THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JESSIE MAYORAL, ACCUSED-APPELLANT.

In Criminal Case No. 4472, the accused-appellant was charged with
the crime of rape in a complaint, signed by the victim, Mayshelle Neri, a
minor, assisted by her mother, Nerissa Neri. The complaint dated December 12, 1986 was filed before the Regional
Trial Court, Branch 22, General Santos City. It alleged:

“That on or about 3:30 o’clock in the afternoon of October 24,
1986 at Apitong Street, Lagao, General Santos City, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, by means of
force or intimidation, did then and there wilfully, unlawfully and feloniously
have carnal knowledge with the undersigned minor who is barely seven (7) years
old.

“CONTRARY TO LAW.” (p. 10, Rollo)

In Criminal Case No. 4585 (1076), the accused?appellant was charged with the crime of acts of
lasciviousness. The information dated
March 10, 1987 based on the complaint filed by Mercydel Sombilon, also a minor,
assisted by her mother, Vilma Sombilon was filed with the Regional Trial Court,
Branch 23, General Santos City, and read as follows:

“That on or about 3:30 o’clock in the afternoon of October 24,
1986 at Apitong Street, Lagao, General Santos City, Philippines and within the
jurisdiction of this Honorable Court, above-named accused, with lewd design and
by means of force and intimidation, did then and there wilfully, unlawfully and
feloniously undress the herein private complainant, Mercydel Sombilon who is
barely eight (8) years old, touch her vagina and place himself on top of her in
an attempt to have a sexual act with her, without her consent and against her
will.

“CONTRARY TO ART. 336 OF THE REVISED PENAL CODE.” (p. 12,
Rollo)

The accused pleaded not guilty to both charges [p. 29, Records,
Criminal Case No. 4472 and p. 20, Records in Criminal Case No. 4585 (1076)].

On December 29, 1987, Criminal Case No. 4585(1076) was
transferred to and consolidated with Criminal Case No. 4472 then pending with
Branch 22, upon motion of the City Fiscal who manifested that the two cases
arose from the same incident (p. 29, Record of Criminal Case No. 4585). These two (2) cases were jointly tried.

The evidence of the prosecution showed that:

Mayshelle Neri and Mercydel Sombilon were neighbors at Apitong
Street, Lagao, General Santos City. On
October 24, 1986, at about 3:30 o’clock in the afternoon, they were invited by the
accused inside a room he was occupying with a relative of his mother, Teresita
Ladao. Once inside, the accused locked
the door. Then, he removed their skirts
and their panties. The accused also
removed his pants and exposed his penis to the two girls.

Mayshelle testified that the accused placed himself on top of her
and inserted his penis inside her vagina. She felt pain in her stomach and she cried (pp. 24-26, TSN, August 7,
1987). Mayshelle testified that she was
alone with Jessie when she was abused (p. 42, TSN, August 7, 1987).

Mercydel Sombilon corroborated the testimony of Mayshelle. She likewise testified that she saw Jessie
place his penis in the vagina of Mayshelle but he stopped his act when the
latter shouted “Tama na Jess.” Then, the accused placed himself on
her top and tried to put his organ on her vagina but it did not penetrate (pp.
45-47, TSN, August 7, 1987).

A neighbor, Mrs. Arlene Barreto arrived and asked the girls what
they were doing inside the room of Mrs. Ladao (which was the same room occupied
by Jessie) and they answered that they were “fucked” by Jessie. Mrs. Barreto informed Mayshelle’s mother
upon her return from a neighbor’s house about what happened. When the mother confronted her daughter,
Mayshelle revealed that Jessie had sexual intercourse with her (TSN, June 22,
1987, p. 5). Mrs. Barreto likewise
informed Mercydel’s mother, Vilma Sombilon who confronted her daughter. Mercydel also admitted that Jessie had
sexual intercourse with her (TSN, October 11, 1988, p. 11).

Only Mayshelle was brought to the doctor for examination. The attending physician issued a medical
certificate with the following findings:

“Tenderness and slight redness on the vaginal opening upon
pressure.

“No hymenal tear noted.” (p. 11, Record of Criminal Case
No. 4472)

The defense, on the other hand, presented this picture:

The accused-appellant testified that in the same afternoon, he
came out from the bathroom with a towel wrapped around his waist. Mayshelle and Mercydel who were outside the
bathroom teased him and tried to remove the towel from his waist and remarked
“you have a nice body, good to embrace.” At that point, Mrs. Arlene
Barreto arrived and overheard the children utter the words, “Fuck,
Fuck” (p. 64, TSN, Sept. 16, 1987).

A few days later, the accused was investigated together with
Mayshelle Neri and her mother Nerissa, and Mercydel Sombilon and her mother
Vilma at the police station of Lagao, General Santos City. According to the accused-appellant,
Mayshelle was asked by the police investigators if it was true that Jessie
Mayoral took off her panty. She
answered “No, sir.” The mother allegedly pinched Nerissa (pp. 64-67, Ibid).

Accused-appellant also testified that the reason why Mayshelle’s
mother, Nerissa, brought a charge against him was because he decided to end
their illicit relationship because he was afraid of Nerissa’s husband (pp.
69-97, ibid).

The defense also presented Mrs. Ladao, the owner of the house
where the incident happened and in whose room the accused-appellant lived. She testified that on the same afternoon,
she was inside the room where the incident allegedly happened. She testified that there was no unusual occurrence that
afternoon (pp. 51-52, TSN, October 12, 1988).

After trial, judgment was rendered finding accused-appellant
guilty beyond reasonable doubt of the charges filed against him. The decision, dated August 6, 1990 rendered
judgment, as follows:

“ACCORDINGLY, finding the accused Jessie Mayoral guilty beyond
reasonable doubt of the crimes of rape in Criminal Case No. 4472 and acts of
lasciviousness in Criminal Case No. 4585, respectively, and there being no modifying circumstance in either
case, he is hereby sentenced to RECLUSION PERPETUA in the rape charge and
applying the Indeterminate Sentence Law in the offense of acts of
lasciviousness, he is also sentenced to an indeterminate penalty of 2 months
and 1 day to 2 years, 4 months and 1 day, to indemnify Mayshelle Neri and
Mercydel Sombilon in the amount of P10,000.00 and P4,000.00, respectively, as
moral damages, plus costs.

“SO ORDERED.” (p. 29, Rollo)

On August 29, 1990, herein accused-appellant, represented by
counsel, filed a notice of appeal (p. 128, Rollo). In his brief, he presented a lone assignment of error:

THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE ABSENCE OF EVIDENCE REQUIRED TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

The accused-appellant contends that no rape could have been
committed on Mayshelle Neri because the medical certificate containing the
findings of the doctor who examined her stated that there was only
“tenderness and slight redness on the vaginal opening upon pressure”
and that there was “no hymenal tear noted.” The slight redness on the
vaginal opening was caused by mucuous or fluid present, making it appear
reddish or due to pressure which may have been caused by contact on hard object
while the child was playing or that her private parts were mashed or fingered.

The contention has no merit. As testified to by Mayshelle, the accused-appellant directed his organ
and actually placed it in her vagina. The other victim, Mercydel, corroborated Mayshelle’s story. However, the accused-appellant failed to penetrate
the vagina. Hence, as found by the
examining physician, there was only
redness of the vaginal opening which could have been caused by contact with a
hard object but there was no laceration nor hymenal tear.

In People v. Hernandez, G.R. No. 23916, October 14, 1925, 49
Phil. 980, We held that:

“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.’ (Steward
on Legal Medicine, p. 137).

“x x x.

“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].”

This had been Our consistent ruling. (People v. Cruz, G.R. No. 82121, December
29, 1989, 180 SCRA 765; People v. Arazona, G.R. No. L-43751, 19 September 1985,
138 SCRA 569 and other cases cited therein).

As against the denial of accused-appellant,
the testimonies of the victims are more convincing. His victims in the crimes charged, both below twelve (12) years
of age, positively stated that accused-appellant placed his penis inside their
vaginas. In the rape charge, Mayshelle
testified that the accused removed her panty and he placed it on her
vagina. The accused only stopped when
she cried, “Tama na Jess.” On direct examination, she testified:

“Fiscal
Gacal:

Q.   Why
are you in Court today?

A.    Because
there is a case.

Q.   Whose
case?

A.    My
case.

Q.   Against
whom? If you do not know his name, please point him if he is in Court?

A.    (no
answer)

COURT:

Q.   What
do you mean when you said you have a case?

A.    Because I was sexually
intercoursed. ‘Kay gi-iyot man ako.’

Fiscal Gacal:

Q.   Who
sexually intercoursed you? (sic)

A.    It
was Jessie.

Q.   Is
this Jessie in court?

A.    Yes,
sir.

Q.   Where
is he, point him?

A.    (witness
pointing to the accused correctly.)

Q.   Where
did he sexually intercoursed you?

A.    In
his house.

x x x

Q.   Was
it with your consent, this is statutory, your Honor please, but just the same,
we ask the question. Was it your
consent when he sexually intercoursed with your (sic)?

A.    I agreed.

COURT:

Q.   Why
did you agree, what did he tell you?

A.    He
told me to remove my skirt and my panty.

x x x

Q.   When
you removed your skirt and panty, what did he do?

A.    He
immediately have (sic) sexual intercourse with me.

Q.   How
did you feel?

A.    I
felt pain in my stomach.

Q.   Did
his penis touch your vagina?

A.    Yes,
sir.

Q.   When
you felt pain, what did you do or say?

A.    I
cried and Arjean asked me what happened to you and told Arjean I felt pain in my stomach. (TSN, August 7, 1987, pp. 24­-27).

The accused-appellant also contends that the testimonies of the
two (2) complainants were conflicting. While Mayshelle testified that she was alone in the room when she was
abused, Mercydel testified that they were together with Mayshelle in the room
when they were abused.

We do not believe
that the conflicting testimonies of the two (2) complainants as to who were
present in the room of the accused-appellant at the time of the commission of
the offenses is of such importance as to cast doubt on his guilt. It should be noted that at the investigation
by the police a few days after the incident, Mayshelle was positive that she
and her friend Mercydel were together in that room with the
accused-appellant. Of course, the
accused tried to taint this declaration when he testified that Mayshelle was
pinched by her mother when she was asked by the police officer if he removed
her panty and she answered “No.” Mrs. Ladao likewise testified that
Mercydel was also pinched by her mother when she was asked the same question
and she also answered “No.” These allegations by the accused-appellant
and Mrs. Ladao however, were belied by the police officer who conducted the
investigation. Cpl. Nestor Carillo
testified that the only participation of the respective mothers of the victims was that they acted as
interpreters. All the questions asked
during the investigation were put in writing. Carillo also testified that the accused?appellant was placed in a
separate room when the victims and their parents were examined (pp. 182-189,
TSN, Feb. 13, 1989). It was therefore
impossible for the accused-appellant to observe what was going on when the
victims were interrogated.

Going back to the inconsistency regarding the persons present at
the time Mayshelle was abused, it should be noted that Mayshelle was of tender
age not only during the time of the commission of the crime but also at the
time she testified in court. It is
possible that the details of the incident already escaped her memory. Another reason for such failure of memory
would be Mayshelle’s poor mental capacity. There was a showing that she was not only of tender age but that her
mental age was also much less than her actual age.

Be that as it may, the other complainant, Mercydel Sombilon, who
was older and who appeared to be more coherent in her testimony positively
declared that they were together inside accused-appellant’s room at that
time. Moreover, the accused-appellant
himself testified that on that same afternoon, the two girls were together when
they teased him and they tried
to remove the towel wrapped around his waist. He also testified that the two (2) girls were together when a neighbor,
Arlene Barreto found them in the house shouting “Fuck, fuck” on that
fateful afternoon.

The alleged motive of Mayshelle’s mother in bringing a charge
against the accused is not believable. If it were true that indeed, he had an amorous relationship with Nerissa
Neri, and that Mrs. Ladao once saw them kissing in the dark, Mrs. Ladao would
have confirmed this but she
never mentioned nor intimated about this on direct examination nor on
cross. It is also hard to believe that
a woman married to a supervising engineer of the NAPOCOR would fall for the
accused and go to the extent of exposing her daughter to public humiliation by
conjuring a rape charge against the accused to get him back or to get back at
him. While appellant also boasted that
he and Nerissa Neri had at least seven (7) trysts while their illicit relation
lasted, he had been very evasive when asked when these occurred.

There is no doubt that the elements of the crime first charged
against the accused were duly proven. The crime charged was statutory rape as defined under paragraph 3,
Article 335 of the Revised Penal Code. The only elements of the crime are (1) that the offender had carnal
knowledge of a woman; and (2) that such woman is under twelve (12) years of
age. [People v. Alegado, G.R. Nos.
93030-31, August 21, 1991 citing People v. Santos, 183 SCRA 25 (1990)]. It is not necessary to prove that the victim
was intimidated or that force was used against her because in statutory rape
the law presumes that the victim on account of her tender age, does not and
cannot have a will of her own [People v. Bacani, 181 SCRA 393 (1990); People v.
Lualhati, 171 SCRA 277 (1989); People v. Derpo, 168 SCRA 447 (1988), also cited
in People v. Alegado, supra).

In the case for acts of lasciviousness, Mercydel Sombilon,
corroborating the testimony of Mayshelle testified on direct examination:

Q.   Why
do you know Jessie Mayoral?

A.    Because
he is residing in our place.

x x x.

Q.   Did
he ever invite you one time in the past in his room or in his house?

A.    Yes,
sir.

Q.   Were
you alone when you were invited or you were with your friend?

A.    I
have my companion.

Q.   Did
you go to his room when you were invited?

A.    Yes,
sir.

Q.   Together
with whom?

A.    Together
with Mayshelle.

Q.   When
you were inside the room of Jessie Mayoral, what happened or what did he do?

A.    He
removed our panties.

Q.   Did
he close the door?

A.    Yes,
sir.

Q.   And
then when he … you said he removed our panties, are you referring to yourself
and to your friend Mayshelle Neri?

A.    Together
with Mayshelle.

Q.   Did
Mayshelle remove her panty?

A.    Yes,
sir.

Q.   When
Mayshelle Neri removed her panty, what did Jessie Mayoral do to her?

A.    Jessie
Mayoral placed his body on top of us.

Q.   What
did Jessie Mayoral do when he laid on top of Mayshelle Neri.

COURT:

She
said ‘gihapaan.’

Fiscal Gacal:

Q.   What
did he do to you and Mayshelle Neri when
he laid on top of you?

I withdraw. Did he remove his pants before he laid on
top of both of you?

A.    Yes,
sir.

Q.   Did
you see his penis?

A.    Yes,
sir.

Q.   What
did he do with his penis?

A.    He
inserted his penis into our vagina.

Q.   But
did you see Jessie Mayoral insert his penis inside the vagina of Mayshelle
Neri?

A.    Yes,
sir.

Q.   Did
he also insert his penis inside your vagina?

A.    It
did not penetrate.

Q.   When
Jessie Mayoral inserted his penis in the vagina of Mayshelle Neri, what did
Mayshelle Neri say if she said anything?

A.    Mayshelle
said ‘tama na Jess’ meaning that is enough Jess.

Q.   When
he inserted his penis in your vagina, what did you say?

A.    I
also said enough.

Q.   Did
you feel pain?

A.    Yes,
sir.” (TSN, August 7, 1987, pp. 45-47).

Mercydel Sombilon positively declared that the appellant removed
his pants, exposed his penis and placed his body on top of her and likewise
tried to insert his penis in her vagina, but there was no penetration. With this testimony, the accused-appellant
could have also been convicted of the crime of rape. The offense of rape is deemed consummated even if penetration was
not complete (People v. Rabanos, 172 SCRA 425). It was enough that there was proof of entrance of the male organ
within the labia of the pudendum. This matter
was testified to by Mercydel. However,
considering that accused-appellant was only charged with the crime of acts of
lasciviousness, he cannot be convicted of the crime of rape. The information alleged only that the herein
accused-appellant undressed the private complainant, touched her vagina and
placed himself on top of her in an attempt to have sexual intercourse with
her. There was no allegation that he
had carnal knowledge with the victim or that he had introduced his penis into
her vagina, nor that the penis of the accused touched the middle of the vagina.

“x x x.

“An accused person cannot be convicted of a higher offense
than that with which he is charged in the complaint or information on which he
(is) tried. It matters not how
conclusive and convincing the evidence of guilt may be, an accused person
cannot be convicted in the courts of these Islands of any offense, unless it is
charged in the complaint or information on which he is tried, or necessarily
included therein. He has a right to be
informed of the nature of the offense with which he is charged before he is put
on trial, and to convict him of a higher offense than that charged in the
complaint or information on which he is tried would be an (un)authorized denial
of that right” (Matilde, Jr. v. Jabson, G.R. No. L-38392, December 29,
1975, 68 SCRA 456, 461, citing U.S. v. Ocampo,
23 Phil. 396, cited in People v.
Guevarra, G.R. No. 66437, December 4, 1989, 179 SCRA 740).

Article 336 of the Revised Penal Code provides, “(A)ny
person who shall commit any act of lasciviousness upon other persons of either
sex, under any of the circumstances mentioned in the preceding article, shall
be punished by prision correccional. Rape and acts of lasciviousness have
the same nature. The difference is that
in rape, there is the intent to lie with a woman. This element is absent in acts of lasciviousness (Aquino, Revised
Penal Code, Vol. III, p. 412, 1988 Ed.).

Considering that the body of the information alleges an attempt
to rape the victim, the accused should be convicted of the crime of attempted rape and not of acts of
lasciviousness, the name of the offense designated in the information. It is not the technical name given by the
fiscal that determines the character of the crime but the allegations in the
body of the information.

The penalty for the crime of rape is reclusion perpetua. As the crime committed by the
accused-appellant is an attempted one, the imposable penalty shall be two
degrees lower or prision mayor. Applying the Indeterminate Sentence Law, the maximum term of the
indeterminate sentence to be imposed upon him, there being no mitigating nor
aggravating circumstances attending the commission of the offense, shall be
within the range of prision mayor in its medium period and
the minimum of the penalty shall be within
the range of the penalty next lower in degree or prision correccional.

ACCORDINGLY, the appealed decision is MODIFIED as
follows: (1) for the crime of rape in
Criminal Case No. 4472, the accused is sentenced to suffer the penalty of reclusion
perpetua. The
award of P10,000.00 damages for the victim, Mayshelle Neri, is increased to
P30,000.00; and (2) for the crime of attempted rape in Criminal Case No.
4585(1076), he is sentenced to an indeterminate penalty ranging from four (4)
years and two (2) months of prision correccional as minimum, and
not more than ten (10) years of prision mayor as
maximum. The award of P4,000.00 damages
to the victim, Mercydel Sombilon, is likewise increased to P10,000.00

SO ORDERED.

Narvasa, (Chairman), Cruz, Feliciano, and Grino-Aquino, JJ., concur.