crime; and even if the injured party
should be considered more than 12 years of age (and, by the way, no
reason appears for this supposition), it is by no means fully proven
that the aggressor laid down with said girl without making use of
violence and of his superior physical strength, which, no doubt, was
superior to that of the force which his victim might have employed.

It is a doctrine well established by the courts that in order to
consider the existence of the crime of rape it is not necessary that
the force employed in accomplishing it be so great or of such character
as could not be resisted; it is only necessary that the force used by
the guilty party be sufficient to consummate the purpose which he had
in view. (Judgment Kay 14,1878, supreme court of Spain.) A simple
reading of the medical certificate and the testimony of the physician
who examined and attended the outraged girl fixes the measure of the
character and class of force used by the defendant in the act of rape.
It is undeniable that the defendant, Feliciano Villarosa, is guilty as
the only principal by direct participation in the said crime.

The allegations of the defense and the testimony of its witnesses
can not prevail against the allegations and merits of the prosecution’s
case. The former do not exclude the certainty of the prosecution’s
allegations nor is the alibi which the defense attempted to set up justified.

In the commission of the crime there is no extenuating circumstance
to be taken into consideration. There does exist the aggravating
circumstance provided for in paragraph 15 of article 10 of the Penal
Code, the crime having been committed in an uninhabited place, for
which reason the defendant has incurred the maximum penalty.

In view, therefore, of the reasons above stated, and of those set
forth in the judgment appealed from, we are of the opinion that the
same should be confirmed, with the costs in this instance to the
defendant

This case to be returned to the court of its origin with a certified
copy of this decision and of the judgment which shall be rendered in
accordance herewith. So ordered.

Arellano, C J., Mapa, Johnson, and Carson, JJ., concur.