Balero v. People (G.R. No. 138033; February 22, 2006)


FACTS: One evening, inside her room, Malou retired at around 10:30. Outside, right in front of her bedroom door, her maid slept on a folding bed. Early morning of the following day, petitioner, clad in t-shirt and shorts, entered the room of Malou through its window. Once inside, he approached Malou and tightly pressed on her face a piece of cloth soaked with chemical and. at the same time, pinned her down on the bed. She was awakened thereby and she struggled but could not move.

She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight. Still, Malou continued fighting off her attacker by kicking him until at last her right hand got free. With this, the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed. Petitioner let her go and escaped while Malou went straight to the bedroom door and roused her maid.

ISSUE: Is petitioner guilty of attempted rape?

HELD: No, he is not. There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybody’s guess.