General Principles in Criminal Law

General Principles
Crime is the commission or omission by a person having capacity, of any
act, which is either prohibited or compelled by law and the commission or
omission of which is punishable by a proceeding brought in the name of the
government whose law has been violated. (Whartons Criminal Law, Vol. 1,
p.11)
If the crime is punished by the Revised Penal Code (RPC), it is called a
felony; if by a special law, it is called an offense; and if by an ordinance, it
is called an infraction of an ordinance.
Distinction:

Felonies (RPC)
Offense (Special Law)
1. Criminal liability is based on 1. It is enough that the prohibited
mens rea or in dolo (deceit) or act was voluntary perpetrated.
culpa (fault).
2. Good faith or lack of criminal 2. Good faith or lack of criminal
intent is a valid defense.
intent is not a defense.
3. Degree of accomplishment are 3. Acts give rise to crime only
considered, i.e., frustrated, etc.
when consummated.
4. Mitigating and aggravating 4.Mitigating
and
aggravating
circumstances
are
taken
into circumstances are not considered.
account in imposing the penalty.
5. Degree of participation is 5. All who perpetrated prohibited
considered, i.e., accomplice, etc.
act are penalized to the same
extent.

Characteristics of Criminal Law:

1. Generality

The statutes must apply to all persons within the country, whether they
reside or sojourn or are merely transients, regardless of nationality, color,
sex, age, social position, and other personal circumstances, except as
provided (a) in public international law, (b) treaty stipulations, and (c) laws of
preferential application.
2. Territoriality

It applies only to offenses committed within the territorial jurisdiction of the

country, except those against who:
a. Should commit an offense while on a Philippine ship or airship.b. Should
forge or counterfeit any coin or currency of the Philippines or obligation and
securities issued by the government of the Philippines.c. Should be liable for
acts connected with the introduction into the country of the obligations and
securities aforestated.d. While being public officers or employees, should
commit an offense in the exercise of their functions.e. Should commit any of
the crimes against the national security and the law of nations, e.g., Treason,
Espionage, Piracy. (Art. 2)
Illustration:

Rody, married to Liza, contracted another marriage with Connie in

Singapore. Thereafter, Rody and Connie returned to the Philippines and lived
as husband and wife in the hometown of Rody in Calamba, Laguna. Can
Rody be prosecuted for bigamy? No, Rody may not be prosecuted for
bigamy since the bigamous marriage was contracted or solemnized in
Singapore, thus, the offense was committed outside the territorial jurisdiction
of our country. Such violation is not one of those where the RPC, under
Article 2 thereof, may be applied extraterritorially. However, Rody and
Connie may be prosecuted for concubinage under Article 334 of the RPC for
having cohabited as husband and wife. (Q12, 1994 Bar)
Jurisdiction over crimes committed on board foreign vessels while in
Philippine waters:

a. If the foreign vessel is a warship, our courts have no jurisdiction as such is

an extension of the country to which it belongs and is not subject to the laws
of another state. (US v. Fowler, 1 Phil. 614)

b. If the foreign vessel is a merchant vessel, there are two rules as to

jurisdiction, namely: (1) French rule is that crimes committed on board are
not triable in our country unless those affect the peace and security of our
country, and (2) English rule is that crimes are triable unless such crimes
affect merely the internal management of the vessel. The English rule is
followed in our jurisdiction.

3. Irretrospectivity or Prospectivity
The law does not have any retroactivity effect, except if it favors the offender
unless if he is a habitual delinquent (Art. 22) or the law otherwise provides.
A judicial decision, although by its nature is prospective in operation may be
given retroactive effect in favor of the offender, since it forms part of the
legal system. (Gumabon v. Dir. of Prisons, 37 SCRA 420)
If a penal law is expressly repealed by another law, the crime is obliterated,
and if there is a pending criminal action at the time of repeal, the same is to
be dismissed. (Ang Beng v. Comm. of Immigration, 9621, Jan. 30, 1957) If
there is merely an implied repeal, the pending criminal action at the time of
the effectivity of the second law impliedly repealing the first law is not
dismissed because the act punished in the first law is still punished in the
second law which impliedly repeal the former. Hence, implied repeals are
also called repeals by re-enactment. (People v. Purisima, 75 OG 4175) When
the law which expressly repeals a prior law is itself repealed, the law first
repealed shall not be thereby revived unless expressly so provided. But
when a law which repeals by implication a prior law is itself repealed, the
repeal of the repealing law revives the prior law unless the repealing law
provides otherwise.
Theories of Criminal Law: (Q1, 1996 Bar)

Classical Theory
Positivist Theory
1. Man is essentially a moral 1. Man is subdued occasionally by
creature with an absolutely free will a
strange
and
morbid
to choose between good and evil. phenomenon which conditions him
to do wrong contrary to his
volition.
2. Basic criminal liability is human 2. Crime is essentially a social and
free will and the purpose of the moral phenomenon and penalty is

penalty is retribution.
imposed for self-defense.
3. Crime is a juridical entity and the 3. Basis of criminal responsibility is
penalty is an evil and a means of his dreadfulness or dangerous
juridical tutelage.
state.

The Revised Penal Code belongs mainly to the Classical Theory.

In Magno v. CA, 96132, June 26, 1992, the Supreme Court, in acquitting the
accused from criminal liability under BP 22 for checks which bounced, has
invoked the Utilitarian theory of Criminal Law (Protective theory) to the
effect that the primary purpose of punishment under criminal law is the
protection of society from actual and potential wrongdoers. Consistent with
this theory, the mala prohibita principle punishing an offense regardless of
malice or criminal intent, should not be utilized to apply the full harshness of
the special law where the noble objective of the law would be tainted with
materialism and opportunism.
There are no common law crimes in our jurisdiction. The rule is: There is no
crime if there is no law punishing it. If there is no law punishing an act or
omission of which a person is charged, the Court must dismiss the case. (Art.
5) In fact, customs are not sources of criminal law.

CRIMINAL LAW 1Criminal Law- is that branch of law which defines crimes,
treats of their nature and provides for their punishment. (12 CYC 129
&Lacson vs. Executive Secretary, 102 SCAD, l999). It is a branch of public law
because it treats of acts or omissions of the citizenswhich are deemed
primarily as wrongs against the State more than against the offended
party.Different branches of laws: Political Law, Mercantile Law, Commercial
Law, Constitutional Law, Civil Law & others.Crimes: Theft (Article 308)committed by any person who, with intent of gain but without violence
against, or intimidation of persons nor force upon things, shall take the
personal property of another without the latters consent. Rape (Article 266-A
( asamended by RA 8353) is committed by a man who shall have carnal
knowledge with a woman : through force, threat or intimidation, x x x .
Punishment Theft depends on the amount of the thing stolen ex. Amt. is
over 200 pesos but does not exceed6,000 penalty is Prision Correccional in
its minimum and medium periods ( 6 mos. and 1 day to 4 yrs.& 2 mos.
Penalty for Rape committed with the use of deadly weapon or by two or
more persons, the penalty is Reclusion Perpetua to Death.What is crime

(Book of Reyes ) is an act committed or omitted in violation of a public law

forbidding or commanding it. Crime is the commission or omission by a
person having capacity, of any act, which is either prohibited or compelled
by law and thecommission or omission of which is punishable by a
proceeding brought in the name of the govt. whose law has been violated.
(Whartons Crim. Law)Crime punished by the Revised Penal Code is called
FELONY.Crime punished by special laws is known as OFFENSE.Crime
punished by an Ordinance is known as INFRACTION.Power to define and
punish an act as a crime- Only the State, through the Legislative Department
where the legislative power isvested. Exception; Chief Executive through an
Executive Order may perform this prerogative in the exercise of emergency
power.This is provided under the l987 Constitution.Sources of Criminal
Laws:1) Revised Penal Code Act 3815 as amended (January 1, l932);2)
Special Penal laws passed by the Philippine Commission, Philippine
Assembly, Congress of the Philippines, and the BatasangPambansa.3)
Presidential Decrees.Characteristics of Criminal law:A) Generality That the
law is binding upon all persons, who reside or sojourn in the Philippines,
irrespective of age, sex, color or personal circumstances.Exceptions:1)
Provided by Public International Law Art. 14 Civil Code & Schneckenburger
vs. Moran 63 Phil. 250) Sovereigns, heads of states, ambassadors,
ministers plenipotentiary, Ministers- resident, charges daffairs and attaches.
As regards consuls and vice-consuls,their exemption will depend upon a
treaty stipulation, except an Honorary Consul.2) Treaty Stipulations; (Ex. PI &
US Military Bases Agreement & Visiting Forces Agreement)RA 75 extends
immunity to the domestic servants of duly accredited ambassadors, if
registered in the DFA, if in the country of theambassadors, also provided
similar protections to duly accredited ambassadors of the Phils.Does
immunity from suit of officers of international bodies include that of
defamation? (Liang vs. People-ll9 SCAD- January2000)- Petitioner is an
economist working with ADB. For allegedly uttering a defamatory words
against his fellow ADB worker, hewas charged before the MeTC w/ 2 counts
of Grave Oral Defamation. The judge received an offer of protocol from the
DFA statingthat Liang is covered by immunity from legal process under Sec.
45 of the Agreement between the ADB and the Phils. Based on said protocol,
the judge without notice to the prosecutiondismissed the case.First courts
cannot blindly adhere and take on its face the communication from the DFA
that petitioner is covered by anyimmunity. The DFAs determination that a
certain person is covered by immunity is only preliminary which has no
binding effects incourts. In receivingEx-parte the DFAs advice and in motu
propio dismissing the cases w/o notice to the prosecution, the latters right to
due process wasviolated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. Mere invocation of theimmunity
clause does not ipso facto result in dropping the chargesSecond Under Sec.
45 of the Agreement, the immunity therein is not absolute but subject to the
exception that the act was done inofficial capacity. Thus the prosecution
should have been given the chance to rebut the DFA protocol and it must be

accorded theopportunity to present its controverting evidence, should it

desires.

Third slandering a person could not possibly be covered by the immunity

agreement, because our laws do not allow the commissionof a crime, such as
defamation, in the name of official duty. This is ultra vires and cannot be part
of official functions. It is a settled principle that a public official may be liable
in his personal capacity for whatever damage he may have caused by his act
done withmalice and in bad faith beyond the scope of his authority or
jurisdiction.Fourth Under the Vienna Convention on Diplomatic Relations, a
diplomatic agent enjoys immunity from criminal prosecution of the receiving
state except in the case of an action relating to any professional or
commercial activity outside of his official functions.As mentioned, the
commission of the crime of defamation is not part of his official duty.3) Laws
of Preferential Applications- Constitution- Ex. Members of Congress are not
liable for Libel or Slander in connection withany speech delivered on the floor
of the house during a regular or special session ( Art. IV, Sec. 11, l987
Constitution)B) Territoriality Article 2, RPC provs. of the RPC shall be
enforced within the Philippine Archipelago, including its atmosphere,interior
waters and maritime zone( before it was 3 miles from the outermost
coastline. But now, under the Archipelagic Doctrineadopted in the new Phil.
Const. and the Conference of the Law on the Sea, this distance is now 12
Nautical Miles from the baselines.Beyond the maritime zone, is the high
seas, which are beyond our territorial jurisdiction. The national territory
comprises thePhilippine Archipelago with all the islands and waters
embraced therein, and all other territories over which the Phils. has
sovereigntyor jurisdiction, consisting of its terrestrial, fluvial and aerial
domains, including its territorial sea, seabed, subsoil insular shelves
andsubmarine areas. The waters Around, Between, and Connecting the
islands of the archipelago regardless of their Breadth andDimensions, form
part of the internal waters of the Philippines (Archipelagic Doctrine- Art. 1,
l987 Constitution).Our criminal law has also an Extra-Territoriality chars.
Article 2, RPC:1) Should commit an offense while on a Philippine ship or
airship- this must be duly registered under the Phil. Laws and considered
anextension of the Phil. National Territory, But if said Phil. Vessel or aircraft is
within the territory of a foreign country when the crimeis committed, the
laws of that country will apply. But if the accused in a registered Philippine
vessel committed homicide on boardsaid vessel while in the territorial waters
of a foreign country, like Vietnam, was not prosecuted before the Vietnam
Court, he could betried before our Court, following the provs. of Rule 110 of
the Revised Rules of Criminal Procedures (Pp. vs. Togoto- CA- 68 Off Gaz.
8317)If the Phil. Ship is not registered and a crime is committed in the high
seas, our rules will not apply as said law clearly provides thatonly duly
registered vessel is covered (Pp. vs. Julmain May 30, l959). Under the New

Rules on Criminal Procedures (Jan. 1,l985), the phrase registered or

licensed under the Phil. Laws are deleted & substituted with subject to the
generally accepted principles of international law. Philippine warship,
whatever it is, is an extension of the Philippines and its sovereignty. If the
foreignvessel is also a warship, our courts have no jurisdiction as such is an
extension of the country to which these vessels belong ( US. vs.Fowler 1
Phil. 614)On foreign merchant vessels, there are two rules that are
followed:1) FRENCH RULE that crimes committed on board a foreign
merchant vessel while on the waters of another country are not triablein that
country unless those affecting the peace and security of that country or the
safety of that state is endangered.2) ENGLISH RULE that such crimes are
triable in that country unless such crimes affect merely the internal
management of thevessel. This is also known as the Anglo-American Rule.
This is the rule that we followed in our jurisdiction (US vs. Bull- 15 Phil.
7).This includes continuing crime committed on board a foreign vessel sailing
from a foreign port and which enters Philippine waters istriable in our
courts.U.S. vs. Look Chow - 18 Phil 573- mere possession of opium on board
a foreign vessel in transit in Philippine waters as such does notinvolve a
breach of public order unless the opium is landed in our Philippine soil.U.S.
vs. Wong Cheng- 46 Phil 729 this already involves breach of public order
because the accused smoked opium while inside thevesel. This already
causes such drugs to produce its pernicious effects within our country.2)
Should forge or counterfeit any coin or currency note of the Philippine Islands
or obligations and securities issued by the Govt. of the Philippine Islands.reason behind is to maintain and preserve the financial credit and stability of
the State.Ex. of obligation- sweepstakes ticket & lotto.3) Should be liable for
acts connected with the introduction into these islands of the obligations and
securities mentioned in the preceding number.4) While being a public officers
or employees, should commit an offense in the exercise of their functions.
Ex. Bribery, Malversation.Article 203 RPC- Who are public officers- Any
person, who, by direct provision of the law, popular election, or appointment
bycompetent authority, shall take part in the performance of public functions
in the Govt. of the Philippine Islands or shall perform insaid Govt. or in any of
its branches, public duties as an employee, agent or subordinate official or
any rank or class.5) Should commit any of the crimes against National
Security and the Laws of Nations. Ex. Piracy and Mutiny Laws of
Nations.Treason and Espionage Crimes against National Security.

Piracy shall be committed by any person, who on the high seas or

Philippine waters, shall attack or seize a vessel, or not being amember of its
complement nor a passenger, shall seize the whole or part of the cargo of
said vessel, its equipment, or personnel belonging to its complement or
passengers.Mutiny is the unlawful resistance to a superior officer, as the
raising of commotions and disturbance on board a ship against theauthority

of the commander.Treason is committed by any Filipino citizen who levies

war against the Phils. or adheres to her enemies, by giving them aid
or comfort within the Phils. or elsewhere.Espionage: - is committed by any
person:1) who without authority, enters a warship, fort, or naval or military
estab., or reservations to obtain any info., plans, photographs or other data
of a confidential nature relative to the defense of the Phil. Archipelago;2)
being in possession, by reason of the public office he holds, of the articles,
data or info, discloses their contents to a rep. of aforeign nation.C)
Prospectivity or Irretrospectivity- means that generally penal laws should
have only prospective application (Arts. 21 & 22-RPC).Exception if this is
favorable to the accused ( has retroactive effect).Exception to the exception
if the accused is a habitual delinquent.Ex. Re-imposition of Death penalty
under RA 7659, which took effect on December 31, l993. This cannot be
given a retroactive effecton the accused who committed a crime on
September 23, l987 ( Pp. vs. Bracamonte- 257 SCRA ).Reason behind this
provision Lex prospicit, non respicit (the law looks forward not backward).
The rationale against retroactivity isthat a law usually derides rights which
may have already become vested or impairs the obligation of contract and
hence isunconstitutional.Example of a law which can be given a retroactive
effect Pres. Decree No. l866 ( which took effect on April 4, l973)
penalizesIllegal Possession of Firearms for Reclusion Temporal Maximum to
Reclusion Perpetua ( 17 years, 8 months and 1 day to ReclusionPerpetua).
This was amended by RA 8294( which took effect on June 6,l997) - wherein
the penalty for illegal poss. of firearms is now based on the caliber of the FA
if low caliber Prision Correccional in its Max. Period ( 4 years, 2 months and
1 day to 6 years); if high powered penalty is Prision Mayor in its Minimum
Period- 6 years and 1 day to 8 years.Example of the exception to the
exception no retroactivity because the accused is habitual delinquent if
within ten years from thedate of his release or last conviction of the crime of
Serious or Less Serious Physical Injuries, Robbery, Theft, Estafa or
Falsification,he is found guilty of any of said crimes a third time or oftener
(Multi-recidivist) .Does the prospectivity rule only cover laws passed by
Congress? No. The prospectivity rule applies also to penal circulars.
For instance, DOJ Circular no. 12 issued on August 8, l984 declared that all
checks including guarantee checks are covered by BP. Blg. 22.The court ruled
that this Circular cannot be applied retroactively because petitioners cannot
be faulted for relying on the earlier pronouncement of the Secretary of
Justice that guarantee checks issued prior thereto are not covered by said
Circular. The decisionfurther states that the principle of prospectivity of
statutes, original or amendatory has been applied to administrative rulings
andcirculars, and to judicial decisions which although in themselves are not
laws, are evidence of what the laws mean, this being thereason why under
Article 8 of the New Civil Code, judicial decisions applying the laws or the
Constitution shall form part of the legalsystem ( Co vs. Court of Appeals- 45
SCAD October l993). Same application on the courts interpretation upon a
written law theinterpretation of the court on a written law has the force of

law. When a doctrine of the court is overruled and a different view isadopted,
the new doctrine should be applied prospectively and should not apply to
parties who relied on the old doctrine on the faiththereof. This is especially
true in the construction and application of criminal laws, where it is
necessary that the punishability of anact be reasonably foreseen for the
guidance of society ( Co vs. CA- Ibid).Effect of the repeal of penal laws on the
accused:The effect depends upon the nature of the repeal of the penal
laws:a) In absolute or total repeal or express repeal, the act or omission is
decriminalized so that if a case is pending, it shall bedismissed whether the
accused is a habitual delinquent or not because there is no more crime for
which he should be tried. If he wasalready convicted and /or serving
sentence, he shall be released if he is not a habitual delinquent or unless the
law provides thatdetention is to continue. b) In partial or relative repeal or
implied repeal or repeal by re-enactment, the first law will govern if the
accused is a habitualdelinquent or if the favorable second law prohibits
retroactivity. While the second law will govern if favorable to the offender
who isnot a habitual delinquent or the law is silent as to its retroactivity. Ex.
Pp. vs. Velasco 67 SCAD or 252 SCRA the beneficent provisions of RA
7659 can be applied retroactively to judgments which have become final and
executory prior to December 31, l993and even to those who are already
serving sentences.

ARTICLE 6. STAGES IN THE COMMISSION OF A CRIME (RPC)

I. Introduction: Generation of a Crime

A. The first is the Mental Stage

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

B. The Second: The External Stage which is where the accused performs acts which are observable

1). The Preparatory acts: Acts which may or may not lead to the commission of a concrete crime.
Being equivocal they are not as rule punishable except when there is an express provision of law
punishing specific preparatory acts.

Example: (i) the general rule: buying of a gun, bolo or poison, even if the purpose is to use these to kill
a person; so also with conspiracies and proposals. (ii) the exception: possession of picklocks and false
keys is punished; as with conspiracies to commit treason, rebellion, sedition and coup detat

2) The Acts of execution: the attempted, frustrated and consumated stages

II. Application of Article 6:

Only to intentional felonies by positive acts but not to: (i). Felonies by omission (ii) Culpable felonies and
(iii) Violations of special laws, unless the special law provides for an attempted or frustrated stage.
Examples of the exception are The Dangerous Drugs Law which penalizes an attempt to violate some of
its provisions, and The Human Security Act of 2007

III. The attempted stage:

"the accused commences the commission of a felonious act directly by overt acts but does not perform all
the acts of execution due to some cause or accident other than his own spontaneous desistance

A).(1). The attempt which the Penal Code punishes is that which has a connection to a particular,
concrete offense, that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to the its realization and commission (2) The act must not be equivocal but
indicates a clear intention to commit a particular and specific felony. Thus the act of a notorious
criminal in following a woman can not be the attempted stage of any felony.

B). Overt or external act is some physical deed or activity, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to is complete
termination following its natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense

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C). Examples:

1. The accused pressed a chemically -soaked cloth on the mouth of the woman to induce her to
sleep, while he lay on top of her and pressed his body to her. The act is not the overt act that will
logically and necessarily ripen into rape. They constitute unjust vexation. ( Note: it would be
attempted rape if he tried to undress the victim or touch her private parts) ( Balleros vs. People,
Feb, 22, 2006)
2. One found inside a house but no article was found on him, is liable for trespass and not for
attempted theft or robbery even if he is a notorious robber
3. One found removing the glass window panes or making a hole in the wall is not liable for
attempted robbery but for attempted trespass

D) The accused has not yet passed the subjective phase or that phase encompassed from the time an
act is executed which begins the commission of the crime until the time of the performance of the last
act necessary to produce the crime, but where the accused has still control over his actions and their
results.
.
E).The accused was not able to continue performing the acts to produce the crime. He was prevented
by external forces and not because he himself chose not to continue. Such as when his weap0n was
snatched, or his intended victim managed to escape, or he was overpowered or arrested.

F). If the accused voluntarily desisted i.e he himself decided not to continue with his criminal purpose,
then he is not liable.
1. Reason: This is an absolutory cause by way of reward to those who, having set one foot on the
verge of crimes, heed the call of their conscience and return to the path of righteousness. .
2. The reason for the desistance is immaterial
3. Exceptions: when the accused is liable despite his desistance

a). when the act performed prior to the desistance already constituted the attempted stage of
the intended felony. For example: the accused, with intent to kill, shot at the victim but missed
after which he desisted, his acts already constituted attempted homicide
b). When the acts performed already gave rise to the intended felony. The decision not to
continue is not a legal but factual desistance. As in the case of a thief who returned what he
stole.
c). When the acts performed constitute a separate offense. Pointing a gun at another and
threatening to kill, and then desisting gives rise to grave threats.

IV. The Frustrated Stage:

the accused has performed all the acts of execution necessary to produce the felony but the crime is not
produced by reason of causes independent of the will of the accused.

A. The accused has passed the subjective phase and is now in the objective phase, or that portion in
the commission of the crime where the accused has performed the last act necessary to produce the
intended crime and where he has no more control over the results of his acts.

B. The non-production of the crime should not be due to the acts of the accused himself, for if it were
he would be liable not for the frustrated stage of the intended crime, but possibly for another offense.

Thus: where the accused shot the victim mortally wounding him, but he himself saved the life of his
victim, his liability is that for serious physical injuries as the intent to kill is absent.

C. Attempted vs. Frustrated Homicide/murder. Where the accused, with intent to kill, injured the victim
but the latter did not die, when is the crime attempted or frustrated?

1. First View: The subjective phase doctrine. If at that point where the accused has still control
over the results of his actions but is stopped by reason outside of his own desistance and the
subjective phase has not been passed, the offense is attempted
2. Second View: The Mortal Wound or Life Threatening Injury Doctrine: If a mortal wound or life
threatening injury had been inflicted, the offense is frustrated, else it is attempted ( Palaganas vs.
PP., Sept. 12, 2006)
3. Third View: The belief of the accused should be considered in that if the accused believed he
has done all which is necessary to produce death, then it is frustrated.

V. Consummated.
When all the elements of the crime are present whether it be the intended crime or a different crime

VI. Factors to Consider in determining the proper stage.

A. The manner of the commission of the crime and how it is defined by the RPC. Some crimes have
only the consumated stage (Formal crimes) such as threats, coercion, alarms and scandal, slander,
acts of lasciviousness. In rape the gravamen is whether there is penetration or not, no matter how
slight, hence rape is either attempted or consummated.

B. The elements of the felony.

1. Theft: it is consummated once the article is in the material physical possession of the accused,
whether actual or constructive. His ability to dispose off the thing his immaterial and does not
constitute an element.

N.B. Decisions of the CA as to bulky items where the accused must have the opportunity dispose
off or appropriate the articles have already been reversed. The doctrine now is that theft has no
frustrated stage ( Valenzuela vs. PP. June 21, 2007)

2. Estafa: It is not the material possession but the existence of damage which consumates the
crime.

3. Robbery with Force Upon Things: The thing must be brought out of the building to consumate
the crime.

C. The Nature of the Felony Itself

1. Crimes which require the participation of two persons have no frustrated stage. Examples:
Adultery and concubinage; corruption of a public official.

2. There are crimes which are punished according to their results and not the intention of the
accused such as physical injuries.
3. As to Arson: it is consumated once a part of the building is burned. It has been ruled that if the
accused lit certain materials but no part of the building as burned, the crime is in its frustrated stage
and if there was no material which was as yet lit, then arson is still in its attempted. Thus one who
places sacks soaked in gasoline near the post and lit it but no part of the building was burned,
committed frustrated arson.

(Personal Opinion: there can be no frustrated stage, but only attempted stage if the fire was not yet
applied to the building. But if fire was applied to the building or a part thereof but no part of the
building was burned, then it is attempted. The only consideration is whether or not the accused
succeeded in burning a part of the building. If no part of the building was burned, it is still
attempted arson no matter how far gone were the acts of the accused).