Attempted felony

Par. 2, Art. 6 - Attempted Felony, to wit:

"There is an attempt when the offender commences the commission of the felony directly by
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 his own spontaneous desistance."

1. People v. Lizada, G.R. Nos. 143468-71. Jan. 24, 2003

PETITIONER: People, petitioner, and Analia ORILLOSA y Agoo, private complainant

RESPONDENT: Freddie/Fredie LIZADA, accused-appellant

FACTS: Four cases were filed by private complainant ANALIA and her mother against
accused-appellant LIZADA, common-law husband of ANALIA's mother, for the crime of
qualified rape. The RTC of Manila ruled that LIZADA is guilty beyond reasonable of four
counts of qualified rape on four separate occasions (i.e., Aug. 1998; Nov. 5, 1998; Oct.
22, 1998; and Sept. 15, 1998).

LIZADA filed for appeal with the CA, stating that the trial court erred in deciding that
the former was guilty beyond reasonable doubt. First, LIZADA argued that RTC Manila
erred in not making a finding of fact in its decision, and that RTC Manila erred in
convicting him despite failure of the prosecution to prove his guilt beyond reasonable
doubt.

Hence, this petition in the SC.

ISSUE/S:
PRIMARY ISSUE
1. W/N LIZADA is guilty of consummated rape in all four cases. (NO)

SECONDARY ISSUES
1. W/N RTC Manila gravely erred in not making a finding of fact in its decision and such
failure is a reversible error (YES); and
2. W/N RTC Manila gravely erred in convicting LIZADA of four (4) counts of rape despite
failure of the prosecution to prove his guilt beyond reasonable doubt. (YES)

HELD:

For the secondary issues, first, LIZADA was correct in stating that RTC Manila erred in
finding the trial court did not fulfill its mandate by merely reproducing the respective
testimonies of witnesses of both parties and come out with its decretal decision.

Secondly, RTC Manila erred in convicting LIZADA of the four (4) counts of qualified rape
because the Information filed against LIZADA failed to state the qualifying
circumstances (i.e., ANALIA's minority at the time of offense, and LIZADA's relationship
to ANALIA) per the Rules on Criminal Procedure. Hence, only making him guilty of
simple rape as provided in the RPC.

Lastly, for the main issue, anent the previous decision LIZADA is guilty of only three (3)
counts of simple rape, and one (1) attempted rape. The latter case stems from the fact
as established by the Court, that LIZADA failed to consummate the act of rape due to
 ANALIA's brother, ROSSEL, having spotted LIZADA on top of his sister. To which, LIZADA
dismounted ANALIA to berate ROSSEL.

LIZADA is guilty of three (3) counts of simple rape, and one (1) count of attempted
rape.

HIGHLIGHTED PRINCIPLE/S:
Attempted Felony, essential elements:
1. The offender commences the commission of the felony by over acts; (two elements)
i. There be external acts; and
ii. Such external acts have direct connection with the crime intended to be
committed.
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than
his spontaneous desistance.
Overt or external acts
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 spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.

Overt or external acts; raison d'etere

The conduct of the accused consisting merely of acts of preparation has never ceased
to be equivocal;
o Necessary that the overt act should have been the ultimate step towards the
consummation of the design.
o It is sufficient if it was the "first or some subsequent step in a direct movement
towards the commission of the offense after the preparations are made."
o It is necessary that the attempt must have a causal relation to the intended crime.
o In essence, the over acts must have an immediate and necessary relation to the
offense.

Preparatory acts constituting an attempted felony

"There is persuasive authority 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)."

Spontaneous desistance; defined

"If the malefactor does not perform all acts of execution by reason of his spontaneous
desistance, he is not guilty of an attempted felony. The law does not punish him for his
attempt to commit a felony."

Nevertheless, "[i]t 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."

Spontaneous desistance; for acquittal; raison d'etre

Viada, as elaborated by Wharton: "First, the character of an attempt is lost when its
 execution is voluntarily abandoned… Secondly, the policy of the law requires that the
offender… by saving him harmless in case of such retreat before it is possible for any
evil consequences to ensue. Neither society, nor any private person, has been injured
by his act. There is no damage, therefore, to redress. To punish him after retreat and
abandonment would be to destroy the motive for retreat and abandonment."

2. People v. Lamahang, G.R. No. 43530. Aug. 3, 1935

PETITIONER: People, petitioner, and Tan YU, private complainant

RESPONDENT: Aurelio LAMAHANG, respondent

FACTS: Respondent LAMAHANG was convicted in the Court of First Instance of Iloilo,
finding him guilty of attempted robbery. Policeman Jose TOMAMBING caught
LAMAHANG opening, with an iron bar, the wall of a store owned by YU. LAMAHANG
succeeded in breaking one board when the TOMAMBING placed him under custody.
The provincial fiscal, the trial judge and the Solicitor-General unanimously considered
and declared that LAMAHANG is guilty of attempted robbery.

The case was appealed until it reached the SC.

ISSUE/S: W/N LAMAHANG is guilty of attempted robbery. (NO)

HELD: NO. The SC held that the previous decision was erroneous due to the following
reasons:
1. The overt acts committed by LAMAHANG did not necessarily inferred that his
intention was to rob YU; and
2. The records do not show the purpose of the accused was to rob YU, nor that may be
inferred as such.

The SC elucidated that since LAMAHANG's attempted actions were indeterminate as to

which offense the latter was attempting to commit, the latter cannot be convicted of
robbery. However, his attempt to break inside the store of YU constitutes an attempt
to trespass the dwelling of the private complainant.

LAMAHANG is guilty of attempted trespass to dwelling.

HIGHLIGHTED PRINCIPLE/S:
Attempted felony; attempt vs. preparatory acts
"The relation existing between the facts submitted for appreciation and the offence
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
instance of injustice, that the mind be able to cause a particular injury."

Over acts
Viada: "The over acts leading to the commission of the offense are not punishable,
except when they are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."

Attempt to commit and indeterminate crime

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.
Frustrated felony

3. People v. Orita, G.R. No. 88724. Apr. 3, 1990

PETITIONER: People, petitioner, and Cristina S. ABAYAN, private complainant

RESPONDENT: Ceilito ORITA, respondent

FACTS: ABAYAN was held at knifepoint by ORITA after coming home from a party.
ABAYAN was able to escape ORITA when the latter was not able to fully penetrate the
former. ABAYAN ran naked to the municipal hall where she was assisted by Pat.
DONCERAS, and later physically examined by Dr. ABUDE. ABUDE found that ABAYAN's
vulva was erythematous (reddish) and tender. Also, ABUDE found abrasion, lacerations,
and pinpoint marks on ABAYAN's body.

RTC Borongan convicted ORITA with the crime of frustrated rape, because it was found
that the latter did not fully penetrate ABAYAN.

ORITA appealed to the CA, which the appellant court finding him guilty of rape.
However, issued a resolution setting aside its decision and forwarded the case to the
SC.

ISSUE/S:
PRIMARY ISSUE
1. W/N RTC Borongan erred in finding ORITA guilty of frustrated rape. (YES)
SECONDARY ISSUE
1. W/N RTC Borongan erred in disregarding substantial inconsistencies in the
testimonies of the witnesses. (NO)

HELD: The SC held that RTC Borongan erred in convicting ORITA of frustrated rape. RTC
Borongan was of the belief that there is no conclusive evidence of penetration, thus
their conclusion. However, the SC stated that any penetration of the male organ into
the victim's vagina, no matter how small, constitutes the commission of the crime of
rape. Moreover, evidence and testimonies sufficiently point that ABAYAN's sexual
organs have indeed experienced trauma due to ORITA's overt acts against her.

ORITA is guilty of the crime of rape.

HIGHLIGHTED PRINCIPLE/S:
Frustrated felony; requisites
1. That the offender has performed all the acts of execution which would produce the
felony, and
2. That the felony is not produced due to causes independent of the perpetrator's will.

Frustrated felony; distinction from attempted felony; essential element

Justice Moreland set a distinction between attempted and frustrated felonies which is
readily understood even by law students:

"A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce the crime."
 Frustrated felony - there is no intervention of a foreign extraneous cause or agency
between the beginning of the commission of the crime and the moment when all of
the acts have been performed which would result in the consummated crime.

Attempted felony - there is such intervention and the offender does not arrive at the
point of performing all of the acts which should produce the crime. The malefactor is
stopped short of that point by some cause apart from his voluntary desistance.

Rape; when consummated

The consummation of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant
conviction.

Arson/Consummated

4. People v. Hernandez, G.R. No. 31770. Dec. 5, 1929

PETITIONER: People, petitioner, and Miguel DAYRIT, private complainant

RESPONDENT: Antonio HERNANDEZ, respondent

FACTS: DAYRIT found the roof of his house on fire, and saw HERNANDEZ on the scene
with a pole. DAYRIT, together with Artemio TANGLAO and Daniel MALLARI, saw
HERNANDEZ and confronted the same together with the barrio lieutenant. Trial court
of MABALACAT found HERNANDEZ guilty of frustrated arson because the damage done
to DAYRIT's house was extensive. Further, HERNANDEZ fled the scene before fulfilling
his intention to burn down DAYRIT's house

ISSUE/S: W/N Trial court of MABALACAT erred in convicting HERNANDEZ of frustrated

arson. (YES)

HELD: The SC held that HERNANDEZ is guilty of arson by the mere fact that the latter
set the roof of DAYRIT's house on fire. The crime of arson is consummated does not
depend on upon the extent of the damage caused.

The SC, however, accepted the Attorney-General's recommendation that HERNANDEZ

conviction deserves to be reviewed by the Executive due to the respondent's advanced
age.

HIGHLIGHTED PRINCIPLE/S:
Arson; when consummated
Arson is consummated once the fire has started. It does not depend upon the extent of
the damage done.

Attempted/Frustrated Theft

5. Valenzuela y Natividad v. People, G.R. No. 160188. Jun. 21, 2007

PETITIONER: Aristotel VALENZUELA y Natividad, petitioner

RESPONDENT: People, respondent

 FACTS: Accused VALENZUELA, together with Jovy CALDERON, were convicted of theft
by the RTC Quezon City. VALENZUELA was caught by security guard Lorenzo LAGO
hailing a cab after the former, together with CALDERON, placed four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent
on an open parking lot in SM North EDSA.

Accused VALENZUELA appealed to the CA, while CALDERON did not. The CA rejected
VALENZUELA's appeal that he should only be charged with frustrated theft because the
latter was not able to dispose the items he absconded from the premises of SM North
EDSA.

ISSUE/S: W/N VALENZUELA, under the circumstances, should be convicted of

frustrated theft. (NO)

HELD: The SC held that VALENZUELA's reliance on People v. Diño and People v. Flores
cannot be sustained in this case. The SC stated that the RPC does not contemplate the
requisite of the offender's ability to dispose of the stolen property.

The elements of theft under Art. 308, RPC, to wit 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 done without the use of violence against or intimidation of
persons or force upon things.

In the case of Diño and Flores, the Court took into account the fact that the thefts were
frustrated due to being caught. Although the possession of said items were in their
vehicle/person, they were not able to freely dispose the same. These rulings cannot
stand, due to the actual taking, no matter momentary, the crime of theft was
consummated.

Petition is DENIED. VALENZUELA is guilty of theft.

HIGHLIGHTED PRINCIPLE/S:
Theft; consummated
Theft is consummated upon the malefactor taking hold of another person's property in
light of the elements of theft in the RPC.

Theft; the ability to freely dispose of said items is not an element

Animo lucrandi, or the act of taking another person's property is the essential element
to the crime of theft. Once the offender has taken hold of the item the crime of theft
has been perfected.

Actus non facit reum nisi mens sit rea

An act does not make a person guilty unless there is a guilty mind.