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
Manila
EN BANC
G. R. No. 160188              June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,  present, including animo lucrandi and apoderamiento, the completion
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
Facts:
 On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were
sighted outside the Super Sale Club, a supermarket within the Shoe
Mart (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.
 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
frustrated.
Held: Yes, the theft should be deemed CONSUMMATED THEFT.
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
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.
So, 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."
With these considerations, we can only conclude that under Article 308
of the Revised Penal Code, theft cannot have a frustrated stage. Theft
can only be attempted or consummated.
We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Diño and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these
years for us 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. Our deference to Viada yields to the
higher reverence for legislative intent.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530             August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,  frustrated by external obstacles nor by the voluntary desistance
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
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.
 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 purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution;
it is necessary to establish its unavoidable connection, like the
logical and natural relation of the cause and its effect, with the
deed 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
termination following its natural course, without being
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.
 Held:
Ratio: The defense contends that "The complete crime of larceny
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86163               April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  the element of asportation the essence of which is the taking of a
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO
SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Facts:
 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 on her way out for her meal break and announced
to her that it was a hold-up. She was made to go back to the office
and there Appellant Salvilla pointed his gun at the owner, Severino
Choco, and his two daughters, Mary and Mimie the latter being a
minor 15 years of age, and told the former that all they needed was
money. Hearing this, Severino told his daughter, Mary, to get a
paper bag wherein he placed P20,000.00 cash (P5,000.00,
according to the defense) and handed it to Appellant. Thereafter,
Severino pleaded with the four accused to leave the premises as they
already had the money but they paid no heed. Instead, accused
Simplicio Canasares took the wallet and wristwatch of Severino after
which the latter, his two daughters, and Rodita, were herded to the
office and kept there as hostages.
 After the hostage drama, they were eventually arrested and the
hostages were rescued albeit injured. they were all convicted of
Consummated Robbery.
 During the trial and on appeal, accused contended that the crime
charged must only be Attempted Robbery since they did not take the
paper bag of Severino and left it only on the table.
Issue: Whether or not the robbery was already consummated.
Yes, the robbery was already consummated.
(theft/robbery) as distinguished from an attempt requires
asportation 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 taking and 3) the carrying away or asportation And
without asportation the crime committed is only attempted"
(Memorandum for Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a
taking of personal property belonging to another. This is known as
thing out of the possession of the owner without his privity and
consent and without the  animus revertendi. In fact, if there is no
actual taking, there can be no robbery. Unlawful taking of
personal property of another is an essential part of the crime of
robbery.
Appellant insists that while the "giving" has been proven, the "taking"
has not. And this is because neither he nor his three co-accused
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
items were recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita,
the lumberyard employee, testified that upon demand by Appellant,
Severino put P20,000.00 inside a paper bag and subsequently
handed it to Appellant. In turn, accused Simplicio Canasares took
the wallet and wristwatch of Severino. In respect of the P50,000.00
from Mayor Caram, Rodita declared that the Mayor handed the
amount to her after she (the Mayor) had opened the padlocked door
and that she thereafter gave the amount to one of the holduppers.
The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987,
pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and
wristwatch were within the dominion and control of the Appellant
and his co-accused and completed the taking.
It is no defense either that Appellant and his co-accused had no
opportunity to dispose of the personalities taken. That fact does
not affect the nature of the crime, From the moment the
offender gained possession of the thing, even if the culprit had
no opportunity to dispose of the same, the unlawful taking is
complete.
Contrary to Appellant's submission, therefore, a conviction for
consummated and not merely attempted Robbery is in order.
 Held: Yes, the proper charge was Frustrated Murder despite not injuring
Mooney.

Republic of the Philippines

SUPREME COURT Ratio: The only debatable question, not referred to in the briefs, but which
Manila must be decided in order to dispose of the appeal, is: Do the facts
constitute frustrated murder or attempted murder within the
EN BANC meaning of article 3 of the Penal Code? Although no exact
counterpart to the facts at bar has been found either in Spanish or
Philippine jurisprudence, a majority of the court answer the question
G.R. No. 33463             December 18, 1930 propounded by stating that the crime committed was that of
frustrated murder. This is true notwithstanding the admitted fact
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,  that Mooney was not injured in the least.
vs.
BASILIO BORINAGA, defendant-appellant. The essential condition of a frustrated crime, that the author
perform all the acts of execution, attended the attack. Nothing
Paulo Jaro for appellant. remained to be done to accomplish the work of the assailant
Attorney-General Jaranilla for appellee. completely. The cause resulting in the failure of the attack arose
by reason of forces independent of the will of the perpetrator.
MALCOM, J.: The assailant voluntarily desisted from further acts. What is
known as the subjective phase of the criminal act was passed.
Facts: (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51
 Sometime prior to March 4, 1929, an American by the name of Harry Phil., 967.)
H. Mooney, a resident of the municipality of Calubian, Leyte,
contracted with one Juan Lawaan for the construction of a fish No superfine distinctions need be drawn in favor of that accused to
corral. Basilio Borinaga was associated with Lawaan in the establish a lesser crime than that of frustrated murder, for the facts
construction of the corral. On the morning of March 4, 1929, disclose a wanton disregard of the sanctity of human life fully
Lawaan, with some of his men, went to Mooney's shop and tried to meriting the penalty imposed in the trial court.
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.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5848             April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  already passed; there was full and complete belief on the part of the
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor
for appellee.
LABRADOR, J.:
Facts:
 The evidence for the prosecution shows that early in the morning of
September 3, 1949, the defendant-appellant entered the store at 511
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45
caliber pistol that he had in his hand. The first one shot was Jose Sy.
Tan Siong Kiap, who was in the store and saw the accused enter and
afterwards fire a shot at Jose Sy, asked the defendant-appellant,
"What is the idea?" Thereupon defendant-appellant turned around
and fired at him also. The bullet fired from defendant-appellant's
pistol entered the right shoulder of Tan Siong Kiap
immediately ran to a room behind the store to hide. From there
he still heard gunshot fired from defendant-appellant's pistol, but
afterwards 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
murder.
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 dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim,
but the knife with which he committed 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 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 offense had
assailant that he had committed all the acts of execution necessary
to produce the death of the intended victim.
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 room. The fact that he was able to escape, which
appellant must have seen, must have produced in the mind of
the defendant-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 victim. Under these circumstances, it
cannot be said that the subjective phase of the acts of execution
had been completed. And as it does not appear that the
defendant-appellant continued in the pursuit, and as a matter of
fact, he ran away afterwards a reasonable doubt exist in our
mind that the defendant-appellant had actually believed that he
has committed all the acts of execution or passed the subjective
phase of the said acts. This doubt must be resolved in favor of
the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty
of frustrated murder, as charged in the information. We only find
him guilty of attempted murder, because he did not perform all the
acts of execution, actual and subjective, in order that the purpose
and intention that he had to kill his victim might be carried out.
 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
Republic of the Philippines would have brought about death (People vs. Phones, L-32754-5,
SUPREME COURT July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13,
Manila 1980, 96 SCRA 497).

SECOND DIVISION

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.

MELENCIO-HERRERA, J.:

Facts:
 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

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175023               July 5, 2010
GIOVANI SERRANO y CERVANTES, Petitioner,  the petitioner. Thus, the crime committed should be attempted,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
Facts:
 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
incident resulted in the stabbing of Anthony Galang (victim).
 After chasing other gang rivals away, petitioner’s group ganged up on
the victim.
 The petitioner went to where the victim was being beaten. It
was then that the victim was stabbed. The petitioner stabbed
the left side of his stomach while he was standing, with his
peers holding the victim’s arms. The petitioner, and two of his
friends, 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.
When nothing in the evidence shows that the wound would be
fatal without medical intervention, the character of the wound
enters the realm of doubt; under this situation, the doubt
created by the lack of evidence should be resolved in favor of
not frustrated, homicide.
Under these standards, we agree with the CA’s conclusion. From all
accounts, although the stab wound could have been fatal since the
victim testified that he saw his intestines showed, no exact evidence
exists to prove the gravity of the wound; hence, we cannot consider
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
of the wound inflicted on the victim. We consider, too, the CA’s
observation that the medical certifications issued by the East Avenue
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
petitioner.
The view from the "frustrated" stage of the crime gives the same
results. The elements of frustrated homicide are: (1) the accused
intended to kill his victim, as manifested by his use of a deadly
weapon 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 qualifying circumstance for murder under Article 248
of the Revised Penal Code, as amended, is present. Since the
prosecution failed to prove the second element, we cannot hold
the petitioner liable for frustrated homicide.