G.R. No. 2164. May 01, 1905

The defendant is charged in the complaint with the crime of rape.
The court sentenced him, not for this crime but for seduction, which is
in accordance with the findings of the judge in the judgment appealed
from, that crime being proven at the trial.

We agree with the judge in considering the crime of rape charged
against the defendant not proven. It has been fully proven and shown
that the defendant was assisted by the alleged raped woman and there is
no proof that he employed any violence or intimidation to accomplish
his purpose. We do not think it necessary to decide at present whether
the facts proven constitute the crime of seduction, because we are of
the opinion that, although they do, the defendant could not be
sentenced for that crime under the complaint filed and sustained by the
prosecution at the present trial, even taking the theory which the
judge establishes in his judgment and as to which we do not care to
establish the precedent that the crime of seduction is necessarily
included in that of rape.

The crime of seduction can not be prosecuted by the public
prosecutor. Paragraph 1 of article 448 of the Penal Code states that no
action for seduction can be brought except at the instance of the
offended party, her parents, grandparents, or her legal guardian. It is
true that the mother of the injured party gave the information in the
present case, but she did not sign or make any formal complaint in the
case. The one who has brought this suit—that is to say, the one who
brought the corresponding criminal action and has sustained it during
the trial up to the rendition of final judgment, which is what is meant
by the word “instance” in its technical sense-was the public
prosecutor. The distinction between the words “instance” and
“denouncement” appears clearly set forth in paragraph 2 of article 448
above cited, which provides as follows:

“In order to proceed in cases of rape and in those
of abduction committed with unchaste designs, the denunciation of the
interested party, of her parents, grandparents, or guardians shall
suffice even though they do not present a formal petition to the judge.”

This suit is not at their “instance,” which is necessarily
indispensable for the prosecution and punishment of the crime of
seduction. There being no penal action exercised formally for the crime
of seduction in the case at bar by any of the persons who are expressly
designated by law, there is no legal way to sentence the defendant for
the said crime, although from the evidence adduced at the trial the
commission of the crime by said defendant has been shown.

With a reversal of the judgment appealed from, we freely acquit the
defendant of the charge of the crime of rape, reserving to the
interested party the action which she may have for the crime of
seduction, declaring the costs in both instances de oficio. So ordered.

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