I.

Introduction: Generation of a Crime

A. The frst is the Mental Stage

General Rule: Mental acts such as thoughts, ideas,
opinions and beliefs, are not subject of penal
legislations. One may express an idea which is
contrary to law, morals or is unconventional, but
as long as he does not act on them or induce
others to act on them, such mental matters are
outside the realm of penal law and the person may
not be subjected to criminal prosecution.

B. The Second: The External Stage which is
where the accused erforms acts which are
o!ser"a!le

he !reparatory acts: "cts which may or may not
lead to the commission of a concrete crime. #eing
e$uivocal they are not as rule punishable except
when there is an express provision of law
punishing speci%c preparatory acts.
&xample:
'i( the general rule: buying of a gun, bolo or
poison, even if the purpose is to use these to )ill a
person* so also with conspiracies and proposals.
'ii( the exception: possession of pic)loc)s and
false )eys is punished* as with conspiracies to
commit treason, rebellion, sedition and coup
d+etat
he "cts of execution: the attempted, frustrated
and consumated stages
II. Alication of Article #:
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Only to intentional felonies by positive acts but not
to: 'i(. ,elonies by omission 'ii( -ulpable felonies
and 'iii( .iolations of special laws, unless the
special law provides for an attempted or
frustrated stage. &xamples of the exception are
he /angerous /rugs 0aw which penali1es an
attempt to violate some of its provisions, and he
2uman 3ecurity "ct of 4556

III. The attemted stage:
7the accused commences the commission of a
felonious act directly by overt acts but does not
perform all the acts of execution due to some
cause or accident other than his own spontaneous
desistance8

"(.he attempt which the !enal -ode punishes is
that which has a connection to a particular,
concrete o9ense, that which is the beginning of
the execution of the o9ense by overt acts of the
perpetrator, leading directly to the its reali1ation
and commission '4( he act must not be e$uivocal
but indicates a clear intention to commit a
particular and speci%c felony. hus the act of a
notorious criminal in following a woman can not
be the attempted stage of any felony.
#(. Overt or external act is some physical deed or
activity, indicating the intention to commit a
particular crime, more than a mere planning or
preparation, which if carried out to is complete
termination following its natural course, without
being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will
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logically and necessarily ripen into a concrete
o9ense.
-(. &xamples:

he accused pressed a chemically :soa)ed cloth on
the mouth of the woman to induce her to sleep,
while he lay on top of her and pressed his body to
her. he act is not the overt act that will logically
and necessarily ripen into rape. hey constitute
unjust vexation. ' ;ote: it would be attempted
rape if he tried to undress the victim or touch her
private parts( ' #alleros vs. !eople, ,eb, 44, 455<(.
One found inside a house but no article was found
on him, is liable for trespass and not for attempted
theft or robbery even if he is a notorious robber.
One found removing the glass window panes or
ma)ing a hole in the wall is not liable for
attempted robbery but for attempted trespass

/( he accused has not yet passed the subjective
phase or that phase encompassed from the time
an act is executed which begins the commission of
the crime until the time of the performance of the
last act necessary to produce the crime, but where
the accused has still control over his actions and
their results.
.
&(.he accused was not able to continue
performing the acts to produce the crime. 2e was
prevented by external forces and not because he
himself chose not to continue. 3uch as when his
weap5n was snatched, or his intended victim
managed to escape, or he was overpowered or
arrested.
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,(. =f the accused voluntarily desisted i.e he
himself decided not to continue with his criminal
purpose, then he is not liable.
Reason: his is an absolutory cause by way of
reward to those who, having set one foot on the
verge of crimes, heed the call of their conscience
and return to the path of righteousness. he
reason for the desistance is immaterial
&xceptions: when the accused is liable despite his
desistance
>hen the act performed prior to the desistance
already constituted the attempted stage of the
intended felony. ,or example: the accused, with
intent to )ill, shot at the victim but missed after
which he ?desisted8, his acts already constituted
attempted homicide
>hen the acts performed already gave rise to the
intended felony. he decision not to continue is not
a legal but factual desistance. "s in the case of a
thief who returned what he stole.
>hen the acts performed constitute a separate
o9ense. !ointing a gun at another and threatening
to )ill, and then desisting gives rise to grave
threats.

I$. The %rustrated Stage:
he accused has performed all the acts of
execution necessary to produce the felony but the
crime is not produced by reason of causes
independent of the will of the accused.

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he accused has passed the subjective phase and
is now in the objective phase, or that portion in
the commission of the crime where the accused
has performed the last act necessary to produce
the intended crime and where he has no more
control over the results of his acts.
he non:production of the crime should not be due
to the acts of the accused himself, for if it were he
would be liable not for the frustrated stage of the
intended crime, but possibly for another o9ense.
hus: where the accused shot the victim mortally
wounding him, but he himself saved the life of his
victim, his liability is that for serious physical
injuries as the intent to )ill is absent.
Attemted "s. %rustrated &omicide'murder.
>here the accused, with intent to )ill, injured the
victim but the latter did not die, when is the crime
attempted or frustrated@
%irst $iew: ?he subjective phase doctrine8. =f at
that point where the accused has still control over
the results of his actions but is stopped by reason
outside of his own desistance and the subjective
phase has not been passed, the o9ense is
attempted
Second $iew: he Mortal >ound or 0ife
hreatening =njury /octrine: =f a mortal wound or
life threatening injury had been inAicted, the
o9ense is frustrated, else it is attempted
' !alaganas vs. !!., 3ept. B4, 455<(
Third $iew: he belief of the accused should be
considered in that if the accused believed he has
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done all which is necessary to produce death, then
it is frustrated.

$. Consummated.
>hen all the elements of the crime are present
whether it be the intended crime or a di9erent
crime

$I. %actors to Consider in determining the
roer stage.

he manner of the commission of the crime and
how it is de%ned by the R!-. 3ome crimes have
only the consumated stage ',ormal crimes( such
as threats, coercion, alarms and scandal, slander,
acts of lasciviousness. =n rape the gravamen is
whether there is penetration or not, no matter
how slight, hence rape is either attempted or
consummated.

The elements of the felon(.

Theft: it is consummated once the article is in the
material physical possession of the accused,
whether actual or constructive. 2is ability to
dispose o9 the thing his immaterial and does not
constitute an element.
;.#. /ecisions of the -" as to bul)y items where
the accused must have the opportunity dispose o9
or appropriate the articles have already been
reversed. he doctrine now is that theft has no
frustrated stage ' .alen1uela vs. !!. Cune 4B,
4556(
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&stafa: =t is not the material possession but the
existence of damage which consumates the crime.
Robbery with ,orce Dpon hings: he thing must
be brought out of the building to consumate the
crime.
-. he ;ature of the ,elony =tself

-rimes which re$uire the participation of two
persons have no frustrated stage. &xamples:
"dultery and concubinage* corruption of a public
o9icial.
here are crimes which are punished according to
their results and not the intention of the accused
such as physical injuries.
"s to "rson: it is consummated once a part of the
building is burned. =t has been ruled that if the
accused lit certain materials but no part of the
building as burned, the crime is in its frustrated
stage and if there was no material which was as
yet lit, then arson is still in its attempted. hus
one who places sac)s soa)ed in gasoline near the
post and lit it but no part of the building was
burned, committed frustrated arson.
'!ersonal Opinion: there can be no frustrated
stage, but only attempted stage if the %re was not
yet applied to the building. #ut if %re was applied
to the building or a part thereof but no part of the
building was burned, then it is attempted. he
only consideration is whether or not the accused
succeeded in burning a part of the building. =f no
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part of the building was burned, it is still
attempted arson no matter how far gone were the
acts of the accused(.
T&E )*I+CI),E -% ,EGA,IT.
he principle which declares that for any human
conduct to be considered as a criminal act, there
must be a speci%c statute or law declaring such
conduct as a crime and providing for a penalty.
"ny human conduct, no matter how evil or
reprehensible it may be, cannot subject the actor
to punishment if there is no law punishing the act.
his is expressed in the maxim ?;ullum crimen
noella pena sine legi8.
his principle is the opposite of ?-ommon 0aw
-rimes8.
B. -ommon 0aw -rimes are often called
?-ourt /eclaredE-reated -rimes8
Imossi!le Crime
"rticle F '4(. Criminal Responsibility. G -riminal
responsibility shall be incurred . . .
4. #y any person performing an act which
would be an o9ense against persons or
property, were it not for the inherent
imossi!ilit( of its accomlishment or on
account of the employment of inade$uate to
ine9ectual means. 'emphasis supplied(
=nterestingly, in the recent case of Gemma T.
Jacinto vs. People of the Philippines, G.R. ;o.
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B<4HF5, Culy BI, 455J, the 3upreme -ourt found
an accused guilty of an impossible crime and
sentenced her to six '<( months of arrresto mayor.
2ere, the accused was a collector for a company
called Mega ,oam =nt+l =nc. 'Mega ,oam( and
received a !h!B5,555 chec) as payment from a
Mega ,oam customer. 2owever, instead of
turning over the chec) to Mega ,oam, the accused
too) the chec) and had it deposited into her
brother:in:law+s ban) account. =t turns out the the
chec) was not funded.
#oth the regional trial court and the -ourt of
"ppeals ruled that the accused was guilty of
$uali%ed theft. he 3upreme -ourt modi%ed the
judgment and ruled that the accused was guilty of
an impossible crime. "ccording to the 3upreme
-ourt:
. . . the personal property subject of the theft must
have some value, as the intention of the accused is
to gain from the thing stolen. his is further
bolstered by "rticle I5J, where the law provides
that the penalty to be imposed on the accused is
dependent on the value of the thing stolen.
=n this case, petitioner unlawfully too) the
postdated chec) belonging to Mega ,oam, but the
same was apparently without value, as it was
subse$uently dishonored. hus, the $uestion
arises on whether the crime of $uali%ed theft was
actually produced.
he -ourt must resolve the issue in the negative.
Intod v. Court of Appeals is highly instructive and
applicable to the present case. =n Intod, the
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accused, intending to )ill a person, peppered the
latter+s bedroom with bullets, but since the
intended victim was not home at the time, no
harm came to him. he trial court and the -" held
=ntod guilty of attempted murder. #ut upon review
by this -ourt, he was adjudged guilty only of an
impossible crime as de%ned and penali1ed in
paragraph 4, "rticle F, in relation to "rticle HJ,
both of the Revised !enal -ode, because of the
factual impossibility of producing the crime. . .
. . . the re$uisites of an impossible crime are: 'B(
that the act performed would be an o9ense
against persons or property* '4( that the act was
done with evil intent* and 'I( that its
accomplishment was inherently impossible, or the
means employed was either inade$uate or
ine9ectual. he aspect of the inherent
impossibility of accomplishing the intended crime
under "rticle F'4( of the Revised !enal -ode was
further explained by the -ourt in =ntod in this wise
. . .
=n Intod, the -ourt went on to give an example of
an o9ense that involved factual impossibility, i.e.,
a man puts his hand in the coat poc)et of another
with the intention to steal the latter+s wallet, but
gets nothing since the poc)et is empty.
2erein petitioner+s case is closely a)in to the
above example of factual impossibility given in
=ntod. =n this case, petitioner performed all the
acts to consummate the crime of $uali%ed theft,
which is a crime against property. !etitioner+s evil
intent cannot be denied, as the mere act of
unlawfully ta)ing the chec) meant for Mega ,oam
showed her intent to gain or be unjustly enriched.
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>ere it not for the fact that the chec) bounced,
she would have received the face value thereof,
which was not rightfully hers. herefore, it was
only due to the extraneous circumstance of the
chec) being unfunded, a fact un)nown to
petitioner at the time, that prevented the crime
from being produced. he thing unlawfully ta)en
by petitioner turned out to be absolutely
worthless, because the chec) was eventually
dishonored, and Mega ,oam had received the cash
to replace the value of said dishonored chec).
Going bac) to -3=:;K, a person who tries to
murder a dead person is guilty of an impossible
crime 'see People vs. Balmores, LH !hil. FJI, FJ<
'BJH5(. =n his boo), Custice Reyes writes:
" %red at #, who was lying on bed, not
)nowing that # was dead hours before. =n
crime against persons, as would have been in
this case, it is necessary that the victim could
be injured or )illed. " dead person cannot be
injured or )illed. 2ad # been alive when he
was shot, and as a conse$uence he died, the
crime committed by " would have been
murder, a crime against persons.8 'Reyes, =
Revised !enal -ode, p. L< M455LN(
One of the re$uisites of an impossible crime is that
?the act was done with evil intent8. =n -3=:;K, the
father had the evil intent of injuringE)illing the
daughter+s boyfriend but did not have the evil
intent of )illing a commuter. >as the father guilty
of an impossible crime@
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