Republic of the Philippines Supreme Court Manila G.R. No.

L-24056 October 21, 2010

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. Morris, defendant-appellant.

DECISION Sanchez, Alvin Caesar E., 1-S:

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The defendant Morris is before this court on appeal from a decision of the Court of First Instance of Manila, finding him guilty of attempted robbery. The facts, as established by the evidence presented, are as follows: Morris had been drinking when he entered the Bank of the Philippine Islands Branch located in Mendiola. I have a 9mm handgun in my pocket, he said to the teller. I want all your money, he added. The teller set off a silent alarm. But when she handed Morris the cash, he said he had been joking all along. He left the bank empty-handed, but upon stepping out of the Bank door he was arrested by the Police. He was charged of Attempted Robbery. There is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.1 The following distinctions between frustrated and attempted felony are as follows. 1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the
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Art. 6 (3), Revised Penal Code.

offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution. 2.) In 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 attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offenders own spontaneous desistance.2 Robbery in laymans term, it is The taking of money or goods in the possession of another, from his or her person or immediate presence, by force or intimidation. Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence or intimidation of any person, or using force upon anything shall be guilty of robbery. 3 In our opinion, 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 Code4 . Thus, in case of robbery, in order that the simple act of unlawful taking of personal property by means of force or violence 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. Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes asportation. 5 There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi6 . In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. In this case, Morris left the bank empty handed. There is no unlawful and actual taking of personal property therefore there can be no robbery, hence no attempted robbery. In view of the foregoing, and so hold that the fact under consideration does not constitute attempted robbery because Morris act was stopped, because of his
Palaganas vs. People, G.R. No. 165483 Art. 293, Revised Penal Code 4 GR No. L-43530 5 Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149 6 Aquino, p. 97, Revised Penal Code.
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desistance, not by another. Furthermore, it can also be said that the accused cannot be convicted of an attempted robbery because the crime was not consummated not due to the timely arrival of the police but because of the offenders own desistance. The crime was not completed because the offender did desist on committing the crime in its totality. The desistance may be through fear or remorse. It is not necessary that it be actuated by a good motive. The code requires only that the discontinuance of the crime comes from the person who has begun it, and that he stops of his own free will.7 If a person has not been found guilty of an attempted felony, he may be charged with the commission of another felony. It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal liability for the intended crime but it does not exempt him from the crime committed by him before his desistance.8 In the case, Morris threatened the teller by informing him/her that he has a gun in his pocket and that presupposes that he will use it. The act constitutes grave threats. Any person who shall threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime be threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period. 2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition.9 In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition.

Art.6, Revised Penal Code People v Lizada, G.R. Nos. 143468-72, Jan. 24, 2003. 9 Art. 282(1), Revised Penal Code
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Given the surrounding circumstances, the offense committed falls under Article 282, par. 1 (grave threats) since: (1) killing or shooting someone amounts to a crime, and (2) the threat to kill was subject to a condition.10 The penalty for grave threats is a penalty two degrees lower than that crime intended to commit. Since the facts do not allege whether the accused is a habitual drunkard or whether the intoxication was subsequent to the plan of the commission of the felony, we must presume that intoxication was not habitual but accidental. It should therefore be considered as a mitigating circumstance in favor of the defendant.11 The evidence does not show that the respondent was not in control of his physical or mental faculties or both as a result of his having consumed alcohol at the time when he was arrested. The full bench correctly remarked, the factors relied upon by the appellants are merely indicative of the fact that the respondent may have been under the influence of alcohol, which does not necessarily mean that he was drunk.12 Applying the indeterminate sentence law, the penalty must be from Arresto Mayor in its Minimum to Arresto Mayor in its medium as MINIMUM indeterminate sentence. And the minimum of Arresto Mayor maximum to prision correccional minimum as the MAXIMUM indeterminate sentence or four months and one day to one year. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of Grave Threats and is sentenced to suffer two months of imprisonment and to pay the costs. SO ORDERED. Alvin, A.C.S, Caesar, and Sanchez, JJ., concur.

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Caluag v People, G.R. No. 171511, March 4, 2009. U. S. vs. Fitzgerald, 2 Phil., 419, 422; U. S. vs. Recao, 4 Phil., 91, 93; People vs. Cruz, 49 Phil., 163, 164. Vide also, I Viada, Codigo Penal [1890], p. 223. 12 U.S. Case, Minister of Safety & Security v Tyulu, ZASCA 55; 2009 (5) SA 85 (SCA)