Art. 49.

Penalty to be imposed upon the principals when the crime committed is

different from that intended. — In cases in which the felony committed is different
from that which the offender intended to commit, the following rules shall be
observed:

1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its maximum period.

2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the penalty for
the former shall be imposed in its maximum period.

3. The rule established by the next preceding paragraph shall not be

applicable if the acts committed by the guilty person shall also constitute an
attempt or frustration of another crime, if the law prescribes a higher penalty for
either of the latter offenses, in which case the penalty provided for the attempted
or the frustrated crime shall be imposed in its maximum period.

• Art 49 has reference to the provision in the 1st par of Art 4 which provides that
criminal liability shall be incurred “by any person committing a felony although the
wrongful act done be different from that which he intended”
• Art 49 applicable only in cases when there is a mistake in identity of the victim of
the crime and the penalty for the crime committed is different from that for the
crime intended to be committed.
• Art 49 also has no application where a more serious consequence not intended
by the offender befalls the same person.
Example: Juan only wanted to inflict a wound upon Pedro but because he lost control of
his right arm, he killed Pedro. Art 49 not applicable.
 ART 49 ART 48
Lesser penalty to be imposed in its Penalty for the more serious crime
maximum pd shall be imposed in its maximum pd

Notes:

1. Art. 49 has reference to Art. 4(1). It applies only when there is error in personae.
2. In Art. 49 (Paragraphs 1 and 2) the lower penalty in its maximum period is always
imposed.
3. In Par. 3 the penalty for the attempted or frustrated crime shall be imposed in its
maximum period. This rule is not necessary and may well be covered by Art. 48,
in view of the fact that the same act also constitutes an attempt or a frustration of
another crime.