CRIMINAL LIABILITY - How incurred
Wrongful act done be different from what was intended
G.R. No. L-16486 March 22, 1921
THE UNITED STATES, vs. CALIXTO VALDEZ Y QUIRI
FACTS:
- Sometime in 1919, while the interisland steamer Vigan was anchored in the
Pasig River, a small boat was sent out to raise the anchor. The crew of this boat
consisted of the accused, Calixto Valdez, who is in charge of the crew, and six
others among who was the deceased, Venancio Gargantel.
-During their work, the accused began to abuse the men with offensive words.
Gargantel complained, saying that it would be better if he would not insult
them.
-The accused took this as a display of insubordination, thus, he moved
towards Gargantel, with a big knife in hand, threatening to stab him.
At the instant when the accused had attained to within a few feet of
Gargantel, the latter, evidently believing himself in great and
immediate peril, threw himself into the water and disappeared
beneath its surface to be seen no more.
- Two witnesses who were on the boat state that, immediately after Venancio
leaped into the water, the accused told the remaining members of the crew to
keep quiet or he would kill them. For this reason they made no movement
looking to rescue
-As alleged in the information, that said Gargantel had died by drowning,
as a consequence of having thrown himself into the water and upon
seeing himself threatened and attacked by the accused.
- The Judgment rendered against the accused. Having been convicted as the
author of the homicide.
- On appeal, the accused alleged that he was only guilty of the offense of
inflicting serious physical injuries, or at most of frustrated homicide.
ISSUE:
Whether or not the accused is liable for the death of Gargantel
1 MSF
HELD: YES
RATIO: it is obvious that the deceased, in throwing himself in the river,
acted solely in obedience to the instinct of self-preservation and was in
no sense legally responsible for his own death. As to him it was but the
exercise of a choice between two evils, and any reasonable person under the same
circumstances might have done the same. As was once said by a British court, "If a
man creates in another man's mind an immediate sense of dander which causes
such person to try to escape, and in so doing he injuries himself, the person who
creates such a state of mind is responsible for the injuries which result."
The accused must, therefore, be considered the responsible author of
the death of Venancio Gargantel, and he was properly convicted of the
offense of homicide. The trial judge appreciated as an attenuating circumstance
the fact that the offender had no intention to commit so great a wrong as that
committed. (Par. 3, art. 9 Penal Code.)
PENALTY: twelve years and one day, reclusion temporal, to suffer the
corresponding accessories, to indemnify the family of the deceased in the sum of
P500, and to pay the costs. Said sentenced is in accordance with law; and it being
understood that the accessories appropriate to the case are those specified in
article 59 of the Penal Code, the same is affirmed, with costs against the appellant.
“ That even though the death of the injured person should not be considered as
the exclusive and necessary effect of the very grave wound which almost
completely severed his axillary artery , occasioning a hemorrhage impossible to
stanch under the circumstances in which that person was placed, nevertheless
as the persistence of the aggression of the accused compelled his adversary, in
order to escape the attack, to leap into the river, an act which the accused
forcibly compelled the injured person to do after having inflicted,
among others, a mortal wound upon him and as the aggressor by said
attack manifested a determined resolution to cause the death of the
deceased, by depriving him of all possible help and putting him in the
very serious situation narrated in the decision appealed from, the trial court,
in qualifying the act prosecuted as consummated homicide, did not commit any
error of law, as the death of the injured person was due to the act of the
accused.”
CRIMINAL LIABILITY - How incurred
Wrongful act done be different from what was intended
G.R. No. L-37507 June 7, 1977
THE PEOPLE OF THE PHILIPPINES vs. WILLIAM PAGE
Doctrine: The rule is that if a man creates in another person's mind an
immediate sense of danger, which causes such person to try to escape, and, in
so doing, the latter injures himself, the man who creates such a state of mind is
responsible for the resulting injuries
FACTS:
- On February 13, 1972 Crisanto Camposano, went to the house of William Page.
They were friends since boyhood. Page was an 18 yr old third year high school
student at the Arellano' University
-At past ten o'clock, Page and Camposano went to the rotonda or intersection
of Taft Avenue and F. B.Harrison Boulevard, where they boarded a
Manila-bound jeepney. Page was armed with a balisong knife.Camposano had a
revolver.
- According to Page’s Confession, he seated himself beside a male passenger
who was near the driver in the front seat. Camposano took a seat at the back of
the jeepney where two female passengers were seated
- Then, Page and Campasano directed the driver to go near the airport. There,
they held up the driver and the three passengers. They got the money and
pieces of jewelry of the passengers and the driver. From the rear view mirror of
the jeepney, Page saw Camposano dumping the two female
passengers. Then, the two directed the driver to proceed to the airport. They
left the jeepney afterwards.
- the woman who “jumped” (accdg to the driver testimony) from the
jeepney was brought to the hospital. However, she was already dead
when she reached the hospital.
- Page appealed from the decision of the CFI convicting him of robbery with
homicide, sentencing him to reclusion perpetua. He insisted that he had
nothing to do with the death of Veronica Villaverde Balacapo.
2 MSF
ISSUE: Whether or not Page, as a fellow conspirator of Camposano, could be held
liable for robbery with homicide or for robbery only.
HELD: YES
RATIO: Whether Veronica jumped from the jeepney, as testified by Scot, or
whether Camposano kicked and pushed her and her sister, Cesarean out of the
jeepney, as stated by Page in his confession, Camposano's culpability for that
flagitious deed cannot be disputed.
If Veronica jumped out of the jeepney, it must have been because she
was in mortal dread that Camposano would shoot her. As fear gripped
Veronica, she, in desperation, thought of scampering out of the moving
jeepney. Her head struck the pavement. It was broken. A hemorrhage ensued.
She died before medical assistance could be extended to her.
There is not a scintilla of doubt that a conspiracy to commit robbery existed
between Page and Camposano. The fact that the two armed themselves with
deadly weapons, a knife and a revolver, signified that they were determined to kill
their victims in order to consummate their nefarious objective.
The conspiracy may be inferred from the acts of Page and Camposano. The
behavior of Page and Camposano inside the jeepney disclosed a synchronization of
their actions, evincing a prior concert and plan to commit robbery with violence
against and intimidation of persons. Page should answer for all the
consequences of the conspiracy, including the homicide which was
intertwined with the robbery committed by his conspirator. The
homicide was committed on the occasion or by reason of the robbery.
Of course, he did not kill the victim. But, under the rules of conspiracy,
he is deemed to be a co-principal in the robbery with homicide.
The rule is that where the conspirarcy to commit robbery was conclusively shown
by the concurrent and coordinate acts of the accused, and homicide was
committed as consequence, or on the occasion, of the robbery, all of the
accused are guilty of robo con homicidio whether or not they actually
participated in the killing
CRIMINAL LIABILITY - How incurred
Impossible Crimes
G.R. No. L-1896 February 16, 1950
THE PEOPLE OF THE PHILIPPINES vs. RAFAEL BALMORES Y CAYA
SUMMARY: An attempt to cash a ticket so altered as a prize-winning number
did not make the crime impossible but will constitute an attempt to commit
estafa through falsification of security.
FACTS:
- In 1947, Manila, the accused Balmores, with intent to deceitfully cash-in with
the PCSO for the amount of P359.55 tore off a part of a genuine 1/8 ticket,
located at the bottom of said ticket, in order to remove the real unidentified
number and therein wrote with ink the prize-winning number 074000 for the
June 29, 1947 draw.
- His plan was foiled, however, when Bayani Miller, an employee of the PCSO, to
whom the accused presented the ticket, discovered that the same was falsified.
Miller immediately called a policeman and the accused appellant was arrested
right then and there.
- Upon the filing of the information, the accused waived his right to be assisted
with counsel and pleaded guilty to the charge of attempted estafa through
falsification of security.
- He was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1
day of prision mayor and not more than 12 years and 1 day of reclusion
temporal, and to pay a fine of P100 and the costs.
-The accused appealed to the SC contending:
1. the facts charged did not constitute an offense supported by the
following arguments:
a) There could be no genuine 1/8 unit PCSO ticket for tthe June 29, 1947
b) The SC has taken judicial notice that the PCSO has only issued four
1/4 units for each ticket for the June 29, 1947 draw
c) The information does not show that the ticket torn by the accused did
not and could not have had the real prize-winning unidentified number
of 074000
3 MSF
d) The substitution and writing in ink of the number 074000 was not a
falsification where the true and real number of the ticker torn was
074000
ISSUE: Whether or not the accused is actually guilty of impossible crime
HELD: NO
RATIO: The appellant may have either reckless or foolish to believe that a
falsification as patent as what he had perpetrated would succeed but the
recklessness and clumsiness of the falsification did not make the crime impossible
as contemplated by RPC 4(2) in relation to RPC 59.
RPC Art. 59 . When the person intending to commit an offense has already performed the act for the
execution of the same but nevertheless the crime was not produced by reason of the fact that the act
intended was by its nature one of impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the court, having in mind the
social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of
arresto mayor or a fine ranging from 200 to 500 pesos.
Examples of an impossible crime, which formerly was not punishable
but is now under article 59 of the Revised Penal Code, are the following:
(1) When one tries to kill another by putting in his soup a substance which
he believes to be arsenic when in fact it is common salt; and
(2) when one tries to murder a corpse.
Judging from the appearance of the falsified ticket in question, we are not
prepared to say that it would have been impossible for the appellant to
consummate the crime of estafa thru falsification of said ticket if the clerk to whom
it was presented for the payment had not exercised due care.
The alteration, or even destruction, of a losing sweepstakes ticket could cause no
harm to anyone and would not constitute a crime were it not for the attempt to
cash the ticket so altered as a prize-winning number. So in the ultimate analysis
appellant's real offense was the attempt to commit estafa (punishable with eleven
days of arresto menor); but technically and legally he has to suffer for the serious
crime of falsification of a government obligation. We realize that the penalty is too
severe, considering all the circumstances of the case, but we have no discretion to
impose a lower penalty than authorized by law. Judgment affirmed.
CRIMINAL LIABILITY - How incurred
Impossible Crime
G.R. No. 103119 October 21, 1992
SULPICIO INTOD vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES
SUMMARY: Accused, with an intent to kill, fired at a room where the victim is
located but only to find out that the room is empty, is liable only for an
impossible crime.
FACTS:
- In the morning of February 4, 1979, Sulpicio Intod with 3 companions went to
Salvador Mandaya's house and asked him to go with them to the house of
Bernardina Palangpangan. Thereafter, they 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 killed.
-At about 10 pm of the same day, they arrived at Palangpangan's house, all
armed with firearms. At the instance of his companions, Mandaya pointed the
location of Palangpangan's bedroom. Thereafter, Petitioner and the 3
companions 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.
- RTC convicted Intod of attempted murder. It was affirmed by the CA.
- On appeal to the SC, Petitioner seeks a modification of the judgment by
holding him liable only for an impossible crime, citing Article 4(2) of the Revised
Penal Code
ISSUE: Whether or not petitioner is liable only for an impossible crime
HELD: YES
4 MSF
RATIO: 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 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.
Article 4(2) is an innovation of the RPC. This seeks to remedy the void in the Old
Penal Code which left social interests entirely unprotected. The RPC, inspired by
the Positivist School, recognizes in the offender his formidability, 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. The rationale of Article 4(2) is to
punish such criminal tendencies.
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.
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. There must be either impossibility of
accomplishing the intended act 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. Thus:
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.
The impossibility of killing a person already dead falls in this category.
Factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. 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.
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.
Judgment: 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.

In the United States, where the offense sought to be committed is factually

impossible, 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 — 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 —
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 debemos.

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

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.

5 MSF
CRIMINAL LIABILITY - How incurred
Impossible Crime
G.R. No. 162540 July 13, 2009
GEMMA T. JACINTO vs. PEOPLE OF THE PHILIPPINES
SUMMARY: Accused who unlawfully took a check belonging to another, which
was later discovered unfunded, is liable only for impossible crime.
The requisites of an impossible crime are:
(1) that the act performed would be an offense against persons or property;
(2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed
was either inadequate or ineffectual
FACTS:
-Accused Jacinto, who was then an employee - collector of Megafoam Int.,
received a check amounting to Pho 10,000 as payment of Baby Aquino to her
purchase to Megafoam sometime in June 1997.
- However, instead of delivering it to Megafoam, the check was deposited to the
account of Generoso Capitules, the husband of Jacqueline (sister of the Accused
and former employee of Mega foam).
- The check was later discovered to be unfunded when Ricablanca, another
employee of Mega form, received a call from Landbank. (She also received a call
from a customer asking if they could issue checks payable to the account of
Megafoam, instead of payable to “CASH” as instructed by Jacqueline.)
-Ricablanca then called Valencia to inform the Capitules about the the phone
call from the landbank regarding the bounced check. However, Valencia
instructed Ricablanca to ask Baby Aquino to replace the check with cash and
told her a plan to divide the cash equally into four - herself, Valencia, Jacinto,
and Jacqueline.
-Ricablanca reported the matter to the owner of the Mega form, Joseph
Dyhengco, who investigated the matter. It was found out that Baby Aquino had
already paid Mega Foam P10,000 cash in August 1997 as replacement of the
dishonored check.
6 MSF
-Dyhengco filed a compliant with the NBI and worked out an entrapment operation
with its agents. Thereafter, petitioner and Valencia were arrested. The NBI filed a
criminal case for qualified theft against the two (2) and Jacqueline Capitle.
- Both RTC and CA ruled that the petitioner was guilty of qualified theft. Petitioner
filed a petition for review of certiorari to SC.
-The prosecution tried to establish the elements of the crime of qualified theft
defined under the RPC. However, the personal property subject of the theft
must have some value, as the intention of the accused is to gain from
the thing stolen.This is further bolstered by Article 309, where the law provides
that the penalty to be imposed on the accused is dependent on the value of the
thing stolen.
- In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime of qualified
theft was actually produced (NO)
ISSUE: Whether or not the crime committed falls under the definition of
impossible crime
HELD: YES
RATIO: In Intod, the Court went on to give an example of an offense that
involved factual impossibility, i.e., a man puts his hand in the coat pocket of
another with the intention to steal the latter's wallet, but gets nothing since the
pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime of qualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact
that the check bounced, she would have received the face value thereof, which
was not rightfully hers. Therefore, it was only due to the extraneous
circumstance of the check being unfunded, a fact unknown to petitioner
at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had received the cash to
replace the value of said dishonored check.1avvphi1

There can be no question that as of the time that petitioner took

possession of the check meant for Mega Foam, she had performed all
the acts to consummate the crime of theft, had it not been impossible
of accomplishment in this case. The circumstance of petitioner receiving
the ₱5,000.00 cash as supposed replacement for the dishonored check was no
longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the
check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of
the theft. At most, the fact that petitioner was caught receiving the
marked money was merely corroborating evidence to strengthen
proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent
scheme. Unfortunately, since said scheme was not included or covered by
the allegations in the Information, the Court cannot pronounce judgment
on the accused; otherwise, it would violate the due process clause of the
Constitution. If at all, that fraudulent scheme could have been another possible
source of criminal liability.

7 MSF
CRIMINAL LIABILITY - Stages of Commission
G.R. No. 166326 January 25, 2006
ESMERALDO RIVERA vs. PEOPLE OF THE PHILIPPINES
FACTS: As the victim, Ruben Rodil, went to a nearby store to buy food, accused
Edgardo Rivera mocked him for being jobless and dependent on his wife for
support. Ruben resented the rebuke and thereafter, a heated exchange of
words ensued.
-In the evening of the following day, when Ruben and his 3 yr old daughter
went to the store to buy food, Edgardo, together with his brother Esmeraldo
Rivera and Ismael Rivera, emerged from their house and ganged up on
him. Esmeraldo and Ismael mauled Ruben with fist blows. And as he fell to the
ground, Edgardo hit him three times with a hollow block on the parietal area.
Esmeraldo, Ismael and Edgardo fled to their house only when the policemen
arrived. Ruben sustained injuries and was brought to the hospital.
-The doctor declared that the wounds were slight and superficial, though the
victim could have been killed had the police not promptly intervened.
-The trial court found the accused guilty of the crime of frustrated murder.
-An appeal was made by the accused, but the CA affirmed the trial court’s
decision with modification, changing the crime to attempted murder and
imposed an indeterminate penalty of 2 years of prision correccional as minimum
to 6 years and 1 day of prision mayor as maximum.
ISSUE: Whether or not the Court of Appeals was correct in modifying the crime
from frustrated to attempted murder.
HELD: YES
RATIO: 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.
8 MSF
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 the present case, the prosecution mustered the requisite quantum of evidence
to prove the intent of petitioners to kill Ruben. The intent to kill was already
presumed based on the overt acts of the accused. In fact, victim could have been
killed had the police not promptly intervened.
Although 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.
Article 6 of the Revised Penal Code provides that 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 desistance.[13]
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
CRIMINAL LAW - Stage of Commission consequence, but which, all the acts of execution which
Definitions nevertheless, do not produce it by constitute the felony by reason of
reason of causes independent of the some cause or accident other than
G.R. No. L-12155 February 2, 1917 will of the perpetrator. his own voluntarily desistance.
THE UNITED STATES vs.PROTASIO EDUAVE
-the subjective phase is the offender never passes the
FACTS: completely passed. Subjectively subjective phase of the offense.
-Defendant Protasio Eduave is the querido of the victim’s mother. the crime is complete. Nothing He is interrupted and compelled to
interrupted the offender while he desist by the intervention of outside
-Eduave, with an intent to kill, attacked the victim from behind using a bolo was passing through the subjective causes before the subjective phase
creating a gash 8 1/2 inches long and 2 inches deep because the latter accused phase. The crime, however, is not is passed.
defendant of having committed rape against said victim. consummated by reason of the
intervention of causes independent
-Upon thinking that he has already killed the victim, he threw the body into the of the will of the offender. He did all
bushes and left. that was necessary to commit the
crime. If the crime did not result as a
ISSUE: In what stage of the crime of murder is committed by Eduavo? consequence it was due to
something beyond his control.
HELD: The accused is guilty of frustrated murder.

RATIO: The crime cannot be attempted murder. Defendant
performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which should produce the crime.
The essential element which distinguishes attempted from frustrated felony is
that - in frustrated felony, there is no intervention of a foreign or extraneous
cause or agency between the beginning of the commission of the crime and the
moment when all of the acts have been performed which should result in the
consummated crime; while in attempted felony there is such intervention
and the offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by some cause apart
from his voluntary desistance.
FRUSTRATED FELONY ATTEMPTED FELONY
It is when the offender performs all It is when the offender commences
the acts of execution which should the commission of the felony directly
produce the felony as a by overt acts, and does not perform
The subjective phase is 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 the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of
the offender over which he has control — that period between the point
where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
The crime committed would have been murder if the girl had been killed,
qualified by the circumstance of alevosia by the accused making a sudden
attack upon his victim from the rear, or partly from the rear, and dealing her a
terrible blow in the back and side with his bolo. Such an attack necessitates
the finding that it was made treacherously; and that being so the crime would
have been qualified as murder if death had resulted

9 MSF