G.R. No.

L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.

RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision mayor
for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the
proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado
and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an
iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of
the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in
breaking one board and in unfastening another from the wall, when the policeman showed up, who
instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial
judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a
logical relation to a particular, concrete offense; that, which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt
to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not
a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the
intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which
he had started to make on the wall, in order to commit an offense which, due to the timely arrival of
policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for
the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of
execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of
the cause and its effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if
carried to its complete termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or
violence another person's dwelling may be considered an attempt to commit this offense, it must be
shown that the offender clearly intended to take possession, for the purpose of gain, of some personal
property belonging to another. In the instant case, there is nothing in the record from which such purpose
of the accused may reasonably be inferred. From the fact established and stated in the decision, that the
accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's
store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of
force said store against the will of its owner. That his final objective, once he succeeded in entering the
store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.1avvphil.ñe
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such
that by their very nature, by the facts to which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith, they must show without any doubt, that they
are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as
well as against the culprit, and which show an innocent as well as a punishable act, must not and can not
furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts
submitted for appreciation and the offense which said facts are supposed to produce must be direct; the
intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to
cause a particular injury. This must have been the intention of the legislator in requiring that in order for
an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that
is to say, that the acts performed must be such that, without the intent to commit an offense, they would
be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission
of the offense, are not punished except when they are aimed directly to its execution, and therefore they
must have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to
declare that such and such overt acts constitute an attempted offense it is necessary that their objective be
known and established, or that said acts be of such nature that they themselves should obviously disclose
the criminal objective necessarily intended, said objective and finality to serve as ground for the
designation of the offense: . . . .
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 ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil.,
509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S.
vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, — inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him — and in his favor, the mitigating
circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an
aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of
attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if
committed with force, is prision correccional in its medium and maximum periods and a fine not
exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling
is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the
presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for
one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted
trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating
circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties
thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the
January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its
March 31, 1999 resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2,
in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of
attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted
rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the
jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of Martina
Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and there
willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the
intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason
of some cause or accident other than his own spontaneous desistance, said acts being committed against
her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5
Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou),
was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front
of her bedroom door, her maid, Marvilou, slept on a folding bed
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth
pressed on her face. She struggled but could not move. Somebody was pinning her down on the bed,
holding her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet with
chemicals were very tight (TSN, July 5, 1993, p. 33). 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.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the
intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8).
Who it was she did not, however, know. The only thing she had made out during their struggle was the
feel of her attacker’s clothes and weight. His upper garment was of cotton material while that at the lower
portion felt smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts … Original
Records, p. 355)
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta
and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened, another
window inside her bedroom was now open. Her attacker had fled from her room going through the left
bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to
Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a
week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN,
July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the
early morning of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of the T-
shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and
Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas” (TSN, October
16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co
and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the
room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin
initially refused [but later, relented] …. S/G Ferolin made the following entry in the security guard’s
logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our
tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this
coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time
CHITO’s knocking on the door woke him up, …. He was able to fix the time of CHITO’s arrival at 1:30
A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock at the
door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let
the latter in. …. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up again
later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO
…. He mentioned to the latter that something had happened and that they were not being allowed to get
out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room
310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were
there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and
Joseph to go with them to Camp Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta
(Gary) were called to the Building and were asked by the CIS people to look for anything not belonging
to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes
(Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993,
p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know
was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right
away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school inside
the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a
Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-
shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to him …. The t-
shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw
CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full
but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary,
Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along with some CIS
agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it.
Not until later that night at past 9 o’clock in Camp Crame, however, did Renato know what the contents
of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M. Managuelod
dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on
the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112)
reads in part, thus:
"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the
crime imputed to him or making at any time amorous advances on Malou. Unfolding a different version
of the incident, the defense sought to establish the following, as culled from the same decision of the
appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …, was known to
him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over
dark pants and leather shoes, arrived at their Fraternity house located at … Dos Castillas, Sampaloc,
Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the entourage of
some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior
fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the pool.
xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, …, offered each … dry clothes to change into and CHITO put on the white t-shirt
with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the
party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to
the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag
containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G
Ferolin initially refused CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes
had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and
for five (5) minutes vainly tried to open the door until Rommel Montes, … approached him and even
commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open
the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out to Joseph
while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside
the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had on the same short pants
given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why
this was so and, without elaborating on it, Joseph told him that something had happened and to just go to
Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS
men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B.
Albano, father of MALOU, then asked him for the key to Room 306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2)
of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him
for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital ….. At the hospital, … CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip ….
xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla
Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the
morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and
Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it
was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal
Abesamis who, however, made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which
he had left at Room 306 in the early evening of December 12, 1991 before going to the fraternity house.
He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to the
apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24),
nor when he dressed up at about 6 o’clock in the morning to go to school and brought his gray bag to
Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray bag ever
contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas
short pants was alluded to be among the items inside his gray bag late in the afternoon, when he was in
Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and
Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s
place at Greenhills, riding on the same car going to and coming from the party and dropping the petitioner
off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a
barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the
party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between
the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in
dark short pants and white barong tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after
the dunking party held in her father’s house.8 Presented as defense expert witness was Carmelita Vargas,
a forensic chemistry instructor whose actual demonstration in open court showed that chloroform, being
volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and
accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as
principal and as charged in the information and hereby sentences him to suffer an imprisonment ranging
from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum
to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law,
and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way
of Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No.
17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the
trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him,
absent sufficient, competent and convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive
and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was improper and
unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty
has not been met, hence, he should be acquitted on the ground that the offense charged against him has
not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in
affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioner’s acquittal, but not necessarily because there is no direct evidence
pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in
the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness
to the very act of commission of the crime. There are two types of positive identification. A witness may
identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the
crime. This constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually witnessed the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or
one of the persons last seen with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of circumstantial evidence.13 In
the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under condition where concealment is
highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to
prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be
sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads to
only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU
as Room 307 where he slept the night over had a window which allowed ingress and egress to Room 306
where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as
well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at
the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their
struggle, MALOU had made out the feel of her intruder’s apparel to be something made of cotton
material on top and shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan
saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief stained with blue
and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt,
also stained with blue. A different witness, this time, Christian Alcala, identified these garments as
belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and
clothes worn by MALOU during the incident revealed that the handkerchief and MALOU’s night dress
both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has established
beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in
chemical while holding her body tightly under the weight of his own, had commenced the performance of
an act indicative of an intent or attempt to rape the victim. It is argued that petitioner’s actuation thus
described is an overt act contemplated under the law, for there can not be any other logical conclusion
other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep.
The Solicitor General, echoing what the CA said, adds that if petitioner’s intention was otherwise, he
would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or
intercourse with a woman under any of the following circumstances: (1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under
twelve years of age or is demented. Under Article 6, in relation to the aforementioned article of the same
code, rape is attempted when the offender commences the commission of rape directly by overt acts and
does not perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of the
offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the
unavoidable connection, like the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its
objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not
a juridical fact from the standpoint of the Penal Code.18

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.1avvphil.net

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.19

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. The CA maintained that if the petitioner had no intention to
rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated
the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the
CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ
is not yet exposed because his intended victim is still struggling. Where the intended victim is an
educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before
even starting his attack on her. He has to make her lose her guard first, or as in this case, her
unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on
evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to
establish the guilt of an accused beyond reasonable doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there
to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other than his own spontaneous desistance, the
penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced
to force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any
wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled
after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the
petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation
punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the
context of the constitutional provision assuring an accused of a crime the right to be informed of the
nature and cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the
inculpatory acts for which he was proceeded against. To be sure, the information against petitioner
contains sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C.
Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust vexation.
As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that
this term is broad enough to include any human conduct which, although not productive of some physical
or material harm, would unjustly annoy or irritate an innocent person.25 The paramount question is
whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the mind of the
person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her
classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape
proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is
arresto menor or a fine ranging from ₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court
of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner
Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light
coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of ₱200.00, with the
accessory penalties thereof and to pay the costs.

SO ORDERED.
CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

( On Leave )
ANGELINA SANDOVAL-GUTIERREZ*
Associate Justice RENATO C. CORONA
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S .PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is
hereby certified that the conclusions in the above decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
G.R. No. 198400 October 7, 2013
FE ABELLA y PERPETUA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26, 2010
and August 11, 2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN
affirming with modifications the conviction4 by the Regional Trial Court RTC) of Misamis Oriental,
Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua petitioner) for the crime of frustrated homicide
committed against his younger brother, Benigno Abella Benigno). The RTC sentenced the petitioner to
suffer an indeterminate penalty of six 6) years and one 1) day to eight 8) years of prision mayor as
minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as maximum, and to pay
Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the medical expenses he incurred, plus
the costs of suit.5 The CA concurred with the RTC’s factual findings. However, the CA modified the
penalty imposed to six (6) months and one (1) day to six (6) years of prision correccional as minimum, to
eight (8) years and one (1) day of prision mayor in its medium period as maximum. The CA also deleted
the RTC’s award in favor of Benigno of (a) ₱10,000.00 as actual damages corresponding to the medical
expenses allegedly incurred; and (b) ₱100,000.00 as consequential damages. In lieu of the preceding, the
CA ordered the petitioner to pay Benigno ₱30,000.00 as moral damages and ₱10,000.00 as temperate
damages.6

Antecedent Facts

On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was
charged with frustrated homicide in an Information7 which reads:

That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli, Canitoan,
Cagayan de Oro City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without any justifiable cause, did then and there willfully, unlawfully and feloniously and with
intent to kill, attack, assault, harm and hack one, BENIGNO ABELLA y PERPETUA, with the use of a
scythe, hitting the latter’s neck, thereby inflicting the injury described below, to wit:

• hacking wound left lateral aspect neck; and

• incised wound left hand dorsal aspect thus performing all the acts of execution which would produce the
crime of homicide as a consequence, but nevertheless, did not produce it by reason of some cause or
causes independent of the will of the accused, that is the timely and able intervention of the medical
attendance rendered to the said victim.

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was only arrested by agents of the
National Bureau of Investigation on October 7, 2002.9

During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus
proceeded.

The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s
wife; (c) Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto
Ardiente13 (Dr. Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who
rendered medical assistance to Benigno after the latter was hacked by the petitioner.

The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was
watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the
petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner fighting
with Alejandro and a certain Dionisio Ybañes (Dionisio). Benigno was able to convince the petitioner to
go home. Benigno and Amelita followed suit and along the way, they dropped by the houses of Alejandro
and Dionisio to apologize for the petitioner’s conduct.

Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two
scythes, one in each of his hands. Benigno instructed Alejandro and Dionisio to run away and the latter
two complied. The petitioner wanted to enter Alejandro’s house, but Benigno blocked his way and asked
him not to proceed. The petitioner then pointed the scythe, which he held in his left hand, in the direction
of Benigno’s stomach, while the scythe in the right hand was used to hack the latter’s neck once.14
Benigno fell to the ground and was immediately taken to the hospital15 while the petitioner ran to chase
Alejandro.16 Benigno incurred an expense of more than ₱10,000.00 for hospitalization, but lost the
receipts of his bills.17 He further claimed that after the hacking incident, he could no longer move his left
hand and was thus deprived of his capacity to earn a living as a carpenter.18
Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm"; and
(b) an "incised wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the hospital on
September 6, 1998 and was discharged on September 23, 1998.20 From Dr. Ardiente’s recollection, since
the scythe used in the hacking was not sterile, complications and infections could have developed from
the big and open wounds sustained by Benigno, but fortunately did not.21

The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a
friend of the petitioner; and (c) Urbano Cabag24 (Urbano).

The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October
2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro
City, where the hacking incident occurred, is about four (4) hours drive away. Fernando testified that on
September 6, 1998, he saw the petitioner gathering woods to make a hut.25 Later in the evening, at
around 5:00 p.m., Urbano spotted the petitioner drinking tuba in the store of Clarita Perpetua.26

The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the Judgment27
reads:

WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient
to prove the guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding petitioner Fe
Abella GUILTY beyond reasonable doubt of the crime of Frustrated Homicide as defined and penalized
by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code. Accordingly, petitioner Fe
Abella is hereby sentenced to suffer an indeterminate penalty of Six (6) years and One (1) day to Eight (8)
years of prision mayor as minimum to Ten (10) years and One (1) day to Twelve (12) years of prision
mayor as maximum; to indemnify offended-party complainant Benigno Abella the sum of Ten Thousand
([P]10,000.00) Pesos for the medical expenses incurred; to pay the sum of ONE HUNDRED
THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs.

SO ORDERED.28

The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were
presented to corroborate the petitioner’s claim that he was nowhere at the scene of the hacking incident on
September 6, 1998. Fernando and Urbano’s testimonies were riddled with inconsistencies. The RTC
accorded more credence to the averments of the prosecution witnesses, who, without any ill motives to
testify against the petitioner, positively, categorically and consistently pointed at the latter as the
perpetrator of the crime. Besides, medical records show that Benigno sustained a wound in his neck and
his scar was visible when he testified during the trial.
The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred despite
the prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to pay
₱100,000.00 as consequential damages, but the RTC did not explicitly lay down the basis for the award.

The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution
failed to prove by clear and convincing evidence the existence of intent to kill which accompanied the
single hacking blow made on Benigno’s neck. The petitioner argued that the hacking was merely
accidental especially since he had no motive whatsoever which could have impelled him to hurt Benigno,
and that the infliction of merely one wound negates intent to kill.

The CA Ruling

On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioner’s
conviction for the crime of frustrated homicide ratiocinating that:

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the
commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the
crime was committed; and (e) the words uttered by the offender at the time the injuries are inflicted by
him on the victim.

Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno with
deadly weapons, two scythes. The petitioner’s blow was directed to the neck of Benigno. The attack on
the unarmed and unsuspecting Benigno was swift and sudden. The latter had no means, and no time, to
defend himself.

Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno suffered
from a hack wound on the left neck, and an incised wound on the left hand palm. He said that the wounds
might have been caused by a sharp, pointed and sharp-edged instrument, and may have resulted to death
without proper medical attendance. Benigno was hospitalized for about a month because of the injuries.
The location of the wound (on the neck) shows the nature and seriousness of the wound suffered by
Benigno. It would have caused his death, had it not been for the timely intervention of medical science.31
(Citations omitted and emphasis supplied)

However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6)
years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its
medium period, as maximum."32 The CA explained that:

Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide
is reclusion temporal , or twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the
same Code, the penalty for a frustrated crime is one degree lower than that prescribed by law. Thus,
frustrated homicide is punishable by prision mayor , or six (6) years and one (1) day to twelve (12) years.
Applying the Indeterminate Sentence Law, absent any mitigating or aggravating circumstances, the
maximum of the indeterminate penalty should be taken from the medium period of prision mayor . To
determine the minimum of the indeterminate penalty, prision mayor should be reduced by one degree,
which is prision correccional , with a range of six (6) months and one (1) day to six (6) years. The
minimum of the indeterminate penalty may be taken from the full range of prision correccional.33
(Citation omitted)

The CA also deleted the RTC’s order for the payment of actual and consequential damages as there were
no competent proofs to justify the awards. The CA instead ruled that Benigno is entitled to ₱30,000.00 as
moral damages and ₱10,000.00 as temperate damages,34 the latter being awarded when some pecuniary
loss has been incurred, but the amount cannot be proven with certainty.35

Issue

Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the RTC
and the CA erred in rendering judgments which are not in accordance with law and applicable
jurisprudence and which if not corrected, will cause grave injustice and irreparable damage to the
petitioner.37

In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if
considered, would justify either his acquittal or the downgrading of his conviction to less serious physical
injuries. The petitioner points out that after the single hacking blow was delivered, he ran after Alejandro
and Dionisio leaving Benigno behind. Had there been an intent to kill on his part, the petitioner could
have inflicted more wounds since at that time, he had two scythes in his hands. Further, the CA erred in
finding that the hacking blow was sudden and unexpected, providing Benigno with no opportunity to
defend himself. Benigno saw the petitioner arriving with weapons on hand. Benigno could not have been
unaware of the danger facing him, but he knew that the petitioner had no intent to hurt him. Benigno thus
approached the petitioner, but in the process, the former was accidentally hit with the latter’s scythe.

The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a
conviction from attempted murder to physical injuries as proper considering that homicidal intent was
absent when the accused shot the victim once and did not hit a vital part of the latter’s body.39

Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the
neck and incised wound in the hand. Such being the case, death could not have resulted. The neck wound
was not "so extensive because it did not involve a big blood vessel on its vital structure" while the incised
wound in the hand, which only required cleansing and suturing, merely left a slight scarring.40 Besides,
Benigno was only confined for seventeen (17) days at the hospital and the injuries he sustained were in
the nature of less serious ones.

In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition.
The OSG stresses that the petitioner raises factual issues, which call for a re-calibration of evidence,
hence, outside the ambit of a petition filed under Rule 45 of the Rules of Court. Moreover, the petitioner’s
argument that the development of infections or complications on the wounds is a necessary factor to
determine the crime committed is specious. The petitioner’s intent to kill Benigno can be clearly inferred
from the nature of the weapon used, the extent of injuries inflicted and the circumstances of the
aggression. Benigno could have died had there been no timely medical assistance rendered to him.

If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and
Dionisio, a kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of the
body would have been sufficient. However, the petitioner hacked Benigno’s neck with an unsterile
scythe, leaving behind a big, open and gaping wound.

This Court’s Ruling

The instant petition raises factual issues which are beyond the scope of a petition filed under Rule 45 of
the Rules of Court.

Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas42 is instructive anent what is the subject of
review in a petition filed under Rule 45 of the Rules of Court, viz:

A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure
questions of law. It is only in exceptional circumstances that we admit and review questions of fact.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is
a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be
one of law, the question must not involve an examination of the probative value of the evidence presented
by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on
the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented,
the question posed is one of fact.43 (Citations omitted)

In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the
petitioner had a homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds the
latter sustained could have caused his death had there been no prompt medical intervention. These
questions are patently factual in nature requiring no less than a re-calibration of the contending parties’
evidence.

It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of
exceptions, among which is, "when the judgment of the CA is premised on a misapprehension of facts or
a failure to notice certain relevant facts that would otherwise justify a different conclusion x x x."44
However, the factual backdrop and circumstances surrounding the instant petition do not add up to
qualify the case as falling within the exceptions.
Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the instant
petition is susceptible to denial.

To successfully prosecute the crime of homicide, the following elements must be proved beyond
reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any
justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the
killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or
infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the death of the victim without medical intervention or
attendance.45

In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The
prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent. And the intent to kill is often inferred from, among other things, the means the offender
used and the nature, location, and number of wounds he inflicted on his victim.46

The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill
Benigno. The petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal intent
is absent in a case where the accused shot the victim only once when there was an opportunity to do
otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he could have
repeatedly hacked him to ensure the latter’s death, and not leave right after the blow to chase Alejandro
instead.

The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending
physician certified that the injury would require medical attendance for ten days, but the victim was in
fact promptly discharged from the hospital the following day.

In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised
wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it
is possible to have complications resulting from these injuries because the wounds were extensive and
they were big and they were open wounds, so there is a possibility of infections resulting from these kinds
of wounds, and the instrument used was not a sterile instrument contaminated with other things."48 No
complications developed from Benigno’s wounds which could have caused his death, but he was confined
in the hospital for a period of 17 days from September 6, 1998 to September 23, 1998.

From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against
Benigno’s neck was determinative of the petitioner’s homicidal intent when the hacking blow was
delivered. It does not require imagination to figure out that a single hacking blow in the neck with the use
of a scythe could be enough to decapitate a person and leave him dead. While no complications actually
developed from the gaping wounds in Benigno’s neck and left hand, it perplexes logic to conclude that
the injuries he sustained were potentially not fatal considering the period of his confinement in the
hospital. A mere grazing injury would have necessitated a lesser degree of medical attention.

This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the
fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have been
a fatal blow was already delivered and there was no more desistance to speak of. Benigno did not die
from the hacking incident by reason of a timely medical intervention provided to him, which is a cause
independent of the petitioner’s will.1âwphi1

All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of
the petitioner of the crime charged.

The Court modifies the award of damages.

As to the civil liability of the petitioner, the CA was correct in deleting the payment of the consequential
damages awarded by the trial court in the absence of proof thereof. Where the amount of actual damages
cannot be determined because of the absence of supporting receipts but entitlement is shown by the facts
of the case, temperate damages may be awarded.49 In the instant case, Benigno certainly suffered
injuries, was actually hospitalized and underwent medical treatment. Considering the nature of his
injuries, it is prudent to award temperate damages in the amount of ₱25,000.00, in lieu of actual
damages.50

Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00.51 There is
sufficient basis to award moral damages as ordinary human experience and common sense dictate that
such wounds inflicted on Benigno would naturally cause physical suffering, fright, serious anxiety, moral
shock, and similar injury.52

WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010 and
August 11 2011, respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are AFFIRMED
with MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the offended party
moral damages in the amount of ₱25,000.00 and temperate damages in the amount of ₱25,000.00.
Further, the monetary awards for damages shall be subject to interest at the legal rate of six percent ( 6%)
p r annum from the date of finality of this Decision until fully paid.53

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice
WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO

Associate Justice LUCAS P. BERSAMIN
Associate Justice
MARVIC MARIO VICTOR F. LEONEN*
Associate Justice

CERTIFICATION

Pursuant to Section 13 Article VIII of the Constitution, I certify 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's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
G.R. No. 202867 July 15, 2013
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
REGIE LABIAGA, Appellant.

DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of Appeals-
Cebu (CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the
Joint Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66
(RTC), in Criminal Case No. 2001-155) convicting Regie Labiaga alias "Banok" (appellant) of murder
and Criminal Case No. 2002-1777 convicting appellant of frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy
Demapanag (Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an
Information3 which reads:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by
means of treachery and with evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot JUDY CONDE alias ‘JOJO’ with said unlicensed firearm, hitting her
and inflicting gunshot wounds on the different parts of her breast which caused her death thereafter.

CONTRARY TO LAW.

The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in
Criminal Case No. 2002-1777, under an Information4 which states:

That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
helping one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by
means of treachery and with evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot Gregorio Conde with said unlicensed firearm, hitting him on the
posterior aspect, middle third right forearm 1 cm. In diameter; thereby performing all the acts of
execution which would produce the crime of Murder as a consequence, but nevertheless did not produce
it by reason of causes independent of the will of the accused; that is by the timely and able medical
assistance rendered to said Gregorio Conde which prevented his death.

CONTRARY TO LAW.

Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases
and joint trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in
Criminal Case No. 2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obañana and Dr. Edwin
Jose Figura, the physicians at the Sara District Hospital where the victims were admitted. The defense, on
the other hand, presented appellant, Demapanag, and the latter’s brother, Frederick.

Version of the prosecution

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, "she 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.6

Version of the defense

Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed,
however, that he acted in self-defense. Gregorio, armed with a shotgun, challenged him to a fight. He
attempted to shoot appellant, but the shotgun jammed. Appellant tried to wrest the shotgun from
Gregorio, and during the struggle, the shotgun fired. He claimed that he did not know if anyone was hit
by that gunshot.

Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately 14
kilometers away from the crime scene. This was corroborated by Frederick, Demapanag’s brother.

The Ruling of the RTC

In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant,
however, was convicted of murder and frustrated murder. The dispositive portion of the Joint Decision
reads:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua together with accessory penalty provided by law, to pay
the heirs of Judy Conde ₱50,000.00 as civil indemnity, without subsidiary imprisonment in case of
insolvency and to pay the costs.

In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to a prison
term ranging from six (6) years and one (1) day of prision mayor as minimum to ten (10) years and one
(1) day of reclusion temporal as maximum, together with the necessary penalty provided by law and
without subsidiary imprisonment in case of insolvency and to pay the costs.

Accused’s entire period of detention shall be deducted from the penalty herein imposed when the accused
serves his sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both
cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for some other valid or lawful cause.

SO ORDERED.7

The Ruling of the CA-Cebu

Appellant impugned the RTC’s Joint Decision, claiming that "the RTC gravely erred in convicting the
appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable
doubt."8 The CA-Cebu, however, upheld the conviction for murder and frustrated murder.

The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary
damages in both criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by
the RTC in Criminal Case No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:

The trial court granted the amount of ₱50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It
did not award moral damages. Nonetheless, the trial court should have awarded both, considering that
they are two different kinds of damages. For death indemnity, the amount of ₱50,000.00 is fixed
"pursuant to the current judicial policy on the matter, without need of any evidence or proof of damages.
Likewise, the mental anguish of the surviving family should be assuaged by the award of appropriate and
reasonable moral damages."9

The dispositive portion of the Decision of the CA-Cebu reads:

WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of
the Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS.
The dispositive portion of the said Joint Decision should now read as follows:

WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok"
GUILTY beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby
sentences the said accused to reclusion perpetua together with the accessory penalty provided by law, to
pay the heirs of Judy Conde ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00
as exemplary damages, without subsidiary imprisonment in case of insolvency and to pay the costs.

In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond
reasonable doubt of the crime of Frustrated Murder and hereby sentences the said accused to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal, as maximum, together with the accessory penalty
provided by law, to pay Gregorio Conde ₱25,000.00 as moral damages and ₱25,000.00 as exemplary
damages, without subsidiary imprisonment in case of insolvency and to pay the costs Accused(’s) entire
period of detention shall be deducted from the penalty herein imposed when the accused serves his
sentence.

For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both
cases. The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release
accused Cristy Demapanag from custody unless he is being held for some other valid or lawful cause.

SO ORDERED.

SO ORDERED.10

Hence, this appeal.

The Ruling of the Court

Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of
attempted murder and not frustrated murder. We uphold appellant’s conviction in Criminal Case No.
2001-1555 for murder, but modify the civil indemnity awarded in Criminal Case No. 2001-1555, as well
as the award of moral and exemplary damages in both cases.

Justifying circumstance of self-defense

Appellant’s feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the
CA-Cebu. This Court, in People v. Damitan,11 explained that:

When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to
prove by clear and convincing evidence the elements of his defense. However, appellant’s version of the
incident was uncorroborated. His bare and self-serving assertions cannot prevail over the positive
identification of the two (2) principal witnesses of the prosecution.12

Appellant’s failure to present any other eyewitness to corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio before the RTC lead us to reject his claim of
self-defense. Also, as correctly pointed out by the CA-Cebu, appellant’s theory of self-defense is belied
by the fact that:

x x x The appellant did not even bother to report to the police Gregorio’s alleged unlawful aggression and
that it was Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the
following morning, he did not also inform the police that what happened to Gregorio was merely
accidental.13

Appellant’s claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is
also implausible.

In contrast, we find that the Condes’ account of the incident is persuasive. Both the CA-Cebu and the
RTC found that the testimonies of the Condes were credible and presented in a clear and convincing
manner. This Court has consistently put much weight on the trial court’s assessment of the credibility of
witnesses, especially when affirmed by the appellate court.14 In People v. Mangune,15 we stated that:

It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best
undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and to
note their demeanor, conduct, and attitude under grilling examination. These are important in determining
the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies.
For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness’
credibility, and the trial court has the opportunity to take advantage of these aids.16

Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with
arbitrariness or oversight or misapprehension of relevant facts, the same must be sustained by this Court.

Attempted and Frustrated Murder

Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the
victim was not afforded any opportunity to defend himself or resist the attack.17 The existence of
treachery is not solely determined by the type of weapon used. If it appears that the weapon was
deliberately chosen to insure the execution of the crime, and to render the victim defenseless, then
treachery may be properly appreciated against the accused.18

In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge
shotgun against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to
fend off the offender.

We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in
Criminal Case No. 2002-1777.

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:

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.

In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This was
admitted by Dr. Edwin Figura, who examined Gregorio after the shooting incident:

Prosecutor Con-El:

Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the
patient when you examined him?

A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.

xxxx

Court (to the witness)

Q: The nature of these injuries, not serious?

A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect
right shoulder.22

Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted of attempted
murder and not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty
for attempted murder shall be two degrees lower than that prescribed for consummated murder under
Article 248, that is, prision correccional in its maximum period to prision mayor in its medium period.
Section 1 of the Indeterminate Sentence Law provides:

x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances, could be properly imposed under the rules of the
Revised Penal Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense.1âwphi1
Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and
one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of prision
mayor in its medium period.

Award of damages

In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the
lower court in both cases. In Criminal Case No. 2001-1555, this Court hereby awards ₱75,000.00 as civil
indemnity23 and ₱30,000.00 as exemplary damages.24 The award of ₱50,000.00 as moral damages in the
foregoing case is sustained. Appellant is also liable to pay ₱40,000.00 as moral damages and ₱30,000.00
as exemplary damages, in relation to Criminal Case No. 2002-1777.

WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R.
CEB CR-HC No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that
appellant Regie Labiaga is GUILTY of Attempted Murder and shall suffer an indeterminate sentence
ranging from two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight
(8) years and one (1) day of prision mayor as maximum, and pay ₱40,000.00 as moral damages and
₱30,000.00 as exemplary damages. In Criminal Case No. 2001-1555, appellant shall pay ₱75,000.00 as
civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

MARIANO C. DEL CASTILLO

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice JOSE C. MENDOZA*
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION

I attest 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’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I
certify 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's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
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 decisions1
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 Information6 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 cites26 two decisions rendered
many years ago by the Court of Appeals: People v. Diño27 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 taking48 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
Associate Justice CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice ADOLFO S. AZCUNA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice CANCIO C. GARCIA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice ANTONIO EDUARDO B. NACHURA
Associate Justice

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