THIRD DIVISION[G.R. No. 126148. May 5, 1999]PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AGAPITO !IANOLA yES"!ADRO a#$ ED!ARDO ES"!ADRO y FLORO, accused-appellants.D E " I S I O NVIT!G, J.%In People vs. Orita,1 this Court has declared that the crime of frustrated rape is non-existent. The pronouncement, notwithstanding, on 01 March 1996, more than six ears after the promulgation of the decision in Orita, the !egional Trial Court "#!TC#$ of Ce%u Cit, &ranch1', has con(icted accused )gapito *uianola+scuadro and +duardo +scuadro,loro, herein appellants, of the crime of frustrated rape, principall on the strength of People vs. Eriia- which this Court, in the Orita decision, has considered to %e a stra decision. The 1st March 1996 decision of the !TC of Ce%u Cit imposing upon each of the accused the penalt of reclusion perpetua of ,ort "'0$ .ears, has %een %rought up % them to this Court. The appeal opens up the whole case for re(iew.The information, dated 06 )pril 199', charging the two accused with the crime of rape reads/That on or a%out the 0th da of March, 199', at a%out 11/10 ocloc2 in the e(ening, more or less, at &aranga Tangil, Municipalit of 3uman4ug, 5ro(ince of Ce%u, 5hilippines, and within the 4urisdiction of this 6onora%le Court, the a%o(e-named accused, conspiring, confederating and mutuall helping one another, with lewd design and % means of force and intimidation, did then and there willfull, unlawfull and feloniousl lie and succeed in ha(ing carnal 2nowledge of the offended part Catalina Carciller, fifteen "10$ ears of age, against her will and consent.#C78T!)!. T7 9):.1)lread in force and effect at the time of the a(erred commission of the crime are the pro(isions of !epu%lic )ct 8o. ;609, amending the !e(ised 5enal Code, which define and penali/10 a.m., he and his wife, 9eticia, who had 4ust arri(ed in 8aga from Ce%u Cit, proceeded to the house of his parents in5anla-an, 3uman4ug, to attend to the construction of their unfinished house. *uianola helped Bidal 9ao4an and 8icasio )rnai< in cementing the 2itchen floor of their house. The wor2 was finished at around 11/00 ocloc2 in the e(ening. )fter Bidal and 8icasio had gone home, *uianola went to %ed with his wife around midnight until the following morning of 06 March 199'. 6e denied ha(ing %een in the compan of his co-accused, +scuadro a.2.a. &oti?uil, at an time during the whole da and night of 00 March 199'. )ccording to him, Auillermo EoThe Court is not unaware that !epu%lic )ct 8o. ;609, amending )rticle 110 of the !e(ised 5enal Code, has retained the pro(ision penali