THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. DOMINGO HERNANDEZ, DEFENDANT AND APPELLANT.

The
defendant is accused of the crime of rape, the information alleging
“that on or about the 26th day of February, 1925, in the City of
Manila, Philippine Islands, the said accused wilfully, unlawfully, and
feloniously, by means of force and by intimidating one Conrada Jocson
with killing her with a knife which said accused held in his hand
should she not accede to his wish, did then and there lie with and have
carnal knowledge of said Conrada Jocson, a girl under 12 years of age.
That in the commission of the crime the following aggravating
circumstances existed to wit: (1) The accused is the husband of the
grandmother of said Conrada Jocson and (2) the crime was committed with
grave abuse of confidence, inasmuch as the offended and the accused
were living in the same house.”

The defendant is a man 70
years of age and the offended party is a child of 9 years, the
granddaughter of the defendant’s wife. There can be no question as to
the defendant’s guilt. The evidence shows that he and the offended
party were living in the same house and that taking advantage of the
absence of the other inhabitants of the house, he had intercourse with
the child by force and violence. He admits that he did so, but
maintains that he was intoxicated at the time and did not know what he
was doing. The testimony of the witnesses for the prosecution is,
however, to the effect that he did not show any signs of intoxication
at the time of the commission of the crime or immediately afterwards.

The court below found the defendant guilty of frustrated rape and sentenced him to suffer ten years and one day of prision mayor.
In holding that the crime was frustrated, the court seems to have been
of the opinion that there can be no consummated rape without a complete
penetration of the hymen. This view is not in accordance with the
weight of authority; in fact, it is contrary to practically all modern
authorities. In State vs. Johnson (91 Mo., 439), the court held
that “finding the hymen intact is not always proof that no rape has
been committed, nor of virginity; for the cases are not rare where the
hymen had to be removed after impregnation and in order to permit
delivery.”

In the same case, the court further said:

“Any
penetration whether reaching to the hymen or not is sufficient to
constitute the crime; for as Lord Meadowbank said in a case in
Scotland, ‘Scientific and anatomical distinctions as to where the
vagina commences are worthless in a case of rape; it is enough if the
woman’s body is entered; and it is not necessary to show to what extent
penetration of the parts has taken place; whether it has gone past the
hymen, into what is anatomically called the hymen, or even so far as to
touch the hymen.’ (Stewart on Legal Medicine, p. 137.)”

In People vs. Rivers (147 Mich., 643), the court says:

“The
law may now indeed be considered as settled that while the rupturing of
the hymen is not indispensable to a conviction, there must be proof of
some degree of entrance of the male organ ‘within the labia of
Pudendum.’ ” In the following cases it has been held that entry of the
labia or lips of the female organ, merely, without rupture of the hymen
or laceration of the vagina, is sufficient to warrant. conviction of
the consummated crime of rape. (Kenney vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817 [1903]. See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890]; [Tex.]; Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.] Brauer vs. State, 25 Wis., 413 [1870].)

In the present case the physician who examined the offended party
immediately after the commission of the crime found the labia and the
opening of the vagina inflamed, together with an abundance of semen,
though the hymen was intact. It also appears from the evidence that the
defendant lay on top of the child for over fifteen minutes and
continued his efforts of penetration during that period; the child
testifies that the defendant succeeded in a partial penetration and
that she felt intense pain. In these circumstances, the crime must be
regarded as consummated.

The judgment appealed from is
therefore modified by finding the defendant guilty of the consummated
crime of rape and, in view of the aggravating circumstances mentioned
in the information, the penalty imposed upon the defendant is hereby
increased to seventeen years, four months and one day of reclusion temporal,
with the accessory penalties prescribed by law. In all other respects
the judgment is affirmed with the costs against the appellant. So
ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.