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Republic of the Philippines


G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner, vs.

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City
alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and
other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was
culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na
kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano
ang gagawin ko sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)
CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang
babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung
kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your
own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nagaaply alam kong hindi ka papasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, pero hindi ka papasa.

CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo ESG

Kukunin ka kasi ako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo
ba makukuha ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano
ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo
ang mga magulang ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka
puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka
makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin,
dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas
ka na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City
for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related
violations of private communication, and other purposes." An information charging petitioner of violation of the
said Act, dated October 6, 1988 is quoted herewith:
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act
No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record
the latter's conversation with said accused, did then and there willfully, unlawfully
and feloniously, with the use of a tape recorder secretly record the said
conversation and thereafter communicate in writing the contents of the said
recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the
facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the
trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an
offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a personother than a participant to the communication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court,
which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19,
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's
order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In
thus quashing the information based on the ground that the facts alleged do not constitute an
offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act
4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She
contends that the provision merely refers to the unauthorized taping of a private conversation by a party other
than those involved in the communication.8 In relation to this, petitioner avers that the substance or content of
the conversation must be alleged in the Information, otherwise the facts charged would not constitute a
violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and that consequently, her act of secretly taping her conversation
with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute
is clear and unambiguous, the law is applied according to its express terms, and interpretation would be
resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an
injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of
Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie
or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the
parties to any private communication to secretly record such communication by means of a tape recorder. The
law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other
than or different from those involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his
private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tanada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not
appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties
but by some parties and involved not criminal cases that would be mentioned under section 3
but would cover, for example civil cases or special proceedings whereby a recording is made
not necessarily by all the parties but perhaps by some in an effort to show the intent of the
parties because the actuation of the parties prior, simultaneous even subsequent to the contract
or the act may be indicative of their intention. Suppose there is such a recording, would you say,
Your Honor, that the intention is to cover it within the purview of this bill or outside?
Senator Tanada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as
evidence to be used in Civil Cases or special proceedings?
Senator Tanada: That is right. This is a complete ban on tape recorded conversations taken
without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tanada: I believe it is reasonable because it is not sporting to record the observation of
one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If
the purpose; Your honor, is to record the intention of the parties. I believe that all the parties
should know that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tanada: Well no. For example, I was to say that in meetings of the board of directors
where a tape recording is taken, there is no objection to this if all the parties know. It is but fair
that the people whose remarks and observations are being made should know that the
observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tanada: That is why when we take statements of persons, we say: "Please be informed
that whatever you say here may be used against you." That is fairness and that is what we
demand. Now, in spite of that warning, he makes damaging statements against his own interest,
well, he cannot complain any more. But if you are going to take a recording of the observations
and remarks of a person without him knowing that it is being taped or recorded, without him
knowing that what is being recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now
worded, if a party secretly records a public speech, he would be penalized under Section 1?
Because the speech is public, but the recording is done secretly.
Senator Tanada: Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person not between a speaker and a
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from
the Congressional Record, therefore plainly supports the view held by the respondent court that the provision
seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one
does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same
need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by means of the devices enumerated therein.
The mere allegation that an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed
out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can
be regarded as a violator, the nature of the conversation, as well as its communication to a third person should
be professed."14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not
include "private conversations" narrows the ordinary meaning of the word "communication" to a point of
absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In
its ordinary signification, communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or
thoughts are shared between individuals through a common system of symbols (as language signs or
gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive

communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts
about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the
fact that the terms "conversation" and "communication" were interchangeably used by Senator Tanada in his
Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being
overheard. But this statement ignores the usual nature of conversations as well the undeniable
fact that most, if not all, civilized people have some aspects of their lives they do not wish to
expose. Freeconversations are often characterized by exaggerations, obscenity, agreeable
falsehoods, and the expression of anti-social desires of views not intended to be taken seriously.
The right to the privacy of communication, among others, has expressly been assured by our
Constitution. Needless to state here, the framers of our Constitution must have recognized the
nature of conversations between individuals and the significance of man's spiritual nature, of his
feelings and of his intellect. They must have known that part of the pleasures and satisfactions
of life are to be found in the unaudited, and free exchange of communication between
individuals free from every unjustifiable intrusion by whatever
means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we
held that the use of a telephone extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension devise was neither among those
"device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be
construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable
facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself
explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as
among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with
no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
Padilla, Davide, Jr. and Bellosillo JJ., concur.
Hermosisima, Jr., J., is on leave.

Republic of the Philippines


G.R. No. 101215 July 30, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
ALFREDO SALVADOR, ET AL., * accused, ALFREDO SALVADOR, accused-appellant.
The Solicitor General for plaintiff-appellee.
Froilan L. Valdez for accused-appellant.

Appellant Alfredo Salvador an co-accused Joey Adap, Augusto Alimurong, Jimmy Agustin and Armin Aladdin
were charged before the Regional Trial Court, Fourth Judicial Region, Branch 23, Trece Martires City with the
crime of Murder in an information allegedly committed as follows:
That on or about October 14, 1984, in the Municipality of Gen. Trias, Province of Cavite,
Philippines and within the jurisdiction of this Honorable Court, the aforesaid accused, conspiring
together, acting jointly and assisting one another, with intent to kill, with treachery and evident
premeditation, did then and there, wilfully, unlawfully and feloniously, assault and attack Orlando
Grepo with the use of a piece of wood commonly known as "dos por dos", hallow (sic) block, fist
and foot blows causing the victim to suffer injuries on his head and other parts of his body,
resulting to his death, to the damage and prejudice of the heirs of Orlando Grepo.
The aggravating circumstances of nighttime and abuse of superior strength were present in the
commission of the offense.
Only Alfredo Salvador was apprehended by the Cavite INP Command while his co-accused have remained at
large (Ibid., p. 34). Upon arraignment, Salvador pleaded not quilty to the offense charged. After trial, judgment
was rendered convicting appellant Salvador, the decretal portion of which reads:
WHEREFORE, this court finds accused Alfredo Salvador GUILTY beyond reasonable doubt of
the crime of Murder and sentences him to suffer the penalty of Life imprisonment; to indemnify
the heirs of Orlando Grepo in the amount of P30.000.00 without subsidiary imprisonment in
case of insolvency; and to pay the costs.
Records disclose that at around 9:30 in the evening of October 14, 1984, prosecution witness Joel Duran was
walking with Alberto Villablanca on their way home from Bahay-Kubo in the town plaza of Gen. Trias, Cavite.
Along Prinza Street, they saw from a distance of about six meters, Orlando Grepo being mauled by five
persons. Through the light of the electric lamp post and the vehicles passing by, Joel recognized these
assailants as Joey Adap, Alfredo Salvador, Jimmy Agustin, Augusto Alimurong and Armin Aladdin.
The sheer number of assailants deterred Joel and Alberto from helping their childhood friend Orlando. The five
attackers were boxing Orlando and when he fell with his face to the ground, they kicked him. Then Joey Adap
hit Orlando with a "dos por dos" (piece of wood ) and Alfredo Salvador dropped a hollow block on his back.
Joel and Alberto shouted for help and upon seeing them, the assailants ran away. Councilor Leonardo Gozo,
who responded to Joel's shouts for help, assisted Joel and Alberto in bringing Orlando to the hospital in
Pinagkatipunan (TSN, August 25, 1984, pp. 4-9; 21-23).
Orlando was brought to the Medicare Community Hospital in Gen. Trias where Dr. Charito Maldos Gozo
attended to him. Dr. Gozo found him to be a "walking patient" but aside from his bruises and contusions,

Orlando was complaining of a headache (TSN, January 29, 1987, pp. 4; 8-13). In the medical certificate she
issued on October 15, 1984, Dr. Gozo stated that 17-year-old Orlando Grepo had contusion, hematoma and
abrasion on the 4th intercostal lateral side left, another contusion on the right temporal parietal area and a third
contusion and hematoma on the occipital region. Dr. Gozo diagnosed that the healing period for these injuries
would last from nine to fourteen days "barring complications" (Exh. F). A neighbor of Orlando, Dr. Gozo knew
that during the two-week period after she treated him Orlando was complaining of severe headache and "off
and on" fever (TSN. January 29, 1987, p.13).
On November 4, 1984, Grepo was brought to the clinic of Dr. Jocelyn Tirol Dignos in Rosario, Cavite. Grepo
was perspiring a lot and had
cold, clammy skin specially on his left extremities. He had rolling eyeballs and was in an unconcious shock-like
state. Since he had high-grade fever running to 42.2 degrees Centigrade, he stayed in Dr. Dignos' clinic for only
two hours (TSN, September 26, 1986, p.5). In the medical certificate she issued, Dr. Dignos also stated that
Grepo had convulsive seizures and that he had "meningo-encephalities of undetermined origin" (Exh. D).
According to Dr. Dignos, said diagnosis was actually made by Dr. Ovillo, a specialist to whom she referred as
the victim was showing signs and symptoms of brain damage. Because they were not aware that Orlando had
been a victim of a mauling incident two weeks ago and there was then an epidemic of typhoid fever, they
entertained typhoid as Grepo's possible ailment (TSN September 26, 1986, pp. 7-9). But upon learning of the
mauling incident, they diagnosed Grepo's ailment as "meningo encephalitis secondary to trauma" (Ibid., p. 16).
Moreover, they learned that Dr. Apostol of Gen. Trias, Cavite had given Grepo two grams of chloro ampenicol
per day and therefore, if the ailment was really typhoid. Grepo's fever would have then subsided (Ibid., pp. 1517). They would have conducted more tests but since Grepo had become bluish and had difficulty in breathing,
they decide to have him transferred to the Manila Medical Center (Ibid., p.17) where the victim finally expired on
November 5, 1984 (TSN, April 23, 1987 p.3).
As aforesaid, the trial court rendered a judgment of conviction against Salvador specifically finding him to be
"one of those instrumental in inflicting the fatal wounds which resulted in the death of Orlando Grepo."
Appellant claims that he was with his family at home watching television at the time the mauling incident took
place. His alibi was corroborated by his sister, Edita Santores, who testified that appellant watched TV until
10:00 p.m. and immediately went to bed thereafter.
Previous to his testimony in open court, however, appellant executed an affidavit stating that at around 9:00
o'clock in the evening of October 14, 1984, he was walking from the school with his friend Willy Buclatin when
they saw Orlando Grepo walking with three persons and when they reached Prinza St., there was a melee
("bigla na lamang nagkagulo").
The Court is therefore presented with two contradictory statements of the accused. One involving alibi and the
other which is practically denial.
Aggrieved by the decision, Salvador interposed this appeal making the following assignments of errors:
A finding of sufficiency of the evidence to establish guilt by proof beyond reasonable doubt is one fact. As such,
its review by the appellate court must be guided by the principle that, unless arbitrary or without sufficient basis,
the findings of the trial court on question of fact are accorded the highest respect on appeal if not regarded as
conclusive (People vs. Alitao, 194 SCRA 120 [1991]; People vs. Millarpe, 134 SCRA 555 [1985]; People vs.
Lopez, 132 SCRA 188 [1984]. In the same manner, the credibility of witnesses is the province of the trial court
who is in a better position to examine real evidence as well as observe the demeanor of the witnesses (People
vs. Lardizabal, 204 SCRA 320 [1991]; People vs. Vinas, 202 SCRA 720 [1991]). After a review of the records,
We find no reason to depart from these principles in the instant appeal.
Anchored on denial and alibi, the defense had not overcome the prosecution's solid proof beyond reasonable
doubt of appellant's complicity in the fatal mauling of Orlando Grepo. In the first place, the defense had not
shown that it was physically impossible for Salvador to be at the scene of the crime at the time it was

committed (People vs. Bicog. 187 SCRA 556 [1990]; People vs. Pio Cantuba, 183 SCRA 289 [1990]; People
vs. Tamayo, 183 SCRA 375 [1990]; People vs. Andres, 155 SCRA 290 [1987]; People vs. Ornoza, 151 SCRA
495 [1987]; People vs. Tuando, 150 SCRA 8 [1987]); People vs. Petil, 149 SCRA 92 [1987]. While Salvador
was on the witness stand, the defense counsel understandably did not ask him about the distance of the scene
of the crime from the Salvador residence where he was allegedly watching TV. Neither had the prosecution
ferreted this information from Salvador on cross-examination. For her part, all that Editha Santores could say
was that the scene of the crime was "far from us" when asked by the prosecution if the distance between the
two places was about fifty meters (TSN, September 30, 1987, p.12). Considering, however, that appellant
Salvador was himself a resident of Prinza St. (TSN, August 28, 1987, p.2) where the crime occurred, his alibi
must fail. Alibi is unconvincing when the distance from the place where the accused was and the scene of the
crime can be negotiated within minutes (People vs. Marmita, Jr., 180 SCRA 723 [1989]).
But what sealed appellant's conviction is the fact that he was recognized by Joel Duran as one of the five
persons who ganged up on Grepo. Denial and alibi cannot prevail over the prosecution witness' positive
identification of the accused as a perpetrator of the crime (Collado vs. IAC, 206 SCRA 207 [1992]; People vs.
Bocatcat, SR., 188 SCRA 175 [1990]; People vs. Cirilo, Jr., 156 SCRA 397 [1987]; People vs. Danes, 131
SCRA 286 [1984]; People vs. Cortez, 57 SCRA 308 [1974]; People vs. Esmael, 37 SCRA 601 [1971]). Worth
nothing is the fact that the defense did not even try to discredit prosecution witness Joel Duran whose
damaging testimony was the principal foundation of the prosecution theory. Unsullied, Duran's testimony must
therefore be given its due weight and credit.
However, one other aspect of the crime which the defense, even in the instant appeal, has failed to argue in
favor of appellant is the fact that the appellant had been charged with and convicted of, the crime of murder for
the killing of Orlando Grepo. Art. 248 of the Revised Penal Code provides that to be liable for murder, an
accused must be proven to have committed the killing of another person under the attendant circumstances
specified therein. Of these circumstances, the information alleges treachery and evident premeditation to
qualify the killing to murder.
It is unfortunate that the trial court failed to discuss the presence or absence of these qualifying circumstances.
However, from the evidence on record, treachery cannot be appreciated. Sole eyewitness Joel Duran testified
that while he and Alberto Villablanca were walking along Prinza Street, they saw Grepo being mauled by five
persons. While Duran may have witnessed the incident in progress, he did not testify as to how it began. As the
Court held in People vs. Tiozon (198 SCRA 368 [1991]), treachery cannot be considered where the lone
witness did not see the commencement of the assault. The importance of such testimony cannot be
overemphasized considering that treachery cannot be presumed nor established from mere suppositions.
In the same manner, evident premeditation cannot be appreciated to qualify the killing to murder in the absence
of direct evidenct of the planning and preparation to kill or when the plan was conceived (People vs.
Wenceslao, 212 SCRA 560 [1992]). Thus, in the absence of any qualifying circumstance, the crime committed
is homicide under Art 249 of the Revised Penal Code and not murder.
As to aggravating circumstances, the information alleges nighttime and abuse of superior strength. To be
appreciated as an aggravating circumstance, there must be a convincing showing that the accused had
purposely sought nighttime in order to facilitate the commission of the crime or to prevent its discovery or to
evade the culprit's capture (People vs. Rodriguez, 193 SCRA 231 [1991]). There is, however, no proof at all,
much more a convincing one, to warrant appreciation of nighttime as an aggravating circumstance.
Abuse of superior strength, a qualifying circumstance in murder, was alleged in the information as an
aggravating circumstance only. ** Mere numerical superiority does not always mean abuse of superiority to
qualify the killing to murder.
Appellant is liable for the crime even if he had not intended to kill Orlando Grepo. This is because he
participated in the concerted effort of mauling the victim, which was proven beyond reasonable doubt, in
furtherance of a common design to inflict physical harm on Grepo. But where the attack commenced, the fact
there are four assailants would constitute abuse of superiority (Aquino, The Revised Penal Code, Vol. I, 1987
ed., p. 377, citing, among others, U.S. vs. Banagale, 24 Phil. 69 [1913]). Thus, the homicide committed in this
case is attended by the aggravating circumstance of abuse of superiority as five persons mauled the unarmed
and defenseless victim Orlando Grepo (People vs. Ocimar, 212 SCRA 646 [1992]).
Art. 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person committing a
felony (delito) although the wrongful act done be different from that which he intended." The essential requisites
of Art. 4 are: (a) that an intentional felony has been committed, and (b) that the wrong done to the aggrieved
party be the direct, natural and logical consequence of the felony committed by the offender (People vs. Iligan,
191 SCRA 643, 651 [1990] citing People vs. Mananquil, 132 SCRA 196, 207 [1984]). All these requisites are
present in this case. The intentional felony was the mauling of Grepo and, in the case of appellant, his dropping
of the hollow block on the fallen and hapless victim. The latter's death had been the
direct, natural and logical consequence of the felony as shown by the evidence provided by the doctors who

testified for the prosecution.

Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. In view of the
presence of the aggravating circumstance of abuse of superior strength, which is not offset by any mitigating
circumstance, the penalty shall be imposed in its maximum period (Art. 64 (3), Revised Penal Code).
Parenthetically, the lower court erroneously imposed the penalty of "life imprisonment" for murder. The proper
penalty for murder under Art. 248 is reclusion perpetua and not "life imprisonment." The need to apply the
correct penalty is dictated by the fact that in appropriate cases, a penalty under the Revised Penal Code carries
with it accessory penalties (See: People vs. Cruda, 212 SCRA 125 [1992]).
Hence, the appropriate penalty prescribed by law for the crime of homicide in the case at bar is the maximum
period of reclusion temporal which is 17 years, 4 months and 1 day to 20 years. Applying the Indeterminate
Sentence Law, the imposable penalty is ten (10) years and one (1) day of prision mayor maximum as minimum,
to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum.
Wherefore, the decision appealed from is hereby MODIFIED to the extent that appellant Alfredo Salvador is
hereby declared guilty of the crime of homicide and is hereby ordered to suffer the indeterminate sentence of
ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one
(1) day of reclusion temporal as maximum. The civil indemnity is hereby increased to P50,000.00 in line with
current jurisprudence.

Republic of the Philippines


G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner, vs.


Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto
the judgment of the Regional T rial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of
attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to
the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a
land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all
armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another
City and her home was then occupied by her son-in-law and his family. No one was in the room when the
accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five
men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan
and we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this
Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of
the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. 1n7 Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment or on account of the employment
of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions
riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead,
the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged
that there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old
Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the person
conceiving the idea should have set about doing the deed, employing appropriate means in
order that his intent might become a reality, and finally, that the result or end contemplated shall
have been physically possible. So long as these conditions were not present, the law and the
courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove inadequate, would constitute a felony
against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property
because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.



Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in
the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with
intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however,
that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was,
and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled
principle of criminal law in this country that where the criminal result of an attempt is not
accomplished simply because of an obstruction in the way of the thing to be operated upon, and
these facts are unknown to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because
the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder.
The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by
reason of the extraneous circumstance that Lane did not go that way; and further, that he was
arrested and prevented from committing the murder. This rule of the law has application only
where it is inherently impossible to commit the crime. It has no application to a case where it
becomes impossible for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in
short it has no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing
to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent,
no one can seriously doubt that the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the pocket, etc., what was supposed to
exist was really present or not. The community suffers from the mere alarm of crime. Again:
Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be carried out, the incipient act

which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter
was inside. However, at that moment, the victim was in another part of the house. The court convicted the
accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court
sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to
resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the
concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made
the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding
this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have
been committed had the circumstances been as the defendant believed them to be, it is no
defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an
attempt. In U.S. vs.Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of
prison. The law governing the matter made the act criminal if done without knowledge and consent of the
warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the
act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and
consent. The lower court held the accused liable for attempt but the appellate court reversed. It held
unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal
attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not
contain such provision, and thus, following the principle of legality, no person could be criminally liable for an
act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes
the offense of attempt irrespective of legal impossibility until such time as such legislative
changes in the law take place, this court will not fashion a new non-statutory law of criminal
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the
substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized,
not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is
legally impossible of accomplishment, the actor cannot be held liable for any crime 17 neither for an attempt
not for an impossible crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge 17 that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the
phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction
between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere
The factual situation in the case at bar present a physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient
to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in
Article 4, which makes a person criminally liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances
which prevented the consummation of the offense will be treated as an accident independent of the actor's will
which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court
of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty
of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court
sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties
provided by the law, and to pay the costs.

Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.

Republic of the Philippines

G.R. No. 166326

January 25, 2006


This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming,
with modification, the Decision2 of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No.
6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and
Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of Dasmarinas, Province of Cavite, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill, with treachery and evident premeditation, did then and there,
wilfully, unlawfully, and feloniously attack, assault and hit with a piece of hollow block, one RUBEN RODIL who
thereby sustained a non-mortal injury on his head and on the different parts of his body, the accused thus
commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution
which would produce the crime of Murder by reason of some causes other than their own spontaneous
desistance, that is, the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen,
to his damage and prejudice.
Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would-be
rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the television network ABSCBN for saving the would-be victim. His wife eked out a living as a manicurist. They and their three children
resided in Barangay San Isidro Labrador II, Dasmarinas, Cavite, near the house of Esmeraldo Rivera and his
brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and
dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated
exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife. His
three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo,
emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and
he fell to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal
area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted: "Awatin sila!
Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back.
When policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical
certificate in which he declared that Ruben sustained lacerated wounds on the parietal area, cerebral
concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the left shoulder and
hematoma periorbital left.4 The doctor declared that the lacerated wound in the parietal area was slight and
superficial and would heal from one to seven days.5 The doctor prescribed medicine for Rubens back pain,
which he had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate.
Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to
Ruben, the latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and
pushed Ruben aside. His wife arrived, and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him

by the hair. He managed to free himself from Ruben and the latter fled. He went home afterwards. He did not
see his brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house.
Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and ordered him
to get out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and
asked Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben
aside. Ruben fell to the ground. When he stood up, he pulled at Edgardos shirt and hair, and, in the process,
Rubens head hit the lamp post.7
On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt
of frustrated murder. The dispositive portion of the decision reads:
WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are
sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the
prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused are to
pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00.
The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused
appealed to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed
decision. The dispositive portion of the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the
appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years
ofprision correccional as minimum to 6 years and 1 day of prision mayor as maximum. In all other respects, the
decision appealed from is AFFIRMED.
The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in
affirming the RTC decision. They insist that the prosecution failed to prove that they had the intention to kill
Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr.
Cagingin, Ruben sustained only a superficial wound in the parietal area; hence, they should be held criminally
liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed to prove
treachery; hence, they should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind
of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me
thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his
head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact
that the (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the
ground; that one of them even picked up a cement hollow block and proceeded to hit the victim on the head
with it three times; and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by
petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent to kill is
very evident and was established beyond reasonable doubt.

Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim
Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera.
They further narrated that, soon thereafter, his two brothers Ismael and Edgardo "Dagul" Rivera, coming from
St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo
"Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their
testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim
did not even have the slightest warning of the danger that lay ahead as he was carrying his three-year old
daughter. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera and the simultaneous attack of
the two other petitioners. It was also established that the victim was hit by Edgardo "Dagul" Rivera, while he
was lying on the ground and being mauled by the other petitioners. Petitioners could have killed the victim had
he not managed to escape and had the police not promptly intervened.
Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not
life threatening. The nature of the injury does not negate the intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his
head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact
that the three (3) brothers helped each other maul the defenseless victim, and even after he had already fallen
to the ground; that one of them picked up a cement hollow block and proceeded to hit the victim on the head
with it three times; and that it was only the arrival of the policemen that made the appellants desist from their
concerted act of trying to kill Ruben Rodil.11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is
intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent
to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general
criminal intent is presumed from the commission of a felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes against persons may
consist,inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained
by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the
circumstances under which the crime was committed and the motives of the accused. If the victim dies as a
result of a deliberate act of the malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of
petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the
ground, unable to defend himself against the sudden and sustained assault of petitioners, Edgardo hit him
three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed to hit the
victim only in the parietal area, resulting in a lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely superficial and could not have produced his death
does not negate petitioners criminal liability for attempted murder. Even if Edgardo did not hit the victim
squarely on the head, petitioners are still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus:
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.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offenders 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
The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.14
The Court in People v. Lizada15 elaborated on the concept of an overt or external act, thus:
An overt or external act is 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. The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts
of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent.
It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has
been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate
step towards the consummation of the design. 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." The act done need
not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.16
In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim
and hitting him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If
Edgardo had done so, Ruben would surely have died.
We reject petitioners contention that the prosecution failed to prove treachery in the commission of the felony.
Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-yearold daughter, impervious of the imminent peril to his life. He had no chance to defend himself and retaliate. He
was overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden
and unexpected attack on the victim.17 Even if the attack is frontal but is sudden and unexpected, giving no
opportunity for the victim to repel it or defend himself, there would be treachery.18 Obviously, petitioners
assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. There
being conspiracy by and among petitioners, treachery is considered against all of them.19
The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision
correccional in its minimum period, as minimum, to six years and one day of prision mayor in its maximum
period, as maximum. This is erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic
Act No. 7659, the penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of
attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised
Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty
is prision mayor. In the absence of any modifying circumstance in the commission of the felony (other than the
qualifying circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the
medium period of prision mayorwhich has a range of from eight (8) years and one (1) day to ten (10) years. To
determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced by one
degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision
correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its
medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of
Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and
four (4) months of prision mayor in its medium period, as maximum. No costs.
Associate Justice

Republic of the Philippines

G. R. No. 160188

June 21, 2007


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.
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 wellknown "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 P12,090.00.9
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 prosecutors office where he was charged with
theft.14 During petitioners 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 Calderons 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 petitioners
conviction.22 Hence the present Petition for Review,23 which expressly seeks that petitioners 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 P12,090.00 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.
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. Dino27 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
It is not necessary to fault the Court of Appeals for giving short shrift to the Dino 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, Dino 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 Dino 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 Dino and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft
further validates that Dino 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.
To delve into any extended analysis of Dino 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
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 latters 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
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 latters 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
[accuseds] 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 Dino and Flores decisions.
Dino 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
Dino 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 [Dino]."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 Dino, 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 Dino and Flores then
before it. The prosecution in Flores had sought to distinguish that case from Dino, 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 Dino 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 Dino 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 Dino
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 Viadas 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 Dino 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 Dino,
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 Dino 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.
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 Courts 1984 decision in Empelis v.
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 Dino, 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
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.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espana 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 animo de lucrarse, y sin volencia o intimidacion en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueno.
2. Los que encontrandose una cosa perdida y sabiendo quien es su dueno se la apropriaren co intencion de
3. Los danadores que sustrajeren o utilizaren los frutos u objeto del dano causado, salvo los casos previstos en
los articulos 606, num. 1.0; 607, nums, 1.0, 2.0 y 3.0; 608, num. 1.0; 611; 613; Segundo parrafo del 617 y
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 Espanol de 1995, the crime of theft is now simply defined as "[e]l que, con animo de
tomare las cosas muebles ajenas sin la voluntad de su dueno sera 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 Espana. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dino 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, viendose sorprendido, la arroja al suelo."83 Even as the answer was as stated in
Dino, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual
predicate occasioning the statement was apparently very different from Dino, 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
Calon pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustration cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del
carro que los conducia a otro que tenian preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervention de la policia situada en el local donde se realizo la sustraccion que impidio pudieran los reos
disponer de lo sustraido, 30 de octubre 1950. Hay "por lo menos" frustration, si existe apoderamiento, pero el
culpale no llega a disponer de la cosa, 12 abril 1930; hay frustration "muy proxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustraccion, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustration 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, estos, conforme a lo antes expuesto, son hurtos consumados.86

Ultimately, Cuello Calon 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 disposition del agente. Con este criterio coincide la doctrina sentada ultimamente porla jurisprudencia
espanola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y
esta quede por tiempo mas o menos duradero bajo su poder. El hecho de que este pueda aprovecharse o no
de lo hurtado es indiferente. El delito no pierde su caracter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la frustration, pues es muy dificil que el que hace
cuanto es necesario para la consumacion del hurto no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis
Cuello Calons submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the
Spanish Supreme Court decisions on the matter, Cuello Calon 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 consumacion 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 Dino 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 Calons 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 Dino 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.
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 Dino/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 latters consent. While the Dino/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 Aquinos 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
effectedanimo 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 ones 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 Dino 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 Dino?
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 Dino/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. Dino itself did not rely on Philippine laws or jurisprudence to bolster its conclusion,
and the later Flores was ultimately content in relying on Dino 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 Dino 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.
Associate Justice