G.R. No.

217661, June 26, 2019

PEOPLE OF THE PHILIPPINES, v. FERDINAND BUNIAG

FACT:

 RTC convicted Ferdinand Buniag y Mercadera of crimes against Section 5, Article II of

RA 9165 (The Comprehensive Dangerous Drugs Act of 2002, as amended).
 CA upheld conviction but modified violation. It cited Section 26(b), Article II of RA
9165
 There were 2 versions:
o Prosecution Version of the facts:
 PDEA Agent IO1 Rubylyn S. Alfaro (IO1 Alfaro) met with her
confidential informant (CI) for a buy-bust operation. They are to buy  shabu
from Buniag. 
 IO1 Alfaro conducted briefing at the station.
 On the scene, Buniag arrived with a black back. He demanded a black
bag. 
 Alfaro and CI inspected the bag and found 3 bundles of marijuana. 
 Alfaro made the signal by making a “missed-call.”
 IO2 Pimentel and team rushed to their location. 
 Pimentel got hold of the bag and brought Buniag and bad to the station
 At the station, they documented the bust, including the drug and booked
Buniag.

Hence, the instant appeal.

Issue:

Whether the guilty of attempted illegal sale of dangerous drugs.

RULING:

YES.

The CA is correct in ruling that Buniag should have been convicted of the offense of
attempted illegal sale of dangerous drugs.

ARTTICLE 6 : A crime 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.25

In the present case, Buniag attempted to sell shabu and commenced by overt acts the
commission of the intended crime however, the sale was aborted when IO1 Alfaro, upon
confirming that Buniag had with him the marijuana, made a "miss-call" to IO2 Pimentel,
the pre-arranged signal, and the rest of the team rushed to the area and placed Buniag
under arrest.  Under the rule on variance, while Buniag cannot be convicted of the
offense of illegal sale of dangerous drugs because the sale was never consummated,
he may be convicted for the attempt to sell as it is necessarily included in the illegal sale
of dangerous drugs.

Thus, the CA correctly ruled that the accused may only be held liable for attempted
illegal sale of dangerous drugs.

SO ORDERED.