Republic of the Philippines

UNIVERSITY OF NORTHERN PHILIPPINES

Tamag, Vigan City
2700Ilocos Sur

NOTES
CRIMINAL
IN
LAW
TOPIC
4
ATTY. KENT ALVIN L.
GUZMAN

Pro hac vice

A.Y.2020-2021
LAW

TOPIC
4 COURT AND STAGES
DUTY OF THE
OF EXECUTI
INTRODUCTIO ON
N: The provision contained in par. 1 of Art. 5 is based on the legal maxim “nullum
crimen, nulla poena sine lege”, that is, that there is no crime if there is no law that punishes
the act.

There are basically three stages of execution: attempted, frustrated, consummated. In

Attempted Felony there is an attempt 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 this own spontaneous
desistance; a felony is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator and; a felony is consummated
when all the elements necessary for its execution and accomplishment are present (RPC, Art.
6).

LEARNING OBJECTIVES:
At the end of this topic, learners should be able to:

1. Identify the duty of the court in connection with acts which should be repressed but
which are not covered by the law, and in cases of excessive penalties;
2. Differentiate the three stages of execution;
3. Explain and differentiate the manners of committing the crime; and
4. Explain and differentiate continuing crimes, complex crimes and composite crimes.
LAW

DUTY OF THE COURT

ARTICLE 5. Duty of the Court in Connection with Acts Which Should Be Repressed
but Which are Not Covered by the Law, and in Cases of Excessive Penalties. —
Whenever a court has knowledge of any act which it may deem proper to repress and
which is not punishable by law, it shall render the proper decision, and shall report to
the Chief Executive, through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal legislation.

In the same way the court shall submit to the Chief Executive, through the Department
of Justice, such statement as may be deemed proper, without suspending the execution
of the sentence, when a strict enforcement of the provisions of this Code would result
in the imposition of a clearly excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.

DURA LEX SED LEX. The law may be harsh but that is the law. The Judiciary can do
nothing but to apply it, even in cases where doing such would seem to result in grave
injustice.

The only recourse is for the court to recommend legislative action or executive action and
hope that the proper departments act promptly and accordingly.

“In connection with acts which should be repressed but which are not covered by the
law.”
The 1st paragraph of this article which contemplates a trial of a criminal case requires the
following:
1. The act committed by the accused appears not punishable by any law;
2. But the court deems it proper to repress such act;
3. In that case, the court must render a proper decision by dismissing the case and
acquitting the accused;
4. The judge must then make a report to the Chief Executive, through the Secretary of
Justice, stating the reasons which induce him to believe that the said act should be
made the subjects of penal legislation.

Basis of par. 1, Article 5

The provision contained in par. 1 of Art. 5 is based on the legal maxim “nullum
crimen, nulla poena sine lege”, that is, that there is no crime if there is no law that punishes
the act.

LAW

“In cases of excessive penalties”

The second paragraph of Article 5 requires that:

1. The court after trial finds the accused guilty;
2. The penalty provided by law and which the court imposes for the crime committed
appears to be clearly excessive, because –
a. the accused acted with lesser degree of malice, and/or;
b. there is no injury or the injury caused is of lesser gravity.
3. The court should not suspend the execution of the sentence;
4. The judge should submit a statement to the Chief Executive, through the Secretary of
Justice, recommending executive clemency.

Example

Executive Clemency recommended for the wife who killed her cruel husband
 Her deceased husband not content with squandering away the family substance, and
not satisfied with keeping a mistress upon whom he must have spent some of the
money that properly belonged to his own family including his wife, got into the habit
of drinking until he became a habitual drunkard. Xxx On the very day that she killed
her husband, according to her own confession on which her conviction was based, he
came home drunk, forthwith laid hands on her, striking her on the stomach until she
fainted, and when she recovered consciousness and asked for the reason for the
unprovoked attack, he threatened to renew the beating. At the supper table instead of
eating the meal set before him, he threw the rice from his plate, thus adding insult to
injury. Then he left the house and when he returned, he again boxed his wife, the
herein appellant. The violence with which appellant killed her husband reveals the
pent-up righteous anger and rebellion against years of abuse, insult, and tyranny
seldom heard of.

Considering all these circumstances and provocations including the fact as already
stated that her conviction was based on her own confession, the appellant is deserving
of executive clemency, not of full pardon but of a substantial if not a radical reduction
or commutation of her life sentence. (Montemayor, J., concurring in People v. Canja,
86 Phil. 518, 522-523)

LAW

STAGES OF EXECUTION
ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated
felonies, as well as those which are frustrated and attempted, are punishable.
 A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and 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.

There is an attempt 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.

Stages of execution
What are the stages of execution of a felony?

There are three stages of execution: attempted, frustrated, consummated.

1. ATTEMPTED FELONY- there is an attempt 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 this own spontaneous desistance.
2. FRUSTRATED FELONY – a felony is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, did not produce it by reason of causes independent of the will of the
perpetrator and;
3. CONSUMMATED FELONY – a felony is consummated when all the elements
necessary for its execution and accomplishment are present (RPC, Art. 6).
NOTE: Crimes which have three stages of execution are called material crimes.
(REYES, Book One, supra at 120).
Two Phases of Felony

Subjective Phase Objective Phase

It is that portion of the acts constituting the crime, It is that portion of the acts of the
starting from the point where the offender begins the offender, where he has no more
commission of the crime to that point where he has control over the same. All the
still control over his acts, including their natural acts of execution have been
course. performed by him. He is now in
the waiting stage.
If in between these two points, the offender is
stopped by reason of a cause or accident other than
his own spontaneous desistance, the subjective phase
has not been passed and it is only in the attempted
stage.
LAW

DEVELOPMENT OF CRIME
From the moment the culprit conceives the idea of committing a crime up to the
realization of the same, his act passes through certain stages.

These stages are: internal acts and external acts

INTERNAL ACTS – these are mere ideas in the mind of a person that are not
punishable even if, had they been carried out, they would constitute a crime. Mere intention
producing no effect is no more a crime than mere effect without the intention is a crime.
EXTERNAL ACTS – these are the physical or sensibly perceptible side of a human
action. In the context of criminal law, external acts cover preparatory acts and overt acts.
(REYES, Book One, supra at 96-97).

What are preparatory acts?

Preparatory acts are external acts which do not necessarily disclose criminal intent (e.g.
a person bought a poison from a drugstore) Preparatory acts are ordinarily not punishable,
such as proposal and conspiracy to commit a felony, unless otherwise provided by law. But
preparatory acts which are considered in themselves, by law, as independent crimes are
punishable (REYES, Book One, supra at 98).

What is an overt act?

An overt act is some physical activity or deed which indicate the intention to commit a
particular crime, being more than mere planning or preparation, which if carried out to its
natural course, without being frustrated by external obstacles nor by the voluntary desistance
of the perpetrator, will logically and necessarily ripen into a concrete offense (REYES, Book
One, supra at 99)

When is the commission of a felony deemed commenced directly by overt acts?

It is when the following requisites are present:

1. That there be external acts; and
2. Such external acts have direct connection with the crime intended to be committed
(REYES, Book One, supra at 98).
 In the middle of the night, the accused climbed on top of a naked female and was
charged with attempted rape. Is he criminally liable for said charge?
The intent of the offender to lie with the female defines the distinction between
attempted rape and acts of lasciviousness. The felony of attempted rape requires such intent;
the felony of acts of lasciviousness does not. Only the direct overt acts if the offender
establish the intent to lie with the female. However, merely climbing on top of a naked
female does not constitute attempted rape without proof of his erectile penis being in a
position to penetrate the female’s vagina (Cruz v. People, G.R. No. 166441, October 8,
2014).

LAW

ATTEMPTED FELONY

ESSENTIAL ELEMENTS OF ATTEMPTED FELONY:

1. The offender commences the commission of the felony directly by overt acts.
2. He does not perform all the acts of execution which should produce the felony.
3. The non-performance of all acts of execution was due to cause or accident other than
his spontaneous desistance.

ILLUSTRATIONS OF ATTEMPTED FELONY:

1. A with intent to kill hacked B but missed hitting him. Is A criminally liable? If so, for
what crime?

Answer: Yes, A is criminally liable for Attempted Homicide. By hacking B with

intent to kill A commenced the execution of the crime directly by overt acts. It is only
in the attempted stage because A did not perform all the acts of execution by not
inflicting a mortal or serious wound.

2. A with intent to kill hacked B. B was hit and suffered a small cut of the arm that
required medical attendance or incapacity for labor for 4 days. What crime did A
commit?

Answer: A committed Attempted Homicide. By hacking B with intent to kill A

commenced the execution of the crime directly by overt acts. It is only in the
 attempted stage because A did not perform all the acts of execution by not inflicting a
mortal or serious wound.

3. A with intent to kill attacked B from behind. He stabbed B who was then seated on a
chair. The point of the knife landed at the back of the chair. B was not wounded. What
crime did A commit?

Answer: A committed Attempted Murder. The crime that he intended to commit was
Murder because of the qualifying circumstance of treachery. It is only in the attempted
stage because by not inflicting a mortal or serious wound, A was not able to perform
all the acts of execution that would produce the crime of Murder. The back of the chair
was the cause or accident that prevented him from performing all the acts of
execution.

NOTE: Plain and simple killing is Homicide. If the killing is attended by any
qualifying aggravating circumstance under Art. 248, RPC (like treachery), the
killing is catapulted or elevated to a higher category of crime and is given a
proper name – Murder.

4. A boxed B and inflicted physical injuries upon the latter. The injuries required medical
attendance for 4-5 days. What crime did A commit?

LAW

Answer: A committed the crime of Slight Physical Injuries. This is so because there
was no intent to kill on the part of A. Under the law, if the injury requires medical
attendance or incapacitates the offended party for labor from 1-9 days, the crime
committed is Slight Physical Injuries. (Art. 266, RPC)

EFFECT OF SPONTANEOUS DESISTANCE

BEFORE THE PERFORMANCE OF ALL THE ACTS OF EXECUTION

The spontaneous desistance of the offender is exculpatory only if made during the
attempted stage and provided further that the acts already committed do not constitute an
offense.
 In attempted felony, if the offender spontaneously desists before performing all
the acts of execution, he is not liable for attempted felony.

Overt Act - Some physical activity or deed, indicating the intention to commit a
particular crime. It is more than a mere planning or preparation. [REYES, Book 1]

DESISTANCE

Desistance – is an absolutory cause which negates criminal liability because the law
allows a person to desist from committing a crime.

General Rule: An absolutory cause which negates criminal liability provided that the
desistance was made when the acts done have not yet resulted in any felony. Desistance is
recognized only in the attempted stage of the felony.

Exemption: In certain cases, although negated at the attempted stage, but there may
be other felonies arising from his act.

Example: An attempt to kill that results in physical injuries still leads to liability for
the injuries inflicted.

ILLUSTRATIONS:
1. A with intent to kill stabbed B. B was not hit. When A was about to stab B again, A
changed his mind and left. Is A liable for Attempted Homicide?
Answer: No. A is not liable for Attempted Homicide. A was not able to inflict a
mortal wound because of his own spontaneous desistance. Under the law, there is an
attempted felony when the offender does not perform all the acts of execution because
he was prevented from doing so by causes or accident other than his own spontaneous
desistance.
2.A with intent to kill stabbed B and inflicted a slight injury upon him. When A was about to
stab B again, the latter pleaded for mercy that A spares his life. A took pity upon B and
voluntarily desisted from further attacking B. He walked away and left B. Is A liable for
Attempted Homicide?

Answer: A is not liable for Attempted Homicide. A was not able to inflict a mortal
wound because of his own spontaneous desistance. Under the law, there is an
attempted felony when the offender does not perform all the acts of execution because
he was prevented from doing so by cause or accident other his own spontaneous
desistance.

In the case at bar, A spontaneously desisted before inflicting a mortal wound. He is

not therefore liable for Attempted Homicide. This is a reward given by law to an
offender whose one foot has stepped on the path of lawlessness when he started
the commission of a felony directly by overt acts by stabbing the victim but who
stepped back on the path of righteousness by voluntarily desisting before he
could perform all the acts of execution.

However, when A desisted, he had already inflicted a light injury upon B. he is liable
for that but not for Attempted Homicide as above mentioned. At most, A is liable for
Physical Injuries.

But if A had already inflicted a mortal wound when he desisted and B did not die due
to causes independent of the will of A then he is liable for Frustrated Homicide.
This is so because by inflicting a mortal wound he had already performed all the acts
of execution which would produce the felony as a result.

FRUSTRATED FELONY

1. Offender performs All the acts of execution

2. All the acts performed would produce the Felony as a consequence
3. But the felony is Not produced by reason of causes independent of the will of the
perpetrator.

Frustrated stage is the start of the objective phase.

ILLUSTRATIONS OF FRUSTRATED FELONY

1. A with intent to kill stabbed B. B was mortally wounded. He was rushed to the
hospital where he was operated on and was saved by timely medical intervention.
What crime did A commit?
 Answer: A committed Frustrated Homicide. This is so because by inflicting a
mortal or serious wound, A was able to perform all the acts of execution. The crime of
Homicide was not committed because of timely medical intervention, a cause
independent of the will of A.

2. A stabbed B repeatedly from behind. B had no inkling whatsoever that he will be

attacked by A. B suffered serious or mortal wounds. The doctors saved him from
death. What crime did A commit?

Answer: A committed Frustrated Murder. This is so because he stabbed B with

treachery and was able to inflict mortal or serious wounds that would have caused the
death of B had it not been for the doctors who saved him. The medical attendance was
a cause independent of the will of A.

3. A stabbed B with treachery and inflicted a mortal wound. When B was bleeding
profusely, he pleaded to A to bring him to the hospital. A took pity upon B and rushed
him to the hospital.

Is A liable for Frustrated Murder? Is so, why? Explain. If not, then what is he
liable for?

Answer: A is not liable for Frustrated Murder. Under the law, frustrated felony is
committed if the victim does not die due to causes independent of the will of the
perpetrator. In the instant case, B did not die because A brought him to the hospital, a
cause dependent of the will of A.

At most, A is liable for Serious Physical Injuries.

What are the examples of felonies that cannot be frustrated?

The following are examples of felonies which, by their definition and elements, are
immediately consummated upon the performance of all the acts of execution necessary to
bring the desired result.
1. RAPE – the basic element of rape is carnal knowledge or sexual intercourse, not
ejaculation. As such, a mere touching of the external genitalia by the penis capable of
consummating the sexual act already constitutes consummated rape (People v.
Butiong, G.R. No. 168932, October 19, 2011).
NOTE: Rape in its frustrated stage is a physical impossibility, considering that the one
of the requisites of a frustrated felony is that the offender has performed all the acts of
execution which would produce the felony. Obviously, the offender attains his
purpose from the moment all the essential elements of the offense have been
accomplished, leaving nothing more to be done by him (Cruz v. People, G.R. No.
166441, October 8, 2014).
2. ADULTERY – it is an instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union. Each sexual intercourse constitutes a
crime of adultery (People v. Zapata, G.R. No. L-3047, May 16, 1951).

3. INDIRECT BRIBERY – it is committed by accepting gifts offered to the public

officer by reason of his office. If he does not accept. He does not commit the crime. If
he accepts, it is immediately consummated (RPC, Art. 211); (BOADO, Notes and
Cases on the RPC, supra at 599).
4. CORRUPTION OF PUBLIC OFFICERS – the offense requires the concurrence of
the will of both parties, such as that when the offer is accepted, the offense is
consummated. But when the offer is rejected, the offense is merely attempted (RPC,
Art. 212); (BOADO, Notes and Cases on the RPC, supra at 604).
5. PHYSICAL INJURY – it cannot be frustrated because the felony cannot be
determined as slight, less serious, or serious unless and until it is consummated
(BOADO, Notes and Cases on the RPC, supra at 693).
6. THEFT – unlawful taking immediately consummates the offense and the disposition
of the thing is not an element thereof. (Valenzuela v. People, G.R. No. 160188, June
21, 2007). It need not be capable of “asportation,” which is defined as “carrying
away.” Jurisprudence is settled that to “take” under the theft provision of the penal
code does not require asportation or carrying away (Medina v. People, G.R. No.
182648, June 17, 2015).

CONSUMMATED FELONY

Requisite: All the elements necessary for its execution and accomplishment are
present.
 If the subjective and objective phases of execution are both present, the crime is
consummated. The offender has performed all the acts of execution and the crime is
committed.

ILLUSTRATIONS OF CONSUMMATED FELONY:

1. A quarreled with B. In the process, A stabbed B. B was mortally wounded and

died.
What crime is A liable?
Answer: A is liable for Homicide. Plain and simple killing is Homicide.

2. A with intent to kill stabbed B from behind. B died as a result. What crime did A
commit?
Answer: A committed Murder because he killed B with the qualifying
aggravating circumstance of treachery.

3. A with intent to burn the house of B put crumpled newspapers and old clothes in
one of the corners of the house and set them on fire. C, a household help put the
fire off before it was ablaze. The fire however left a slight discoloration in the wall
of the house. What crime did A commit?
Answer: A committed the crime of Arson. The slight discoloration of a part of the
building consummates arson.
 4. A, B and C robbed a Banco de Oro ban. A ordered the cashier at a point of a gun to
place the money inside a duffel bag to A, who placed the same on top of a table.
After a while, the responding policemen arrived and A, B and C were arrested.
What crime did A, B and C commit? Why? Explain.

Answer: A, B and C committed Robbery in its consummated stage. Under the law,
taking is complete the moment the offender takes possession of a thing even if it
were more or less momentarily. In the instant case, the robbers had taken complete
possession of the duffel bag containing money. The only thing that was frustrated
which is not an element of robbery is their ability to derive benefit from it.

In Robbery, the crime is consummated the moment the offender gets hold of the thing
taken even if it were more or less temporarily. It is not necessary that he should carry the
property away from the owner or lawful possessor or should have escaped with it.

In Rape, mere skin to skin contact between the penis and the labia consummates rape.
“Mere bombardment of the castle of orgasmic potency or mere strafing
of the citadel of passion is only Attempted Rape. But mere
bombardment of the drawbridge is invasion enough even if the troops
did not succeed in entering the castle.” (People vs. Campuhan, 329
SCRA 270)

✓ It is well settled that full penetration is not required to consummate carnal

knowledge. (People vs Dalisay, 408 SCRA 375)
✓ Mere contact by the male’s organ of the labia consummates rape. (People vs.
Nequia, 412 SCRA 628)
✓ There is no crime of frustrated rape. (People vs. Erinia, 50 Phil. 998)

In Arson, the slightest discoloration of a portion of a building consummates Arson.

 MANNER OF COMMITTING THE CRIME

1. FORMAL CRIMES -consummated in one instant, no attempt.

What are formal crimes?

Formal crimes such as slander, perjury, false testimony, and illegal possession of
picklock are those which are consummated in one instant or by performance of a single act
of execution. They have no attempted or frustrated stage. (CAMPANILLA, Criminal Law
Reviewer, Volume I, (2018) p. 67)

As a rule, there can be no attempt at a formal crime, because between the thought and
the deed there is no chain of acts that can be severed in any link. Thus, in slander, there is
either a crime or no crime at all, depending upon whether or not defamatory words were
spoken publicly.

LAW

In the sale of marijuana and other prohibited drugs, the mere act of selling or even
acting as broker consummates the crime. (People vs. Marcos, GR No. 83325, May 8, 1990)
 2. CRIMES CONSUMMATED BY MERE ATTEMPT OR PROPOSAL OR BY
OVERT ACT

Flight to enemy’s country (Art. 121). In this crime the mere attempt to flee to an
enemy country is a consummated felony.

Corruption of minors (Art. 340) . A mere proposal to the minor to satisfy the lust of
another will consummate the offense.

There is no attempted crime of treason, because the overt act in itself consummates
the crime.

3. FELONY BY OMISSION
There can be no attempted stage when the felony is by omission, because in this kind
of felony the offender does not execute acts. He omits to perform an act which the law
requires him to do.

But killing a child by starving him, although apparently by omission, is in fact by

commission.

4. CRIMES REQUIRING THE INTERVENTION OF TWO PERSONS TO

COMMIT THEM
ARE CONSUMMATED BY MERE AGREEMENT
In those crimes, like betting in sport contests and corruption of public officer (Art. 197
and Art. 212), which require the intervention of two persons to commit them, the same
are consummated by mere agreement. The offer made by one of the parties to the
other constitutes attempted felony, if the offer is rejected. (U.S. vs Basa, 8 Phil. 89)

5. MATERIAL CRIMES
These are crimes which involve the three stages of execution, e.g. murder and
homicide (REYES, Book One, supra at 121).