2nd Set Crim Law

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31770 December 5, 1929
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ANTONINO HERNANDEZ, defendant-appellant.
Crispin Oben for appellant.

Attorney-General Jaranilla for appellee.
AVANCEÑA, C.J.:
In the judgment appealed from the appellant was convicted of arson and sentenced to eight years
and one day presidio mayor, with the accessaries of law, and the costs.
On February 3, 1929, Miguel Dayrit, the offended party, was living with his children in his house
situated in the barrio of Duque, municipality of Mabalacat, Province of Pampanga. At a little past
midnight on that date, and after Miguel Dayrit had retired, he noticed that the thatched roof of his
house was on fire. He got up to fetch some water with which to extinguish the fire, when, looking out
of the window, he saw the appellant beside the house, carrying a stick (Exhibit A). Miguel Dayrit
shouted for help, and started to put out the fire, which he succeeded in doing, after a small part of
the roof had burned. In answer to his cries for help, Artemio Tanglao repaired to the place and saw
the defendant running away. Daniel Mallari also came, and on his way to the house met the
defendant.
The appellant knew that Miguel Dayrit and his children lived and were in the house that night.
The testimony of the offended party, corroborated by that of Artemio Tanglao and Daniel Mallari,
establishes beyond all doubt the fact that it was the appellant who set fire to the house. The stick
which Miguel Dayrit saw in the appellant's possession on that night was found leaning against the
house with the end burnt and a rag soaked with petroleum dangling from it. Daniel Mallari
recognized it as the stick which the appellant used in getting guava fruits.
It should be noted, moreover, that prior to the crime, the appellant and the offended party, Miguel
Dayrit, had some disagreements because the offended party suspected that the appellant was
stealing his paddy piled up behind his house. The offended party communicated his suspicions to
the barrio lieutenant, who, together with the complainant, went to the appellant's house, but the latter
armed with a bolo, barred their way, saying that he would cut them to pieces, and that he recognized
no authority. This characteristic violence on the part of the appellant was also shown when, in
pursuance of this information, he was arrested; for he refused to give himself up.
The trial court held that the crime committed was only frustrated arson. We agree with the Attorney-
General that the crime was consummated. The appellant did in fact, set fire to the roof of the house,
and said house was in fact partially burned. With this, the crime of arson was consummated,
notwithstanding the fact that the fire was afterwards extinguished, for, once the fire has been started,
the consummation of the crime of arson does not depend upon the extent of the damage cause. This
court has so held in the cases of United States vs. Go Foo Suy and Go Jancho (25 Phil., 187) and
United States vs. Po Chengco (23 Phil., 487).
The crime of arson having been consummated, as it appears from the facts thoroughly proved,
article 549 of the Penal Code is applicable herein, with the corresponding penalty of cadena
temporal to life imprisonment. And as the aggravating circumstance of nighttime must be taken into
consideration, as having been doubtless sought by the appellant in order to insure the commission
of the crime, the penalty must be imposed in its maximum degree.
In view of these considerations, the judgment appealed from is modified, and in accordance with
article 549 of the Penal Code the appellant is found guilty of the crime of arson, committed in a
dwelling, knowing that within it were the offended party and his children; and, considering one
aggravating circumstance in the commission of the crime, the defendant is sentenced to life
imprisonment, with the accessaries, and the costs.
The appellant is an old man, about 85 years of age, and in view of this, and of the fact that the
damage caused was very slight, the Attorney-General recommends that, in pursuance of the second
paragraph of article 2 of the Penal Code, these facts be explained to the Executive, for the exercise
of his clemency to such an extent as he may deem proper. The suggestion is accepted, and it is
hereby ordered that the clerk forward a copy of this decision, once it becomes final, to the Governor-
General for consideration. So ordered.
Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-14128 December 10, 1918
THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
Ariston Estrada for appellant.

Attorney-General Paredes for appellee.
TORRES, J.:
This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First
Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo
Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present year, judgment
was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one
day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed.
With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the other half of the
costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from
the house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs.
Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and told her
that much smoke was issuing from the lower floor of the latter's house, for until then Mrs. Lewin had
not noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino
Banal to look for the fire, as he did and he found, so asked with kerosene oil and placed between a
post of the house and a partition of the entresol, a piece of a jute sack and a rag which were burning.
At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the
other defendant Hugo Labarro was cleaning the horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having been called for
the purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C,
drawn up in the police station, admitted before several policemen that it was he who had set the fire
to the sack and the rag, which had been noticed on the date mentioned. and he also who had
started the several other fires which had occurred in said house on previous days; that he had
performed such acts through the inducement of the other prisoner, Hugo Labarro, for they felt
resentment against, or had trouble with, their masters, and that, as he and his coaccused were
friends, he acted as he did under the promise on Labarro's part to give him a peso for each such fire
that he should start.
lawphi1.net
The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police
station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in
the place where they were found, and stated, that it was the servant Paulino who had done so. He
alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he
had gathered together, which is contrary to the statement he made in the police station, to wit, that
he had set the fire to the said rag and piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other
defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve
the Lewin family, to burn the house above mentioned. occupied by the latter and in which this
defendant was employed, some policemen were watching the building and one of them, Antonio
Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw
the defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which
warehouse there was some straw that had previously been burned, and that, when the defendant
noticed the presence of the policeman, he desisted from climbing the wall and entering the
warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an
upright of the house and a partition of the entresol of the building, thus endangering the burning of
the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some
of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection
with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same
by direct participation is the defendant Severino Valdes, for, notwithstanding his denial and
unsubstantiated exculpations, the record discloses conclusive proof that it was he who committed
the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in
said house. In an affidavit the defendant admitted having made declarations in the police station,
and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in
kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is
that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower
part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should
have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback noticing
a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the
accusation he made against the servant Paulino, who apparently is the same persons as the driver
Hugo Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts
conceive to the burning of said house, but nevertheless., owing to causes independent of his will, the
criminal act which he intended was not produced. The offense committed cannot be classified as
consummated arson by the burning of said inhabited house, for the reason that no part of the
building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene
oil, had been placed near partition of the entresol, the partition might have started to burn, had the
fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with the

commission of the crime, and therefore the penalty of presidio mayor immediately inferior in degree
to that specified in article 549 of the Penal Code, should be imposed in its medium degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the modification
however, that the penalty imposed upon the defendant shall be given eight years and one day
of presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant
shall also pay the costs of both instances. So ordered.
Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

SUPREME COURT
Manila
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions 1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 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. 7
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. 8 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 ₱12,090.00. 9
Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM. 15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal, 18 but only petitioner filed a brief19 with the Court
of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen. 20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
rejected this contention and affirmed petitioner’s conviction. 22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged. 25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño 27 and People v. Flores.28 Both
decisions elicit the interest of this 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.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30
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."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting. 35 Accepted in this
jurisdiction as material in crimes mala in se,36 mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights." 39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.
Indeed, we have 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. 42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner," 43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain. 46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property; 49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking. 51
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.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.
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 "tak[ing of] personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking." 60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted," 67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n 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."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft." 74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony." 77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner. 80
No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence." 81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was
apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled. 84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados. 86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (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. 90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.
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 "[i]n 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."91
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 our 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. We are 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.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila: 93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effected animo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
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.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for
the accused which does not reflect any legislated intent, 95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. 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. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
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.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
See infra, People v. Diño and People v. Flores.
2
Not accounting for those unpublished or unreported decisions, in the one hundred year
history of this Court, which could no longer be retrieved from the Philippine Reports or other
secondary sources, due to their wholesale destruction during the Second World War or for
other reasons.
3
See People v. Adiao, infra. There have been a few cases wherein the Court let stand a
conviction for frustrated theft, yet in none of those cases was the issue squarely presented
that theft could be committed at its frustrated stage. See People v. Abuyen, 52 Phil. 722
(1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721 (1951). In
People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept
the viability of a conviction for frustrated theft, though the issue expounded on by the Court
pertained to the proper appellate jurisdiction over such conviction.
It would indeed be error to perceive that convictions for frustrated theft are traditionally
unconventional in this jurisdiction, as such have routinely been handed down by lower
courts, as a survey of jurisprudence would reveal. Still, the plain fact remains that this Court ,
since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated theft, or
even discuss such scenario by way of dicta.
In passing, we take note of a recent decision of the Court of Appeals in People v.

Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph
/cardis/CR28280.pdf), where the appellate court affirmed a conviction for frustrated theft, the
accused therein having been caught inside Meralco property before he could flee with some
copper electrical wire. However, in the said decision, the accused was charged at the onset
with frustrated theft, and the Court of Appeals did not inquire why the crime committed was
only frustrated theft. Moreover, the charge for theft was not under the Revised Penal Code,
but under Rep. Act No. 7832, a special law.
4
53 Phil. 226 (1929).
5
217 Phil. 377 (1984).
6
Records, pp. 1-2.
7
Rollo, pp. 21-22.
8
Id. at 22.
9
See id. at 472.
10
See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other
apparent suspects. The affidavits and sworn statements that were executed during the police
investigation by security guards Lago and Vivencio Yanson, by SM employee Adelio Nakar,
and by the taxi driver whose cab had been hailed to transport the accused, commonly point
to all six as co-participants in the theft of the detergents. It is not explained in the record why
no charges were brought against the four (4) other suspects, and the prosecution’s case
before the trial court did not attempt to draw in any other suspects other than petitioner and
Calderon. On the other hand, both petitioner and Calderon claimed during trial that they were
innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of
the incident when they were haled in, along with the four (4) other suspects by the security
guards in the resulting confusion. See infra. However, both petitioner and Calderon made no
move to demonstrate that the non-filing of the charges against the four (4) other suspects
somehow bolstered their plea of innocence.
In any event, from the time this case had been elevated on appeal to the Court of Appeals,
no question was anymore raised on the version of facts presented by the prosecution. Thus,
any issue relative to these four (4) other suspects should bear no effect in the present
consideration of the case.
11
Also identified in the case record as "Rosalada" or "Rosullado." He happened to be among
the four (4) other suspects also apprehended at the scene and brought for investigation to
the Baler PNP Station. See id. Rosulada also testified in court in behalf of Calderon. See
Records, pp. 357-390.
12
13
A person who was neither among the four (4) other suspects (see note 6) nor a witness for
the defense.
14
Rollo, p. 25.
15
16
Id. at 472-474; Penned by Judge Reynaldo B. Daway.
17
Id. at 474.
18
Id. at 484.
19
CA rollo, pp. 54-62.
20
Rollo, p. 25.
Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third
21
Division, concurred in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guariña.
A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a
22
Resolution dated 1 October 2003.
23
Rollo, pp. 8-15.
24
Id. at 12.
25
Id. at 9.
26
Id. at at 13-14.
27
No. 924-R, 18 February 1948, 45 O.G. 3446.
28
6 C.A. Rep. 2d 835 (1964).
See e.g., L.B. Reyes, I The Revised Penal Code: Criminal Law (13th ed., 2001), at 112-
29
113 and R. Aquino, I The Revised Penal Code (1997 ed.), at 122.
30
Act No. 3185, as amended.
31
See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the
subjective phase as "that point where [the offender] still has control over his acts, including
their (acts’) natural course." See L.B. Reyes, I The Revised Penal Code: Criminal Law (13th
Ed., 2001), at 101.
32
People v. Caballero, 448 Phil. 514, 534 (2003).
33
See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
34
U.S. v. Eduave, 36 Phil. 209, 212 (1917).
People v. Pacana, 47 Phil. 48 (1925); cited in Aquino, supra note 29, at 39. See also
35
Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999).
36
See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
37
People v. Moreno, 356 Phil. 231, 248 (1998) citing Black's Law Dictionary, 5th ed., p. 889.
38
Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga,
39
Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.
J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991,
40
202 SCRA 251, 288.
41
See also Revised Penal Code, Art. 310, which qualifies theft with a penalty two degrees
higher "if committed by a domestic servant, or with grave abuse of confidence, or if the
property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from
the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken
on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance."
See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing
42
People v. Sison, 322 SCRA 345, 363-364 (2000).
43
S. Guevarra, Commentaries on the Revised Penal Code (4th ed., 1946), at 614.
44
Id. at 615.
45
Id. citing Inst. 4, 1, 1.
46
Section 1(2) of the Theft Act of 1968 states: "It is immaterial whether the appropriation is
made with a view to gain, or is made for the thief’s own benefit." Sir John Smith provides a
sensible rationalization for this doctrine: "Thus, to take examples from the old law, if D takes
P’s letters and puts them down on a lavatory or backs P’s horse down a mine shaft, he is
guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or
anyone else. It might be thought that these instances could safely and more appropriately
have been left to other branches of the criminal law—that of criminal damage to property for
instance. But there are cases where there is no such damage or destruction of the thing as
would found a charge under another Act. For example, D takes P’s diamond and flings it into
a deep pond. The diamond lies unharmed in the pond and a prosecution for criminal damage
would fail. It seems clearly right that D should be guilty of theft." J. Smith, Smith & Hogan
Criminal Law (9th ed., 1999), at 534.
47
F. Regalado, Criminal Law Conspectus (1st ed., 2000), at 520.
48
People v. Kho Choc, 50 O.G. 1667, cited in Regalado, id. at 521.
People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas,
49
CA-G.R. No. 14953, 31 October 1956, all cited in Regalado, supra note 47 at 521.
People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in
50
Regalado, supra note 47 at 521.
REgalado, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No.

51
54171, 28 October 1980, 100 SCRA 467; Association of Baptists for World Evangelism v.
Fieldmen’s Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505 (1983). See
also People v. Bustinera, supra note 42.
The distinction being "inconsequential" if the criminal charge is based on a special law
52
such as the Dangerous Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838, October
23 1997, 281 SCRA 103, 120.
53
38 Phil. 754 (1918).
54
Id. at 755.
55
Id.
56
Id. at 755-756.
57
Supra note 4.
58
Supra note 4 at 227.
59
Id.
60
People v. Diño, supra note 27 at 3450.
61
Id.
62
Id.
63
Id. at 3451.
64
People v. Flores, supra note 28 at 840.
Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen
65
merchandise.
66
Id. at 841.
67
Id.
68
People v. Diño, supra note 27 at 841.
69
People v. Naval and Beltran, CA 46 O.G. 2641.
70
See note 62.
71
Aquino, supra note 29 at 122.
72
Id. at 110.
73
C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.
74
Id. at 1391. Citations omitted.
75
CA G.R. No. 2107-R, 31 May 1949.
Note the similarity between this holding and the observations of Chief Justice Aquino in
76
note 72.
77
Reyes, supra note 29 at 113.
78
Supra note 5.
79
"Revised Penal Code, Art. 310 states that the crime of theft shall "be punished by the
penalties next higher by two degrees than those respectively expressed in the next
preceding article x x x if the property stolen x x x consists of coconuts taken from the
premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in the tree
or deposited on the ground within the premises is qualified theft. When the coconuts are
stolen in any other place, it is simple theft. Stated differently, if the coconuts were taken in
front of a house along the highway outside the coconut plantation, it would be simple theft
only.
[In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in
the premises of the plantation. They would therefore come within the definition of qualified
theft because the property stolen consists of coconuts "taken from the premises of a
plantation."] Empelis v. IAC, supra note 5, at 379, 380.
80
Empelis v. IAC, supra note 5, at 380.
81
Id.
82
Art. 234, Código Penal Español de 1995. See Ley Orgánica 10/1995, de 23 de
noviembre, del Código Penal, http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html
(Last visited, 15 April 2007). The traditional qualifier "but without violence against or
intimidation of persons nor force upon things," is instead incorporated in the definition of
robbery ("robos") under Articulo 237 of the same Code ("Son reos del delito de robo los que,
con ánimo de lucro, se apoderaren de las cosas muebles ajenas empleando fuerza en las
cosas para acceder al lugar donde éstas se encuentran o violencia o intimidación en las
personas.")
By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed
accordingly." See Section 1(1), Theft Act 1968 (Great Britain). The most notable difference
between the modern British and Spanish laws on theft is the absence in the former of the
element of animo lucrandi. See note 42.
83
1 S. Viada, Codigo Penal Reformado de 1870 (1926 ed) at 103.
84
"Considerando que según se desprende de la sentencia recurrida, los dependientes de la
sastrería de D. Joaquin Gabino sorprendieron al penado Juan Gomez Lopez al tomar una
capa que había en un maniquí, por lo que hubo de arrojarla al suelo, siendo detenido
despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no
aparece realizado en toda la extensión precisa para poderlo calificar como consumado, etc."
Id. at 103-104.
85
The other examples cited by Viada of frustrated theft are in the case where the offender
was caught stealing potatoes off a field by storing them in his coat, before he could leave the
field where the potatoes were taken, see Viada (supra note 83, at 103), where the offender
was surprised at the meadow from where he was stealing firewood, id.
86
E. Cuello Calon, II Derecho Penal (1955 ed.), at 799 (Footnote 1).
87
Id. at 798-799.
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United
88
States v. Wiltberger, 18 U.S. 76 (1820).
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling
89
v. United States, 473 U.S. 207 (1985).
90
See e.g., People v. Bustinera, supra note 42.
91
Aquino, supra note 29, at 110.
People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280
92
(2003); People v. Bustinera, supra note 42 at 295.
93
44 Phil. 720 (1923).
94
Id. at 726.
Justice Regalado cautions against "putting a premium upon the pretensions of an accused
95
geared towards obtention of a reduced penalty." Regalado, supra note 47, at 27.

SUPREME COURT
Manila
EN BANC
G.R. No. L-30028 May 3l, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRESENCIO DOBLE, ET AL defendants, CRESENCIO DOBLE, SIMEON DOBLE and ANTONIO
ROMAQUIN, defendants-appellants.
DE CASTRO, J.:
This case refers to a bank robbery committed in band, with multiple homicide, multiple frustrated
homicide and assault upon agents of persons in authority, on June 14, 1966, in Navotas, Rizal. Only
five of ten accused were brought to trial, the other five named only as "John Does" in the information
having remained at large. Two of the five accused who stood trial, Mateo Raga and Celso Aquino
were acquitted, while the trial court, the Court of first Instance of Rizal, imposed the death penalty on
the appellants herein, Cresencio Doble, Simeon Doble and Antonio Romaquin The decision of the
trial court is now before Us for review for having imposed the death penalty.
Both the de ficio counsel for appellants and the then Solicitor General, Hon. Felix Q. Antonio, a
retired Justice of this Court, agree that as so narrated in the appealed decision, and as quoted in
appellants' brief, the relevant and material facts accurately reflect the evidence presented, except
only as to the fact that there were eight malefactors, with respect to which appellants are not in full
conformity (p. 2, Appellants' Brief).
As stated in the decision under review, the crime was committed as follows:
Late in the night of June 13, 1966, ten (10) men, almost all of them heavily armed
with pistols, carbines and Thompsons, left the shores of Manila in a motor banca and
proceeded to Navotas, Rizal. "Their mission: to rob the Navotas Branch of the
Prudential Bank and Trust Company. Once in Navotas and taking advantage of the
darkness of the night, eight (8) men disembarked from the banca and proceeded to
the beach in the direction of the branch bank. Within a few minutes, shots were
heard throwing the people around in panic. As confusion reigned, the people ran in
different directions scampering for safety. As time went on, the shots grew in
intensity. As the commotion died down, the eight men returned to their banca, still
fully armed and some of them carrying what looked like "bayongs". "They boarded
the waiting motor banca and sped away. As a result of the shooting, many people got
killed and some injured. Among those who were killed were agents of the law, like
Sgt. Alejandro Alcala of the Philippine Constabulary, Sgt. Eugenio Aguilos and Cpl.
Teofilo Evangelista of the Navotas Police Department. Dominador Estrella, a market
collector, was also killed. 'Those who were injured were Pat. Armando Ocampo,
Exequiel Manalus Jose Fabian, Rosalina Fuerten and Pedro de la Cruz.
The Prudential Bank and Trust Company branch office located at the North hay
Boulevard, Navotas, Rizal, the object of the bloody mission, has an unusual banking
hours. It opens at midnight and closes at 8:00 in the morning. The bank has ten
employees, more or less, including a security guard. It has two cages or
compartments for tellers. One cage was under the care of Melvin Domingo and the
other one under the care of Alejandro San Juan. At around 12:30 a.m. of June 14,
1966, Cesar Reyes, assistant cashier of the bank, was near the cage of Domingo
when two men entered the bank asking that their money be changed. Domingo
refused, saying that they had no small denominations. Suddenly, three men armed
with long guns barged in and fired at the ceiling and the wall of the bank. They
ordered the employees to lie down, face downward and then demanded the key to
the vault. When Reyes answered that they do not have the key, the armed men
aimed their guns at the vault and fired upon it until its doors were opened. They
entered the vault and found that they could not get anything as the compartments
inside the said vault were locked. Not being able to get anything from the vault, the
armed men went to the two teller cages and took whatever they could lay their hands
on. Not long afterwards, the men left, carrying with them the sum of P10,439.95.
Just beside the bank was a police outpost. On the night in question, Pat. Nicolas
Antonio was in the outpost, together with Sgt. Aguilos, Pats. Pangan, Burgos, Rosal
Ocampo and Cpl. Evangelists. were on duty watching the fish landing. Suddenly,
Antonio said, at around 1:30 a.m., he heard a burst which he believed came from a
Thompson. He said he saw a man pointing a Thompson upwards while he was in
front of the banca Afterwards, Antonio said, he heard another burst coming from the
same direction. Antonio and his companions then went to the middle of the road and
again they heard shots, and this time they were successive, coming from their left.
Antonio could not see who was firing the shots. Suddenly, he said, he saw one of this
companions Cpl. Evangelista topple down. He saw also Dominador Estrella sitting
down folding his stomach. They were both felled by the shots coming from the left
side of the bank. Antonio told Ocampo to go beside the outpost and held Sgt. Aguilos
by the arm. Sgt. Aguilos, however, collapsed and fell down. He was hit. Later on,
Antonio said, he went to the outpost and told Pat. Ocampo to go too. He said that
from the outpost he heard some more shots. Then he saw Ocampo hit in the thigh.
After the firing ceased, Antonio saw his wounded companions placed in a vehicle,
together with Evangelista and Aguilos who were already dead. Later on, he said he
saw Sgt. Alcala, a member of the PC, lying prostrate in the ground already dead. (pp.
83-85, Rollo).
It is noteworthy that from the above narration as to how the robbery and the killing that followed in its
wake were actually committed, the three appellants had no participation. It is not surprising that the
Solicitor General has recommended the acquittal of one of the appellants, Simeon Doble. With this
recommendation, it might be well to take up the case of this appellant ahead of the other two,
appellants Antonio Romaquin and Cresencio Doble.
In recommending Simeon Doble's acquittal, the Solicitor General made the following observation:
As to appellant Simeon, the evidence shows only that the malefactors met in his
house to discuss the plan to rob the Prudential Bank This circumstance, standing
alone, does not conclude his guilt beyond reasonable doubt. The facts do not show
that he performed any act tending to the perpetration of the robbery, nor that he took
a direct part therein or induced other persons to commit, or that he cooperated in its
consummation by some act without which it would not have been committed. It could
be that Simeon was present at the meeting held in his house and entered no
opposition to the nefarious scheme but, aside from this, he did not cooperate in the
commission of the robbery perpetrated by the others. At most, his act amounted to
joining in a conspiracy which is not punishable. Mere knowledge, acquiescence, or
approval of the act, without cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy, but that there must be intentional participation
in the transaction with a view to the furtherance of the common design and purpose
(15 CJS 1062).
We are, therefore, unable to agree with the finding of the lower court that Simeon
was a principal both by agreement and encouragement, despite his non-participation
in the commission of the crime. Nor was it clearly proved that Simeon received a part
of the looted money as to make him an accessory. Romaquin's testimony that the
day after the robbery he gave P2.00 to Simeon who had asked for cigarettes (p. 5,
t.s.n., May 25, 1967) could hardly be considered as the latter's share of the loot. It is
significant that in his statement he claimed he had not yet received his share. (pp.
10-11, Appellee's Brief; p. 146, Rollo).
A review of the evidence of record shows the foregoing observation of the Solicitor General to be
with convincing rationality it is only that portion in which is cited Simeon's statement made before the
Navotas Police Department (Exh. I pp. 28-29, Folder of Exhibits) that "he has not yet received his
share" that detracts from the solidity of the Solicitor General's recommendation, for it gives the
impression that Simeon had given material or moral support or encouragement to the malefactors
(referring to those still at large as the principal culprits) as to entitle him to a share in the loot.
However, a reading of his whole extra-judicial statement would erase that impression, and reveals
the true import of that statement as intended only to show that Simeon had nothing to do with
commission of the crime and therefore did not receive any share of the fruits thereof. Thus, to quote
pertinent portions Of his statement. on custodial investigation:
3. T — Ano ang dahilan at ikaw ay naririto?
S — Dahil po sa aking pagkakasangkot sa holdapan dito sa isang

Bangko sa Navotas, Rizal at ako ay hinuli ng mga tauhan ng M. P. D.
4. T — Kailan ka hinuli?
S — Noon pong Miyerkules ng madaling araw, hindi ko alam ang

petsa pero nito pong buwan na ito.
5. T — Mayroon ka bang nalalaman tungkol sa pagkakaholdap ng

isang bangko dito sa Navotas?
S — Ang nalalaman ko po ay doon nagpulong sa aming bahay ang

mga taong nangholdap dito sa Navotas.
6. T — Sino-sino o ilang tao ang mga nagpulong sa inyong bahay?
S — Pirmero po ay walo (8), pagkatapos ay may dumating na dalawa

pa at ang mga kilala ko lamang po ay sina Tony na may an ng
bangka, si Joe Rondina Cresencio Doble at narinig kong may
tinawag pang Erning. lyon pong iba ay hindi ko alam ang pangalan
pero makikilala ko Pag aking nakitang muli.
7. T — Gaano katagal na nagpulong sa inyong bahay ang mga taong

ito?
S — Mahigit pong mga isang (1) oras pero hatinggabi na nong Lunes
ng gabi (June 13, 1966).
8. T — Ano ang mga bagay na pinagpulongan sa inyong bahay?
S — Tungkol sa kanilang lakad na pagpunta sa isang bangko sa

Navotas,
9. T — Sino ang nangunguna sa pulong na iyon?

S — Iyan po (witness pointing to the picture of Rodolfo Dizon, after
being shown five (5) other pictures).
10. T — Ano-ano ang mga narinig mong pinagpulongan?
S — Tungkol po doon sa gagawing pagnanakaw sa isang Bangko sa

Navotas, Rizal.
11. T — Samantalang sila ay nagpupulong, ano ang iyong

ginagawa?
S — Wala po, hindi ko sila sinasaway at hindi ako kumikibo bastat

ako ay nakikinig lamang.
12. T — Bukod sa narinig mong magnanakaw sa bangko na usapan,

ano pa ang iba mong mga narinig?
S — Sinabi nito (witness pointing to the picture of Rodolfo Dizon) at ni

Jose Rondina na "MALAKING KUARTA TO, PERO MASYADONG
MAPANGANIB, AT KAILANGAN AY HANDA TAYO."
13. T — Ano pa ang sumunod?
S — Nagbubulong-bulongan ang iba tungkol doon sa gagawing

paglaban.
14. T — Ano pa ang nangyari?
S — Maya-maya po ay lumakad na sila, hindi ako sumama.
15. T — Pagkatapos?
S — Makaraan po ang mahigit na isang (1) oras ay nagbalik silang

lahat.
16. T — Ano ang nangyari ng magbalik na sila?
S — Matapos po silang bumaba doon sa malapit sa aming bahay ay

nagmamadali na silang umalis dahil sa may tama ang isa sa kanila.
At noon pong umaga ng araw na iyon ay nagpunta ako kay Tony
(Antonio Romaquin at kumuha ng dalawang piso (P2.00) dahil iyong
aking parte ay hindi pa naibibigay sa akin. Pagkatapos po ay umuwi
na ako sa amin.
17. T — Ano pa ang iyong masasabi kaugnay ng pangyayaring ito.

Ikaw ba ay mayroong nais na alisin o dili kaya ay baguhin sa
salaysay mong ito?
S — Mayroon pa po akong ibig na sabihin.

18. T — Ano pa ang ibig mong sabihin?
S — Bago po tuluyang umalis sila sa aking bahay ay nag-usap-usap

silang lahat at ako ay sumama sa kanilang pag-uusap at
nakapagbigay pa ako ng mungkahi na ako na lamang ang
maghihintay sa kanila dahil sa ako ay may pinsala sa paa at
maaaring hindi ako makatakbo at qqqmahuh lamang.
19. T — Iyan bang pinsala mo sa kaliwang paa ay matagal na?
S — Opo, may limang (5) taon na.
20. T — Samantalang nag-uusap sa loob ng bahay mo, nasaan ka?
S — Kasama po sa loob ng aking bahay.
21. T — Ano pa ang masasabi mo?
S — Wala na po.
The only link between Simeon and the crime is his house having been used as the meeting place of
the malefactors for their final conference before proceeding to Navotas to rob the Prudential Bank
branch thereat. He did not join them because of a qqq5yeat old foot injury which would make him
only a liability, not one who can help in the devilish venture. To the malefactors he was most
unwanted to join them. If they met at his house it was only because it was near the landing place of
the banca, and so he invited them to his house while waiting for the banca to arrive. His mere
presence in his house where the conspirators met, and for merely telling them that he could not join
them because of his foot injury, and will just wait for them; evidently as a mere gesture of politeness
in not being able to join them in their criminal purpose, for he could not be of any help in the
attainment thereof, and also to avoid being suspected that he was against their vicious plan for
which they may harm him, Simeon is by no means a co-conspirator, not having even taken active
part in the talks among the malefactors in his house.
Like the Solicitor General, We, therefore, find no culpable participation of Simeon Doble in the
commission of the crime, for, indeed, by his physical condition alone, he could not in any way be of
help to the malefactors in the pursuit of their criminal design, nor could he have been desired by the
latter to be one of them.
Taking up next the case of appellants Antonio Romaquin and Cresencio Doble, their main contention
is that their extrajudicial statements upon which their conviction was principally made to rest, are
inadmissible for having been allegedly obtained by force and intimidation, and in violation of basic
constitutional rights to counsel and against self-incrimination. In support of this contention,
appellants have only their own self-serving testimony to rely upon.
Thus, Cresencio Doble testified that while at the Navotas police department someone he could not
name boxed him on the chest, while one Sgt. Lacson hit him on the left side with the butt of a gun
causing him to lose consciousness; that he was made to lie on a narrow table and peppery liquid
was poured over his face, his eyesight then becoming dim, and it was then that he was made to sign
a piece of paper which he could not read because of his blurred eyesight.
Romaquin gave a similar story of torture and maltreatment in order to force him to admit culpable
participation in the heist. The inquiry must, accordingly, be whether the claim of violence and
involuntariness of their statements is true as to render said statements inadmissible in evidence.
Disputing the allegation of maltreatment in the execution of the custodial statements (Exhibits E, F,
F-1, G, H-1), the Solicitor General argues that the same is negated by how the details as given by
both appellants in their respective statements fit into each other, at least as to the part played by
each from the time Cresencio went to Romaquin's place to procure the latter's banca up to their get-
away from the scene of the crime. Thus, while Romaquin claimed in his statement that although he
wanted to escape from the scene after his passengers have disembarked for their evil mission, he
could not do so because Cresencio had a gun pointed at him to prevent his escape, as was the
order given Cresencio by the rest of the gang. The latter denied this allegation when he testified that
he returned the gun given him because he did not know how to use or manipulate it, although in his
extra- judicial statement (Exhibit M, p. 35, Record of Exhibits), he stated that he accepted the gun.
The statement of Romaquin as just cited in an attempt to exculpate himself which is generally taken
as an indication of lack of undue pressure exerted on one while giving his statement on custodial
interrogation. (People vs. Palencia, 71 SCRA 679).
The Solicitor General also observed, in disputing the claim of violent maltreatment to which
appellant's were subjected to, that neither one of the appellants presented medical certificate to
attest to the injuries allegedly inflicted (p. 3, Appellee's Brief) which disproves the claim (People vs.
Tuazon, 6 SCRA 249; People vs. Dela Cruz, 88 Phil. 79). He also points to the fact that in his
extrajudicial statement (Exhibit M, p. 35, Record of Exhibits), Celso Aquino, one of the accused,
made no admission of his participation in the bold bank robbery, and in his testimony in court, he
admitted that no violence was applied to him when he gave his statement (p. 12, t.s.n., July 12,
1967; p. 4, Appellee's Brief). 'This is evidence enough that the appellants could not have been dealt
with differently as their co-accused Aquino who was allowed to give his statement freely without the
employment of force or intimidation upon him. The evidence also disclosed a note (Exhibit E) of
Cresencio addressed to Romaquin asking the latter not to reveal the names of their companions.
This means that the names of the members of the band led by Joe Intsik must have been known to
both appellants. That the Identity of five of those charged in this case has remained only as "John
Does" indicate the non-employment of any coercive means with which to force them into revealing
the names of their companions in the robbery, again negating the claim of torture and violence.
It is, likewise, to be noted that appellants Romaquin and Cresencio virtually confirmed their extra-
judicial statements when they testified in court. By all the proofs as cited, persuasive enough to show
the voluntariness of their custodial statements plus the positive denial of Sgt. Lacson, the only one
named among the alleged torturers, that any violence was practiced by the investigators,
specifically, the alleged delivery of fist blows on Cresencio. (pp. 3, 6, 7, 18, t.s.n., October 27, 1967)
the alleged involuntariness of the extra-judicial statements is fully discredited.
It is hinted that the killing of suspect Rodolfo Dizon while allegedly attempting to escape could have
instilled fear in the minds of the appellants which affected their freedom of will in giving their own
statements (p. 12, Appellant's Brief). This is a far-fetched argument to prove involuntariness in the
giving of the statements, the killing having taken place after their interrogation. In his supplemental
statement dated July 5, 1966 Exhibits F-2, p. 20, Record of Exhibits), Romaquin pointed to the
person of Rodolfo Dizon. His death therefore, took place long after appellants have given their main
statements, all in mid June, 1966. If counsel de oficio had only bothered to check the dates of the
main statements of both appellants which were given not later than just past the middle of June,
1966, and that of the supplementary statement of Romaquin which is July 5, 1966, he would not
have probably come forth with this argument.
Counsel de oficio, invoking a ruling in an American case, Miranda vs. Arizona, 16 L. Ed. 2nd. 694,
harps on the inadmissibility of appellants' custodial statements, for their having been unaided by
counsel, nor informed of their right thereto during the interrogation. 'There might be merit in this
contention were the right to counsel during custodial interrogation one of constitutional grant as is
provided in our 1973 Constitution, before which the right was given only to an accused, not to a
mere suspect during in-custody police interrogation (Magtoto vs. Manguera 63 SCRA 4; People vs.
Dumdum Jr. G. R. No. L-35279, July 30, 1979). At the time of their custodial interrogation in 1966,
however, the requisite of assistance of counsel was not yet made a matter of constitutional right, as
it has been granted only by the new 1973 Constitution.
The right against self-incrimination, as invoked by appellants, can neither be appreciated to impair
the admissibility of their extra-judicial statements. It is the voluntariness of an admission or
confession that determines its admissibility, for no principle of law or constitutional precept should
stand on the way of allowing voluntary admission of one's guilt, the only requisite justly demanded
being that ample safeguard be taken against involuntary confessions. Once the element of
voluntariness is convincingly established, which, incidentally, is even presumed, the admissibility of
an extra-judicial confession, admission or statement becomes unquestionable. 1
The extra-judicial statements of appellants, however, when evaluated with the testimony they gave in
court, would convince Us that their liability is less than that of a co-principal by conspiracy or by actual
participation, as as was the holding of the trial court. The most damaging admission made in the extra-
judicial statements of Cresencio is that he was asked by Joe Intsik, the gang leader, at 8:00 o'clock in the
evening of June 13, 1966, if he could procure a banca for his use, and that Joe Intsik, on being asked by
Cresencio, allegedly told him that the banca would be used for robbery. Cresencio gave an affirmative
answer to Joe Intsik's query, having in mind Tony Romaquin who had a banca. Cresencio accompanied
Joe Intsik to Romaquin at 12:00 in the evening. In Romaquin's statement (Exh. C also Exh. 1, Romaquin,
p. 15, Record of Exhibits), Cresencio allegedly asked him to bring his friends in his banca, to board a
launch for a trip to Palawan. The discrepancy between the statements of Cresencio and Romaquin as to
the intended use of the banca is at once apparent, for while according to the former, it was for the
commission of robbery, according to the latter, it was to bring Cresencio's friends to board a launch for a
trip to Palawan. What is demonstrated thereby is the full freedom with which both appellants were allowed
to give their respective statements while in custodial interrogation.
Cresencio's consenting to look for a banca, however, did not necessarily make him a co-conspirator.
Neither would it appear that Joe Intsik wanted to draft Cresencio into his band of malefactors that
would commit the robbery more than just asking his help to look for a banca. Joe Intsik had enough
men all with arms and weapons to perpetrate the crime, the commission of which needed planning
and men to execute the plan with full mutual confidence of each other, which is not shown with
respect to appellants by the way they were asked to look and provide for a banca just a few hours
before the actual robbery.
Romaquin, for his part, appears not to be known to the principal malefactors still at large, to be
asked to join actively in the conspiracy. The amount received by Romaquin who alone was given
money by the malefactors in the sum of P441.00, indicate that the latter did not consider appellant
as their confederate in the same character as those constituting the band of robbers. The sum given
to Romaquin could very well represent only the rental of his banca, and for the cooperation he
extended to the malefactors, which, by no means, is an indispensable one. Cresencio, on the other
hand, was not given any part of the loot. It was only Romaquin who gave him P4 1.00, clearly not
what should represent his share if he were a full-fledged ally or confederate.
The apprehension of the malefactors that upon realizing the full impact of their vicious misdeeds,
Romaquin might speed away from the scene in fear of being implicated, as shown by the measure
they had taken to prevent his escape, is further proof that Romaquin was not considered a co-
conspirator, who is one who should not be looked upon with mistrust. For his part, Cresencio
testified that while he was given a gun with which to cover Romaquin who might escape, he returned
the gun because he did not know how to use it, and so one of the malefactors was left near the
beach to prevent appellants fleeing from the scene of the crime with banca. In his statement,
however, (Exh. M, p. 35, Record of Exhibits), he refused to accept the gun, but they gave it just the
same, and he received it.
The circumstances pointed out would not make appellants liable as co-principals in the crime
charged. At the most their liability would be that of mere accomplices. They joined in the criminal
design when Cresencio consented to look for a banca and Romaquin provided it when asked by the
gang leader Joe Intsik, and then brought the malefactors to the scene of the robbery, despite
knowledge of the evil purpose for which the banca was to be used. It was the banca that brought the
malefactors to the bank to be robbed and carried them away from the scene after the robbery to
prevent their apprehension. Appellants thus cooperated but not in an indispensable manner. Even
without appellants providing the banca, the robbery could have been committed, specially with the
boldness and determination shown by the robbers in committing the crime.
The complicity of appellant Cresencio is further shown by his note (Exhibit "H", p. 26, Record of
Exhibits) addressed to Romaquin asking him not to reveal to the police the names of their
companions. He went to Romaquin and asked for money which the latter gave in the sum of P41.00,
as if to show that he had helped in some material way to deserve a share in the loot.
As to Romaquin, while he testified that the malefactors gave a gun to Cresencio with which the latter
would prevent Romaquin from fleeing away from the scene, evidently to show that he never joined in
the criminal purpose, and that all his acts were in fear of bodily harm and therefore, not voluntary,
the measure taken by the malefactors to prevent his escape, could have been just an extra
precaution, lest he would be stricken with fear in the course of the commission of the crime specially
if attended by shootings as it was really so. If it is true that he never voluntarily made the trip with
knowledge of the planned robbery, and with Cresencio saying that he returned the gun given him
with which to prevent Romaquin from speeding away, Romaquin could have tried a get-away, as
should have been his natural impulse had he not joined in the criminal design. His act of hiding the
money he received from the malefactors, and repainting his boat, all attest to his guilty conscience
arising from the act of cooperation he knowingly extended to the principal culprit to achieve their
criminal purpose.
An accomplice is one who, not being principal as defined in Article 17 of the Revised Penal Code,
cooperates in the execution of the offense by previous or simultaneous acts (Art. 18, Revised Penal
Code). There must be a Community of unlawful purpose between the principal and accomplice and
assistance knowingly and intentionally given (U.S. vs. Belco 11 Phil. 526), to supply material and
moral aid in the consummation of the offense and in as efficacious way (People vs. Tamayo, 44 Phil.
38). In this case, appellants' cooperation is like that of a driver of a car used for abduction which
makes the driver a mere accomplice, as held in People vs. Batalan 45 Phil. 573, citing the case
of U.S. vs. Lagmay, G.R. No. L-15009.
It is however, not established by the evidence that in the meeting held in the house of Simeon Doble,
the malefactors had agreed to kill, if necessary to carry out successfully the plan to rob. What
appellants may be said to have joined is the criminal design to rob, which makes them accomplices.
Their complicity must, accordingly, be limited to the robbery, not with the killing. Having been left in
the banca, they could not have tried to prevent the killing, as is required of one seeking relief from
liability for assaults committed during the robbery (Art. 296. Revised Penal Code). 2
The finding that appellants are liable as mere accomplices may appear too lenient considering the gravity
and viciousness of the offense with which they were charged. The evidence, however, fails to establish
their complicity by a previous conspiracy with the real malefactors who actually robbed the bank and killed
and injured several persons, including peace officers. The failure to bring to justice the real and actual
culprits of so heinous a crime should not bring the wrath of the victims nor of the outraged public, upon
the heads of appellants whose participation has not been shown to be as abominable as those who had
gone into hiding. The desire to bring extreme punishment to the real culprits should not blind Us in meting
out a penalty to appellants more than what they justly deserve, and as the evidence warrants.
Accordingly, We find appellants Cresencio Doble and Antonio Romaquin guilty beyond reasonable
doubt, but only as accomplices for the crime of robbery in band. 3 As discussed earlier, appellant
Simeon Doble is entitled to acquittal as so recommended by the Solicitor General who finds no sufficient
evidence, to which We agree, to establish his guilt beyond reasonable doubt.
The penalty imposable upon appellants Cresencio Doble and Antonio Romaquin, as accomplices for
the crime of robbery in band is prision mayor minimum which has a range of 6 years, 1 day to 8
years as provided ill Article 295 of the Revised Penal Code in relation to Article 294, paragraph 5 of
the same code. The commission of the crime was aggravated by nighttime and the use of a
motorized banca. There being no mitigating circumstance, both appellants should each be
sentenced to an indeterminate penalty of from five (5) years, four (4) months, twenty-one (21) days
of prision correccional to eight (8) years of prision mayor as maximum, and to indemnify the heirs of
each of the deceased in the sum of 1112,000.00 not P6,000.00 as imposed by the trial court.
WHEREFORE, modified as above indicated, the judgment appealed from is affirmed in all other
respects. The immediate release of Simeon Doble who is hereby acquitted is ordered, unless he
should be continued in confinement for some other legal cause. Proportionate costs against
Cresencio Doble and Antonio Romaquin.
SO ORDERED.
Barredo, Makasiar, Guerrero, Melencio-Herrera, Vasquez, and Gutierrez, JJ., concur.
Aquino and Escolin, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring and dissenting:
Giving to Cresencio Doble and Antonio Romaquin the benefit of a lenient attitude, I can agree that
they were not principals but merely accomplices as stated in the main opinion. However, I cannot
persuade myself that their complicity must be limited to the robbery only and should not include the
killing. For it must be remembered that the principal malefactors were each fully armed; the arms
consisted of pistols, carbines and Thompson sub-machine guns, This fact was known to the
appellants. In fact the principal malefactors has so many guns that one was given to Cresencio with
which to cover Antonio in case he tried to escape. This shows that the principal malefactors were
prepared to kill even an accomplice so that they could accomplish their criminal objective. How then
can it be said that there was no criminal design to kill but only to rob among the principal malefactors
as suggested in the main opinion. And I cannot believe that under the circumstances the appellants
were unaware of the criminal design to kill and that they gave their cooperation — albeit not
indispensable — only — to the robbery. Accordingly, I believe that the appellants should be held
guilty as accomplices in the crime of robbery with homicide.
Fernando, J., I concur with the separate opinion of Justice Vicente Abad Santos.
Concepcion, Jr., J., previously voted to concur with the main opinion.
Relova, J., I concur in the dissent of Justice Abad Santos.
Separate Opinions
ABAD SANTOS, J., concurring and dissenting:
Giving to Cresencio Doble and Antonio Romaquin the benefit of a lenient attitude, I can agree that
they were not principals but merely accomplices as stated in the main opinion. However, I cannot
persuade myself that their complicity must be limited to the robbery only and should not include the
killing. For it must be remembered that the principal malefactors were each fully armed; the arms
consisted of pistols, carbines and Thompson sub-machine guns, This fact was known to the
appellants. In fact the principal malefactors has so many guns that one was given to Cresencio with
which to cover Antonio in case he tried to escape. This shows that the principal malefactors were
prepared to kill even an accomplice so that they could accomplish their criminal objective. How then
can it be said that there was no criminal design to kill but only to rob among the principal malefactors
as suggested in the main opinion. And I cannot believe that under the circumstances the appellants
were unaware of the criminal design to kill and that they gave their cooperation — albeit not
indispensable — only — to the robbery. Accordingly, I believe that the appellants should be held
guilty as accomplices in the crime of robbery with homicide.
Fernando, J., I concur with the separate opinion of Justice Vicente Abad Santos.
Concepcion, Jr., J., previously voted to concur with the main opinion.
Footnotes
1 People vs. Molleda 86 SCRA 667; People vs. Dorado, 30 SCRA 53; People vs,
Narciso, 23 SCRA 844.
2 People vs. Hamiana 89 Phil. 225.
3 People vs. Palencia, 71 SCRA 679; People vs. Geronimo, 53 SCRA 246; People
vs. Pastores, 40 SCRA 498.
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-51206 August 25, 1989
NORBERTO MASIPEQUINA and JOVENCIO ALAMPAYAN, petitioners,

vs.
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
Paulino G. Clarin for petitioners.
CORTES, J.:
The extent to which responding peace officers may defend themselves in the face of an attack by
the person sought to be apprehended is the subject of this petition for review.
Petitioners Patrolmen Norberto Mesipequina and Jovencio Alampayan, who were members of the
Integrated National Police (INP) of San Isidro, Bohol, were charged with the crime of homicide for
the death of Leopoldo Potane. They were convicted by the trial court and sentenced to suffer
imprisonment of from seven (7) years and one (1) day of prison mayor as minimum to fourteen (14)
years, four (4) months and one (1) day of reclusion temporal as maximum, and to jointly and
severally indemnify the heirs of the deceased Leopoldo Potane in the amount of twelve thousand
pesos (P12,000.00).
On appeal, the Solicitor General joined the petitioners in their prayer for acquittal on the theory that
petitioners are exempt from liability because they had acted in self-defense when they shot and
killed Leopoldo Potane. But, just the same, the Court of Appeals affirmed the judgment of the trial
court, but modified the penalty of imprisonment to eight (8) years and one (1) day of prison mayor as
minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum.
Before this Court both the petitioners and the Solicitor General reassert that petitioners should be
acquitted because they acted in lawful self-defense.
There is no dispute about the following facts, which were quoted by the Court of Appeals from the
Solicitor General's presentation.
xxx
In the afternoon of December 21, 1976, Barangay Capt. Nicolas Potane of Barrio
Abehilan San Isidro, Bohol and his father, Pedro Potane requested assistance from
the Police Sub-station Commander of San Isidro in apprehending Leopoldo Potane,
son of Pedro Potane and elder brother of Nicolas, who has begun to show signs of
recurring insanity. Since his arrival from Mindanao in 1974, Leopoldo had been
acting queerly and at times violent. On December 18, 1975, Leopoldo chased the
wife of Nicolas with a bolo and almost hacked her. He always carried a bolo, and had
threatened his own wife, daughter, brothers, and even his parents with death.
Fearing for their safety, they transferred temporarily to the Home Economics building
of the barrio school and left Leopoldo alone in the house of his father. Nicolas Potane
and his immediate relatives wanted Leopoldo to be examined and treated by the
Provincial Health Officer for his mental ailment (pp. 19-22, 26-32. t.s.n., Nov. 15,
1976; Exhs. C, C-1 to C-5-A, Folder of Exhibits). lâwphî1.ñèt
Patrolmen Norberto Masipequina and Jovencio Alampayan, the former armed with a
38 cal. revolver and the latter with the Thompson submachine gun, were ordered by
the sub-station commander to arrest Leopoldo. Before proceeding to the house
where Leopoldo was, the policemen passed the store of a certain Ismael Balumia
where they had a conference with Barrio Captain Nicolas Potane; his father, Pedro
Potane; his mother, Marganta Potane and others. In said store a joint affidavit (Exhs.
D, D-1 and D-2, Folder of Exhibits), was prepared and signed by Nicolas Potane,
Pedro Potane, Margarita Potane, Clara Potane, Francisca Potane, and Emilia
Potane, wife of Leopoldo, authorizing the 'peace officer of the San Isidro Police Dept.
'to apprehend Leopoldo Potane who was about to run amok.' The document further
stated that if Leopoldo would resist as he is armed with a weapon, the policemen
'have the right to shoot him but not to kill him ... but if such does not permit, if he
resist(s) arrest they have the right to resort to any manner to prevent the fearful
outcome from his running amok' and 'if he would be killed by the police officers on
account of his resistance, we, the parents, brother and sisters, and wife would take
no action if something untoward would occur. (pp. 4-8, t.s.n., Dec. 7, 1976).
Thereafter, the two policemen, accompanied by several persons, among whom was
Nicolas Potane, went to the house of Pedro Potane where Leopoldo was. Upon
arrival thereat, Pat. Masipequina, a childhood friend of Leopoldo, called Leopoldo
and urged him to come out. He also asked Leopoldo for a drink, but Leopoldo
refused to go down the house. Pat. Masipequina then informed Leopoldo that his
father and brother had reported that he (Leopoldo) had chased his sister-in-law with
a bolo and their officer-in-charge sent him to investigate the report. He told Leopoldo
to come down so that they could talk. Leopoldo instead told him to come up (pp. 10-
11, t.s.n., Ibid).
lâwphî1.ñèt
Pat. Masipequina went up the house followed by Nicolas Potane with a petromax
lamp. Patrolman Jovencio Alampayan and the rest stayed in the yard Although in the
yard, Patrolman Alampayan could see what was going on inside the house because
it was a single storey house and had an elevation of only 4 feet (p. 56, t.s.n., Dec. 6,
1976). Nicolas stayed on the door landing while Masipequina entered the sala and
was about to sit down on a rocking chair when Leopoldo suddenly emerged from an
adjacent room and rushed at him swinging a bolo. Masipequina pushed the rocking
chair towards Leopoldo. Leopoldo hit Masipequina on the bridge of the nose (p. 23,
t.s.n., Ibid). As the latter retracted, he lost his balance and was hit on the right side of
his face. At this juncture, Masipequina drew his revolver and fired three shots. One
shot misfired but the other two hit Leopoldo on the chest. Leopoldo continued to
advance towards him. He pushed the rocking chair at Leopoldo and ran out of the
house shouting for help. Leopoldo ran after him. Pat. Masipequina jumped from the
house and landed on the ground. In the process he hit his shin on a piece of stone.
Leopoldo also jumped to the ground and continued to pursue Masipequina. As
Leopoldo poised to hack Pat. Masipequina, Pat. Alampayan fired his gun hitting
Leopoldo once at the thigh (pp. 25-26, Id., pp. 40, 71, t.s.n., Dec. 6, 1976).
xxx
[CA Decision, pp. 2-4; Rollo, pp. 9-11].
Leopoldo Potane died some thirty (30) minutes later while being brought to the health center for
treatment.
The issue is readily apparent: whether or not, given the undisputed facts, petitioner Masipequina had
acted in lawful self-defense. (Petitioner Alampayan's conviction for the crime charged hinges on that
of Masipequina as the trial court had found that the two conspired to kill Leopoldo Potane, as alleged
in the information.).
The trial court, however, rejected the defense raised by petitioner. The following reasons, which
were cited by the trial court, were adopted and quoted with approval by the Court of Appeals:
. . . (1) the fact that the accused persisted in their attempts to arrest and/or pick up
the victim for almost two (2) hours, culminating in the tragedy at around nine o'clock
that evening; (2) the fact that the victim suffered three gunshot wounds, two of which
were over the heart and admittedly fatal, and the third on the left thigh which was not
fatal but sufficient to cripple him; (3) the fact that all three gunshot wounds bore
evidence of gunpowder signs, which is indicative and conclusive of having been
inflicted at close range; (4) the fact that the victim had a 2-inch lacerated wound on
his forehead and another lacerated wound on his right leg which have not been
sufficiently explained but are also indicative of having been inflicted by blunt
instruments, like a flashlight or the butts of a revolver or a submachine gun; and (5)
the fact that the alleged injuries of accused Masipequina could not, by any stretch of
imagination, be inflicted by a bolo allegedly wielded by the victim, since they are
quite superficial in degree, located in the most improbable places and may even
have been self-inflicted to justify a subsequent claim of self-defense.
xxx
[Rollo, p. 20.]
"The law on self-defense embodied in any penal system in the civilized world finds justification in
man's natural instinct to protect, repel, and save his person and rights from impending danger and
peril; it is based on that impulse of self-preservation born to man and part of his nature as a human
being." [People v. Boholst-Caballero, G.R. No. L-23249 November 25,1974,61 SCRA 180, 1 85.] In
our jurisdiction it is found in Article 11 of the Revised Penal Code which provides:
ART. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
xxx
It is settled jurisprudence that he who invokes the exempting circumstance of self-defense must
prove it during the trial [U.S. v. Coronel, 30 Phil. 112 (1915)]. He must prove the elements
enumerated in Article 11 by clear and convincing evidence, the reason being that since he had
admitted having killed or wounded another, which is an act punishable by law, he shall be liable
thereof unless he establishes a lawful defense [People v. Boholst-Caballero, supra]. Thus, the
determination of whether or not all the three elements are present in the case.
1. That there was unlawful aggression on the part of the deceased Leopoldo Potane
is evident from the established facts. Leopoldo Potane, who had showed signs of
mental illness and had threatened his immediate relatives with a bolo, suddenly and
without provocation attacked with a bolo Masipequina, whom he (Leopoldo Potane)
has asked to go inside the house.
2. That there was reasonable necessity of the means employed by Masipequina to

prevent or repel Leopoldo Potane's attack is also supported by the evidence.
In the leading case of U.S. v. Mojica, 42 Phil. 784 (1922), where a policeman trying to quell a
disturbance shot with his revolver and fatally wounded a man who attacked him with a knife, the
Court laid down the following rule:
A police officer, in the performance of his duty, must stand his ground and cannot,
like a private individual, take refuge in flight; his duty requires him to overcome his
opponent. The force which he may exert therefore differs somewhat from that which
may ordinarily be offered in self-defense. Bearing this in mind, we do not think that
the appellant in using his revolver against the deceased can be said to have
employed unnecessary force. The deceased attacked him with a deadly weapon; he
might, perhaps, have saved himself by running away, but this his duty forbade. Was
he to allow himself to be stabbed before using his arms? It may, perhaps, be argued
that the appellant might have used his club, but a policeman's club is not a very
effective weapon as against a drawn knife and a police officer is not required to
afford a person attacking him the opportunity for a fair and equal struggle. (State vs.
Phillips, 119 Iowa, 652; 67 L.R.A. 292; North Carolina vs. Gosnell, 74 Fed., 734;
Boykin vs. People, 22 Colo., 496; 45 Pac., 419; Adams vs. State, 72 Ga., 85.) And if
it was necessary for the appellant to use his revolver, he could hardly, under the
circumstances, be expected to take deliberate and careful aim so as to strike a point
less vulnerable than the body of his adversary. (U.S. vs. Mack 8 Phil., 701; U.S. v.
Domen 37 Phil., 57.) [Id., p. 787].
Tested by this standard, the means employed by Masipequina in repelling the attack were, under the
circumstances, both reasonable and necessary. He initially tried to defend himself by pushing the
rocking chair toward Leopoldo Potane but when that proved futile and he (Masipequina) was caught
in a very precarious position, i.e., his back was on the floor and Leopoldo Potane kept flailing at him
with the bolo, he had no other choice but to use his revolver to defend himself against the attack.
Under the circumstances, there was no opportunity for Masipequina to carefully take aim. He just
discharged his weapon at the deceased in the hope that such would save him from any further injury
or death.
It must also be borne in mind that the rule is that the reasonable necessity of the means employed to
repel or prevent the attack depends upon the imminent danger of injury, not on the harm actually
done to the accused [U.S. v. Paras, 9 Phil. 367 (1907)]. Thus, that Masipequina escaped serious
injuries does not necessarily imply that the means he used to repel the attack were unreasonable
and excessive. The fact remains that the act of Leopoldo Potane of attacking Masipequina with a
bolo was a very real danger to his life that the latter had to repel the best way he can. That the
gunshot wounds he inflicted on Leopoldo Potane proved to be fatal does not make the means he
employed any less reasonable under the circumstances.
3. Then, the lack of sufficient provocation on the part of Masipequina is too plain to even doubt. He,
together with Patrolman Alampayan had been tasked by his superior to apprehend Leopoldo Potane
upon complaint of his own father and brother. Thus, petitioners herein, when they went to apprehend
the deceased, were in the performance of their official duties as peace officers. And when they
reached the house where Leopoldo Potane was hiding, Masipequina tried to coax Leopoldo Potane
into coming out of the house, but the latter would not. It was only when Leopoldo Potane asked
Masipequina, who was his childhood friend, to enter the house that he did, followed by Nicolas
Potane. Masipequina was about to take a seat, definitely a non-provocative act, when he was
suddenly attacked by Leopoldo Potane with a bolo.
As consistently argued by the Solicitor General before the Court of Appeals and this Court, all the
elements of self defense are present in the instant case:
... (a) [T]here was unlawful aggression on the part of the victim which was a real and
imminent threat to the life of Pat. Masipequina. The victim was brandishing a bolo
which he did use in fact to hit the latter; (b) The use of his revolver to repel the
aggression was a reasonable necessity. His life already exposed to danger in the
face of a continuous assault, it is likely that had he not shot the victim, he would have
been killed, considering the deranged mind of the aggressor. Moreover, after he shot
the victim, he ran away to avoid being hit farther (sic), an act obviously inconsistent
with a deliberate intent to kill; (c) Pat. Masipequina did not provoke the victim into
attacking him. In fact, before he went inside the house, he asked Leopoldo to come
out to talk things over. He even asked for a drink. It was only when the victim himself
asked Pat. Masipequina to go up the house that the latter entered the sala.
xxx
[Manifestation and Motion In Lieu of Respondent People's Brief, p. 12; Rollo, p. 115].
We also hasten to add that, as in the case of People v. Boholst-Caballero, supra, we accord special
significance to the wounds inflicted on the deceased in finding that the elements of self-defense had
been established.
According to Dr. Julieta Melicor, who conducted the postmortem examination on the body of the
deceased, the trajectory of the two chest wounds indicate that the person who fired the shots was in
a lying and lower position while the deceased was then standing [TSN, September 2, 1976, pp. 5-6,
10]. This corroborates petitioner Masipequina's testimony that he had his back to the floor when he
fired at the victim who was attacking him with a bolo. The fact that the wounds bore traces of
gunpowder, indicating the proximity between the person who fired the shot and the deceased, also
support Masipequina's testimony.
After the elements of self-defense had been established to exculpate petitioners from the charge of
homicide, the next question that arises, albeit only incidentally, is whether or not Alampayan could
be separately convicted of the lesser offense of less serious or slight physical injuries for the gunshot
wound he inflicted on Leopoldo Potane's thigh.
Again, we refer to Article 11 of the Revised Penal Code, which provides:
ART. 11. Justifying circumstances. — The following do not incur any criminal liability:
xxx
3. Anyone who acts in defense of the person or rights of a stranger, provided that the
first and second requisites mentioned in the first circumstance of this article are
present and that the person defending be not induced by revenge, resentment, or
other evil motive.
xxx
Thus, the elements of defense of stranger are: (1) unlawful aggression; (2) reasonable necessity of
the means employed to prevent or repel it; and (3) the person defending be not induced by revenge,
resentment, or other evil motive.
1. In the instant case, that there was unlawful aggression on the part of Leopoldo
Potane had been adequately established, as discussed earlier with regard to the
circumstance of self-defense.
2. Then, that the means employed by Alampayan in trying to prevent Leopoldo

Potane from further attacking Masipequina with a bolo were reasonable is clearly
evident, as Alampayan only shot at Leopoldo Potane's thigh to prevent him from
further pursuing Masipequina who was trying to escape Leopoldo Potane's attack.
3. Finally, that Alampayan was not motivated by any evil motive is shown by the fact
that he, together with Masipequina, only proceeded to the place where the incident
happened to look for Leopoldo Potane because they had been ordered by their
substation commander to apprehend Leopoldo Potane who had shown signs of
mental derangement and had threatened his relatives with a bolo. In short, the two
policemen were in the performance of their official and lawful duties.
This, the performance of duties, brings to fore another circumstance that would justify Alampayan's
wounding of Leopoldo Potane, for the same Article 11 of the Revised Penal Code exempts from
liability [a]ny person who acts in the fulfillment of a duty or in the lawful exercise of a right or office"
[Art. 11, par. 5]. Thus, in one case, the Court acquitted the accused police officers even if their acts
constituted the crimes of discharge of firearm and lesiones graves and menos graves, inflicted upon
persons facing criminal charges who were trying to resist arrest, because the accused officers were
in the performance of their official duties [U.S. v. Resaba, 1 Phil. 311 (1902)].
Finally, the small lacerated wounds on Leopoldo Potane's forehead and right leg, which the trial
court and the Court of Appeals found suspicious, can be explained by the fact that Leopoldo Potane
dropped to the ground after he was shot on the thigh by Alampayan. There is nothing on the record
to support the conclusion that the wounds were inflicted by a flashlight or gun butt.
In fine, this Court, on the basis of the same facts found by the Court of Appeals, has arrived at a
different conclusion. Principally, the Court of Appeals affirmed the trial court's decision after
concluding that one of the elements of self-defense, i.e., reasonable necessity of the means
employed to prevent or repel the attack, was lacking. However, after a careful consideration of the
undisputed facts and the rule on self-defense by police officers enunciated in Mojica, this Court is
convinced that said element had been established and that the Court of Appeals committed a
reversible error when it rejected petitioners' defense and affirmed the trial court's judgment of
conviction.
WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals is hereby
REVERSED. Petitioners Patrolmen Norberto Masipequina and Jovencio Alampayan are
ACQUITTED of the crime charged.
SO ORDERED.
Fernan, C.J, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

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Republic of the Philippines

G.R. No. L-31770 December 5, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

Crispin Oben for appellant.

Republic of the Philippines

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,

Ariston Estrada for appellant.

There is no extenuating or aggravating circumstance to be considered in a connection with the

Republic of the Philippines

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

Theft is likewise committed by:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

Integrating these considerations, the Court of Appeals then concluded:

Son reos de hurto:

WHEREFORE, the petition is DENIED. Costs against petitioner.

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

In passing, we take note of a recent decision of the Court of Appeals in People v.

Resolution dated 1 October 2003.

Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999).

202 SCRA 251, 288.

People v. Sison, 322 SCRA 345, 363-364 (2000).

Regalado, supra note 47 at 521.

REgalado, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No.

States v. Wiltberger, 18 U.S. 76 (1820).

v. United States, 473 U.S. 207 (1985).

(2003); People v. Bustinera, supra note 42 at 295.

Republic of the Philippines

G.R. No. L-30028 May 3l, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

3. T — Ano ang dahilan at ikaw ay naririto?

S — Dahil po sa aking pagkakasangkot sa holdapan dito sa isang

S — Noon pong Miyerkules ng madaling araw, hindi ko alam ang

5. T — Mayroon ka bang nalalaman tungkol sa pagkakaholdap ng

S — Ang nalalaman ko po ay doon nagpulong sa aming bahay ang

6. T — Sino-sino o ilang tao ang mga nagpulong sa inyong bahay?

S — Pirmero po ay walo (8), pagkatapos ay may dumating na dalawa

7. T — Gaano katagal na nagpulong sa inyong bahay ang mga taong

8. T — Ano ang mga bagay na pinagpulongan sa inyong bahay?

S — Tungkol sa kanilang lakad na pagpunta sa isang bangko sa

9. T — Sino ang nangunguna sa pulong na iyon?

10. T — Ano-ano ang mga narinig mong pinagpulongan?

S — Tungkol po doon sa gagawing pagnanakaw sa isang Bangko sa

11. T — Samantalang sila ay nagpupulong, ano ang iyong

S — Wala po, hindi ko sila sinasaway at hindi ako kumikibo bastat

12. T — Bukod sa narinig mong magnanakaw sa bangko na usapan,

S — Sinabi nito (witness pointing to the picture of Rodolfo Dizon) at ni

13. T — Ano pa ang sumunod?

S — Nagbubulong-bulongan ang iba tungkol doon sa gagawing

14. T — Ano pa ang nangyari?

S — Maya-maya po ay lumakad na sila, hindi ako sumama.

S — Makaraan po ang mahigit na isang (1) oras ay nagbalik silang

16. T — Ano ang nangyari ng magbalik na sila?

S — Matapos po silang bumaba doon sa malapit sa aming bahay ay

17. T — Ano pa ang iyong masasabi kaugnay ng pangyayaring ito.

S — Mayroon pa po akong ibig na sabihin.

S — Bago po tuluyang umalis sila sa aking bahay ay nag-usap-usap

19. T — Iyan bang pinsala mo sa kaliwang paa ay matagal na?

S — Opo, may limang (5) taon na.

20. T — Samantalang nag-uusap sa loob ng bahay mo, nasaan ka?

S — Kasama po sa loob ng aking bahay.