THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. LUIS MANDIA, DEFENDANT AND APPELLANT.

VICKERS, J.:

The defendant appeals from a decision of the Court
of First Instance of Nueva Ecija, finding him guilty of robbery and
sentencing him to suffer an indeterminate sentence of not more than six
years, ten months, and one day of prision mayor and not less
than four months and one day of arresto mayor, and of attempted
rape with physical injuries and to suffer therefor an indeterminate
sentence of not more than four years, two months, and one day of prision
correccional and not less than four months and one day of arresto
mayor, to indemnify the offended party in the sum of P16, without
subsidiary imprisonment in the case of robbery, but with subsidiary
imprisonment, if he should be insolvent, in the case of the attempted
rape, not to exceed one-third of the principal penalty, and to pay the
costs.

The attorney de oficio of the appellant
contends that the lower court erred in not giving credit to the
testimony of the witnesses for the defense to the effect that the
defendant could not have committed the alleged crimes when it is alleged
that they were perpetrated. We find no merit whatever in this
contention.

The evidence clearly shows that the defendant
attempted to rape the offended woman at the time and in the manner
alleged in the information, and that by means of violence he took from
her “P4, and in so doing inflicted upon her physical injuries, which
incapacitated her for labor for a month.

This action was begun in the justice of the peace
court of Bongabon on February 14, 1933, when Eugenio Rosal, a private in
the 49th Company of the Philippine Constabulary, subscribed and swore
to the complaint. It was alleged therein that the defendant taking
advantage of the weakness of Eugenia Santiago took from her possession
the sum of P4. To the foregoing allegation the following words were
added: “* * * and voluntarily, maliciously, the said accused with intent
to have carnal intercourse with Eugenia Santiago against her will and
consent.” The language quoted does not contain any verb. Nothing is
therefore asserted.

The case was remanded to the Court of First
Instance, and on March 21,1933 the provincial fiscal filed an
information charging the defendant with robbery and slight physical
injuries accompanied by attempted rape, committed as follows:

“That on or about the 29th day of January, 1933,
in the municipality of Bongabon, Province of Nueva Ecija, P. I., and
within the jurisdiction of this court, the above-named accused Luis
Mandia, with intent to have sexual inter Course with Eugenia Santiago,
did by means of violence and intimidation and with lasciviousness
voluntarily, maliciously, illegally and criminally embrace and drag down
on the ground said Eugenia Santiago, put himself on her top, raise her
skirt and try to introduce his penis into her genital organ but he could
not do it because of her resistance, and said accused, while he was
abusing of said Eugenia Santiago, did by means of violence and
intimidation voluntarily, maliciously, illegally and criminally take,
with intent to gain, the amount of P4, belonging to said Eugenia
Santiago against her will, slight physical injuries which needed medical
attendance to heal for less than 9 days and incapacitated her for labor
for a like period of time having been caused unto her because of the
violence dealt upon her by said accused on occasion of such robbery and
attempted rape.”

The attorney for the accused asked for the dismissal
of the case on the ground that the crimes charged in the information
were different from those imputed to the accused in the justice of the
peace court. The Court of First Instance found that the crime of robbery
with attempted rape was not clearly charged in the complaint, and that
the accused was entitled to a preliminary investigation on the crimes
alleged in the information. Thereupon the trial judge made a preliminary
investigation, and finding there was probable cause ordered the case to
be set for trial, and in due course the accused was tried and sentenced
as herein above stated.

Article 434 of the Penal Code provided that no
penalty should be imposed for the crime of adultery except upon a
complaint (querella) filed by the injured husband.

Article 448 provided that the offense of seduction
should not be prosecuted except upon a complaint filed by and in the
name of (sino a instancia) the offended party or her parents,
grandparents, or guardian, that it should be sufficient to authorize a
prosecution for the offenses of rape and abduction with lewd designs
that charges had been preferred by the offended party or by her parents,
grandparents, or guardian, without the filing of a complaint by such
person or persons; that if the person offended should be disqualified by
reason of nonage or mental incapacity to maintain the suit, and should
furthermore be absolutely destitute, having no parents, grandparents,
brothers or sisters, guardian or curator, by whom the charge might be
brought, such charge might be made by the prosecuting officer upon
general information.

Sections 3, 4, and 5 of General Orders, No. 58 read
as follows:

“SEC. 3. All public offenses triable in Courts of
First Instance or in courts of similar jurisdiction, now established or
that hereafter may be established, must be prosecuted by complaint or
information.

“SEC. 4. A complaint is a sworn written statement made to a court or
magistrate that a person has been guilty of a designated offense.

“SEC. 5. An information is an accusation in
writing charging a person with a public offense, presented and signed by
the promotor fiscal or his deputy and filed with the clerk of the
court.”

Section 1 of Act No. 1773, enacted on October 11,
1907, provided that after said date the crimes of adulterio,
estitrpro, rapto, violation, calumnia, and injuria, as
defined by the Penal Code of the Philippine Islands should be deemed to
be public crimes and should be prosecuted in the same manner as are all
other crimes defined by said Penal Code or by the Acts of the Philippine
Commission: Provided, however, That no prosecution for the
crimes of adulterio, estupro, or injuria committed
against persons other than public officials or employees should be
instituted except upon the complaint of the aggrieved person or of the
parents, grandparents, or guardian of such person.

Interpreting this provision of Act No. 1773, the
Supreme Court held in the case of the United States vs. Narvas
(14 Phil., 410), that in order to give the court jurisdiction over the
person of the defendant and the subject matter of the action it is
necessary in cases of adulterio, estupro, or injuria that
the complaint be made and executed in writing by the offended party
personally, if that person be competent to do so, and, if not, then by
one of the persons named in the section in the order in which they are
named therein. This ruling was reaffirmed in the case of the United
States vs. Ortiz and Regalado (19 Phil., 174), notwithstanding
the fact that the evidence showed that the offended husband had
denounced the crime to the fiscal and requested him to file the
complaint.

It has been consistently held by this court as to
the crimes mentioned in Act No. 1773 that if the complaint is not
presented by the aggrieved person or by the parents, grandparents, or
guardian of said person the court acquires no jurisdiction.

Article 344 of the Revised Penal Code provides that
the crimes of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse (No puede procederse por
adulterio, amancebamiento o concubinato sino en virtud de denuncia del
c6nyuge agraviado); and that the offenses of seduction, abduction, rape
or acts of lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly pardoned
by the above named persons, as the case may be (Tampoco puede procederse
por causa de estupro, rapto, violaci6n o abusos deshonestos, sino en
virtud de denuncia de la parte agraviada, o de sus padres, o abuelos o
tutor, ni despues de haberse otorgado al ofensor, perd6n expreso por
dichas partes, segun los casos).

In accordance with the foregoing provisions of law
and the decisions of this court, we are of the opinion that the crime of
rape cannot be prosecuted except upon a complaint filed by the offended
party or her parents, grandparents, or guardian. (Samilin vs.
Court of First Instance of Pangasinan, 57 Phil., 298; People vs.
Trinidad, 58 Phil., 163; where it was held that the information for
attempted rape, which was not signed by the offended party, was
insufficient to confer jurisdiction on the court to hear and determine
the charge therein made.)

The acts complained of in the present case were
committed on January 29, 1933, or subsequent to the date when the
Revised Penal Code became effective. It is clear therefore that in this
case the complaint could be filed only by the offended woman, who was of
age. Since the original complaint, even if it had been in due form, was
not filed by the offended party, and the appellant was prosecuted on an
information filed by the provincial fiscal, the court acquired no
jurisdiction over the person of the defendant or the subject matter of
the action in so far as it related to the crime of attempted rape, and
the conviction of the appellant for said crime must be set aside.

The defendant is guilty of the crime of robbery with
violence against persons. The physical injuries, which according to the
information incapacitated the offended party for labor for less than
nine days, are inherent in” the crime of robbery with violence against
persons, and there being present in the commission of the crime the
aggravating circumstances that the crime was committed in the nighttime
and in an uninhabited place, the penalty, which is prision
correccional to prision mayor in its medium period, must
be imposed in the maximum degree.

The accused was sentenced to indemnify the offended
party in the sum of P16, or the P4 taken, plus the value of the offended
party’s earnings for a month; but it being alleged in the information
that the offended party was incapacitated for less than nine days, she
is not entitled to recover for the loss of earnings for a greater period
than eight days at the rate of P12 a month, or a total of P7.20.

The defendant is therefore sentenced to suffer six
years, ten months, and one day of prision mayor and to
indemnify the offended party in the sum of P7.20, without subsidiary
imprisonment in case of insolvency and in accordance with the
Indeterminate Sentence Law and the facts of the case the minimum
sentence of the defendant is fixed at two years of prisidn correctional.
(People vs. Mallari and Lao Yu, p. 400, post.)

The appellant will pay the costs.

Avancena, C. J., Abad Santos, Hull, and Diaz,
JJ., concur.