SECOND DIVISION

RAMIE VALENZUELA, G.R. No. 149988

Petitioner,
Present:
*
CARPIO-MORALES, J.,
Acting Chairperson,
**
- versus - CARPIO,
***
CHICO-NAZARIO,
****
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:
PEOPLE OF
THEPHILIPPINES, August 14, 2009
Respondent.
x ------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Petitioner Ramie Valenzuela (petitioner) seeks, in this petition for review

on certiorari,[1] to reverse the Court of Appeals (CA) decision and resolution dated
June 18, 2001 and September 10, 2001, respectively, in CA-G.R. CR No. 20533,
that affirmed with modification the decision of the Regional Trial Court (RTC),
Branch 38, Lingayen, Pangasinan, dated November 21, 1996, convicting the
petitioner with the crime of attempted murder.

Petitioner and his brother, Hermie Valenzuela (Hermie), were charged with
the crime of frustrated murder, allegedly committed as follows:

That on or about the 20th day of February 1996, in the evening,

in Barangay Maniboc, municipality of Lingayen, province of Pangasinan,
 Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a sharp pointed, bladed instrument,
with intent to kill, taking advantage of their superior strength, conspiring,
confederating and mutually helping one another, did then and there
willfully, unlawfully and feloniously attack, assault and stab Gregorio P.
Cruz, inflicting upon him the following:

 Stab wound 1 cm flank area left, 3 cm. depth

 Stap wound 1 cm flank area left, 3 cm. depth

the accused having thus performed all the acts of execution which would
have produced the crime of murder as a consequence but nevertheless did
not produce it by reason of causes independent of the will of the accused,
that is, the timely medical assistance afforded to Gregorio P. Cruz which
prevented his death, to his damage and prejudice.[2]

We summarized below the facts based on the records before us.

Petitioner and the victim, Gregorio P. Cruz (Gregorio), both lived

in Barangay Maniboc, Lingayen, Pangasinan. In the early evening of February 20,
1996, Gregorio and his companion, Rogelio Bernal (Rogelio), went to the house
of Barangay Captain Aurora dela Cruz to talk with Pepito, the latter's
husband. While at the dela Cruz home, Gregorio, Rogelio and Pepito drank liquor
(Fundador).

Based on the prosecutions account of the events, at around 10:00 oclock of that same
evening, Gregorio and Rogelio left the dela Cruz residence and headed for home
after their drinking spree with Pepito dela Cruz. While they were walking along
the barangay road and were near the Valenzuelas residence/sari-sari store, the
petitioner and his brother Hermie suddenly appeared from behind them. The
petitioner held the shoulders of Gregorio while Hermie stabbed Gregorio twice at
the left side of his back. Immediately thereafter, Hermie ran to the direction of the
Valenzuelas house some 10 meters away.

After the stabbing, Gregorio was brought to the clinic of one Dr. Casipit who
administered emergency treatment on the stab wounds. He was transferred the
following day to thePangasinan Provincial Hospital (now Gov. Teofilo Sison
Memorial Hospital) for further treatment. Per the medical findings of Dr. Antonio
Rivera (Dr. Rivera), attending physician and Medical Officer III of the said hospital,
Gregorio suffered the following wounds:
 Stab wound 1 cm flank area left, 3 cm depth;
 Stab wound 1 cm flank area left, 3 cm depth.

The wounds were found not to be fatal, as no vital organ was affected. Gregorio
was discharged after one week of confinement.

On March 13, 1996, SPO II Jimmy B. Melchor of the Lingayen Police Station filed
before the Municipal Trial Court of Lingayen, Pangasinan a criminal complaint
for frustrated murder against the petitioner and Hermie. Finding probable cause,
the court issued a warrant for their arrest and forwarded the records of the case to
the Office of the Provincial Prosecutor of Pangasinan for the filing of the appropriate
Information.[3] On May 16, 1996, an Information was filed before the RTC of
Lingayen, Pangasinan, charging the two accused with frustrated murder.

Trial of the case proceeded solely with respect to the petitioner as his brother and
co-accused, Hermie, was then, and still is, at large.

The prosecution presented Dr. Rivera of

the Pangasinan Provincial Hospital who explained his medical findings on the
injuries Gregorio sustained. He said that the 2 one-centimeter long wounds, both
three-centimeter deep, were not fatal as no vital organ was affected.
The prosecution likewise presented Rogelio who declared that on the night of
February 20, 1996, he accompanied Gregorio to the house of their Barangay Captain
to talk to the latter's husband, Pepito dela Cruz; they drank as they talked with
Pepito. As they headed for home while passing by the Valenzuelas house/sari-
sari store, the petitioner suddenly appeared from behind and held Gregorio, while
Hermie stabbed the victim. Rogelio was able to positively identify the petitioner and
Hermie as Gregorio's assailants, as the scene of the crime was well-lighted,
illuminated by a streetlight from a nearby electric post.

After the stabbing, the two assailants ran towards their house, and Rogelio
took Gregorio initially to the house of Barangay Captain dela Cruz, and then to the
clinic of a certain Dr. Casipit for emergency treatment. Thereafter, he took Gregorio
to the Pangasinan Provincial Hospital in Dagupan City because the wounds
appeared to be serious.Rogelio claimed that Hermie used an 8-inch long knife.

The victim, Gregorio, likewise testified for the prosecution. He declared that he was
the Chief Barangay Tanod of their place and that he knew the two accused because
they were residents of his barangay. The rest of his testimony was similar to
Rogelios.

The petitioner, after pleading not guilty to the charge, presented his defenses of
denial and alibi. He claimed that on the night of February 20, 1996, he was at home
together with his uncle, his sister, his sisters friend, and his parents. Earlier that
night, he claimed that he read the Bible, ate dinner with his family and guests, then
watched television. At around10:00 oclock that evening, they heard somebody
shouting from the outside; his parents, however, prevented him from going out of
the house for fear that he might get into trouble.

The petitioner claimed he was being implicated in the stabbing incident

because he had a previous altercation with the victim, Gregorio, when the latter
apprehended his other brother, Rommel Valenzuela. He further surmised that
Gregorio could have mistaken him for his brother, Willy, with whom he shares
physical similarities and who, he claimed, was one of the assailants in the stabbing
incident. Witnesses Nestor Cerezo (Nestor) and Rhodora Manzano (Rhodora)
supported the petitioners defense of alibi.

Nestor testified that he is a businessman and a resident of Dagupan City. He

claimed that the petitioner is his nephew, as the petitioners maternal aunt, Josefina
Campos, is his common-law partner. He stated that on February 20, 1996, he went
to the Valenzuelas house to collect payment on a debt owed him by the parents of
the accused. Since he arrived after dark, the parents of the accused prevailed on him
to dine and spend the night with them.

At about 10:00 oclock that night, while he was talking with the petitioner and the
latter's father (Rosauro), they heard a commotion outside the house. He and Rosauro
went out and saw several persons talking. They learned from their inquiry that
Hermie had stabbed Gregorio. Nestor claimed that all this time, the petitioner was
inside the house because his father had prevented him from going out.
Rhodora also testified for the defense. She declared under oath that she is a friend of
Annie Valenzuela, the younger sister of the accused. On February 20, 1996, Annie
invited her to sleep in their house. They had dinner at about 6:30 pm, ahead of the
other members of the household who were then in conversation with another visitor,
whom she later learned to be Nestor. At about 9:45 pm, while she and Annie were
manning the Valenzuelas store, Willy Valenzuela arrived and joined the group
singing and playing the guitar in front of the store; Hermie was among those in the
group.

At around 10:00 pm, she noticed Gregorio and Rogelio walking past the store; both
appeared drunk as they were walking aimlessly. As they walked, the two
momentarily stopped and stared at the group in front of the Valenzuelas store before
proceeding to another sari-sari store nearby. She then heard Gregorio shout vulva
of your mother, Valenzuela three times; Rogelio tried to pacify him. Thereafter, she
saw Hermie approach Gregorio to confront him. In a blur, she witnessed Gregorio
hit Hermie on the left side of the face. Hermie retreated to his house but came back
and stabbed Gregorio at the left side of his back. She noticed that Willy then held
the arms of Gregorio in an attempt to mollify the latter; Gregorio responded by
hitting Willy on the head. At this point, she heard Willy advise Gregorio to go away
to avoid further trouble; instead of heeding the advice, Gregorio threw a fist blow at
Hermie, who dodged the blow and stabbed Gregorio a second time.

Right after the stabbing, she saw Hermie run to the direction of the Valenzuelas
house, while Gregorio and Rogelio proceeded to the house
of Barangay Captain Dela Cruz. She categorically declared that the petitioner had
no participation in the incident, as only the petitioner's brothers, Willy and Hermie,
were at the scene of the crime.

After trial on the merits, the trial court rendered its decision[4] of November 21, 1996,
convicting the petitioner of frustrated murder. The trial court found that the
petitioners defense of alibi had insufficient evidentiary support and must yield to the
positive identification by the prosecution witness, Rogelio. The dispositive portion
of the lower court's decision reads:
 WHEREFORE, in the light of all the foregoing considerations, the court
finds and holds the accused, Ramie Valenzuela, guilty beyond reasonable
doubt of the crime of Frustrated Murder as charged in the information filed
against him, pursuant to law, taking into account the provision[s] of
Article 250 of the Revised Penal Code and the Indeterminate Sentence
Law in his favor, hereby sentences said accused to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum
and to pay the costs of the suit. x x x

In appreciating the qualifying circumstance of abuse of superior strength, the trial

court explained:

The information filed against the accused alleges that the two accused took
advantage of their superior strength in attacking and assaulting the
offended party with sharp pointed, bladed instrument twice on the left side
of the back. Abuse of superior strength is determined by the excess of the
aggressors natural strength over that of the victim's, considering the
momentary positions of both parties and the employment of means
weakening the defense of the victim, although not annulling it. Thus, there
is abuse of superior strength in the case where four persons attacked an
unarmed victim (People v. Garcia, 94 SCRA 14) or where six persons
inflicted injuries on the victim (People v. Gonzales).
The petitioner appealed to the CA. In its decision of June 18, 2001, the appellate
court affirmed with modification the trial courts decision; it held that the crime
committed was attempted murder since the wounds inflicted were not
fatal. The fallo of the CA decision reads:
WHEREFORE, premises considered, the appealed decision is hereby
AFFIRMED WITH MODIFICATION. In lieu thereof, another one is entered
CONVICTING the accused of the crime ofATTEMPTED MURDER and
sentencing him to suffer the penalty of imprisonment of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years and one (1) day of
prision mayor, as maximum x x x. (Emphasis supplied.)

The appellate court denied the petitioner's motion for reconsideration that followed,
thus paving the way for the present petition for review on certiorari on the
sole issue of

WHETHER THE COURT OF APPEALS ERRED IN CONVICTING

THE PETITIONER FOR ATTEMPTED MURDER.
Thus framed, the sole issue before us is whether the crime the petitioner committed
should properly be attempted murder based on the qualifying circumstance of abuse
of superior strength.

We find the petition meritorious.

The RTC and the CA commonly found an intent to kill. They differ in the
appreciation of the stage of execution of the crime as the RTC considered the
crime frustrated, while the CA decided that it was attempted because the victims
wounds were not fatal. In both rulings, the RTC and the CA characterized the act to
be qualified by abuse of superior strength; thus, it was either attempted or frustrated
murder.

The petitioner, in his Reply,[5] finds the appreciation of abuse of superior strength to
be erroneous, as the Information charging him with the crime of frustrated murder
did not allege this circumstance with particularity as a qualifying circumstance. The
petitioner therefore posits that this circumstance, even if proven, must be considered
a generic aggravating circumstance.
We see no merit in the petitioner's contention in light of our ruling in People v.
Aquino[6] which we intended to guide the bench and the bar on how to allege or
specify qualifying or aggravating circumstances in the Information. We held in this
case that the words aggravating/qualifying, qualifying, qualified by, aggravating, or
aggravated by need not be expressly stated, so long as the particular attendant
circumstances are specified in the Information.

This conclusion, notwithstanding, we hold that the conviction of the accused of the
crime of either attempted or frustrated murder is substantively flawed, as both the
RTC and the CA erroneously appreciated the presence of abuse of superior strength
as a qualifying circumstance. Our own examination of the evidence tells us that no
conclusive proof exists showing the presence of this circumstance in the commission
of the felony.

Both the trial and appellate courts concluded that abuse of superior strength was
present because the petitioner held the arms of the victim to facilitate the stabbing
by his brother (Hermie) and to limit the degree of resistance that the victim may put
up.[7] The trial court, in particular, held that there is no doubt that accused took
advantage of their combined strength when one held the victim by the shoulder and
armpit and the other inflicted two stab wounds on the left side of his back. We find
this reasoning erroneous.
Abuse of superior strength is present whenever there is a notorious inequality of
forces between the victim and the aggressor/s that is plainly and obviously
advantageous to the aggressor/s and purposely selected or taken advantage of to
facilitate the commission of the crime.[8] Evidence must show that the assailants
consciously sought the advantage,[9]or that they had the deliberate intent to use this
advantage.[10] To take advantage of superior strength means to purposely use force
excessively out of proportion to the means of defense available to the person
attacked.[11] The appreciation of this aggravating circumstance depends on the age,
size and strength of the parties.[12]

In the present case, the prosecution failed to present evidence to show a

relative disparity in age, size, strength, or force, except for the showing that two
assailants, one of them armed with a knife, attacked the victim. The presence of two
assailants, one of them armed with a knife, is not per se indicative of abuse of
superior strength.[13] Mere superiority in numbers does not indicate the presence of
this circumstance.[14] Nor can the circumstance be inferred solely from the victims
possibly weaker physical constitution.In fact, what the evidence shows in this case
is a victim who is taller than the assailants[15] and who was even able to deliver
retaliatory fist blows[16] against the knife-wielder.

The events leading to the stabbing further belie any finding of deliberate intent on
the part of the assailants to abuse their superior strength over that of the
victim.[17] The testimonies of the witnesses, on the whole, show that the encounter
between the victim and his assailants was unplanned and unpremeditated. The victim
and his companions were simply passing by after a night of conversation with drinks,
while the assailants were simply singing and engaged in merrymaking, and no
conscious effort on the part of the accused appeared to have been made to use or
take advantage of any superior strength that they then enjoyed. [18] Specifically, we
do not find it certain nor clearly established that the accused, taking advantage of
their number, purposely resorted to holding the victim by the arms so that the knife-
wielder would be free to stab him at the back. In terms of numbers, the victim was
with a companion while only two of the Valenzuela brothers participated in the
attack; thus a parity in numbers existed. Nor is it certain that the victim was simply
overwhelmed by the act of the accused of holding the victim by the shoulders while
his brother stabbed him at the back. The evidence on this point is simply too sketchy
and too confused for a definitive conclusion. What, to us, is certain is the intent to
kill, as shown by the two stab wounds and their location; they were back wounds
that could have been fatal or near fatal had greater force been used or the dynamics
of the parties movements at the time of the stabbing been different. Even if the
accused did not directly wield the knife, he is as guilty as the knife-wielder for the
unity of purpose he has shown in participating in the attack against the victim,
Gregorio.

In light of all these, we are compelled to rule out the attendance of abuse of superior
strength as a qualifying circumstance. Considering further that the victim sustained
wounds that were not fatal and absent a showing that such wounds would have
certainly caused his death were it not for timely medical assistance, we declare the
petitioners guilt to be limited to the crime of attempted homicide.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals

dated June 18, 2001 in CA-G.R. CR No. 20533 is AFFIRMED with
MODIFICATION.Petitioner Ramie Valenzuela is found guilty of attempted
homicide under Article 249 in relation with Article 6 of the Revised Penal Code. In
the absence of any modifying circumstance attendant to the commission of the
crime, we hereby sentence him to suffer an indeterminate penalty[19] of four (4)
months of arresto mayor in its medium period, as minimum, to three (3) years
of prision correccional in its medium period, as maximum.

SO ORDERED.
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:

June 21, 2007

x----------------------------------------------------------------------------x

DECISION

TINGA, J.:

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 decisions[1] 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.

I.

The basic facts are no longer disputed before us. The case stems from an
Information[6] 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 well-known 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 ofthe 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 Decision[16] 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 brief[19] 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.

II.

In arguing that he should only be convicted of frustrated theft, petitioner

cites[26] two decisions rendered many years ago by the Court of Appeals: People v.
Dio[27] 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 conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio 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, Dio 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 Dio 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 Dio and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio 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.
 III.

To delve into any extended analysis of Dio 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 Code.[30]

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 rearequirement
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 embeddedwhich 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 things.[42]

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 apoderamientoonce 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 taking[48] 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 Code[52] 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. Adiao[53] 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 Dio and Flores decisions.
 Dio 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]

Dio 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 [Dio].[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 Dio, 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 Dio and Flores then before it. The prosecution in Flores had
sought to distinguish that case from Dio, 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 Dio 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 Dio 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 Dio ruling:

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 Dio and Flores rulings. People v. Batoon[73] 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 ofU.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 Dio, 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 Dio 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.

IV.

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. IAC.[78]
 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 Dio, 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 oraccident 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 offenders.

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.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
Espaa 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 nimo de lucrarse, y sin volencia o intimidacin en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se

la apropriaren co intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los artίculos 606, nm. 1.0; 607,
nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y
618.

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
Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser 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 Espaa. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft
had occurred. The passage cited in Dio 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, vindose sorprendido, la arroja al
suelo.[83] Even as the answer was as stated in Dio, 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 Dio, 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 Caln pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated
theft.

Hay frustracin cuando los reos fueron sorprendidos por las

guardias cuando llevaban los sacos de harino del carro que los conducia
a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se realiz la
sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de
 octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento,
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin
"muy prxima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustracin 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, stos, conforme a lo antes expuesto, son hurtos
consumados.[86]

Ultimately, Cuello Caln 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 disposicin del agente. Con
este criterio coincide la doctrina sentada ltimamente porla jurisprudencia
espaola que generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y sta quede por tiempo ms o menos
duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de
lo hurtado es indiferente. El delito no pierde su carcter de consumado
aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustracin, pues es muy dificil que el que
hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos
consumados.[87] (Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was
content with replicating the Spanish Supreme Court decisions on the matter, Cuello
Caln 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
consumacin 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 Dio andFlores. 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 Calns 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 Dio 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.
V.

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 Dio/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 theDio/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
effected animo 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 Dio 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 Dio?

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 Dio/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. Dio itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Dio 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 Dioand 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.

SO ORDERED.
 [G.R. No. 126148. May 5, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO

QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y
FLORO, accused-appellants.

DECISION
VITUG, J.:

In People vs. Orita,[1] this Court has declared that the crime of frustrated rape is non-
existent. The pronouncement, notwithstanding, on 01 March 1996, more than six years after the
promulgation of the decision inOrita, the Regional Trial Court ("RTC") of Cebu City, Branch 14,
has convicted accused Agapito Quianola y Escuadro and Eduardo Escuadro y Floro, herein
appellants, of the crime of frustrated rape, principally on the strength of People vs. Eriia[2] which
this Court, in the Orita decision, has considered to be a stray decision. The 1st March 1996 decision
of the RTC of Cebu City imposing upon each of the accused the penalty ofreclusion perpetua of
Forty (40) Years, has been brought up by them to this Court. The appeal opens up the whole case
for review.
The information, dated 06 April 1994, charging the two accused with the crime of rape reads:

That on or about the 5th day of March, 1994, at about 11:30 oclock in the evening,
more or less, at Barangay Tangil, Municipality of Dumanjug, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with lewd
design and by means of force and intimidation, did then and there willfully,
unlawfully and feloniously lie and succeed in having carnal knowledge of the
offended party Catalina Carciller, fifteen (15) years of age, against her will and
consent.

"CONTRARY TO LAW.[3]

Already in force and effect at the time of the averred commission of the crime are the
provisions of Republic Act No. 7659, amending the Revised Penal Code, which define and
penalize rape, as follows:

ART. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

"1. By using force or intimidation;

"2. When the woman is deprived of reason or otherwise unconscious; and

"3. When the woman is under twelve years of age or is demented.

"The crime of rape shall be punished by reclusion perpetua.

"Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

"When the rape is attempted or frustrated and a homicide is committed by reason or

on the occasion thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

"The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

"1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law-spouse of the parent of the victim.

"2. when the victim is under the custody of the police or military authorities.

"3. when the rape is committed in full view of the husband, parent, any of the children
or other relatives within the third degree of consanguinity.

"4. when the victim is a religious or a child below seven (7) years old.

"5. when the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.

"6. when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.

"7. when by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation.

Duly assisted by counsel, the two accused pleaded not guilty to the crime charged. During the
trial that ensued, the prosecution and the defense presented their respective versions of the case.
The story of prosecution was the first to be told.
 Catalina Carciller, her cousin 15-year-old Rufo Ginto and another male companion named
Richard Diaz, went to attend a dance at around ten oclock in the evening of 05 March 1994 in Sitio
Bangag, Tangil, Dumanjug, Cebu. Catalina, born on 09 November 1978,[4] was just then fifteen
(15) years and four (4) months old. She was a student at the Bito-on National Vocational School
at Dumanjug, Cebu. About an hour later, they left the party and were soon on their way home. The
three unsuspecting youngsters stopped momentarily to rest at a waiting shed beside the Tangil
Elementary School. Accused Agapito Quianola, a.k.a. Petoy, and accused Eduardo Escuadro,
a.k.a. Botiquil, who were both armed with guns, suddenly turned up. Quianola, beaming his
flashlight at the trio while Escuadro stood by, focused his attention on Catalina. Quianola
announced that he and Escuadro were members of the New Peoples Army ("NPA"). Quianola
instructed Escuadro to take care of the male companions of Catalina while he (Quianola) held the
latter at gunpoint.
Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face
down on the ground and then urinated at them. While Escuadro was fixing the zipper of his pants,
Diaz and Ginto were able to escape and ran away. Meanwhile, Quianola, with his gun pointed at
Catalina, forcibly brought her towards the nearby school. Catalina heard a gunfire but Quianola
assured her that it was only an exploding firecracker. When Escuadro again showed up, Catalina
asked about her two friends. Quianola replied that he had ordered them to go home. Catalina
begged that she herself be allowed to leave. Pretending to agree, they walked the path towards the
road behind the school. Then, unsuspectingly, Quianola forced Catalina to sit on the ground. She
resisted but Quianola, pointing his gun at her, warned her that if she would not accede to what he
wanted, he would kill her. Catalina started to cry. Quianola told Escuadro to remove her denim
pants. Catalina struggled to free herself from Escuadro's hold but to no avail. Escuadro ultimately
succeeded in undressing her. Quianola unzipped his pants and laid on top of her while Escuadro
held her legs. Quianola started to pump, to push and pull[5] even as Catalina still tried desperately
to free herself from him. She felt his organ "on the lips of (her) genitalia.[6] When Quianola had
satisfied his lust, Escuadro took his turn by placing himself on top of Catalina. Catalina could feel
the sex organ of Escuadro on the lips of (her) vulva[7] while he made a push and pull
movement. Quianola, who stood by, kept on smoking a cigarette.
Escuadro and Quianola scampered immediately after Catalina's ordeal. Failing to find her pair
of pants and panty, Catalina was left wearing only her T-shirt and brassieres. Catalina just then sat
down, not knowing what to do, until she finally started to run home fearing that she might be
followed. Upon reaching home, Catalina went upstairs and, afraid that the culprits would still come
after her, hid herself behind the door. Baffled by Catalina's strange behavior, her mother and her
elder sister took turns in interrogating her. Catalina finally said that she was raped but she would
not reveal the names of the persons who had committed the dastardly act because of their threat.
Guillermo Zozobrado learned from his wife, Catalinas sister, that Catalina had been raped. He
promptly repaired to the municipal hall of Dumanjug to report the crime. Policemen were
immediately dispatched to the Carcillers residence. Still in a state of shock, Catalina initially kept
mum about it; later, when the police officers returned at daytime, she was able to respond to
questions and to disclose that Petoy, referring to Agapito Quianola, and Botiquil, the other accused
Eduardo Escuadro, were the persons who ravished her. The officers later invited her to the police
station to identify a suspect whom she positively identified to be Botiquil or Eduardo Escuadro.
 Living Case Report No. 94-MI-7,[8] prepared by Dr. Tomas P. Refe, medico-legal officer of
the National Bureau of Investigation ("NBI") of Region 7, Central Visayas, who conducted the
physical examination of Catalina on 07 March 1994, showed that there was no evidence of
extragenital physical injury noted on the body of the Subject.[9] The genital examination yielded
the following findings on the victim:

Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both
coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick,
wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with
moderate resistance. Vaginal walls, tight and rogusities, prominent.[10] (Italics supplied.)

The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was so small as to
preclude complete penetration of an average-size adult penis in erection without producing
laceration.[11]
Against the evidence submitted by the prosecution, the accused, in their defense,
interposed alibi, ill motive on the part of an "uncle" of the complainant, and insufficient
identification.
Accused Agapito Quianola, a member of the Philippine National Police stationed at Naga,
Cebu, testified that it was his day-off on 05 March 1994. At about 8:30 a.m., he and his wife,
Leticia, who had just arrived in Naga from Cebu City, proceeded to the house of his parents in
Panla-an, Dumanjug, to attend to the construction of their unfinished house. Quianola helped Vidal
Laojan and Nicasio Arnaiz in cementing the kitchen floor of their house. The work was finished
at around 11:00 oclock in the evening. After Vidal and Nicasio had gone home, Quianola went to
bed with his wife around midnight until the following morning of 06 March 1994. He denied
having been in the company of his co-accused, Escuadro a.k.a. Botiquil, at any time during the
whole day and night of 05 March 1994. According to him, Guillermo Zozobrado, Catalinas
brother-in-law, concocted the rape charge to get even with him because of an incident in August
1993 at a fiesta dance in upper Tangil, Panla-an, when George Camaso, the husband of his sister
Jinga, got into trouble with Samuel Escuadro.
Quianola tried to pacify George Camaso who was then drunk but Camaso suddenly hit
him. He parried the blow and slapped Camaso on the face. Zozobrado joined the fray and tried to
hit Quianola but because Zozobrado was drunk, he stumbled when Quianola had pushed him.[12] He
admitted that he had no misunderstanding of any kind with the complainant and her parents
themselves.
Leticia Quianola, the wife of accused Agapito Quianola, testified to attest to her husband's
good moral character and to corroborate his testimony. Leticia said that after the workers had left
their house at around midnight, she and appellant talked for a while and then made love. Vidal
Laojan, the carpenter, was presented to state that Quianola was at home helping the carpenters
until past 11:00 oclock on the night of the incident.Nicasio Arnaiz, a farmer and stone cutter, added
that work in the Quianola house had started late in the morning of 05 March 1994 since they still
waited for Quianola and his wife Pritsy to arrive. Work in the house, he said, had stopped at about
past 11:00 oclock that night.
 Accused Eduardo Escuadro, a.k.a. Botiquil, declared that at about seven oclock in the evening
of 05 March 1994, he and Pablito Cuizon, Jr., went fishing in Tangil, Dumanjug, Cebu, until about
ten oclock that evening. After partaking of supper at around 11:30 p.m., they had a drinking spree
and went to bed at 12:00 midnight, waking up at 6:30 a.m. the following day. He denied having
been in the company of Quianola and insisted that the rape charge had been the result of a mere
mistaken identity. Pablito Cuizon, Jr., corroborated Escuadros story about their being together up
until they parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato
Mascarinas, Jr., who took part in the investigation of the crime, and Margarito Villaluna, a suspect
at the early stages of the police investigation who was in the frequent company of the
accused. According to PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the
rape incident to him at midnight of 05 March 1994. He entered the report in the temporary blotter
because the suspect was unknown then.[13] Accompanied by the two tanods, he went to the
residence of the victim and when he asked Catalina if she was able to recognize the malefactors,
she kept silent and continued crying. SPO2 Liberato Mascarinas, Jr., asserted that, in the early
morning of 06 March 1994, Gilly and George Zozobrado went to the police station and named
Pitoy Quianola, Margarito Villaluna and Batiquil or Escuadro as being the suspects in the rape
incident. While on their way to the latter's respective residences, the team met Catalina Carciller
and party who were themselves about to repair to the police headquarters. Mascarinas asked
Catalina about the identities of the rapists. She named "Pitoy Quianola but said she did not know
the names of the other persons although she could recognize them by face.Botiquil was later
brought to the police station. Pitoy Quianola by that time had already gone to Naga. Margarito
Villaluna declared that he had been in Panla-an, Negros Oriental, from 05 March 1994 until 09
March 1994, harvesting corn. His sister, Mercy Villaluna, testified that, in the morning of 06
March 1994, policemen in the company of barangay tanods, including Gilly Zozobrado and his
son Marcelo, came to their house looking for her brother Margarito. Shortly after the group had
left, another policeman, in the company of one Erwin Quirante also came looking for her
brother. The arrival of the policemen prompted her to verify from the Coast Guard whether her
brother had indeed left for Negros Oriental. She was told that her brother was in the boat that
departed for Negros in early dawn of 02 March 1994. Still unsatisfied with the result of her queries,
Mercy went to Guinholngan where she met Margarito.
Following the trial and submission of the case for decision, the court a quo,[14] on 01 March
1996, found the two accused guilty beyond reasonable doubt of the crime of "frustrated rape" and
sentenced them accordingly; thus:

WHEREFORE, premises considered, the Court hereby finds guilty beyond reasonable
doubt the two accused Agapito `Petoy Quianola and Eduardo Escuadro, alias
`Batiquil, as principals by direct participation and indispensable cooperation of the
frustrated rape of the complaining witness Catalina 'Cathy' Carciller, and considering
the attendance in the commission of the crime of the six (6) aggravating
circumstances aforementioned, not offset by any mitigating circumstance, hereby
sentences these two accused individually to Reclusion Perpetua of Forty (40) Years,
plus all the accessory penalties prescribed by law, and to pay the offended party civil
indemnity in the amount of P50,000.00 each.
"The Court also hereby recommends that under no circumstance should the two
accused be granted parole or conditional or absolute pardon, in view of the extreme
moral turpitude and perversity which they exhibited in the commission of the crime
not until they shall have served at least thirty (30) years of the full range of forty (40)
years of reclusion perpetua meted out against them in this case. They should be
interdicted for that length of time from the usual and normal liasons (sic) and dealings
with their fellowmen and their community so as to protect the latter from their
pernicious and insidious examples. This is the most generous and charitable
recommendation that the Court can make for these two malefactors, short of imposing
upon them the supreme penalty of death, which the Court in other times and
conditions might have been compelled, as a matter of inexorable duty, to mete out
against them, in obedience to the implacable and peremptory demands and dictates of
retributive justice.

"Costs shall also be taxed against the two accused.

"SO ORDERED.[15]

The trial court ruled that the accused were liable for the crime of frustrated rape with an eye
to extending to the two accused the benefit of the principle that in case of doubt criminal justice
naturally leans in favor of the milder form of penalty[16] but that, because of the existence of at least
six (6) aggravating circumstances,[17] not offset by any mitigating circumstance,[18] the accused
should each be meted the penalty of reclusion perpetua. It explained:

Now, the crime of rape had it been consummated and had it been committed with the
attendance of the above-mentioned aggravating circumstances, with absolutely no
offsetting mitigating circumstances, ought to be punished with the mandatory penalty
of death under the pertinent provisions of Section 11 and 23 of Republic Act No.
7659, which amended Article 335 of the Revised Penal Code, and further amplified
the aggravating circumstances enumerated in Article 14 of the same code. But
because the crime committed here is 'merely' frustrated rape for the reasons heretofore
discussed, attended by the aforementioned six aggravating circumstances, not offset
by even one mitigating circumstance, the proper penalty to be imposed upon the two
principals, the two accused herein, both co-conspirators, by direct participation and
indispensable cooperation, of the frustrated rape, should be one degree lower than the
indivisible afflictive penalty of death, which is also the indivisible afflictive penalty of
reclusion perpetua which, under Section 21 of the amendatory statute, shall range
from twenty years and one day to forty years.[19]

In their appeal to this court, the two convicted accused interposed the following assignment
of errors:
"I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF THE
PROSECUTION WITNESSES WHICH IF THOROUGHLY CONSIDERED
COULD HAVE ALTERED THE DECISION IN FAVOR OF THE ACCUSED.

"II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF COMPLAINING

WITNESS CARCILLER EVEN IF THE SAME WERE CLOUDED WITH GRAVE
INCONSISTENCIES.

"III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF

ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.

"IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL

EVIDENCE OF DEFENSE WITNESSES EVEN IF THE SAME WERE NOT
CONTROVERTED.

"V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE

TESTIMONIES OF THE POLICEMEN WHICH WERE UNCONTROVERTED
AND WITH PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
DUTIES.

"VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF FRUSTRATED RAPE
AND OF SENTENCING THEM TO 40 YEARS OF RECLUSION PERPETUA."[20]

In reviewing rape cases, this Court must again say that it has been continually guided by the
principles (a) that an accusation of rape can be made with facility; it is difficult to prove, but more
difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature
of the crime which usually involves only two persons, the testimony of the complainant must be
scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall
on its own merits and cannot be allowed to draw strength from the weakness of the evidence of
the defense.[21] Expectedly, courts would scrupulously examine the testimony of the complainant
with the thought always in mind that the conviction of the accused would have to depend heavily
on the credibility of the offended woman. It is not much different in this instance for, at bottom,
appellants assail the credibility of the prosecution witnesses, particularly that of the complainant,
in seeking a reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on credibility are entitled to
highest respect and will not be disturbed on appeal in the absence of any clear showing that the
trial court has overlooked, misunderstood or misapplied facts or circumstances of weight and
substance that could have consequential effects. The stringency with which appellate tribunals
have observed this rule is predicated on the undisputed vantage of the trial court in the evaluation
and appreciation of testimonial evidence.[22]
In assailing Catalinas credibility, as against the assessment made by the trial court which has
described the victim's testimony to be impressed with candor, spontaneity and naturalness,
appellants theorize that the sexual intercourse, if indeed true, could have only been committed
against Catalina in a sitting position, contrary to her declaration of having been made to lie on the
ground, because her T-shirt, marked Exhibit E, is not tainted with mud at all especially the back if
she were made to lie down.[23] The Court finds this so-called incongruity committed by the
complainant to be a feeble attempt to discredit her testimony. The Court is convinced of the sexual
assault made against her. Here follows the testimony of Catalina on this score.
Q You said that you were forced by Agapito Quianola to sit down, where were you forced to sit down,
in what particular place or area?
"A Just behind the back of the school.
"Q You were forced to sit down on the ground?
"A Yes.
"Q In effect did you sit down as ordered by him?
"A I resisted.
"COURT:
"Q How did you resist?
"A I said I will not sit down.
"TRIAL PROS. NAZARENO:
"Q What did Agapito Quianola do, if any, when you resisted?
"A He pointed his gun to me.
"Q When he pointed a gun at you, referring to Agapito Quianola, what did he say?
"A He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me.
"Q What did you do when you heard those words coming from Agapito Quianola?
"A I cried.
"Q When you cried what did Agapito Quianola do, if any?
"A He ordered Eduardo Escuadro to remove my pants and panty.
"COURT:
"Q Why what were you wearing at that time?
"A Pants.
"Q What kind of pants?
"A Denim.
"TRIAL PROS. NAZARENO:
"Q Now, after Agapito Quianola ordered Eduardo Escuadro to remove your pants and panty what did
Eduardo Escuadro do, if any?
"A He did what Agapito Quianola commanded him.
"COURT:
"Q How about you, what what (sic) were you doing at that time?
"A I cried and tried to free myself.
"TRIAL PROS. NAZARENO:
"Q Now, when Eduardo Escuadro removed your pants and panty where was Agapito Quianola and what
did Agapito Quianola do?
"A He unzipped his pants.
"Q After that what happened?
In effect, were your pants and panty removed by Eduardo Escuadro?
"A Yes.
"Q Now, you said Agapito Quianola opened his fly or unzipped his pants, when Agapito Quianola
already unzipped his pants, what did he do?
"A He approached me and lay on top of me.
"Q When Agapito Quianola approached you and laid on top of you, what did Eduardo Escuadro do?
"A He was holding on to my legs.
"Q Then what happened after that?
"A Agapito Quianola started to pump, to push and pull.
"Q What did you do when Agapito Quianola was already on top of you and made a push and pull on
you?
"A I struggled to free myself.
"Q After that what happened when Agapito Quianola was already on top of you and kept on making a
push and pull?
"A Eduardo Escuadro took his turn.
"Q What do you mean by took his turn, please specify what did Escuadro do? He did what Agapito had
just done to you?
"COURT:
"Q What did Agapito Quianola do to you actually?
"A He lay on top of me and did a push and pull movement.
"TRIAL PROS. NAZARENO:
"Q When Agapito Quianola lay on top of you and made a push and pull movement, do you mean to say
that he inserted his penis into your vagina?
"A I felt something hard on the lips of my genitals.
"Q What is this something hard that you felt that touched the lips of your vagina or vulva?
"A His organ or penis.
"Q When Agapito Quianola unzipped his pants, did you see his penis?
"A Yes.
 "Q You also said that Eduardo Escuadro took his turn and laid on top of you and made a push and pull
on you, specifically what did Eduardo Escuadro do?
"A The same as Agapito did, he was doing the push and pull movement.
"Q What did you feel when Eduardo Escuadro was already on top of you and made a push and pull on
you?
"A I held my breath.
"Q Did you see the penis of Eduardo Escuadro?
"A No.
"Q Now, did you feel that the penis of Escuadro was inserted into your vagina?
"A I felt it on the lips of my vulva.[24]
The fact that she must have been lying down when violated has even more been made clear by the
defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were made to lie on the ground at the time when you
were raped by these two accused?
"A They pointed a gun at me and ordered me to lie down.
"Q Lie on the ground?
"A Yes.[25]
And on why her T-shirt was no longer soiled with mud when presented in court, Catalina
creditably explained that when it was offered in evidence, she had already dusted and rid it of grass
particles. At all events, whether appellants spent their lust on Catalina in a sitting position or lying
down would not be of any real moment for what remained clear, established rather convincingly
by the prosecution, was that appellants had forced carnal knowledge of the victim.
The reliance being made by appellants on the affidavit of Catalina in order to discredit her is
likewise futile. The Court has consistently ruled that discrepancies between the statement of an
affiant in an affidavit and those made on the witness stand do not necessarily downgrade
testimonial evidence. Ex parte affidavits are usually incomplete and frequently prepared by an
administering officer and cast in the latters language and understanding of what the affiant has
said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or
to her.[26]
Not much differently could be said of Catalinas identification of appellants as being her
ravishers. On the witness stand, Catalina explained that while she gave appellant Escuadros
nickname Botiquil to the investigating police officer, the latter did not mention that name in the
affidavit because, according to the officer, the affidavit was merely a shortcut.[27] In her testimony,
she was categorical that she had known appellants even before the rape incident. She knew that
appellant Quianola was a policeman and a "popular maldito (nasty) in the locality.[28] Catalina
knew that appellant Escuadro, a resident of Punla-an not far from her own abode, was commonly
known as Batiquil (Botiquil). She could not have been mistaken in the identification of the culprits
since appellants themselves held a flashlight which they used that added to the illumination shed
by a fluorescent lamp and two bulbs on the side of a house only some meters away.
 As regards the allegation of appellants that the testimony of Catalina contradicted in certain
respects that of prosecution witness Rufo Ginto, suffice it to say that the testimony of Rufo Ginto
(who was noted by the trial court not to be an intelligent witness[29]) was merely corroborative in
nature and neither dealt with the actual commission of the crime nor delved on material points.
Catalinas candid and straightforward narration of the two sexual assaults perpetrated on her
on the night of the incident unmistakably deserves credence. It is unbelievable that a young barrio
lass would concoct a tale of defloration, publicly admit having been ravished and her honor tainted,
allow the examination of her private parts, and undergo all the trouble and inconvenience, not to
mention the trauma and scandal of a public trial, had she not in fact been raped and truly moved
to protect and preserve her honor, as well as to obtain justice, for the wicked acts committed against
her.[30] There is no plausible reason why Catalina should testify against appellants, imputing upon
them so grave a crime as rape if it did not happen. This Court has consistently held that where
there is no evidence to show any dubious reason or improper motive why a prosecution witness
should testify falsely against the accused or implicate him in a serious offense, the testimony
deserves faith and credit.[31] So, also, the Court has repeatedly said that the lone testimony of the
victim in a rape case, if credible, is enough to sustain a conviction.[32]
The positive identification of appellants as being the perpetrators of the crime effectively
effaces their alibi.[33] The rule is that affirmative testimony is far weightier than a mere denial,
especially when it comes from the mouth of a credible witness.[34] Moreover, alibi might be aptly
considered only when an accused has been shown to be in some other place at the crucial time and
that it would have been physically impossible for him to be at the locus criminis or its immediate
vicinity at the time of the commission of the crime.[35]
In the context it is used in the Revised Penal Code, carnal knowledge, unlike its ordinary
connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that
the hymen be ruptured.[36]The crime of rape is deemed consummated even when the mans penis
merely enters the labia or lips of the female organ[37] or, as once so said in a case, by the mere
touching of the external genitalia by a penis capable of consummating the sexual act.[38] In People
vs. Escober,[39] in convicting a father of having raped twice his 11-year-old daughter, the Court has
said:

While the evidence may not show full penetration on both occasions of rape, the
slightest penetration is enough to consummate the offense. In fact, there was vulva
penetration in both cases. The fact that the hymen was intact upon examination does
not belie rape for a broken hymen is not an essential element of rape; nor does the
fact that the victim has remained a virgin negate the crime. What is fundamental is
that the entrance, or at least the introduction, of the male organ into the labia of the
pudendum is proved. As in the case at bar, it can be said that there was penetration,
although incomplete, and it was sufficient to prove carnal knowledge of a child under
twelve years of age. A medical examination is not an indispensable element in a
prosecution for rape. The accused may be convicted on the sole basis of complainants
testimony, if credible, and the findings of the medico-legal officer do not disprove the
commission of rape.
"There are no half measures or even quarter measures nor is their gravity graduated by
the inches of entry. Partial penile penetration is as serious as full penetration. The rape
is deemed consummated in either case. In a manner of speaking, bombardment of the
drawbridge is invasion enough even if the troops do not succeed in entering the
castle.[40] (Italics supplied.)

In another case, People vs. Gabayron,[41] where the accused has been found guilty of raping his
daughter, then less than twelve years old, the Court has observed:

Accused-appellant draws attention to the fact that based on the medico-legal

findings, there is no showing that his daughters hymen was penetrated, nor was there
any evidence of injuries inflicted. However, jurisprudence is well-settled to the effect
that for rape to be consummated, rupture of the hymen is not necessary, nor is it
necessary that the vagina sustained a laceration especially if the complainant is a
young girl. The medical examination merely stated that the smallness of the vaginal
orifice only precludes COMPLETE penetration. This does not mean that rape has not
been committed. The fact that there was no deep penetration of the victims vagina and
that her hymen was intact does not negate rape, since this crime is committed even
with the slightest penetration of a womans sex organ. Presence of a laceration in the
vagina is not an essential prerequisite to prove that a victim has been raped. Research
in medicine even points out that negative findings are of no significance, since the
hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have
been reported in women with unruptured hymen. Entry of the labia or lips of the
female organ merely, without rupture of the hymen or laceration of the vagina, is
sufficient to warrant conviction. What must be proven in the crime of rape is merely
the introduction of the male organ into the labia of the pudendum and not the full
penetration of the complainants private part. As we held in Baculi: 'there could still
be a finding of rape even if despite the repeated intercourse over a period of four years
the complainant still retained an intact hymen without signs of injury.' In the case at
bench, Summers testimony has established without a doubt that accused-appellants
organ managed to come into contact with her vagina, enough to cause her
pain.[42] (Italics supplied.)

In its recent holding in People vs. Echegaray,[43] the Court has declared that a mere knocking at the
doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as
full entry into the victims vagina is not required to sustain a conviction.
The trial court, in convicting appellants only of frustrated rape, ruled that there was no
"conclusive evidence of penetration of the genital organ of the offended party, [44] in that: (a)
Catalina had admitted that she did not spread her legs and (b) the medico-legal officers findings
showed she did not sustain any extragenital injuries and her hymenal orifice was so small that an
erect average-size penis would not have completely penetrated it without causing laceration. It
would seem that the trial court failed to consider Catalinas testimony in its entirety; she testified:
 Q And when he mounted on top of you Escuadro was holding on to your two feet and all the time that
he (Quianola) was making a push and pull on you, Escuadro was holding on to your two feet?
"A. Yes.
"COURT:
"Q Your two feet?
"A Yes.
"ATTY. CREER:
"Q Now, in other words, since your two feet were held and Eduardo Escuadro was waving (sic [moving])
slightly to your left, as you demonstrated, your two feet became closer to each other, it could not
be spread?
"A I was still struggling at that time to free myself and I do not know whether my legs were spread out
or not.
"Q Did you spread your legs?
"A No.
"Q Since you did not spread your legs and Quianola was on top of you, did you not bother to pull your
legs, kick the one holding it and pushed Quianola or do any harm to him?
"A No, because I was already frightened considering that there were two of them and they were
armed.[45]
This testimony would indicate that Catalina, considering her struggle to free herself,
understandably failed to notice whether her legs were spread apart or close together during her
ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs
when Quianola took her. Thus -
Q At that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly
so that he will refrain from raping you?
"A I was not able to think of that because of my fear, and besides that Eduardo Escuadro was holding
on to both my legs.
"Q Now, if Eduardo Escuadro was holding on both your two legs how was Quianola able to place
himself on top of you?
"A It was because Eduardo Escuadro had already released my hands and Quianola was the one holding
on to it already, afterwards Eduardo Escuadro transferred to hold both my legs.[46]
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such
crime as frustrated rape. In People vs. Orita,[47] the Court has explicitly pronounced:

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of
his victim, he actually attains his purpose and, from that moment also all the essential
elements of the offense have been accomplished.Nothing more is left to be done by
the offender, because he has performed the last act necessary to produce the
crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48
Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62
Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil.
434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the
nature, elements and manner of execution of the crime of rape and jurisprudence on
the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.

"Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia,
50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being
no conclusive evidence of penetration of the genital organ of the offended
party. However, it appears that this is a 'stray' decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12,
1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on the occasion thereof. We are
of the opinion that this particular provision on frustrated rape is a dead provision. The
Eriia case, supra, might have prompted the law-making body to include the crime of
frustrated rape in the amendments introduced by said laws.[48]

The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised
Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who
commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress
sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued
usage in the statute book as being merely a persistent lapse in language.
Each appellant is liable for two counts of consummated rape on account of a clear conspiracy
between them shown by their obvious concerted efforts to perpetrate, one after the other, the
crime. Each of them, therefore, is responsible not only for the rape committed personally by him
but also for the rape committed by the other as well.[49]
Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, when
rape is committed with the use of a deadly weapon or by two persons, the crime is punishable
by reclusion perpetua to death. Even while the information has failed to allege the use of a deadly
weapon in the commission of the rape, appellants can, nonetheless, be held accountable under that
provision since the information has likewise averred that the above-named accused, referring to
the two appellants, have conspiratorially committed the crime.
 Article 14 of the Revised Penal Code,[50] includes among its enumeration of generic
aggravating circumstances the fact that the crime is committed with the aid of armed men or
persons who insure or afford impunity.The fact alone, then, that a malefactor has sported a firearm
does not, by itself, militate to aggravate the crime. As regards appellant Quianola, the aggravating
circumstance of his being a member of the Philippine National Police would have exposed him to
the penalty of death[51] under the amendatory provisions of Article 335 by Republic Act No. 7659,
had this circumstance been properly alleged in the information. The description by the trial court
of appellants as being powerfully, built, brawny and mean-looking as against the short, slender,
easily cowed 15-year-old victim would not here warrant a finding that abuse of superior strength
has aggravated the commission of the crime. The law should be deemed to have already considered
this circumstance in qualifying the crime to its "heinous" character, rendering, in that context,
abuse of superior strength as an inherent element thereof. Neither may nighttime be considered an
aggravating circumstance in the absence of proof of its having been deliberately sought out by
appellants to facilitate the commission of the offense.[52] Craft, fraud or disguise[53] is a species of
aggravating circumstance that denotes intellectual trickery or cunning resorted to by an accused to
aid in the execution of his criminal design or to lure the victim into a trap and to conceal the identity
of the accused. The fact that one of the appellants has pretended to be a member of the New Peoples
Army does not necessarily imply the use of craft, fraud or disguise, in the commission of the
crime. Finally, the Court does not subscribe to the view of the trial court that accused-appellants
have employed means which added ignominy to the natural effects of the crime, particularly in
stripp(ing) the victim of her denim pants and panties and then sending her home in this humiliating
and distressing condition.[54] There is nothing on record that even remotely suggests that accused-
appellants so deliberately sought to leave Catalina with bottoms bare that she might be left alone
in shame with only her T-shirt and brassieres on.
The absence of any aggravating circumstance in the commission of a crime punishable by two
(2) indivisible penalties, such as reclusion perpetua to death, would justify, even without any
mitigating circumstance, the imposition of the lesser penalty of reclusion perpetua.
The trial court has ordered appellants to each pay the offended party civil indemnity in the
amount of P50,000.00. Prevailing jurisprudence[55] likewise allows the victim to have an award of
moral damages for havingevidently undergone "mental, physical and psychological
sufferings. The civil liability of appellants, being predicated on delict, is solidary. [56]
WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo Escuadro y Floro are
each found guilty beyond reasonable doubt of two (2) counts of consummated rape and,
accordingly, sentenced to the penalty of reclusion perpetua in each case. Said appellants are
ordered to pay, jointly and severally, Catalina Carciller the sum of P100,000.00 by way of
indemnity ex delictu for the two counts of consummated rape plusP60,000.00 moral
damages. Costs against appellants.
SO ORDERED.
CASE DIGEST: Valenzuela v. People, GR No. 160188

Title: Valenzuela v. People, GR No. 160188

Subject Matter: Applications of the provisions of Article 6 of the Revised Penal

Code; Stages of theft

Facts:

While a security guard was manning his post the open parking area of a supermarket, he saw the accused,
Aristotel Valenzuela, hauling a push cart loaded with cases of detergent and unloaded them where his co-
accused, Jovy Calderon, was waiting. Valenzuela then returned inside the supermarket, and later emerged
with more cartons of detergent. Thereafter, Valenzuela hailed a taxi and started loading the boxes of
detergent inside. As the taxi was about to leave the security guard asked Valenzuela for the receipt of the
merchandise. The accused reacted by fleeing on foot, but were subsequently apprehended at the scene.
The trial court convicted both Valenzuela and Calderon of the crime of consummated theft. Valenzuela
appealed before the Court of Appeals, arguing that he should only be convicted of frustrated theft since he
was not able to freely dispose of the articles stolen. The CA affirmed the trial court’s decision, thus the
Petition for Review was filed before the Supreme Court.

Issue:

Whether or not petitioner Valenzuela is guilty of frustrated theft.

Held:
No. Article 6 of the RPC provides that a felony is consummated when all the elements necessary for its
execution and accomplishment are present. In the crime of theft, the following elements should be present
– (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 intimidating of persons or force upon
things. The court held that theft is produced when there is deprivation of personal property by one with
intent to gain. Thus, it is immaterial that the offender is able or unable to freely dispose the property
stolen since he has already committed all the acts of execution and the deprivation from the owner has
already ensued from such acts. Therefore, theft cannot have a frustrated stage, and can only be attempted
or consummated.