Crim Digest

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CONRADO LUCAS Y BRIONES, accused-appellant.
G.R. Nos. 108172-73 May 25, 1994
Facts:
On 26 November 1983, Jose Conrado Lucas, the accused and the father of the complainant,
Chanda Lucas Y Austria, raped the complainant by being awakened with her own father removing
her panty and shorts and proceeded by going on top of her and inserting his sexual organ inside
her vagina. The complainant had to keep quiet as the accused threatened to kill her if she ever
resisted. her father had been repeatedly molesting her, especially when her mother was not around.
The last assault on her womanhood occurred on 12 February 1991 when she was already seventeen
years old. Before he had sex with her at 3:00 a.m., he first moved her brothers and sisters, who
were sleeping in the same room with her, to another place. She did not resist because he had
a balisong with him and told her that he can take her life anytime. After the sexual assault, he stood
up holding his balisong and again said that she has only one life and that he can take it anytime.
The trial court charged the accused with two counts of the crime of rape (Crim. Case No.
Q-91-18465 and Crim. Case No. Q-91-18466) and was sentenced to suffer the penalty of Reclusion
Perpetua plus all the accessory penalties provided by law. The accused then contended that he
could not be validly convicted of rape in Crim. Case No. Q-91-18466 under a complaint for
attempted rape only. He cites the rule that when the offense proved is more serious than that
charged, the accused can only be convicted of the offense charged.
Issue:
Whether or not the Trial Court erred in convicting him of the crime of rape in Criminal
Case No. Q-91-18466 inasmuch as the same is more serious than the offense charged.
Held:
Yes. The trial court erred in convicting him of the crime of rape in Criminal Case No. Q-
91-18466 inasmuch as the same is more serious than the offense charged. There was a
consummated rape on 12 February 1991. According to Chanda's testimony, at 3:00 a.m. that day,
the accused, who had a balisong with him, laid down beside her, threatened her that she had only
one life which he can take away any time; removed her shorts and panty and then moved on top
of her and inserted "his organ to her organ." Thereafter, he stood up holding his balisong and
reiterated his earlier threat.
Considering, however, that the complaint for this incident subject of Criminal Case No. Q-
91-18466 charges the accused with the crime of attempted rape, then, as correctly pointed out by
the accused in his second assigned error and concurred in by the Office of the Solicitor General,
he cannot be convicted of consummated rape. Section 4, Rule 120 of the Rules of Court provides
that "[w]hen there is variance between the offense charged in the complaint or information, and
that proved or established by the evidence, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of
the offense proved included in that which is charged, or of the offense charged included in that
which is proved." The offense charged in Criminal Case No. Q-91-18466 (attempted rape) is
necessarily included in the offense that was proved (consummated rape). Accordingly, the accused
should be convicted of attempted rape only. The penalty for attempted rape is prision mayor,
which is two degrees lower than that provided by law for rape. The accused is entitled to the
benefits of the Indeterminate Sentence Law, and for attempted rape he may be sentenced to a
penalty whose minimum should be within the range of prision correccional and whose maximum
should be within the range range of prision mayor, taking into account the modifying
circumstances. The alternative circumstance of relationship provided for in Article 15 of the
Revised Penal Code should be appreciated against the accused considering that the offended party,
Chanda, is his descendant. In crimes against chastity, such as rape, relationship is aggravating.
Prior to R.A. No. 7659, the presence of modifying circumstances would not affect the
penalty of reclusion perpetua prescribed for the crime of rape because such a penalty was then
indivisible and under Article 63 of the Revised Penal Code, when the law prescribes a single
indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed. However, pursuant to Section
21 of R.A. No. 7659, which amended Article 27 of the Revised Penal Code, reclusion perpetua has
now a defined duration, i.e., from twenty (20) years and one (1) day to forty (40) years. There is,
however, no corresponding amendment to Article 76 of the same Code for the purpose of
converting reclusion perpetua into a divisible penalty with three specific
period — minimum, medium, and maximum — and including it in the table provided therein
showing the duration and the time included in each of the periods.
It may thus be said that although the law has now fixed the duration of reclusion perpetua,
it did not make explicit its intention to convert it into a divisible penalty. In any event, Article 65
of the Code which provides: Taking into account the presence of the aggravating circumstance of
relationship in Criminal Case No. Q-91-18465, the accused may finally be sentenced to thirty-four
(34) years, four (4) months and one (1) day of reclusion perpetua.
Considering again such aggravating circumstance, the accused may be sentenced in

Criminal Case No. Q-91-18466 to an indeterminate penalty ranging from four (4) years, two (2)
months and one (1) day of prision correccional maximum as minimum to ten (10) years and one
(1) day of prision mayor maximum as maximum.

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

Considering again such aggravating circumstance, the accused may be sentenced in

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