TIBONG V PEOPLE

GR. NO. 19100, September 15, 2010

FACTS:
AAA, 18 year old and a student of Benguet State University, was at the house of the petitioner
where was boarding. One of the rooms was occupied by petitioner and his wife. Days before
the incident, petitioner’s wife left the house after a misunderstanding with him. Sometime
on April 2006 before midnight, AAA was awakened when she felt that someone was
undressing her. She then saw her cousin wearing only briefs and crouching over her on top
of the bed and pulling down her pajamas and panties. She asked the appellant why is he
doing that and he only replied that she shouldn’t be bothered about them being cousins. AAA
struggled and resisted, then petitioner told her that they would watch bold movie and apply
it. She tried to shout for help but he covered her mouth. When he was finding the CD, she
finds opportunity to escape, she grabbed her cellphone and bag and ran out of the house.
The following day, AAA, accompanied by her uncle, reported the incident to the authorities.
He was found guilty of attempted rape according to RTC and CA. Petitioner contends the
ruling in Perez V CA wherein he cannot be liable for attempted rape since the act of lying on
top, embracing and kissing, mashing her breast, inserting his hand inside her panty and
touching her sexual organ do not constitute attempted rape absent any showing that
petitioner actually commenced to force his penis into the complainant’s sexual organ. Rather
these acts constitutes acts of lasciviousness.

ISSUE:
Whether or not petitioner is guilty of attempted rape.

HELD:
YES. While rape and acts of lasciviousness have the same nature, they are fundamentally
different. For in rape, there is intent to lie with a woman, whereas in acts of lasciviousness,
this element is absent.
Attempted felony: when the offender commences the commission directly by over acts but
does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
During the defense cross examination of AAA, the existence of petitioner’s overt acts showed
his intent to lie with AAA was put to light. AAA testified that appellant tried to force his penis
into her organ but she was able to cover it and that his brief was already lowered down to
the middle of his upper leg. Petitioner’s acts as narrated by AAA, far from being obscene or
lewd indisputably show that he intended to have, and was bent on consummating carnal
knowledge of AAA. Thus, he is guilty of attempted rape.