Attempted Felony – There is an attempt when the offender begins the commission of a

felony directly by overt acts. He has not performed all the acts of execution which should
produce the felony.

ELEMENTS:

A. The offender commences the commission of the felony directly by overt

acts;
B. He does not perform all the acts of execution which should produce the
felony;
C. The offender’s act is not stopped by his own spontaneous desistance;
D. The non-performance of all acts of execution was due to cause or accident
other than his spontaneous desistance

OVERT ACTS – a physical activity or deed, indicating the intention to commit a

particular crime, more than a mere planning or preparation, which if carried 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.

SPONTANEOUS DESISTANCE - It refers to the act of would-be offender in not

pursuing the performance of all the acts of execution.

People vs. Lamahang

Facts: At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling
his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in
the act of making an opening with an iron bar on the wall of a store of cheap goods
located on the last named street. At that time the owner of the store, Tan Yu, was sleeping
inside with another Chinaman. The accused had only succeeded in breaking one board
and in unfastening another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.

Issue: WON defendant is liable for attempted robbery

Held: The provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.

 It is necessary to prove that said beginning of execution, if carried 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. Thus, in case of robbery, in order that the simple act of entering by
means of force or violence another person's dwelling may be 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 case, there is nothing in the record from which such purpose of the accused
may reasonably be inferred. From the fact established and stated in the decision, that the
accused on the day in question was making an opening by means of an iron bar on the
wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against the will of its owner. That his
final objective, once he succeeded in entering the store, was to rob, to cause physical
injury to the inmates, or to commit any other offense, there is nothing in the record to
justify a concrete finding.1avvphil.ñet

In view of the foregoing, we are of the opinion, and so hold that the fact under
consideration does not constitute attempted robbery but attempted trespass to dwelling.
Under article 280 of the Revised Penal Code, this offense is committed when a private
person shall enter the dwelling of another against the latter's will. 

INDETERMINATE OFFENSE – It is one where the purpose of the offender in

performing an act is not certain.

Baleros vs People

FACTS: In early morning of December 1991, Renato Baleros went to the dormitory room
of Martina Lourdes T. Albano (Malou), placed himself on top of her, and pressed a
handkerchief soaked in chloroform. Malou struggled to free herself in the hands of
Baleros and succeeded by grabbing his sexual organ and squeezing it.

Malou went straight to Marvilou and said “”may pumasok sa kuarto ko pinagtangkaan
ako”.

The morning after, the police said to the tenants of the dormitory to grab the things that
are theirs. The room was left with an unclaimed bag which Christian, one of the tenants,
knew right away that was Renato’s. Among the contents of the bag was a handkerchief
with a volatile substance.

They later found out that Renato was a suitor of Malou which she rejected a week ago.

RTC found Renato guilty of attempted rape. CA further affirmed the decision.

ISSUE: WON Renato is guilty of attempted rape.

RULING: NO. Under Article 335 of the Revised Penal Code, rape is committed by a man
who has carnal knowledge or intercourse with a woman under any of the following
circumstances: (1) By using force or intimidation; (2) When the woman is deprived of
reason or otherwise unconscious; and (3) When the woman is under twelve years of age
or is demented. Under Article 6, in relation to the aforementioned article of the same
code, rape is attempted when the offender commences the commission of rape directly by
overt acts and does not perform all the acts of execution which should produce the crime
of rape by reason of some cause or accident other than his own spontaneous desistance.

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.

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.

Assailed decision was REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape.
Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced
to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties
thereof and to pay the costs.

SUBJECTIVE PHASE – It is the portion of the acts constituting the crime, starting
from the point where the offender begins the commission of the crime to that point where
he has still control over his acts, including their natural course.

Note: In Attempted Felony, the offender never passes the subjective phase of the offense.

OBJECTIVE PHASE – That portion in the commission of the crime where the accused

has performed the last act necessary to produce the intended crime and where he has no
more control over the results of his acts.
Frustrated Felony – ELEMENTS:

1. That the offender has performed all the acts of execution which
would produce the felony;
2. That the felony is not produces due to causes independent of the
perpetrator’s will.

People vs. Labiaga

Facts: Sometime in December of 2003 in Iloilo, accused Regie Labiaga (Regie)

together with a certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag, confederated and helped one another, with an unlicensed firegun,
willfully and unlawfully shot Judy Conde (Jojo) in different parts of her breast
whiched caused her death thereafter. The same individuals also conspired to kill
Gregorio Condea and later succeeded.

Appellant said that the shooting of Conde was an act of self-defense Conde challenged
him to a gunfight. In its Joint Decision, the RTC acquitted Demapanag due to
insufficiency of evidence. Appellant, however, was convicted of murder and frustrated
murder.  CA affirmed the decision with modifications as to civil indemnities.

ISSUE: WON Labiaga is guilty of frustrated murder.

RULING: NO. In frustrated murder, there must be evidence showing that the wound
would have been fatal were it not for timely medical intervention. If the evidence
fails to convince the court that the wound sustained would have caused the victim’s
death without timely medical attention, the accused should be convicted of
attempted murder and not frustrated murder.

In the instant case, it does not appear that the wound sustained by Gregorio Conde was
mortal. Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be
convicted of attempted murder and not frustrated murder. Under Article 51 of the
Revised Penal Code, the corresponding penalty for attempted murder shall be two
degrees lower than that prescribed for consummated murder under Article 248, that is,
prision correccional in its maximum period to prision mayor in its medium period.
Section 1 of the Indeterminate Sentence Law provides:
Appellant Regie Labiaga is GUILTY of Attempted Murder and shall suffer an
indeterminate sentence ranging from two (2) years, four (4) months and one (1) day of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as
maximum.

People vs.Angeles

Facts: Accused-appellant Samina Angeles y Calma was charged with four (4) counts of
estafa and one (1) count of illegal recruitment.

Maria Tolosa Sardea was working in Saudi Arabia when she received a call from her
sister, Priscilla Agoncillo, who was in Paris, France. Priscilla advised Maria to return to
the Philippines and await the arrival of her friend, accused-appellant Samina Angeles,
who will assist in processing her travel and employment documents to Paris, France.
Heeding her sister’s advice, Maria immediately returned to the Philippines.

Marceliano Tolosa who at that time was in the Philippines likewise received instructions
from his sister Priscilla to meet accused-appellant who will also assist in the processing
of his documents for Paris, France.

Maria and Marceliano eventually met accused-appellant in September 1994 at Expert

Travel Agency on Mabini Street, Manila. During their meeting, accused-appellant asked
if they had the money required for the processing of their documents. On September 8,
1994, Maria gave P107,000.00 to accused-appellant at Expert Travel Agency.
Subsequently, she gave another P46,000.00 and US$1,500.00 as additional payments to
accused-appellant.

Marceliano, on the other hand, initially gave P100,000.00 to accused-appellant but on

September 28, 1994, he gave an additional P46,000.00 and US$1,500.00 to accused-
appellant at the United Coconut Planters Bank in Makati.

Analyn Olpindo met accused-appellant in Belgium. At that time, Analyn was working in
Canada but she went to Belgium to visit her in-laws. After meeting accused-appellant,
Analyn Olpindo called up her sister, Precila Olpindo, in the Philippines and told her to
meet accused-appellant upon the latters arrival in the Philippines because accused-
appellant can help process her documents for employment in Canada.

Precila Olpindo eventually met accused-appellant at the Expert Travel Agency on

September 7, 1994. Accused-appellant asked for the amount of $4,500.00, but Precila
was only able to give $2,500.00.
No evidence was adduced in relation to the complaint of Vilma Brina since she did not
testify in court.

Accused-appellant told Precila Olpindo and Vilma Brina that it was easier to complete
the processing of their papers if they start from Jakarta, Indonesia rather than from
Manila. Thus, on September 23, 1994, Precila Olpindo, Vilma Brina and accused-
appellant flew to Jakarta, Indonesia. However, accused-appellant returned to the
Philippines after two days, leaving behind Precila and Vilma. They waited for accused-
appellant in Jakarta but the latter never returned. Precila and Vilma eventually came
home to the Philippines on November 25, 1994.

When she arrived in the Philippines, Precila tried to get in touch with accused-appellant
at the Expert Travel Agency, but she could not reach her. Meanwhile, Maria and
Marceliano Tolosa also began looking for accused-appellant after she disappeared with
their money.

Elisa Campanianos of the Philippine Overseas Employment Agency presented a

certification to the effect that accused-appellant was not duly licensed to recruit workers
here and abroad.

After trial on the merits, the trial court found accused-appellant guilty of illegal
recruitment and four (4) counts of estafa 

ISSUE: Accused-appellant is now before us on appeal, arguing that the prosecution failed
to prove her guilt for estafa and illegal recruitment by proof beyond reasonable doubt.

Held: Accused-appellant points out that not one of the complainants testified on what
kind of jobs were promised to them, how much they would receive as salaries, the length
of their employment and even the names of their employers, which are basic subjects a
prospective employee would first determine.

To prove illegal recruitment, it must be shown that the accused-appellant gave

complainants the distinct impression that he had the power or ability to send
complainants abroad for work such that the latter were convinced to part with their
money in order to be employed. 4 To be engaged in the practice of recruitment and
placement, it is plain that there must at least be a promise or offer of an employment from
the person posing as a recruiter whether locally or abroad.

In the case at bar, accused-appellant alleges that she never promised nor offered any job
to the complainants.
We agree.

A perusal of the records reveals that not one of the complainants testified that accused-
appellant lured them to part with their hard-earned money with promises of jobs abroad.
On the contrary, they were all consistent in saying that their relatives abroad were the
ones who contacted them and urged them to meet accused-appellant who would assist
them in processing their travel documents. Accused-appellant did not have to make
promises of employment abroad as these were already done by complainants relatives.

Anent the four charges of estafa, Samina Angeles argues that the element of deceit
consisting in the false statement or fraudulent representation of the accused made prior to
or simultaneously with the delivery of the sums of money is lacking in the instant case.
She claims that she never deceived complainants into believing that she had the authority
and capability to send them abroad for employment.

We are not persuaded.

Under Article 315, paragraph 2(a) of the Revised Penal Code, the elements of estafa are:
(1) the accused has defrauded another by abuse of confidence or by means of deceit and
(2) damage or prejudice capable of pecuniary estimation is caused to the offended party
or third person. Clearly, these elements are present in this case. 8cräläwvirtualibräry

Although Samina Angeles did not deceive complainants into believing that she could find
employment for them abroad, nonetheless, she made them believe that she was
processing their travel documents for France and Canada. They parted with their money
believing that Samina Angeles would use it to pay for their plane tickets, hotel
accommodations and other travel requirements. Upon receiving various amounts from
complainants, Samina Angeles used it for other purposes and then conveniently
disappeared.

Valenzuela vs. People

Facts: On May 19, 1994, at around 4:30 p.m., petitioner and Calderon were sighted
outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along
North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post
at the open parking area of the supermarket. Lago saw petitioner, who was wearing an
identification card with the mark “Receiving Dispatching Unit (RDU),” hauling a push
cart with cases of detergent of the well-known “Tide” brand . Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space.
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the
cartons of Tide Ultramatic inside the taxi, then boarded the vehicle . All these acts were
eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security
guards of the incident. Petitioner and Calderon were apprehended at the scene, and the
stolen merchandise recovered . The filched items seized from the duo were four (4) cases
of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of P12,090.00.

In arguing that he should only be convicted of frustrated theft, petitioner cites two
decisions rendered many years ago by the Court of Appeals: People vs. Diño and People
vs. Flores. Both decisions elicit the interest of the Court, as they modified trial court
convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the
Court of Appeals, yet the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.

ISSUE: Whether or not petitioner is guilty of frustrated theft only (NO, GUILTY OF
CONSUMMATED THEFT)

HELD: Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated “when all the elements necessary for its
execution and accomplishment are present.” It is frustrated “when the offender performs
all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.” Finally, it is attempted “when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own spontaneous
desistance.”

Court has long recognized the following elements of theft as provided for in Article
308 of the Revised Penal Code, namely: 1) that there be 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 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.
So long as the “descriptive” circumstances that qualify the taking are present, including
animo lucrandi and apoderamiento, the completion of the operative act that is the taking
of personal property of another establishes, at least, that the transgression went beyond
the attempted stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed without 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 attempted theft would have afforded him.

Now, in order to ascertain whether the theft is consummated or frustrated, it is necessary

to inquire as to how exactly is the felony of theft “produced .” Parsing through the
statutory definition of theft under Article 308, there is one apparent answer provided in
the language of the law — that theft is already “produced” upon the “taking of personal
property of another without the latter’s consent.”

For the purpose of ascertaining whether theft is susceptible of commission in the

frustrated stage, the question is again, when is the crime of theft produced? There would
be all but certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. This conclusion is reflected in Chief
Justice Aquino’s commentaries, as earlier cited, that “in theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to
appropriate the same , although his act of making use of the thing was frustrated.”

It might be argued, that the ability of the offender to freely dispose of the property stolen
delves into the concept of “taking” itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But even if this were correct,
the effect would be to downgrade the crime to its attempted , and not frustrated stage, for
it would mean that not all the acts of execution have not been completed, the “taking not
having been accomplished.” Perhaps this point could serve as fertile ground for future
discussion, but the concern now is whether there is indeed a crime of frustrated theft, and
such consideration proves ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. The Court is satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of detergent for a considerable period of
time that he was able to drop these off at a spot in the parking lot, and long enough to
load these onto a taxicab .
Again, there is no language in Article 308 that expressly or impliedly allows that the
“free disposition of the items stolen” is in any way determinative of whether the crime of
theft has been produced. The Court thus concludes that under the Revised Penal Code,
there is no crime of frustrated theft. That it has taken all these years for the Court to
recognize that there can be no frustrated theft under the Revised Penal Code, does not
detract from the correctness of this conclusion. It will take considerable amendments to
our Revised Penal Code in order that frustrated theft may be recognized.

Consummated Felony – When all the elements necessary for its execution and
accomplishment are present.

Canceran vs. People

Facts: Petitioner Accused was caught stealing 14 boxes of Ponds Whitening Cream by
hiding he said item inside a box of Magic Flakes. The accused was caught trying to pass
the said items when he trying to pay for the items as Magic Flakes. When the guard
inspected the said box, he discovered the 14 boxes of Ponds. After the discovery of the
items, the accused ran, but was apprehended by the Mall employees. The accused was
charged of Frustrated Theft. The information was filed by the prosecution. The RTC held
that Theft has no Frustrated stages hence, based on the evidence presented, sentenced the
accused of Consummated Theft.

The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond
reasonable doubt of consummated Theft in line with the ruling of the Court in Valenzuela
v. People8 that under Article 308 of the Revised Penal Code (RPC), there is no crime of
"Frustrated Theft." Canceran was sentenced to suffer the indeterminate penalty of
imprisonment from ten (10) years and one (1) day to ten (10) years, eight (8) months
of prision mayor, as minimum, to fourteen (14) years, eight (8) months of reclusion
temporal, as maximum.9ChanRoblesVirtualawlibrary

The RTC wrote that Canceran's denial deserved scant consideration because it was not
supported by sufficient and convincing evidence and no disinterested witness was
presented to corroborate his claims. As such, his denial was considered self-serving and
deserved no weight. The trial court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge Maximo Paderanga was
already dismissed, was not persuasive. The dismissal was merely a release order signed
by the Clerk of Court because he had posted bail.10ChanRoblesVirtualawlibrary

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the
first time. The CA held that there could be no double jeopardy because he never entered a
valid plea and so the first jeopardy never attached.11ChanRoblesVirtualawlibrary

The CA also debunked Canceran's contention that there was no taking because he merely
pushed the cart loaded with goods to the cashier's booth for payment and stopped there.
The appellate court held that unlawful taking was deemed complete from the moment the
offender gained possession of the thing, even if he had no opportunity to dispose of the
same.12ChanRoblesVirtualawlibrary

The CA affirmed with modification the September 20, 2007 judgment of the RTC,
reducing the penalty ranging from two (2) years, four (4) months and one (1) day
of prision correccional, as minimum, to eight (8) years, eight (8) months and one (1) day
of prision mayor, as maximum.

Canceran moved for the reconsideration of the said decision, but his motion was denied
by the CA in its March 7, 2013 resolution.

Issue: Whether the accused should be acquitted in the crime of theft as it was not charged
in the information?

Held: Yes, it is a Constitutional guarantee that the right of every person accused in a
criminal prosecution to be informed of the nature of and causes of the accusation against
him. It is fundamental that every element of which the offense is composed must be
alleged in the complaint or information. The main purpose of requiring the various
elements of a crime to be set out in the information is to enable the accused to suitably
prepare his defense. He is presumed to have no independent knowledge of the facts that
constitute the offense.

As stated earlier, there is no crime of Frustrated Theft. The Information can never be read
to charge Canceran of consummated Theft because the indictment itself stated that the
crime was never produced. Instead, the Information should be construed to mean that
Canceran was being charged with theft in its attempted stage only. Necessarily, Canceran
may only be convicted of the lesser crime of Attempted Theft.

An accused cannot be convicted of a higher offense than that with which he was charged
in the complaint or information and on which he was tried. It matters not how conclusive
and convincing the evidence of guilt may be, an accused cannot be convicted in the
courts of any offense, unless it is charged in the complaint or information on which he is
tried, or necessarily included therein. He has a right to be informed as to the nature of the
offense with which he is charged before he is put on trial, and to convict him of an
offense higher than that charged in the complaint or information on which he is tried
would be an unauthorized denial of that right.

In this case, although the evidence presented during the trial prove the crime of
consummated Theft, he could be convicted of Attempted Theft only. Regardless of the
overwhelming evidence to convict him for consummated Theft, because the Information
did not charge him with consummated Theft, the Court cannot do so as the same would
violate his right to be informed of the nature and cause of the allegations against him, as
he so protests.

What is controlling is not the title of the complaint, nor the designation of the offense
charged or the particular law or part thereof allegedly violated, these being mere
conclusions of law made by the prosecutor, but the description of the crime charged and
the particular facts therein recited.

People vs Pareja

FACTS:

At around 3:30 a.m. of June 16, 2003, AAA (sister of the common law spouse of
accused) was sleeping beside her two-year old nephew, BBB, on the floor of her sister’s
room, when the appellant hugged her and kissed her nape and neck. AAA cried, but the
appellant covered her and BBB with a blanket. The appellant removed AAA’s clothes,
short pants, and underwear; he then took off his short pants and briefs. The appellant
went on top of AAA, and held her hands. AAA resisted, but the appellant parted her legs
using his own legs, and then tried to insert his penis into her vagina. The appellant
stopped when AAA’s cry got louder; AAA kicked the appellant’s upper thigh as the latter
was about to stand up. The appellant put his clothes back on, and threatened to kill AAA
if she disclosed the incident to anyone. Immediately after, the appellant left the room.
AAA covered herself with a blanket and cried.
 The prosecution charged the appellant before the RTC with the crime of rape

 The RTC convicted the appellant of rape

 The CA affirmed the RTC decision. It explained that a slight penetration of the labia
by the male organ is sufficient to constitute rape.

ISSUE: Whether or not the rape was consummated.

HELD:

The Court ruled in the negative. We find that the prosecution failed to prove the
appellant’s guilt beyond reasonable doubt of the crime of consummated rape. We
convict him instead of attempted rape, as the evidence on record shows the presence of
all the elements of this crime. From the foregoing, we find it clear that the appellant’s
penis did not penetrate, but merely ‘touched’ (i.e.,"naidikit"), AAA’s private part. In fact,
the victim confirmed on cross-examination that the appellant did not succeed in inserting
his penis into her vagina. Significantly, AAA’s Sinumpaang Salaysay also disclosed that
the appellant was holding the victim’s hand when he was trying to insert his penis in her
vagina. This circumstance – coupled with the victim’s declaration that she was resisting
the appellant’s attempt to insert his penis into her vagina – makes penile penetration
highly difficult, if not improbable.

Significantly, nothing in the records supports the CA’s conclusion that the
appellant’s penis penetrated, however slightly, the victim’s female organ. Simply
put, "rape is consummated by the slightest penile penetration of the labia majora or
pudendum of the female organ." Without any showing of such penetration, there
can be no consummated rape; at most, it can only be attempted rape [or] acts of
lasciviousness.

 The prosecution failed to present sufficient and convincing evidence to establish the
required penile penetration. AAA’s testimony did not establish that the appellant’s penis
touched the labias or slid into her private part. Aside from AAA’s testimony, no other
evidence on record, such as a medico-legal report, could confirm whether there indeed
had been penetration, however slight, of the victim’s labias. In the absence of testimonial
or physical evidence to establish penile penetration, the appellant cannot be convicted of
consummated rape.

Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the
offender commenced the commission of the crime directly by overt acts but does not
perform all the acts of execution by reason of some cause or accident other than his own
spontaneous desistance. In People v. Publico, we ruled that when the "touching" of
the vagina by the penis is coupled with the intent to penetrate, attempted rape is
committed; otherwise, the crime committed is merely acts of lasciviousness. In the
present case, the appellant commenced the commission of rape by the following
overt acts: kissing AAA’s nape and neck; undressing her; removing his clothes and
briefs; lying on top of her; holding her hands and parting her legs; and trying to
insert his penis into her vagina. The appellant, however, failed to perform all the
acts of execution which should produce the crime of rape by reason of a cause other
than his own spontaneous desistance, i.e., the victim's loud cries and resistance. The
totality of the appellant’s acts demonstrated the unmistakable objective to insert his
penis into the victim’s private parts.

"In rape cases, the prosecution bears the primary duty to present its case with clarity and
persuasion, to the end that conviction becomes the only logical and inevitable
conclusion." We emphasize that a conviction cannot be made to rest on possibilities;
strongest suspicion must not be permitted to sway judgment. In the present case, the
prosecution failed to discharge its burden of proving all the elements of consummated
rape.

Cruz vs. People

FACTS: Petitioner Norberto Bartolome and his wife were engaged in the selling of
plastic wares and glass wares in different municipalities around the country. Norberto
and his wife employed AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta. Two tents were fixed in order that they will
have a place to sleep. At around 1:00 o'clock in the morning, AAA and BBB went to
sleep. Less than an hour later, AAA was awakened when she felt that somebody was on
top of her. Norberto was mashing her breast and touching her private part. AAA realized
that she was divested of her clothing and that she was totally naked. Norberto ordered her
not to scream or she'll be killed. AAA tried to push Norberto away and pleaded to have
pity on her but her pleas fell on deaf ears. She fought back and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told
her not to tell the incident to her mother otherwise, she will be killed. AAA went out of
the tent to seek help from the house boy but she failed to wake him up. Thirty minutes
later, when AAA returned to their tent, she saw Norberto touching the private parts of
BBB. AAA saw her companion awake but her hands were shaking. When she finally
entered the tent, Norberto left and went outside.

Crime charged: Attempted Rape (with respect to AAA) & Acts of Lasciviousness (with
respect to BBB)
RTC Ruling: Petitioner was found guilty of both crimes.
CA Ruling: Petitioner was found guilty with respect to the crime of attempted rape but
was acquitted with respect to the crime of acts of lasciviousness due to insufficiency of
evidence.

Petitioner argued that the record does not indicate if he himself was also naked, or that
his penis was poised to penetrate her.

ISSUE:
Is the petitioner guilty of the crime of attempted rape?

HELD:
NO. In attempted rape, the concrete felony is rape, but the offender does not perform
all the acts of execution of having carnal knowledge. Accepting that intent, being a
mental act, is beyond the sphere of criminal law, that showing must be through his overt
acts directly connected with rape. He cannot be held liable for attempted rape without
such overt acts demonstrating the intent to lie with the female. In short, the State, to
establish attempted rape, must show that his overt acts, should his criminal intent be
carried to its complete termination without being thwarted by extraneous matters,
would ripen into rape.

The petitioner climbed on top of the naked victim, and was already touching her genitalia
with his hands and mashing her breasts when she freed herself from his clutches and
effectively ended his designs on her. Yet, inferring from such circumstances that rape,
and no other, was his intended felony would be highly unwarranted. This was so, despite
his lust for and lewd designs towards her being fully manifest. Such circumstances
remained equivocal, or "susceptible of double interpretation," as Justice Recto put in
People v. Lamahang, supra, such that it was not permissible to directly infer from them
the intention to cause rape as the particular injury. Verily, his felony would not
exclusively be rape had he been allowed by her to continue, and to have sexual congress
with her, for some other felony like simple seduction (if he should employ deceit to have
her yield to him) could also be ultimate felony. As a rule, preparatory acts are not
punishable under the Revised Penal Code for as long as they remained equivocal or of
uncertain significance, because by their equivocality no one could determine with
certainty what the perpetrator's intent really was.

The information charged that the petitioner "remove[d] her panty and underwear and
la[id] on top of said AAA embracing and touching her vagina and breast." With such
allegation of the information being competently and satisfactorily proven beyond a
reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly manifest his intent to
lie with her. The lack of evidence showing his erectile penis being in the position to
penetrate her when he was on top of her deterred any inference about his intent to lie with
her. At most, his acts reflected lewdness and lust for her.
Article 8 – CONSPIRACY AND PROPOSAL

CONSPIRACY – There is conspiracy when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.

Requisites:

a. That two or more persons came to an agreement;

b. That the agreement concerned the commission of a felony; and
c. That the execution of the felony be decided upon.

RULE AS TO LIABILITY

In conspiracy, the act of one is the act of all and the conspirators shall be held
equally liable for the crime.

OVERT ACT NEEDED:

1. By actively participating in the actual commission of the crime, or

2. By lending moral assistance to his co-conspirators by being present at the scene of
the crime
3. By exerting moral ascendency over the rest of the conspirators as to move them to
executing the conspiracy

Note: mere knowledge or approval of the act without cooperation or agreement to

cooperate is not enough to constitute conspiracy.

WHEN LIABLE EVEN IF THE CO-CONSPIRATOR IS NOT IN THE SCENE OF

THE CRIME:

1. If he is the mastermind
2. If he performs an overt act in the performance of the conspiracy

NOTE: Direct proof is not necessary to establish conspiracy

EXCEPTIONS:

1. Disassociation
2. One who joins the conspiracy after the crime is consummated

EXCEPTION TO THE EXCEPTION:

WHEN THE ACT CONSTITUTE A “SINGLE INDIVISIBLE OFFENSE”

Ways of committing conspiracy – Express or implied

TWO KINDS:

Conspiracy as a felony – the mere conspiracy is the crime itself

Conspiracy as a manner of incurring criminal liability – There must be an overt act

done before the co-conspirators become criminally liable.

PEOPLE vs EVASCO

Topic: Criminal Law

SUMMARY: Accused were charged of murder, qualified by abuse of superior strength.

However, the trial court did not compare both parties to determine who had superior strength.

DOCTRINE: Abuse of superior strength is to be appreciated only when there was a notorious
inequality of forces between the victim and the aggressors that was plainly and obviously
advantageous to the latter who purposely selected or took advantage of such inequality in order
to facilitate the commission of the crime. The assailants must be shown to have consciously
sought the advantage, or to have the deliberate intent to use their superior advantage. In this
context, to take advantage of superior strength means to purposely use force excessively out of
proportion to the means of defense available to the person attacked. The appreciation of the
attendance of this aggravating circumstance depends on the age, size and strength of the
parties.

FACTS:

For the killing of Wilfredo Sasot, Jimmy, along with Ernesto Eclavia (Ernesto), was
indicted for murder.
 On June 6, 2006, at about 9:00 p.m., while in Barangay Mambaling, Calauag, Quezon,
witness Lorna Sasot (Lorna) went to the house of their neighbor, one Armando Braga
(Armando), to fetch her husband, Wilfredo Sasot (Wilfredo).

When Lorna arrived at Armando’s house, she saw Ernesto boxing Wilfredo. Thereafter,
she saw Jimmy hit Wilfredo’s head with a stone. As a result, Wilfredo fell to the ground with his
face up.

While Wilfredo was still on the ground, Jimmy continuously hit him with a stone and
Ernesto was boxing Wilfredo’s body. After mauling Wilfredo, Jimmy and Ernesto walked away
together. Subsequently, Lorna brought Wilfredo to the hospital and was pronounced dead-on-
arrival.

According to Lorna, Wilfredo did not fight back when Ernesto and Jimmy mauled him. He
just parried the hands of Ernesto. She also claimed that Jimmy was standing at the back of
Wilfredo, when he pounded a stone on Wilfredo’s head many times.

Witness Joan Fernandez (Joan) corroborated the testimony of Lorna. She alleged that
she was standing for about four meters from the accused when the incident happened. Wilfredo
was standing when Jimmy and Ernesto mauled him. In particular, she stated, “[s]inusuntok po
saka iyong bato pinupukpuk po sa ulo ni Wilfredo Sasot.”

Joan also stated that Jimmy hit Wilfredo’s head with a stone, which is as big as her fist,
while Ernesto with his bare hands hit Wilfredo on his face, chest and neck. Jimmy and Ernesto
simultaneously attacked Wilfredo, who was unable to run because the two of them were holding
him.

Lorna and Joan identified in open court Jimmy as one of the persons who mauled
Wilfredo.

RTC convicted accused of murder. CA affirmed. Hence, Jimmy’s appeal.

ISSUES:

 WoN conspiracy had existed between Jimmy and Ernesto

o YES. Jimmy and Ernesto were shown to have acted in conspiracy when they
assaulted Wilfredo. Although their agreement concerning the commission of the
felony, and their decision to commit it were not established by direct evidence,
the records contained clear and firm showing of their having acted in concert to
achieve a common design – that of assaulting Wilfredo. Direct proof of the
agreement concerning the commission of a felony, and of the decision to commit
it is not always accessible, but that should not be a hindrance to rendering a
finding of implied conspiracy.
o The CA found that Jimmy and Ernesto had perpetrated the killing with abuse of
superior strength; and that the manner of attack indicated abuse of their
superiority, observing that their simultaneous acts of hitting Wilfredo with the rock
 and mauling him together indicated their taking advantage of their combined
strengths to assault the victim.
 WoN accused are guilty of murder
o NO, only homicide. A review quickly illustrates that the lower courts did not
calibrate the relative strengths of the aggressors and their victim. Their failure to
do so was palpable enough, for there was no indication of the assailants having
deliberately taken advantage of their numerical superiority if there were no
witnesses who could describe how the assault had commenced. For sure, their
having assaulted the victim together was not by itself a definite index of their
having deliberately taken advantage of their greater number.

NOTES: Jimmy Evasco y Nugay is GUILTY beyond reasonable doubt of homicide.

People vs Verona

Facts: Accused Eddie, Efren and Edwin Verona were charged with the crime of murder
for the death of Manuel Tingoy.

RTC - Regional Trial Court found Efren and Edwin guilty beyond reasonable doubt of
the crime of murder with the presence of the aggravating circumstances of treachery,
abuse of superior strength, intent to kill, and conspiracy attending the commission of
the crime. The Regional Trial Court held that the version of the prosecution was more
"credible and believable and in accord with ordinary human experience.

CA - Court of Appeals affirmed with modification the Judgment of the Regional Trial
Court, stating that "a trial court's findings of fact are entitled to great weight and will
not be disturbed on appeal," especially if no facts of weight and substance have been
overlooked, misapprehended or misapplied in a case under appeal. 

HELD: As for the issue of conspiracy, Efren and Edwin alleged in their Brief that "the
facts of the case were wanting of any overt acts that are reflective of any conspiracy
amongst the five accused."25 However, in the same Brief, Efren and Edwin cited the
direct testimony of Eva Castaño which revealed that "after the victim was first stabbed
at the back by accused-appellant Efren, the other accused Edwin did the hacking thrust,
followed by Edgar; while the other two accused, Dioscoro and Eddie, were merely
described xxx as being there carrying a weapon." 26

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The essence of conspiracy is the unity
of action and purpose. Direct proof is not essential to prove conspiracy for it may be
deduced from the acts of the accused before, during, and after the commission of the
crime charged, from which it may be indicated that there is common purpose to commit
the crime.27

In this case, the hacking acts of Efren and Edwin, when taken together with the
stabbing act of Efren, reveal a commonality and unity of criminal design. The defense
cannot aver that Dioscoro and Eddie's mere act of carrying a weapon is not an overt act
reflective of conspiracy because clearly, such act is in line with the crime of murder.
Regardless of the extent and character of Dioscoro and Eddie's respective active
participation, once conspiracy is proved, all of the conspirators are liable as co-
principals. The act of one is the act of all. 28

People vs Carandang et, al.

Doctrine: Unlike evident premeditation, there is no requirement for conspiracy to

exist that there be a sufficient period of time to elapse to afford full opportunity for
meditation and reflection. Instead, conspiracy arises on the very moment the
plotters agree, expressly or impliedly, to commit the subject felony

FACTS: In the afternoon of April 2001, La Loma Police Station received a request from
the sister of accused Milan that there is a drug trade that is happening on their house in
Quezon City. At around 4:00 PM, SPO2 Wilfredo Pilar (Red) along with Police Officer 2
Dionisio Alonzo, SPO1 Estores, and SPO1 Montecalvo went to Milan’s house and
surrounded the area. The door of the house was open, enabling the police officers to see
Carandang, Milan, and Chua inside.

PO2 Alonzo and SPO2 Red pushed the door open, and shouted “Walang gagalaw!” They
are instantly shot and failed to return fire causing their instant death. SPO1 Montecalvo
fell on the ground, SPO1 Estores heard Chua say to Milan “Sugurin mo na!”. Milan
lunged Montecalvo but failed to maul him because the police officer was able to fire his
gun to Milan. Thereafter, Estores went inside the house to pull Montecalvo out.

RTC found the three guilty beyond reasonable doubt of the crime of murder.
Likewise, they were also found guilty of attempted murder in Relation to Article 6
par 2, having been acted in conspiracy. CA affirmed the decision.

Accused appealed to SC, arguing that the court a quo erred in holding that there is
conspiracy among the appellants.

ISSUE: WON accused-appellants are guilty of conspiracy to commit murder against

SPO1 Montefalco.
RULING: YES. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Evidence need not
establish the actual agreement among the conspirators showing a preconceived plan or
motive for the commission of the crime. Proof of concerted action before, during and
after the crime, which demonstrates their unity of design and objective, is
sufficient. When conspiracy is established, the act of one is the act of all regardless of the
degree of participation of each.

In the case at bar, the conclusion that Milan and Chua conspired with Carandang was
established by their acts (1) before Carandang shot the victims (Milans closing the door
when the police officers introduced themselves, allowing Carandang to wait in ambush),
and (2) after the shooting (Chuas directive to Milan to attack SPO1 Montecalvo and
Milans following such instruction). These facts are convincing circumstantial evidence of
the unity of purpose in the minds of the three. As co-conspirators, all three are considered
principals by direct participation.

Neither can the rapid turn of events be considered to negate a finding of

conspiracy. Unlike evident premeditation, there is no requirement for conspiracy to exist
that there be a sufficient period of time to elapse to afford full opportunity for meditation
and reflection. Instead, conspiracy arises on the very moment the plotters agree, expressly
or impliedly, to commit the subject felony.

People vs Octa

Doctrine: Unlike evident premeditation, there is no requirement for conspiracy to

exist that there be a sufficient period of time to elapse to afford full opportunity for
meditation and reflection. Instead, conspiracy arises on the very moment the
plotters agree, expressly or impliedly, to commit the subject felony

FACTS: In the afternoon of April 2001, La Loma Police Station received a request from
the sister of accused Milan that there is a drug trade that is happenning on their house in
Quezon City. At arounf 4:00 PM, SPO2 Wilfredo Pilar (Red) along with Police Officer 2
Dionisio Alonzo, SPO1 Estores, and SPO1 Montecalvo went to Milan’s house and
surrounded the area. The door of the house was open, enabling the police officers to see
Carandang, Milan, and Chua inside.

PO2 Alonzo and SPO2 Red pushed the door open, and shouted “Walang gagalaw!”. They
are instantly shot and failed to return fire causing their instant death. SPO1 Montecalvo
fell on the ground, SPO1 Estores heard Chua say to Milan “Sugurin mo na!”. Milan
lunged Montecalvo but failed to maul him because the police officer was able to fire his
gun to Milan. Thereafter, Estores went inside the house to pull Montecalvo out.

RTC found the three guilty beyond reasonable doubt of the crime of murder. Likewise,
they were also found guilty of attempted murder in Relation to Article 6 par 2, having
been acted in conspiracy. CA affirmed the decision.

Accused appealed to SC, arguing that the court a quo erred in holding that ther is
conspiracy among the appellants.

ISSUE: WON accused-appelants are guilty of conspiracy to commit murder against

SPO1 Montefalco.

RULING: YES. Conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it. Evidence need not
establish the actual agreement among the conspirators showing a preconceived plan or
motive for the commission of the crime. Proof of concerted action before, during and
after the crime, which demonstrates their unity of design and objective, is
sufficient. When conspiracy is established, the act of one is the act of all regardless of the
degree of participation of each.

In the case at bar, the conclusion that Milan and Chua conspired with Carandang was
established by their acts (1) before Carandang shot the victims (Milans closing the door
when the police officers introduced themselves, allowing Carandang to wait in ambush),
and (2) after the shooting (Chuas directive to Milan to attack SPO1 Montecalvo and
Milans following such instruction). These facts are convincing circumstantial evidence of
the unity of purpose in the minds of the three. As co-conspirators, all three are considered
principals by direct participation.

Neither can the rapid turn of events be considered to negate a finding of

conspiracy. Unlike evident premeditation, there is no requirement for conspiracy to exist
that there be a sufficient period of time to elapse to afford full opportunity for meditation
and reflection. Instead, conspiracy arises on the very moment the plotters agree, expressly
or impliedly, to commit the subject felony.

People vs Feliciano et, al

Doctrine: The moment it is established that the malefactors conspired and confederated in

the commission of the felony proved, collective liability of the accused conspirators
attaches by reason of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the perpetrators present at
the scene of the crime.

FACTS: In December of 1994, Leandro Lachica, Amel Fortes, Mervin Naralicio,

Cristobal Gaston, Jr., Felix Tumaneng and Cesar Magborang Jr, who are all members of
Sigma Rho Fraternity, were attacked by 10 masked men armed with baaseball bat and
lead pipes. Dennis Venrurina was hit on the head and was clubbed on different parts of
his body inflicting upon him serious and mortal injuries which were the direct immediate
cause of his death.

The attackers were later discovered to be members of Scintilla Juris Fraternity, and were
identified as Robert Michael Alvir, Danilo Feliciano, Jr., Christopher Soliva, Julius
Victor Medalla, Warren Zingapan. All of them were found guilty beyond reasonable
doubt of murder and attempted murder and were sentenced to suffer reclusion perpetua 
by the RTC. CA affirmed the decision.

Accused-apellants are now questioning the court if they should all suffer as principals
and co-conspirators of teh crime. Hence, the appeal.

ISSUE: WON accussed-appellants should be treated as co-conspirators.

RULING. YES. Once an express or implied conspiracy is proved, all of the conspirators

are liable as co-principals regardless of the extent and character of their respective active
participation in the commission of the crime or crimes perpetrated in furtherance of the
conspiracy because in contemplation of law the act of one is the act of all.

Verily, the moment it is established that the malefactors conspired and confederated in
the commission of the felony proved, collective liability of the accused conspirators
attaches by reason of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the perpetrators present at
the scene of the crime.

The appellate court, therefore, erred in finding the accused-appellants guilty only of slight
physical injuries. It would be illogical to presume that despite the swiftness and
suddenness of the attack, the attackers intended to kill only Venturina, Natalicio, and
Fortes, and only intended to injure Lachica, Mangrobang, and Gaston. Since the intent to
kill was evident from the moment the accused-appellants took their first swing, all of
them were liable for that intent to kill.
Accused-appellants should be liable for the murder of Dennis Venturina and the
attempted murder of Mervin Natalicio, Cesar Mangrobang, Jr., Leandro Lachica, Arnel
Fortes, and Cristobal Gaston, Jr.

GMA vs. PEOPLE

Re first substantive issue: The Prosecution did not properly allege and prove the
existence of conspiracy among GMA, Aguas and Uriarte.

A perusal of the information suggests that what the Prosecution sought to show

was an implied conspiracy to commit plunder among all of the accused on the basis of
their collective actions prior to, during and after the implied agreement. It is notable that
the Prosecution did not allege that the conspiracy among all of the accused was by
express agreement, or was a wheel conspiracy or a chain conspiracy.

We are not unmindful of the holding in Estrada v. Sandiganabayan [G.R. No.

148965, February 26, 2002, 377 SCRA 538, 556] to the effect that an information
alleging conspiracy is sufficient if the information alleges conspiracy either: (1) with the
use of the word conspire, or its derivatives or synonyms, such as confederate, connive,
collude, etc; or (2) by allegations of the basic facts constituting the conspiracy in a
manner that a person of common understanding would know what is being conveyed, and
with such precision as would enable the accused to competently enter a plea to a
subsequent indictment based on the same facts. We are not talking about the sufficiency
of the information as to the allegation of conspiracy, however, but rather the
identification of the main plunderer sought to be prosecuted under R.A. No. 7080 as an
element of the crime of plunder. Such identification of the main plunderer was not only
necessary because the law required such identification, but also because it was essential
in safeguarding the rights of all of the accused to be properly informed of the charges
they were being made answerable for. The main purpose of requiring the various
elements of the crime charged to be set out in the information is to enable all the accused
to suitably prepare their defense because they are presumed to have no independent
knowledge of the facts that constituted the offense charged.

Despite the silence of the information on who the main plunderer or the
mastermind was, the Sandiganbayan readily condemned GMA in its resolution dated
September 10, 2015 as the mastermind despite the absence of the specific allegation in
the information to that effect. Even worse, there was no evidence that substantiated such
sweeping generalization.

In fine, the Prosecution’s failure to properly allege the main plunderer should be
fatal to the cause of the State against the petitioners for violating the rights of each
accused to be informed of the charges against each of them.