SULPICIO INTOD, 

petitioner, vs. HONORABLE COURT OF
APPEALS AND PEOPLE OF THE PHILIPPINES,  respondents.
(IMPOSSIBLE CRIME)

FACTS: In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian,

Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in
Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them
to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod,
Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He
told Mandaya that he wanted Palangpangan to be killed because of a
land dispute between them and that Mandaya should accompany the
four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another city and her
home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One
witness testified that before the five men left the premises, they shouted:
"We will kill you (the witness) and especially Bernardina Palangpangan and
we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The
Court of Appeals affirmed in toto the trial court's decision. Hence this petition

ISSUE: WON ATTEMPTED MURDER SHOULD BE CHARGED

HELD: NO. This legal doctrine left social interests entirely

unprotected. 6 The Revised Penal Code, inspired by the Positivist School,
recognizes in the offender his formidability, 7 and now penalizes an act which
were it not aimed at something quite impossible or carried out with means
which prove inadequate, would constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense
is inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. 11 There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended
act 12 in order to qualify the act as an impossible crime.  LibLex

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the
law; (2) there is intention to perform the physical act, (3) there is a
performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this

category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who
puts his hand in the coat pocket of another with the intention to steal
the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where
he thought his victim would be, although in reality, the victim was not
present in said place and thus, the petitioner failed to accomplish his end.
 GEMMA T. JACINTO,  petitioner, vs. PEOPLE OF THE
PHILIPPINES,  respondent.

FACTS: In the month of June 1997, Isabelita Aquino Milabo, also

known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check
Number 0132649 postdated July 14, 1997 in the amount of P10,000.00.
The check was payment for Baby Aquino's purchases from Mega
Foam Int'l., Inc., and petitioner was then the collector of Mega Foam.
Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of
Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam,
received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing the
checks payable to  CASH. Said customer had apparently been instructed by
Jacqueline Capitle to make check payments to Mega Foam payable
to  CASH. Around that time, Ricablanca also received a phone call from an
employee of Land Bank, Valenzuela Branch, who was looking for
Generoso Capitle. The reason for the call was to inform Capitle that the
subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform Jacqueline
Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message
through Valencia, because the Capitles did not have a phone; but they
could be reached through Valencia, a neighbor and former co-employee
of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby
Aquino, and instructed Ricablanca to ask Baby Aquino to replace the
check with cash. Valencia also told Ricablanca of a plan to take the cash
and divide it equally into four: for herself, Ricablanca, petitioner Jacinto
and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foams
accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
confirm that the latter indeed handed petitioner a BDO check for
P10,000.00 sometime in June 1997 as payment for her purchases from
Mega Foam. 4 Baby Aquino further testified that, sometime in July 1997,
petitioner also called her on tine phone to tell her that the BDO check
bounced. 5 Verification from company records showed that petitioner
never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam P10,000.00 cash in August
1997 as replacement for the dishonored check. 6
Generoso Capitle, presented as a hostile witness, admitted
depositing the subject BDO check in his bank account, but explained that
the check came into his possession when some unknown woman arrived
at his house around the first week of July 1997 to have the check
rediscounted. He parted with his cash in exchange for the check without
even bothering to inquire into the identity of the woman or her address.
When he was informed by the bank that the check bounced, he merely
disregarded it as he didn't know where to find the woman who
rediscounted the check.
Meanwhile, Dyhengco filed a Complaint, with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was going along
with Valencia's plan. 
AacSTE

On August 15, 2007, Ricablanca and petitioner met at the latter's

house. Petitioner, who was then holding the bounced BDO check, handed
over said check to Ricablanca. They originally intended to proceed to Baby
Aquino's place to have the check replaced with cash, but the plan did not
push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioner's house,
where she met petitioner and Jacqueline Capitle. Petitioner, her husband,
 and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle
decided not to go with the group because she decided to go shopping. It
was only petitioner, her husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby Aquino's factory. Only
Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However,
the cash she actually brought out from the premises was the P10,000.00
marked money previously given to her by Dyhengco. Ricablanca divided
the money and upon returning to the jeep, gave P5,000.00 each to
Valencia and petitioner. Thereafter, petitioner and Valencia were arrested
by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the
Forensic Chemist found fluorescent powder on the palmar and dorsal
aspects of both of their hands. This showed that petitioner and Valencia
handled the marked money. The NBI filed a criminal case for qualified
theft against the two and one Jane Doe who was later identified as
Jacqueline Capitle, the wife of Generoso Capitle.

ISSUE: WON ACCUSED GUILTY OF QUALIFIED THEFT.

HELD: NO. Intod v. Court of Appeals  9 is highly instructive and

applicable to the present case. In  Intod, the accused, intending to kill a
person, peppered the latter's bedroom with bullets, but since the
intended victim was not home at the time, no harm came to him. The trial
court and the CA held Intod guilty of attempted murder. But upon review
by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59,
both of the Revised Penal Code, because of the factual impossibility of
producing the crime. Pertinent portions of said provisions read as
follows: 
cCAIaD

Article. 4(2). Criminal Responsibility. — Criminal responsibility

shall be incurred:
xxx xxx xxx
 2. By any person performing an act which would be an offense
against persons or property, were it not for
the inherent impossibility of its accomplishment or
on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the
crime because the means employed or the aims sought are
impossible. — When the person intending to commit an offense
has already performed the acts for the execution of the same
but nevertheless the crime was not produced by reason of the
fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the
degree of criminality shown by the offender, shall impose upon
him the penalty of arresto mayor  or a fine ranging from 200 to
500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act
performed would be an offense against persons or property; (2) that
the act was done with evil intent; and (3) that its accomplishment
was inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4 (2) of the Revised Penal
Code was further explained by the Court in Intod  10 in this wise:
Under this article, the act performed by the offender cannot
produce an offense against persons or property because: (1) the
commission of the offense is inherently impossible of
accomplishment; or (2) the means employed is either (a) inadequate
or (b) ineffectual.
That the offense cannot be produced because the commission
of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the act
intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to
qualify the act as an impossible crime.
 Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime.
xxx xxx xxx
The impossibility of killing a person already dead falls in this
category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. . . . 11

In  Intod, the Court went on to give an example of an offense that involved

factual impossibility,  i.e.,  a man puts his hand in the coat pocket of
another with the intention to steal the latter's wallet, but gets nothing
since the pocket is empty.  AEScHa

Herein petitioner's case is closely akin to the above example of

factual impossibility given in Intod. In this case, petitioner performed all
the acts to consummate the crime of qualified theft, which is a crime
against property. Petitioner's evil intent cannot be denied, as the mere act
of unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance
of the check being unfunded, a fact unknown to petitioner at the time,
that prevented the crime from being produced. The thing unlawfully taken
by petitioner turned out to be absolutely worthless, because the check
was eventually dishonored, and Mega Foam had received the cash to
replace the value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in  Valenzuela v.
People  12 that under the definition of theft in Article 308 of the Revised
Penal Code, "there is only one operative act of execution by the actor
involved in theft — the taking of personal property of another."
Elucidating further, the Court held, thus:
. . . 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."
xxx xxx xxx
. . . 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. . . .
xxx xxx xxx
. . . 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. . . .
. . . Unlawful taking, which is the deprivation of one's personal
property, is the element which produces the felony in its
consummated stage. . . . 13

From the above discussion, there can be no question that as of the time
that petitioner took possession of the check meant for Mega Foam,
she had performed all the acts to consummate the crime of theft,
had it not been impossible of accomplishment in this case. The
circumstance of petitioner receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no longer necessary for the
consummation of the crime of qualified theft. Obviously, the plan to
convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's
act of receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was
caught receiving the marked money was merely corroborating
evidence to strengthen proof of her intent to gain.  SCHcaT

Moreover, the fact that petitioner further planned to have the

dishonored check replaced with cash by its issuer is a different and separate
fraudulent scheme. Unfortunately, since said scheme was not included or
covered by the allegations in the Information, the Court cannot pronounce
judgment on the accused; otherwise, it would violate the due process clause
of the Constitution. If at all, that fraudulent scheme could have been another
possible source of criminal liability.

THE PEOPLE OF THE PHILIPPINE ISLANDS,  plaintiff-

appellee, vs. AURELIO LAMAHANG,  defendant-appellant.

FACTS: At early dawn on March 2, 1935, policeman Jose Tomambing,

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

ISSUE: WON ACCUSED COMMITED ATTEMPTED ROBERY.

HELD: NO. However, indeterminate offenses have no juridical

standpoint in criminal law. Hence, the attempted felony that he is to be
punished must be that connected with his overt act. An indeterminate
offense is one wherein the intent of the offender in relation to act that
he performed is ambiguous. In view of the foregoing, we are of the opinion,
and so hold that the fact under consideration does not constitute attempted
robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited).
Under article 280 of the Revised Penal Code, this offense is committed when
a private person shall enter the dwelling of another against the latter's will.
The accused may be convicted and sentenced for an attempt to commit this
offense in accordance with the evidence and the following allegation
contained in the information: ". . . the accused armed with an iron bar forced
the wall of said store by breaking a board and unfastening another for the
purpose of entering said store . . . and that the accused did not succeed in
entering the store due to the presence of the policeman on beat Jose
Tomambing, who upon hearing the noise produced by the breaking of the
wall, promptly approached the accused. Accused is charged with trespassing

RENATO BALEROS, JR.,  petitioner, vs. PEOPLE OF THE

PHILIPPINES,  respondent. (UST MEDICAL STUDENT)

FACTS: One evening, inside her room, Malou retired at around 10:30.
Outside, right in front of her bedroom door, her maid slept on a folding
bed. Early morning of the following day, petitioner, clad in t-shirt and
shorts, entered the room of Malou through its window. Once inside, he
approached Malou and tightly pressed on her face a piece of cloth soaked
with chemical and. at the same time, pinned her down on the bed. She
was awakened thereby and she struggled but could not move.

She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight. Still, Malou continued fighting
off her attacker by kicking him until at last her right hand got free. With
this, the opportunity presented itself when she was able to grab hold of
his sex organ which she then squeezed. Petitioner let her go and escaped
while Malou went straight to the bedroom door and roused her maid.
ISSUE: Is petitioner guilty of attempted rape?

HELD: No, he is not. There is absolutely no dispute about the absence

of sexual intercourse or carnal knowledge in the present case. The next
question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape.
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense.

Harmonizing the above definition to the facts of this case, it would be too
strained to construe petitioner's act of pressing a chemical-soaked cloth
in the mouth of Malou which would induce her to sleep as an overt act
that will logically and necessarily ripen into rape. As it were, petitioner
did not commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized that
petitioner was fully clothed and that there was no attempt on his part to
undress Malou, let alone touch her private part. For what reason
petitioner wanted the complainant unconscious, if that was really his
immediate intention, is anybody’s guess. Penalty imposed was light
coercion.
 PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. EMELIANO
TRINIDAD,  accused-appellant.

FACTS: The deceased victim, Lolito Soriano, was a fish dealer based
in Davao City. His helpers were TAN, a driver, and the other deceased
victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived
at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO
drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and
a helper of one Samuel Comendador. TAN was left behind in Butuan City
to dispose of the fish left at the Langihan market. He followed SORIANO
and LAROA, however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and residing
at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is
on the way to Davao City. TRINIDAD was in uniform and had two firearms,
a carbine, and the other, a side-arm — a .38 caliber revolver. SORIANO,
LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about
5:20 P.M. bound for Davao City. TAN was driving the Fiera. Seated to his
right was SORIANO, LAROA and the accused TRINIDAD, in that order.
When they reached the stretch between El Rio and Afga, TRINIDAD
advised them to drive slowly because, according to him, the place was
dangerous. All of a sudden, TAN heard two gunshots. SORIANO and
LAROA slumped dead. TAN did not actually see the shooting of LAROA but
he witnessed the shooting of SORIANO having been alerted by the sound
of the first gunfire. Both were hit on the head. TRINIDAD had used his
carbine in killing the two victims.
 TAN then hurriedly got off the Fiera, ran towards the direction of
Butuan City and hid himself in the bushes. The Fiera was still running
slowly then but after about seven (7) to ten (10) meters it came to a halt
after hitting the muddy side of the road. TAN heard a shot emanating
from the Fiera while he was hiding in the bushes.
 prLL

After about twenty (20) to thirty (30) minutes, when a passenger

jeep passed by, TAN hailed it and rode on the front seat. After a short
interval of time, he noticed that TRINIDAD was seated at the back.
Apparently noticing TAN as well, TRINIDAD ordered him to get out and to
approach him (TRINIDAD) but, instead, TAN moved backward and ran
around the jeep followed by TRINIDAD. When the jeep started to drive
away, TAN clung to its side. TRINIDAD fired two shots, one of which hit
TAN on his right thigh. As another passenger jeep passed by, TAN jumped
from the first jeep and ran to the second. However, the passengers in the
latter jeep told him to get out not wanting to get involved in the affray.
Pushed out, TAN crawled until a member of the P.C. chanced upon him
and helped him board a bus for Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended
that he was in Cagayan de Oro City on the date of the incident, 20 January
1983. At that time, he was assigned as a policeman at Nasipit Police
Station, Agusan del Norte. He reported to his post on 19 January 1983 but
asked permission from his Station Commander to be relieved from work
the next day, 20 January, as it was his Birthday. He left Baan, his Butuan
City residence, at about 3:00 P.M. on 20 January 1983 and took a bus
bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around
8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his
subsistence allowance, as his sister was working thereat in the Finance
Section.

ISSUE: WON ACCUSED SHOULD BE HELD FOR FRUSTRATED MURDER OR

ATTEMPTED FOR TAN.

HELD: ATTEMPTED ONLY. The defense is correct, however, in

contending that in the Frustrated Murder case, TRINIDAD can only be
 convicted of Attempted Murder. TRINIDAD had commenced the
commission of the felony directly by overt acts but was unable to perform
all the acts of execution which would have produced it by reason of
causes other than his spontaneous desistance, such as, that the jeep to
which TAN was clinging was in motion, and there was a spare tire which
shielded the other parts of his body. Moreover, the wound on his thigh
was not fatal and the doctrinal rule is that where the wound inflicted on
the victim is not sufficient to cause his death, the crime is only Attempted
Murder, the accused not having performed all the acts of execution that
would have brought about death (People vs. Pilones, L-32754-5, July 21,
1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA
497).
But while the circumstances do spell out the two crimes of Murder,
the penalty will have to be modified. For, with the abolition of capital
punishment in the 1987 Constitution, the penalty for Murder is
now reclusion temporal in its maximum period to reclusion
perpetua (People vs. Lopez, et al. G.R. No. 71875-76, January 25, 1988
citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs.
Masangkay, G.R. No. 73461, October 27, 1987). With no attending
mitigating or aggravating circumstance, said penalty is imposable in its
medium period or from eighteen (18) years, eight (8) months and one (1)
day to twenty (20) years. The penalty next lower in degree for purposes of
the Indeterminate Sentence Law is prision mayor, maximum, to reclusion
temporal, medium, or from ten (10) years and one (1) day to seventeen
(17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).

Attempted only because the gun shot wound inflicted to TAN was not
serious it merely grassed his thighs.
 PEOPLE OF THE PHILIPPINES,  appellee, vs. REGIE
LABIAGA,  appellant.

FACTS: The prosecution's version of the facts is as follows: At

around 7:00 p.m. on 23 December 2000, Gregorio Conde, and his two
daughters, Judy and Glenelyn Conde, were in their home at Barangay
Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped outside. Glenelyn
was in their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters
away from Gregorio, shot the latter. Gregorio called Judy for help. When
Judy and Glenelyn rushed to Gregorio's aid, appellant shot Judy in the
abdomen. The two other accused were standing behind the appellant.
Appellant said, "[s]he is already dead," and the three fled the crime
scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy was
pronounced dead on arrival while Gregorio made a full recovery after
treatment of his gunshot wound.
Dr. Jeremiah Obañana conducted the autopsy of Judy. His report stated
that her death was caused by "cardiopulmonary arrest secondary to Cardiac
Tamponade due to gunshot wound." 5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the
incident. He found that Gregorio sustained a gunshot wound measuring one
centimeter in diameter in his right forearm and "abrasion wounds
hematoma formation" in his right shoulder.

ISSUE: WON ACCUSED SHOULD HELD FOR ATTEMPTED MURDER WITH

REGARDS TO GREGORIO.
 HELD: YES. Article 6 of the Revised Penal Code defines the stages in the
commission of felonies:
Art. 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.

In  Serrano v. People, 19 we distinguished a frustrated felony from an

attempted felony in this manner:  HTCAED

1.) In [a] frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in [an] attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In [a] frustrated felony, the reason for the non-
accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in [an]
attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the offender's own
spontaneous desistance. 20

In frustrated murder, there must be evidence showing that the

wound would have been fatal were it not for timely medical
intervention. 21 If the evidence fails to convince the court that the
wound sustained would have caused the victim's death without timely
medical attention, the accused should be convicted of attempted
murder and not frustrated murder.

ARISTOTEL VALENZUELA y NATIVIDAD,  petitioner, vs. PEOPLE

OF THE PHILIPPINES and HON. COURT OF
APPEALS,  respondents. (magnanakaw ng tide nahuli bago
lumabas)

FACTS: 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.

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
P12,090.00. 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.

ISSUE: WON THE CRIME COMITTED IS CONSUMATED THEFT.

HELD: YES. 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.
 JOVITO CANCERAN,  petitioner, vs. PEOPLE OF THE
PHILIPPINES,  respondent. (magnanakaw ng ponds)

FACTS: To prove the guilt of the accused, the prosecution presented

Damalito Ompoc (Ompoc), a security guard; and William Michael N.
Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega
Center (Ororama), as its witnesses. Through their testimonies, the
prosecution established that on or about October 6, 2002, Ompoc saw
Canceran approach one of the counters in Ororama; that Canceran
was pushing a cart which contained two boxes of Magic Flakes for
which he paid P1,423.00; that Ompoc went to the packer and asked if
the boxes had been checked; that upon inspection by Ompoc and the
packer, they found out that the contents of the two boxes were not
Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty
Cream worth P28,627.20; that Canceran hurriedly left and a chase
ensued; that upon reaching the Don Mariano gate, Canceran stumbled
as he attempted to ride a jeepney; that after being questioned, he tried
to settle with the guards and even offered his personal effects to pay
for the items he tried to take; that Arcenio refused to settle; and that
his personal belongings were deposited in the office of Arcenio.

ISSUE: WON THE ACCUSED SHOULD BE HELD FOR CONSUMATED

THEFT.

HELD: No less than the Constitution guarantees the right of every

person accused in a criminal prosecution to be informed of the nature
and cause of accusation against him. 16 It is fundamental that every
element of which the offense is composed must be alleged in the
complaint or information. The main purpose of requiring the various
elements of a crime to be set out in the information is to enable the
accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense.

A careful reading of the allegations in the Information would show

that Canceran was charged with "Frustrated Theft" only. Pertinent parts of
the Information read:
. . . did then and there wilfully, unlawfully and feloniously
take, steal and carry away 14 cartons of Ponds White Beauty Cream
valued at P28,627.20, belonging to Ororama Mega Center,
represented by William Michael N. Arcenio, thus performing all
the acts of execution which would produce the crime of theft
as a consequence, but nevertheless, did not produce it by
reason of some cause independent of accused's will . . . .
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The
Information can never be read to charge Canceran of consummated
Theft because the indictment itself stated that the crime was never
produced. Instead, the Information should be construed to mean
that Canceran was being charged with theft in its attempted stage
only. Necessarily, Canceran may only be convicted of the lesser crime
of Attempted Theft.
"[A]n accused cannot be convicted of a higher offense than that
with which he was charged in the complaint or information and on
which he was tried. It matters not how conclusive and convincing the
evidence of guilt may be, an accused cannot be convicted in the
courts of any offense, unless it is charged in the complaint or
information on which he is tried, or necessarily included therein. He
has a right to be informed as to the nature of the offense with which
he is charged before he is put on trial, and to convict him of an
offense higher than that charged in the complaint or information on
which he is tried would be an unauthorized denial of that right." 20
 The Court is not unmindful of the rule that "the real nature of the
criminal charge is determined, not from the caption or preamble of the
information nor from the specification of the law alleged to have been
violated — these being conclusions of law — but by the actual recital of
facts in the complaint or information."

THE PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. CEILITO

ORITA alias "Lito,"  defendant-appellant. (college student na rape
tumakbong hubo papunta sa pulis station

FACTS: "Complainant Cristina S. Abayan was a 19-year old

freshman student at the St. Joseph's College at Borongan,
Eastern Samar. Appellant was a Philippine Constabulary (PC)
soldier.
"In the early morning of March 20, 1983, complainant arrived at
her boarding house. Her classmates had just brought her home
from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and poked
a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9, ibid).
"She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the back
door leading to the second floor (p. 77, ibid). With his left arm
wrapped around her neck and his right hand poking a 'balisong' to
her neck, appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to look for
a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
"Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
undressed herself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).
"He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his
order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
"Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both his hands flat on
the door. Complainant thought of escaping (p. 20, ibid).
"She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
"Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
"Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically examined.
"Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit 'A') which states:
'Physical Examination — Patient is fairly built, came in
with loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
 'PE Findings — Pertinent Findings only.
'Neck — Circumscribed hematoma at Ant. neck.
'Breast — Well developed, conical in shape with
prominent nipples; linear abrasions below (L) breast.
'Back Multiple pinpoint marks.
'Extremities — Abrasions at (R) and (L) knees.
'Vulva — No visible abrasions or marks at the perineal
area or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender; hymen intact; no laceration
fresh and old noted; examining finger can barely enter and
with difficulty; vaginal canal tight; no discharges noted.

ISSUE: WON RAPE IS CONSUMATED.

HELD: YES. Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose and, from
that moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender,
because he has performed the last act necessary to produce the
crime.  Thus, the felony is consummated. In a long line of cases, we
have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by
the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ because not all acts of
execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed. It was proven during trial that
there was a slight penetration although there was no rupture of hymen
or laceration of the vagina. Slightest penetration may warrant
consummation of the offense charged.

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. PRIMO

CAMPUHAN Y BELLO,  accused-appellant.

FACTS: On 27 May 1997 Primo Campuhan y Bello was found guilty of

statutory rape and sentenced by the court a quo to the extreme penalty of
death, 5 hence this case before us on automatic review under Art. 335 of
the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at
around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children.
At the ground floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of
Corazon. As Corazon was busy preparing the drinks, she heard one of
her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her children's
room kneeling before Crysthel whose pajamas or "jogging pants" and
panty were already removed, while his short pants were down to his
knees.
 According to Corazon, Primo was forcing his penis into Crysthel's
vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran out
and shouted for help thus prompting her brother, a cousin and an uncle who
were living within their compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered Corazon's call for help.
They held the accused at the back of their compound until they were advised
by their neighbors to call the barangay  officials instead of detaining him for
his misdeed. Physical examination of the victim yielded negative results. No
evident sign of extra-genital physical injury was noted by the medico-legal
officer on Crysthel's body as her hymen was intact and its orifice was only 0.5
cm. in diameter. cdrep

Primo Campuhan had only himself for a witness in his defense. He

maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal to
run an errand for her. 9 He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down
causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped
him and accused him of raping her child. He got mad but restrained himself
from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain
as he reasoned out that the accusation was not true. But Vicente kicked him
instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised
his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to
the barangay hall instead, and not to maul or possibly kill him.

ISSUE: WON ACCUSED GUILTY OF STATUTORY RAPE.

HELD: NO only attempted Rape. No. The prosecution failed to prove that
Primo’s penis did indeed and was able to penetrate Crysthel’s vagina
however slight. Corazon said that she saw Primo poking his penis on her
child’s vagina without actually explaining her relative position to them so as
to enable her to see clearly and sufficiently the “contact point”.
But upon demonstration, she showed that the Primo’s chest is pinning the
child down, while his right hand is holding his penis and his left hand is
spreading the legs of the victim. It can hence be inferred that unbridled
observation is impossible for the legs and arms of Primo would have hidden
his movements from Corazon’s sight, not to discount the fact that Primo’s
right hand was allegedly holding his penis thereby blocking it from Corazon’s
view. It is required that her claim be properly demonstrated to inspire belief.
The prosecution failed in this respect, thus we cannot conclude without any
taint of serious doubt that inter-genital contact was at all achieved.
It was proven during trial that the penis of the accused did not
penetrate the victim’s genitals but merely touched only.

PEOPLE OF THE PHILIPPINES,  appellee, vs. CHRISTOPHER

PAREJA  y  VELASCO,  appellant.

FACTS: The evidence for the prosecution disclosed that at around 3:30
a.m. of June 16, 2003, AAA was sleeping beside her two-year old nephew,
BBB, on the floor of her sister's room, when the appellant hugged her and
kissed her nape and neck. 5 AAA cried, but the appellant covered her and
BBB with a blanket. 6 The appellant removed AAA's clothes, short pants, and
underwear; he then took off his short pants and briefs. 7 The appellant went
on top of AAA, and held her hands. AAA resisted, but the appellant parted
her legs using his own legs, and then tried to insert his penis into her
vagina. 8 The appellant stopped when AAA's cry got louder; AAA kicked the
appellant's upper thigh as the latter was about to stand up. The appellant put
his clothes back on, and threatened to kill AAA if she disclosed the incident to
anyone. Immediately after, the appellant left the room. 9 AAA covered herself
with a blanket and cried. 10
At around 6:00 a.m. of the same day, AAA's brother, CCC, went to her
room and asked her why she was lying on the floor and crying. AAA did not
answer, and instead hurled invectives at CCC. 11 AAA went to the house of
her other brother, but the latter was not in his house. AAA proceeded to the
house of her older sister, DDD, at Block 19, Welfareville Compound, and
narrated to her what had happened. Afterwards, AAA and her two (2) siblings
went to the Women and Children's Desk of the Mandaluyong City Police
Station and reported the incident. 12 
SacTAC

For his defense, the appellant declared on the witness stand that he
hauled "filling materials" at his house, located at Block 38, Fabella
Compound, on the evening of June 15, 2003. At around 10:00 p.m., he went
to his room and slept. 13 On the next day, the appellant, accompanied by his
mother and brother-in-law, went to the municipal hall to ask for financial
assistance for his wife who was confined in the hospital. Upon arrival at the
hospital, the doctor told him that his wife needed blood. Immediately after,
the appellant and his companions went to Pasig City to find blood donors. 14
On the evening of June 16, 2003, and while the appellant was folding
the clothes of his son, two policemen entered his house and informed him
that a complaint for attempted rape had been filed against him. The police
brought him to the Criminal Investigation and Detection Group, forced him
to admit the crime, mauled him, and then placed him in a detention
cell. 15 The appellant added that he filed a complaint before the Office of the
Ombudsman against the police officers who beat him up.

ISSUE: WON THE ACCUSED CONSUMATED THE CRIME OF RAPE.

HELD: NO. During cross-examination the victim testified that the

accused was not successful in consummating the crime of rape. The victim
said that the penis of the accused did not penetrate to her sexual organ but
merely touched. Article 6 of the Revised Penal Code, as amended, states that
there is an attempt when the offender commenced the commission of the
crime directly by overt acts but does not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous
desistance. In  People v. Publico, 29 we ruled that when the "touching" of the
vagina by the penis is coupled with the intent to penetrate, attempted
rape is committed; otherwise, the crime committed is merely acts of
lasciviousness.
In the present case, the appellant commenced the commission of rape
by the following overt acts: kissing AAA's nape and neck; undressing her;
removing his clothes and briefs; lying on top of her; holding her hands and
parting her legs; and trying to insert his penis into her vagina. The appellant,
however, failed to perform all the acts of execution which should produce
the crime of rape by reason of a cause other than his own spontaneous
desistance, i.e., the victim's loud cries and resistance. The totality of the
appellant's acts demonstrated the unmistakable objective to insert his penis
into the victim's private parts.
A review of jurisprudence reveals that the Court has not hesitated to
strike down convictions for consummated rape when the evidence failed to
show that penetration, however slight, of the victim's vagina took place.