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Republic of the Philippines Ratio: Indeed, we have long recognized the following elements of theft as

SUPREME COURT provided for in Article 308 of the Revised Penal Code, namely: (1) that there be
Manila taking of personal property; (2) that said property belongs to another; (3) that
the taking be done with intent to gain; (4) that the taking be done without the
EN BANC consent of the owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon things.
G. R. No. 160188 June 21, 2007 So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, the operative act that is the taking of personal property of another
vs. establishes, at least, that the transgression went beyond the attempted
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS stage. As applied to the present case, the moment petitioner obtained
NACHURA, respondents. physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
DECISION need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only
TINGA, J.: attempted theft would have afforded him.

Facts: So, in order to ascertain whether the theft is consummated or frustrated, it is

 On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were necessary to inquire as to how exactly is the felony of theft "produced." Parsing
sighted outside the Super Sale Club, a supermarket within the Shoe through the statutory definition of theft under Article 308, there is one
Mart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a apparent answer provided in the language of the law — that theft is already
security guard who was then manning his post at the open parking "produced" upon the "taking of personal property of another without the
area of the supermarket. Lago saw petitioner, who was wearing an latter’s consent."
identification card with the mark "Receiving Dispatching Unit (RDU),"
hauling a push cart with cases of detergent of the well-known With these considerations, we can only conclude that under Article 308
"Tide" brand. Petitioner unloaded these cases in an open parking of the Revised Penal Code, theft cannot have a frustrated stage. Theft can
space, where Calderon was waiting. Petitioner then returned inside the only be attempted or consummated.
supermarket, and after five (5) minutes, emerged with more cartons of
Tide Ultramatic and again unloaded these boxes to the same area in We thus conclude that under the Revised Penal Code, there is no crime of
the open parking space. frustrated theft. As petitioner has latched the success of his appeal on our
 Thereafter, petitioner left the parking area and haled a taxi. He acceptance of the Diño and Flores rulings, his petition must be denied, for we
boarded the cab and directed it towards the parking space where decline to adopt said rulings in our jurisdiction. That it has taken all these
Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic years for us to recognize that there can be no frustrated theft under the Revised
inside the taxi, then boarded the vehicle. All these acts were eyed by Penal Code does not detract from the correctness of this conclusion. It will take
Lago, who proceeded to stop the taxi as it was leaving the open parking considerable amendments to our Revised Penal Code in order that frustrated
area. When Lago asked petitioner for a receipt of the merchandise, theft may be recognized. Our deference to Viada yields to the higher reverence
petitioner and Calderon reacted by fleeing on foot, but Lago fired a for legislative intent.
warning shot to alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the scene, and the stolen
merchandise recovered.
 During the trial and subsequently on appeal, accused held that he
should not be convicted of Consummated Theft. It must only be
Frustrated Theft since they were apprehended.

Issue: Whether or not the theft should be deemed consummated or merely


Held: Yes, the theft should be deemed CONSUMMATED THEFT.

Republic of the Philippines purpose of imposing penal sanction, that an act objectively
SUPREME COURT performed constitute a mere beginning of execution; it is
Manila necessary to establish its unavoidable connection, like the logical
and natural relation of the cause and its effect, with the deed
EN BANC which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to
prove that said beginning of execution, if carried to its complete
G.R. No. L-43530 August 3, 1935 termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, perpetrator, will logically and necessarily ripen into a concrete
vs. offense.
AURELIO LAMAHANG, defendant-appellant.
Thus, in case of robbery, in order that the simple act of entering by
Honesto K. Bausa for appellant. means of force or violence another person's dwelling may be
Office of the Solicitor-General Hilado for appellee. considered an attempt to commit this offense, it must be shown that
the offender clearly intended to take possession, for the purpose of
gain, of some personal property belonging to another. In the instant
RECTO, J.: case, there is nothing in the record from which such purpose of the
accused may reasonably be inferred. From the fact established and
Facts: stated in the decision, that the accused on the day in question was
 At early dawn on March 2, 1935, policeman Jose Tomambing, who was making an opening by means of an iron bar on the wall of Tan Yu's
patrolling his beat on Delgado and C.R. Fuentes streets of the City of store, it may only be inferred as a logical conclusion that his evident
Iloilo, caught the accused in the act of making an opening with an iron intention was to enter by means of force said store against the will of
bar on the wall of a store of cheap goods located on the last-named its owner. That his final objective, once he succeeded in entering the
street. At that time the owner of the store, Tan Yu, was sleeping inside store, was to rob, to cause physical injury to the inmates, or to commit
with another Chinaman. The accused had only succeeded in any other offense, there is nothing in the record to justify a concrete
breaking one board and in unfastening another from the wall, finding.
when the policeman showed up, who instantly arrested him and
placed him under custody.
 The fact above stated was considered and declared unanimously by
the provincial fiscal of Iloilo, the trial judge and the Solicitor-General,
as constituting attempted robbery.

Issue: Whether or not the proper charge was Attempted Robbery.

Held: No, the proper charge is ATTEMPTED TRESPASS TO DWELLING and

not Attempted Robbery.

Ratio: It is our opinion that the attempt to commit an offense which the Penal
Code punishes is that which has a logical relation to a particular,
concrete offense; that, which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its
realization and consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. There is no doubt that in the case at bar it was the
intention of the accused to enter Tan Yu's store by means of
violence, passing through the opening which he had started to
make on the wall, in order to commit an offense which, due to the
timely arrival of policeman Tomambing, did not develop beyond
the first steps of its execution. But it is not sufficient, for the
Republic of the Philippines Ratio: The defense contends that "The complete crime of larceny
SUPREME COURT (theft/robbery) as distinguished from an attempt requires asportation
Manila or carrying away, in addition to the taking, In other words, the crime
of robbery/theft has three consecutive stages: 1) the giving 2) the
SECOND DIVISION taking and 3) the carrying away or asportation And without
asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).
G.R. No. 86163 April 26, 1990
There is no question that in robbery, it is required that there be a
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, taking of personal property belonging to another. This is known as the
vs. element of asportation the essence of which is the taking of a thing out
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO of the possession of the owner without his privity and consent and
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO without the animus revertendi. In fact, if there is no actual taking,
SALVILLA, defendant-appellant. there can be no robbery. Unlawful taking of personal property of
another is an essential part of the crime of robbery.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant. Appellant insists that while the "giving" has been proven, the "taking"
has not. And this is because neither he nor his three co-accused
MELENCIO-HERRERA, J.: touched the P5,000.00 given by Severino nor the latter's wallet or
watch during the entire incident; proof of which is that none of those
Facts: items were recovered from their persons.
 On 12 April 1986, a robbery was staged by the four accused at the
New Iloilo Lumber Yard at about noon time. When they entered the
establishment, they met Rodita Hablero an employee thereat who was Those factual allegations are contradicted by the evidence. Rodita, the
on her way out for her meal break and announced to her that it was a lumberyard employee, testified that upon demand by Appellant,
hold-up. She was made to go back to the office and there Appellant Severino put P20,000.00 inside a paper bag and subsequently handed
Salvilla pointed his gun at the owner, Severino Choco, and his two it to Appellant. In turn, accused Simplicio Canasares took the wallet
daughters, Mary and Mimie the latter being a minor 15 years of age, and wristwatch of Severino. In respect of the P50,000.00 from Mayor
and told the former that all they needed was money. Hearing this, Caram, Rodita declared that the Mayor handed the amount to her after
Severino told his daughter, Mary, to get a paper bag wherein he she (the Mayor) had opened the padlocked door and that she thereafter
placed P20,000.00 cash (P5,000.00, according to the defense) gave the amount to one of the holduppers. The "taking" was, therefore,
and handed it to Appellant. Thereafter, Severino pleaded with the sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The
four accused to leave the premises as they already had the money but money demanded, and the wallet and wristwatch were within the
they paid no heed. Instead, accused Simplicio Canasares took the dominion and control of the Appellant and his co-accused and
wallet and wristwatch of Severino after which the latter, his two completed the taking.
daughters, and Rodita, were herded to the office and kept there as
hostages. It is no defense either that Appellant and his co-accused had no
 After the hostage drama, they were eventually arrested and the opportunity to dispose of the personalities taken. That fact does
hostages were rescued albeit injured. they were all convicted of not affect the nature of the crime, From the moment the offender
Consummated Robbery. gained possession of the thing, even if the culprit had no
 During the trial and on appeal, accused contended that the crime opportunity to dispose of the same, the unlawful taking is
charged must only be Attempted Robbery since they did not take the complete.
paper bag of Severino and left it only on the table.
Contrary to Appellant's submission, therefore, a conviction for
Issue: Whether or not the robbery was already consummated. consummated and not merely attempted Robbery is in order.

Held: Yes, the robbery was already consummated.

Republic of the Philippines Ratio: The only debatable question, not referred to in the briefs, but which
SUPREME COURT must be decided in order to dispose of the appeal, is: Do the facts
Manila constitute frustrated murder or attempted murder within the meaning
of article 3 of the Penal Code? Although no exact counterpart to the
EN BANC facts at bar has been found either in Spanish or Philippine
jurisprudence, a majority of the court answer the question
propounded by stating that the crime committed was that of frustrated
G.R. No. 33463 December 18, 1930 murder. This is true notwithstanding the admitted fact that Mooney
was not injured in the least.
vs. The essential condition of a frustrated crime, that the author
BASILIO BORINAGA, defendant-appellant. perform all the acts of execution, attended the attack. Nothing
remained to be done to accomplish the work of the assailant
Paulo Jaro for appellant. completely. The cause resulting in the failure of the attack arose
Attorney-General Jaranilla for appellee. by reason of forces independent of the will of the perpetrator. The
assailant voluntarily desisted from further acts. What is known as
MALCOM, J.: the subjective phase of the criminal act was passed. (U. S. vs.
Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil.,
Facts: 967.)
 Sometime prior to March 4, 1929, an American by the name of Harry
H. Mooney, a resident of the municipality of Calubian, Leyte, No superfine distinctions need be drawn in favor of that accused to
contracted with one Juan Lawaan for the construction of a fish corral. establish a lesser crime than that of frustrated murder, for the facts
Basilio Borinaga was associated with Lawaan in the construction of disclose a wanton disregard of the sanctity of human life fully meriting
the corral. On the morning of March 4, 1929, Lawaan, with some of the penalty imposed in the trial court.
his men, went to Mooney's shop and tried to collect from him the whole
amount fixed by the contract, notwithstanding that only about two-
thirds of the fish corral had been finished. As was to be expected,
Mooney refused to pay the price agreed upon at that time. On hearing
this reply of Mooney, Lawaan warned him that if he did not pay,
something would happen to him.
 On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in
front of the Perpetua, his back being to the window. Mooney had not
been there long when Perpetua saw Basilio Borinaga from the window
strike with a knife at Mooney, but fortunately for the latter, the knife
lodged in the back of the chair on which Mooney was seated. Mooney
fell from the chair as a result of the force of the blow, but was
not injured. Borinaga ran away towards the market place. Before
this occurred, it should be stated that Borinaga had been heard to tell
a companion: "I will stab this Mooney, who is an American brute.

Issue: Whether or not the proper charge was Frustrated Murder despite not
injuring Mooney.

Held: Yes, the proper charge was Frustrated Murder despite not injuring
Republic of the Philippines dead. And in the case of People vs. Borinaga, supra, the accused
SUPREME COURT stabbed his intended victim, but the knife with which he committed
Manila the aggression instead of hitting the body of the victim, lodged in the
back of the chair in which he was seated, although the accused
EN BANC believed that he had already harmed him. In both these cases this
Court held that of the crime committed was that of frustrated murder,
because the subjective phase of the acts necessary to commit the
G.R. No. L-5848 April 30, 1954 offense had already passed; there was full and complete belief on the
part of the assailant that he had committed all the acts of execution
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, necessary to produce the death of the intended victim.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant. In the case at bar, however, the defendant-appellant fired at his victim,
and the latter was hit, but he was able to escape and hide in another
Exequiel Zaballero, Jr. for appellant. room. The fact that he was able to escape, which appellant must
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor have seen, must have produced in the mind of the defendant-
for appellee. appellant that he was not able to hit his victim at a vital part of
the body. In other words, the defendant-appellant knew that he
had not actually all the acts of execution necessary to kill his
LABRADOR, J.: victim. Under these circumstances, it cannot be said that the
subjective phase of the acts of execution had been completed. And
Facts: as it does not appear that the defendant-appellant continued in
 The evidence for the prosecution shows that early in the morning of the pursuit, and as a matter of fact, he ran away afterwards a
September 3, 1949, the defendant-appellant entered the store at 511 reasonable doubt exist in our mind that the defendant-appellant
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 had actually believed that he has committed all the acts of
caliber pistol that he had in his hand. The first one shot was Jose Sy. execution or passed the subjective phase of the said acts. This
Tan Siong Kiap, who was in the store and saw the accused enter and doubt must be resolved in favor of the defendant-appellant.
afterwards fire a shot at Jose Sy, asked the defendant-appellant,
"What is the idea?" Thereupon defendant-appellant turned around and We are, therefore, not prepared to find the defendant-appellant guilty
fired at him also. The bullet fired from defendant-appellant's of frustrated murder, as charged in the information. We only find him
pistol entered the right shoulder of Tan Siong Kiap immediately guilty of attempted murder, because he did not perform all the acts of
ran to a room behind the store to hide. From there he still heard execution, actual and subjective, in order that the purpose and
gunshot fired from defendant-appellant's pistol, but afterwards intention that he had to kill his victim might be carried out.
defendant-appellant ran away. Tan Siong Kiap was brought to the
Chinese General Hospital, where his wound was treated.
 The trial court found him guilty of frustrated murder.

Issue: Whether or not the proper charge was frustrated murder.

Held: No, the proper charge was not frustrated murder but only attempted

Ratio: In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47
Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held
that it is not necessary that the accused actually commit all the acts
of execution necessary to produce the death of his victim, but that it
is sufficient that he believes that he has committed all said acts. In the
case of People vs. Dagman, supra, the victim was first knocked down
by a stone thrown at him, then attacked with a lance, and then
wounded by bolos and clubs wielded by the accused, but the victim
upon falling down feigned death, and the accused desisted from
further continuing in the assault in the belief that their victim was
Republic of the Philippines


G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.


 Emeliano Trinidad, a member of the Integrated National Police,
assigned at Nasipit Police Station, killed Lolito Soriano and Marcial
Laroa while they were all inside a Ford Fiera.
 Ricardo Tan, Soriano’s assistant who was also inside the vehicle,
hurriedly got out and hid behind the bushes. When he boarded a
jeepney and sat beside the driver, however, he noticed Trinidad sitting
at the back so he hurriedly got out and ran around the jeepney.
 When the jeep started to drive away, Tan clung to its side.
Trinidad fired two shots, one of which hit Tan on his right thigh.
 He was convicted of Frustrated Murder by the trial court for what he
did to Tan.

Issue: Whether or not Trinidad should be convicted of Frustrated Murder.

Held: No, Trinidad should be convicted of ATTEMPTED MURDER only and

not Frustrated Murder.

Ratio: The defense is correct, however, in contending that in the Frustrated

Murder case, TRINIDAD can only be convicted of Attempted Murder.
TRINIDAD had commenced the commission of the felony directly
by overt acts but was unable to perform all the acts of execution
which would have produced it by reason of causes other than his
spontaneous desistance, such as, that the jeep to which TAN was
clinging was in motion, and there was a spare tire which shielded
the other parts of his body. Moreover, the wound on his thigh was
not fatal and the doctrinal rule is that where the wound inflicted
on the victim is not sufficient to cause his death, the crime is
only Attempted Murder, the accused not having performed all the
acts of execution that would have brought about death (People vs.
Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia,
L-40106, March 13, 1980, 96 SCRA 497).
Republic of the Philippines When nothing in the evidence shows that the wound would be
SUPREME COURT fatal without medical intervention, the character of the wound
Manila enters the realm of doubt; under this situation, the doubt created
by the lack of evidence should be resolved in favor of the
THIRD DIVISION petitioner. Thus, the crime committed should be attempted, not
frustrated, homicide.
G.R. No. 175023 July 5, 2010
Under these standards, we agree with the CA’s conclusion. From all
accounts, although the stab wound could have been fatal since the
GIOVANI SERRANO y CERVANTES, Petitioner, victim testified that he saw his intestines showed, no exact evidence
vs. exists to prove the gravity of the wound; hence, we cannot consider
PEOPLE OF THE PHILIPPINES, Respondent. the stab wound as sufficient to cause death. As correctly observed by
the CA, the victim’s attending physician did not testify on the gravity
DECISION of the wound inflicted on the victim. We consider, too, the CA’s
observation that the medical certifications issued by the East Avenue
BRION, J.: Medical Center merely stated the location of the wound. There was
also no proof that without timely medical intervention, the victim
would have died. This paucity of proof must necessarily favor the
Facts: petitioner.
 The case stemmed from a brawl involving 15 to 18 members of two (2)
rival groups that occurred at the University of the Philippines,
Diliman, Quezon City (UP) on the evening of March 8, 1999. The The view from the "frustrated" stage of the crime gives the same
incident resulted in the stabbing of Anthony Galang (victim). results. The elements of frustrated homicide are: (1) the accused
 After chasing other gang rivals away, petitioner’s group ganged up on intended to kill his victim, as manifested by his use of a deadly weapon
the victim. in his assault; (2) the victim sustained fatal or mortal wound/s but did
not die because of timely medical assistance; and (3) none of the
 The petitioner went to where the victim was being beaten. It was
qualifying circumstance for murder under Article 248 of the Revised
then that the victim was stabbed. The petitioner stabbed the left
Penal Code, as amended, is present. Since the prosecution failed to
side of his stomach while he was standing, with his peers
prove the second element, we cannot hold the petitioner liable for
holding the victim’s arms. The petitioner, and two of his friends,
frustrated homicide.
thereafter continued to beat and stone the victim until he fell
into a nearby creek. The petitioner and his group left him there.
 From his fallen position, the victim inspected his stab wound and saw
that a portion of his intestines showed. On foot, he went to find help.
The victim was initially taken to the UP Infirmary, but was referred to
the East Avenue Medical Center where he underwent surgery. The
victim stayed at the hospital for a week, and thereafter stayed home
for one month to recuperate.
 During trial and on appeal, petitioner reasoned that he should only be
charged with serious physical injuries and not frustrated homicide
since there was no intent to kill.

Issue: Whether or not the proper charge was Frustrated Homicide.

Held: No, the proper charge was ATTEMPTED HOMICIDE only and not
Frustrated Homicide.

Ratio: The crucial point to consider is the nature of the wound inflicted which
must be supported by independent proof showing that the wound
inflicted was sufficient to cause the victim’s death without timely
medical intervention.