Module 4

Stages and Classification of Felonies

Article 6 – Consummated, frustrated, and attempted felonies –

Consummated felonies as well as those which are frustrated and attempted
are punishable.

Felonies are consummated when all the elements necessary for its
execution and accomplishment are present; and 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.

There is an attempt when the offender commences the commission of the

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.

Elements of an Attempt
1. When the offender
2. commences the commission of the felony
3. Directly by Overt act
4. Does not perform all acts of execution to produce the felony
5. By reason of cause/accident
6. other than his own spontaneous desistance

TIPS:
1. Focus on the acts – no allegedly – just the physical or manifested acts
2. Acts will lead to the intent (story)

People v. Lamahang, 61 Phil 703 (1935)

Doctrine: To determine what attempted offense to be punished, the beginning execution by
overt acts of the perpetrator must lead directly to its realization/consummation.
Overt act performed by the perpetrator must be directly connected to the intended felony.

Facts: There is a police patrolling the street. Defendant (habitual delinquent) was caught trying
to break in a store using an iron bar to unfasten the boards from the wall. Owners of the stores
were asleep inside. Defendant succeeded in breaking only one board from the wall before he
was arrested by the police.

Issue: W/N the defendant should be guilty of attempted robbery. (OSG)

Held: NO. Defendant was guilty of attempted trespassing instead.

Ratio: The attempt to commit an offense which the Penal Code punishes is that which has
a logical relation to a particular, concrete offense; that, which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading directly to its realization and
consummation.

Not sufficient to impose attempted robbery:

Intention of the accused to enter the store through violence
Due to timely arrival of policeman, did not develop beyond the first steps of its execution

Requisites of an Over Act

1. Physical activity or deed
2. Indicative of intention to commit a particular crime
3. More than mere planning or preparation
4. Which, if carried to its complete termination
5. Following natural course
6. Without being frustrated by external obstacles or voluntary desistance of the perpetrator
7. Will logically and necessarily ripen into concrete offense

For OA to be able to establish attempt:

Overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made.

Intent to gain must be present in an attempted robbery.

It may only be inferred from the acts of the defendant that his intention was to force his way
inside the store without the owner’s consent.

Unconsummated offenses
1. Material damage is wanting
2. Accion fin – nature of the action cannot be ascertained
3. Accion medio – nature of the action must be inferred from the nature of the acts
executed

To establish attempted felony

1. Existing relation between facts and the supposed offense
2. Intention can be ascertained from the facts (objective be known/established)
3. Overt acts are aimed at the consummation of the crime (immediate and necessary
relation)

SIR’S ANALYSIS TIP

1. When the offender - Lamahang
2. commences the commission of the felony: alleged attempted robbery
3. Directly by Overt act:
a. Suspect was making an opening with an iron bar on the wall of a store
 b. Broke a board
c. Unfastening another board
i. Trespass not robbery
4. Does not perform all acts of execution to produce the felony:
a. Taking of property without owner’s consent
5. By reason of cause/accident: police caught him
6. other than his own spontaneous desistance

People v. Dio (1984)

Facts: Victim was a civil engineer working at a Sugar Construction Company. He and his
girlfriend were supposed to eat at a restaurant. Before entering, the victim was held up by the
accused and his companion. Companion twisted the neck of victim. Accused was holding the
victim’s hand. They were trying to get the “Seiko” wristwatch. Victim resisted and fought the
robbers. Companion stabbed victim. Victim got free and ran, followed by the GF, who shouted
for help. Victim died with the watch still strapped to his wrist. Cause of death: stab would below
his left breast/heart. Other injuries: abrasions, incise wounds at the neck. Stab wound below left
nipple.

TC: charged accused with complex crime of robbery with homicide; death penalty

Issue: W/N the accused should be charged with the complex crime of robbery with homicide.

Held: No. Should be complex crime of attempted robbery with homicide. Lower sentence of 10
years and 1 day of prision mayoras minimum to 20 years of reclusion temporal as maximum

Ratio: No doubt that accused had a hand in the death of the victim. However, evidence showed
that accused and his companion failed to consummate the crime (watch still on wrist upon death
of victim)

People v. Trinidad (1989)

Doctrinal rule: Where the wound inflicted on the victim is not sufficient to cause his death, the
crime is only Attempted Murder.

Facts: Accused was a policeman. He hitched a ride with the victims, who were selling fishes in
the market, to get to his destination. Car was a Ford Fiera. Seating arrangement: survivor was
driving the vehicle; the two deceased on his right; accused at the very end. The third victim,
upon realizing that his companions were dead, jumped out of the vehicle and hid in the bush.
20-30 minutes after, third victim hailed a jeep and rode on the front seat. Accused was on that
same jeep (seated at the back). Victim tried to run away. Accused followed. Victim clung to the
moving jeep. Accused shot (2x) him on the right thigh. Victim jumped on another jeep but was
pushed out. Crawled. Was found by someone. Survived.

TC: charged accused with 2 crimes of murder and 1 frustrated murder

Issue: W/N the accused should be charged with frustrated murder for the third victim.

Held: No. Attempted murder only. Lower penalty.

Ratio:
1. Commenced commission of felony through overt acts – YES
2. Failed to perform all the acts of execution – YES; wound was not fatal enough to cause
victim’s death
3. Reason of causes other than his spontaneous desistance – YES; victim clung to a
moving jeep; spare tire shielded him

People v. Campuhan (2000)

Doctrine: There is no such thing as frustrated rape. There is only consummated or attempted
(People v. Orlita).
Reason: Sends the wrong message that it’s better to perform such act without restraint since all
attempted fornication would be considered consummated rape and punished as such.

Consummated Rape – any form of penetration (not necessarily full or complete); entry of the
labia or lips of female organ even without rupture of the hymen or laceration of the vagina;
synonymous to mere touching of the external genitalia
Doctrine: Touching must be inextricably viewed in relation to or as an essential part of
the penile penetration process and not just mere touching or in the ordinary sense; not
mere stroking of external surface; labia majora/labia minora
- even with flaccid or oversized penis, if there must be repeated tries to insert it
into the vagina (victim felt organ on the lips of her vulva or middle part of her
vagina)
Attempted rape – no penetration at all; mere touching in the ordinary sense (depende parin tho
= removed clothes while pulling them away from public eye like that in Rait v. People); mons
pubis

Parts of female genitalia

Pudendum or vulva - collective term for the female genital organs that are visible in the perineal
area
Mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface
Labia majora or the outer lips of the female organ composed of the outer convex surface
and the inner surface
skin of the outer convex surface is covered with hair follicles and is pigmented
inner surface is a thin skin which does not have any hair but has
many sebaceous glands
Labia minora directly under labia majora

Fact: Victim was 4 years old. Accused was a helper of the relative of the victim (uncle). Incident
happened in the home of the victim, specifically in the children’s room. Mother was downstairs
making milo for the children. Heard cries of her child “Ayoko na”. Saw accused kneeling before
the victim. Shorts down. Victim’s jogging pants and panty were already removed. Accused was
trying to force his penis in the victim’s vagina. Physical examination: no evident sign of extra-
genital physical injury; hymen was intact. Orifice s only 0.5 cm in diameter.

Issue: W/N the crime is consummated rape.

Judicial depiction of consummated rape has not been confined to the oft quoted "touching of the
female organ," but has also progressed into being described as "the introduction of the male
organ into the labia of the pudendum ," or "the bombardment of the drawbridge." But, to our
mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion." – FOR THE LOLS

Accused’s argument:
1. Testimony is inconsistent with human nature
a. Done in the presence of the sibling
b. Done in a place where help can easily be sought
2. Position and angle of both accused and witness
3. Absence of physical signs

Held: No. Attempted rape only. 2 degrees lower.

Ratio: Mother’s testimony was insufficient to establish evidence of penetration however slight.
1. Kneeling position made observation impossible
2. No mention of the position of the witness to enable to see clearly and sufficiently
3. Accused hand is holding his penis, blocking it from view
Mother’s counter argument: accused continued his attempt even upon her arrival
- NO way. Inconsistent with human nature.
Victim’s testimony – NO – underdeveloped sexual language
No proof of erection
Victim closed her legs. “Not happy”. No pain.
Rape = positive testimony + medical certificate

Rivera v. People (2006)

Doctrine: When intent to kill is established beforehand, superficial wounds would constitute
attempted murder and not physical injuries.

An essential element of murder and homicide, whether in their consummated, frustrated or

attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously
with the infliction of injuries.

Facts: One of the accused (Edgardo) got into a heated exchange with the victim prior to the
incident (at the store). Next day. Same store. Victim was w/ 3-year-old daughter. Accused w/
two brothers began mauling victim. Edgardo hit victim with hollow block parietal area (upper
back of skull) 3x. Arrival of police. Accused fled. Victim = multiple wound; parietal area =
superficial; would heal in 7 days.

TC: Frustrated murder

CA: Attempted murder: intent to kill = nature of the wound & kind of weapon
Accused: Physical injuries; no intent to kill; superficial wound; no treachery = attempted
homicide
OSG: treachery = element of surprise/ganging up/no warning
Issue: W/N accused should be charged with attempted murder.

Held: YES

Ratio:
There was Intent to kill:
1. Means/weapons used by malefactor/s
2. Nature/location/number of wounds sustained by victim
3. Conduct of malefactors before or immediately after the incident
4. Circumstances surrounding the commission of the crime
5. (motive)
With the establishment of intent to kill, superficiality of wound does not negate
petitioner’s criminal liability for attempted murder.
1. Commences commission of felony through overt acts
2. Does not perform all acts of execution
3. Not stopped by his own spontaneous desistance
4. Non-performance of all acts of execution was due to cause/accident other than his
spontaneous desistance

Elements of the first requisite to attempted felony

1. External acts
2. External acts have direct connection with the crime intended to be committed (People v.
Lamahang)

Overt Act
1. some physical activity or deed
2. indicating the intention to commit a particular crime
3. more than a mere planning or preparation
4. which if carried out will logically and necessarily ripen into a concrete offense

Attempt must have CAUSAL RELATION to the intended crime.

There being conspiracy by and among petitioners, treachery is considered against all of them

Velasco v. People (2006)

Doctrine: Attempted murder vs. attempted homicide = treachery is appreciated in attempted
murder.

Facts: Victim was cleaning his jeep in front of his house. Accused, while on a tricycle
(passenger), fired at victim several times (7 ammunitions). Hit victim at the arm. Victim
stumbled. Ran away. Accused continued to fire at him. (Accused is also a navy man). Victim
incurred expenses for hospitalization and medicines in the total amount of P2,696.06.

TC: Attempted murder

Issue: W/N the petitioner committed attempted homicide.

 - Petitioner said that there was no “sudden firing” because the victim testified to
observing the gunman for a period of 10 seconds before the latter drew his gun and fired
at him. Victim was also able to run away.

Held: No. Attempted murder talaga

Ratio:
Element of treachery was there:
1. The victim was not in a position to defend himself
2. The petitioner consciously and deliberately adopted the particular means, methods, or
forms of attack employed by him.
The essence of treachery is the swift and unexpected attack on the unarmed victim without the
slightest provocation from him.

Although victim was observing the accused for some time, he was not able to run away when he
was first fired upon—showing the suddenness/swiftness of the attack,

Attempted
1. superficial wound

Baleros Jr. v. People (2006)

Doctrine: When the overt act of a person is ambiguous in so far as the intended felony is
committed, what we have is an attempt to commit an indeterminate offense which is a juridical
standpoint insofar as the RPC is concerned.

Facts: That night, the woman left her bedroom window opened before going to sleep (Door was
closed but later was opened). She was awakened by a man, fully clothed, pressing a cloth
soaked with chemical on her face. No attempt to undress her or touch private parts. The man
was on top of her, she struggled, she was able to kick the man and squeeze his sex organ, the
man jumped out of the window. She called on the guard and then everyone came up to her. The
case filed against the man was attempted rape. The man was convicted up to the CA of
attempted rape.

Accused – victim’s classmates

Asked permission from the guard to go up the building as he was visiting a friend.
Caught because of his bag containing the handkerchief w/ chloroform (and the victim’s
nightdress???)

Issue: W/N there was an attempted rape.

Held: NO. Unjust vexation

Ratio: Overt act of pressing a cloth soaked with chemical on the face of a woman is not an overt
act directly connected to rape. The obvious intent was to make the woman unconscious but
once the woman is made unconscious, the man may rape, may touch the private parts of the
woman, or he may injure the woman, or may rob the property of the woman. Therefore he
cannot be held liable for attempted rape.
When is rape committed:
1. force/intimidation
2. woman is deprived of reason/unconscious
3. under 12 years old or demented

Overt Art:
1. physical activity or deed
2. indicate intention to commit crime
3. more than mere preparation or planning
4. which if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense

Indeterminate Offense
In indeterminate offense, the overt act of a person in relation to the intended felony is
ambiguous. It is necessary that the overt act must be necessarily connected to the felony. Only
then he will be punished of the said attempted felony.

Obiter Dictum:
Positive identification – proof of identity
1. direct – the victim themselves identifies the accused
2. circumstantial – inference
In the absence of direct evidence, the court may result to circumstantial evidence.

Paddayuman v. People (2002)

Fact: Accused stabbed victim twice (left side of his body) while the latter was on his way home.
“Why?” “I will really kill you.” Accused left victim dying. Victim survived but acquired wounds that
required medical attendance of more than 9 days but not more than 1 month barring
complications. Victim’s nephew brought him to the hospital. Victim spent a total of 9 days in the
2 different hospitals (7:2). Prior to the incident, victim had admonished accused for drinking too
much while at the house of the victim’s uncle. Preparation for the uncle’s son’s wedding.

Accused’s defense: victim set his granary on fire intending to burn him in his house.

Issue: Attempted homicide?

- accused argued for self-defense

Held: YES

Ratio:
Intent to kill – stabbed twice on the chest
Wounds – not fatal enough to cause death
No treachery

Self-defense requisites:
1. Unlawful aggression on the part of the victim
 2. Reasonable necessity of the means employed to prevent it
3. Lack of sufficient provocation on the part of the person defending himself
Unlawful aggression is sine qua non for the justifying circumstance.

Why it wasn’t self-defense:

1. Florentino never reported the alleged burning of his property to the Barangay Captain of
Capatan
2. Florentino filed a complaint for destructive arson against Maximo and Apolinario only on
June 13, 1991 — 90 days after the occurrence of the alleged incident and 79 days after
the filing of the case at bar before the inquest court
3. Florentino did not execute any sworn statement or affidavit regarding the alleged burning
incident.
4. Florentino did not give his counter-affidavit when the case at bar was under preliminary
investigation

People v. Lizada (2003)

Doctrine: Attempted OA vs. preparatory acts
Acts constitutive of an attempt to commit a felony should be distinguished from
preparatory acts which consist of devising means or measures necessary for accomplishment
of a desired object or end. One perpetrating preparatory acts is not guilty of an attempt to
commit a felony.

Facts: Accused = stepfather of victim; common-law. Victim = 11 years old. Victim was raped two
times a week. Under threat. Stayed silent. From August to December 1998 (baka November
lang????). November incident: fingers were inserted in the vagina; breasts fondled; lied on top
of her; alleged that penis was inserted as well. Examination: no extragenital injuries; hymen
intact; orifice too small for penetration by average size Filipino adult without producing injury.

One instance:
Not his own spontaneous desistance = arrival of the brother
Still wearing his short pants. No shirt.

TC: Qualified rape. Death penalty

Issue: Attempted rape? Or acts of lasciviousness?

Elements of acts of lasciviousness

1. act of lasciviousness or lewdness
a. Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is carried on a
wanton manner
2. without force or intimidation
3. without depriving the other party of reason or consciousness
4. party is not under 12

Held: YES. Two simple rapes. Two attempted. Not his own spontaneous desistance
Ratio: Acts constitutive of an attempt to commit a felony should be distinguished from
preparatory acts which consist of devising means or measures necessary for accomplishment
of a desired object or end. One perpetrating preparatory acts is not guilty of an attempt to
commit a felony. However, if the preparatory acts constitute a consummated felony under the
law, the malefactor is guilty of such consummated offense.

The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the equivocal
quality remains, no one can say with certainty what the intent of the accused is.

In reviewing rape cases, this Court is guided by the following principles:

1. to accuse a man of rape is easy but to disprove it is difficult though the accused may be
innocent;
2. considering the nature of things, and only two persons are usually involved in the crime
of rape, the testimony of the complainant should be scrutinized with great caution;
3. the evidence for the prosecution must stand or fall on its own merits and not be allowed
to draw strength from the weakness of the evidence of the defense

Obiter Dictum:
Own Spontaneous Desistance = exempts
1. First, the character of an attempt is lost when its execution is voluntarily abandoned.
2. Secondly, the policy of the law requires that the offender, so long as he is capable of
arresting an evil plan, should be encouraged to do so, by saving him harmless in case of
such retreat before it is possible for any evil consequences to ensue
a. Neither society, nor any private person, has been injured by his act.
b. To punish him after retreat and abandonment would be to destroy the motive for
retreat and abandonment
Cunnilingus is hard to prove as attempted or consummated. You don’t know where the tongue
went daw? – what the fuck is this – pro reo na lng

People v. Gajetas (1981)

Doctrine: Of vital importance, therefore, is the criminal objective in performing the act to
determine w/n the OA commences the perpetration or intent of a specific offense.

Facts: Night. Accused and brother went to the victim’s house. Victim was alone with 2 young
daughters (4:1). Husband was away. Accused asked victim to have sexual intercourse with him.
Refused. Accused started embracing and kissing her. Freed herself and took a bolo. Accused
grabbed the bolo and scythed the victim on the neck. Dead. Brother watched by the door.
Stabbed victim on the arm. No other witness aside for the 4-year-ol daughter.

Cause of death: hemorrhage due to lacerated wounds on the right side of the neck; other
wounds: right side of head, middle side of neck, upper part of neck
Issue: W/N embracing should be considered an overt act that would commence the perpetration
or intent of rape.

Held: YES. Crime of attempted rape w/ homicide

Accused’s arguments:
1. there must be a direct relation and intimate connection between the overt act and the
felony intended to be committed
2. merely a showing of a desire, a mental expression not within the realm of Criminal Law
3. embracing/kissing = acts of lasciviousness.

Ratio: For, were it not for the resistance offered by the victim, said act of the appellant would
have naturally ended up with the consummation of his criminal objective of having carnal
knowledge of the victim against her will which he expressly admitted in his extra-judicial
confession.

When criminal objective of having carnal knowledge of the victim against her will is admitted or
is sufficient established and said act would naturally end up with the consummation of said
criminal objective unless frustrated by some external cause or by offender's voluntary
desistance.

Rait v. People (2008)

Facts: Victim (minor) got drunk off one glass of beer offered by the accused. (initially refused.
But neighbor came to join.) Accused and companion brought her to the side. Removed lower
garments and underwear. Inserted fingers. Covered her mouth. Tried to insert penis. But she
was able to run away (kicked them). (Only one of them was arrested)

TC: Attempted rape.

Isse: W/N accused should be acquitted of attempted rape.

Accused’s argument: cited Indeterminate offense (Baleros Jr. v. People) – unjust vexation lng
daw sya dapat (or acts of lasciviousness)

Held: NO. same felony. Lower penalty = 2 degrees than reclusion perpetua

Ratio: Not the same conditions as in Baleros. Intent was clear when he:
1. removed victim’s clothes
2. inserted his fingers into her vagina.
3. Was it not for her kick, he would have consummated the rape
* The acts are clearly "the first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made." (People v. Lamahang)

Requisites of an Over Act

1. Physical activity or deed
2. Indicative of intention to commit a particular crime
3. More than mere planning or prepration
 4. Which, if carried to its complete termination
5. Following natural course
6. Without being frustrated by external obstacles or voluntary desistance of the perpetrator
7. Will logically and necessarily ripen into concrete offense

For OA to be able to establish attempt:

Overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made.

People v. Bendecio (2020)

Same case as Aberratio ictus w/ the daughter. Accused standing by the doorway. Shot. Hit
daughter and missed the intended victim (father).

Issue: W/N accused should be convicted of the complex crime of murder with attempted
murder.

Held: YES. With respect to father.

Ratio: Court held that attempted murder or attempted homicide is committed when the accused
intended to kill the victim, as manifested by the use of a deadly weapon in the assault, and
the wound/s sustained by the victim was/were not fatal.

Accused fired at victim – intent to kill w/ treachery; commence the commission of the felony
Missed – not all acts of execution to produce the felony
Bullet hit someone else - Not by his own spontaneous desistance

Casilac v. People
Doctrine: When intent to kill was present in one victim, then the same intent must also
presumed to be present to the other victim.

Facts: The motorcycle case. Brothers. One died. One got shot. Superficial wound.

Issue: W/N less serious physical injuries

Held: No. Attempted murder and not less serious physical injuries.

Ratio: Elements of attempted murder are present. Elements to intent to kill also present.

Nature of attack is an ambush – treachery

Fired at victim – commences commission of felony thru overt act
Superficial wound – not all acts of execution to produce intended felony
Victim was able to run away - not his own spontaneous desistance

Lutap v. People (2018)

Facts: Victim – minor. Short pants. Sitting on the floor. Legs spread apart. Watching tv/playing.
Two other people (siblings of victim) present. Seated some 5 steps away from victim. Mother
was in the kitchen cooking (concrete wall). Accused – BFF of victim’s father, was on the sofa. 1
foot away from victim. Accused touched victim’s vagina (insert fingers not established?). Victim
swayed off his hand. One of the siblings saw. Reported to mother. Mother asked victim. This
happened many times in accused’s house. Sometimes on the bed, w/out underwear to lick her
vagina.

RTC: Rape – may insertion ng fingers

CA: attempted – graze lng daw

Issue: W/N there was attempted rape.

- Petitioner argued:
1. no contact of sexual organs
2. no proof that he had any intention of inserting his finger
3. victim was fully clothed

Held: No. Acts of lasciviousness.

How rape can be committed:

1. Central element of carnal knowledge
2. Sexual assault under certain circumstances

Ratio: We agree with the CA's ruling that the fact of insertion of petitioner's finger into AAA's
sexual organ was not established beyond reasonable doubt to support petitioner's conviction of
rape by sexual assault.

The act of touching a female's sexual organ, standing alone, is not equivalent to rape, not even
an attempted one especially if the organ was covered/clothed at that time (does not clearly
establish intent to rape). At most, therefore, petitioner's act of touching victim’s covered sexual
organ demonstrates his guilt for the crime of acts of lasciviousness, an offense subsumed in the
charge of rape by sexual assault.

Yap v. People (2018)

This is the car story. Two friends. Fought while inside the car. Coffee was poisoned “daw”. Upon
losing consciousness, accused hit victim several times. Victim was still able to run away.
Superficial wounds.

W/N attempted murder.

NO. Slight physical injuries only.

No intent to kill based on circumstantial evidence.

Elements of intention to kill:

1. Means/ Weapon of malefactor – rolling pin already inside the car
2. Injuries sustained by victim – superficial wounds
3. Conduct before and immediately after – ran away/did not chase the victim
4. Circumstances surrounding incident
Element of Frustrated
1. Offender
2. performs all the acts of execution
3. which would produce the felony as a consequence
4. But which, nevertheless, do not produce it by reason of causes independent from the
will of the perpetrator

People v. Orita (1990)

Doctrine: No frustrated rape. Only consummated or attempted.

Facts: Victim was about to enter the boarding house (having come home from a party) when
accused held her and poked a knife to her neck. Holding her neck and pointing the knife at her,
accused dragged her upstairs where they entered the victim’s room. Accused threatened her to
remove her clothes. She removed her shirt, but the rest were removed by the accused. Ordered
her to hold his penis and guide it to her vagina (holding knife). Only a small part of the penis
was inserted due to bad positioning and bec accused kept holding the knife. Two different
positions (missionary and riding – why do I have to do this). Victim was able to escape by
jumping through a window.

Victim – student. Accused – Phil Constabulary soldier; frequent visitor of another boarder.

Wounds: hematoma around the neck. Multiple pinpoint marks at the back. Abrasions at the
knees. No abrasion marks at the perineal area or over the vulva. Areas around vaginal orifice –
tender; hymen intact; no laceration; examining finger can barely enter; no discharges.

Victim: frustrated rape.

RTC: frustrated rape
CA: rape

Issue: W/N frustrated stage applies to the crime of rape.

Held: NO

Ratio:

Requisites of frustrated felony:

1. that the offender has performed all the acts of execution which would produce the felony
2. the felony is not produced due to causes independent of the perpetrator's will

Frustrated v. Attempted
1. Frustrated - there is no intervention of a foreign or extraneous cause or agency between
the beginning of the commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime
2. Attempted - there is such intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime
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 ac necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases.

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.

Stray decision – people v. Erinia

Dead provision – RA 2632 & RA 4111

Rape = positive testimony from victim + medical certificate

It is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation)
and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ
of the victim. He merely testified that there was uncertainty whether or not there was
penetration.

Penalty – reclusion perpetua - deadly weapon

Aggravating circumstance – nighttime/dwelling – rises to death – but abolished so

SIR’S ANALYSIS TIP

1. Offender: Orlita
2. performs all the acts of execution
a. made her hold his penis to insert it to her vagina
b. made her mount him
c. small part of his penis entered her vagina
3. which would produce the felony as a consequence: rape
4. But which, nevertheless, do not produce it by reason of causes independent from the
will of the perpetrator

Why no Frustrated rape:

1. Subjective phase – frustrated = complete; attempted = not complete
2. Objective phase – frustrated & attempted = hnd umabot; consummated = umabot

People v. Listerio (2000)

Doctrine: It is not the gravity of the wounds inflicted which determines whether a felony is
attempted or frustrated but whether or not the subjective phase in the commission of an offense
has been passed. (SUBJECTIVE PHASE)

Facts:
Crime – murder w/ frustrated murder
Victims – 2; walking on the way home (from failure to collect money from someone)
Accused – several others (3? 5?); blocked their path and attacked them
Weapons – bladed weapons and GI lead pipes
Elements present – intent to kill; treachery & evident premeditation
Victim 1 dead:
Wound – 3 stabs; back (2 non-fatal)
Cause of death – mortal wound from the stabbing
Victim 2 survived:
Hit in the head.
Lost consciousness for 3 minutes
Survived due to medical assistance.
Wounds – 2 lacerations head (behind ear & forehead); 2 laceration sa forearm; stab
wound right shoulder
By that time, accused fled.
Accused said he was being framed “Because you ejected us from you ur house during drinking
spree” – victim 2 – but was vehemently denied

TC: murder and attempted murder

Issue: W/N the accused should be charged with murder and attempted homicide without proof
of conspiracy and treachery.
- on the basis that none of the wounds in Victim 2 were fatal

Held: NO.

SIDENOTE ON CONSPIRACY:
Conspiracy transcends mere companionship; it denotes an intentional participation in the
transaction with a view to the furtherance of the common design and purpose.

SIDENOTE ON MURDER:
Element of treachery exists. Armed. Blocked path of escapes. Stabbed at the back. Intent to kill.
Abuse of superior strength (numerical superiority) – absorbed in treachery

Ratio:
Subjective Phase Defined
1. portion of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with the prior
acts, should result in the consummated crime
2. period occupied by the acts of the offender over which he has control
3. that period between the point where he begins and the point where he voluntarily
desists
a. Attempted – offender stops by reason of outside his own desistance between
these two points
b. Frustrated – offender does not stop in between these points

Objective Phase Defined

1. Period after the consummation of the felony
 Frustrated Attempted
Went past subjective phase Stopped during the subjective phase (not his
own desistance)
Elements: Elements:
1. All acts of execution to produce the 1. Commences felony through OA
felony 2. Not all acts of execution
2. Felony not produce due to some 3. Not his own spontaneous desistance
causes independent of perpetrator’s
will

People v. Angeles (2019)

Facts: 4 victims; 4 accused
Victim 1 and 2 – inside house; heard loud noise from tricycle outside
Victim 1 and 3 (youngest) – went out of the house to check
Victim 2 – followed

Appellant – companion; alighted from trike; stabbed victim 1 at the abdomen (knife snapped)
Accused 1– driver’s seat of tricycle; stabbed Victim 2 at the back (below right shoulder) as 2
tried to help
Accused 2 – companion; stabbed Victim 3 at the waist too.

Victim 4 – rushed to bros’ aid

Accused 3 – stabbed right Victim 4; stomach
Accused 2 – joined w/ ice pick; right abdomen
Appellant – joined w/ ice pick
Accused 1 – stabbed; chest; ice pick
Accused 2 – stabbed again in the back;
Appellant – walked away; other 3 – fled on board tricycle

Witness – cousins

Victim 4 – dead on arrival

Victim 1 – died in the hospital
Victim 3 – not fatal; 7-10 days; discharged the following day
Victim 2 – fatal; ICU; operated after 12 hours; would have died but was given adequate medical
assistance; 3 months recovery

DEFENSE of ACCUSED:
Got into a fight because maingay ung tricycle
The brothers started the fight first. Hit one of the accused with a beer bottle in the head.
Accused 4 stabbed. Etc etc. Appellant was just a silent witness at that time.

RTC: murder, attempted, frustrated

CA: Affirmed but modified penalty
Issue: W/N appellant should not have been convicted for murder of Abelardo (victim 4),
attempted and frustrated.
- Appellant argued for homicide – brothers were forewarned of the impending danger
when they confronted him; brothers knew his notoriety; no treachery
Abelardo came out of their house and approached his
brothers, he already knew that appellant and his companions had violently
attacked his brothers. Thus, Abelardo was already aware of the danger
appellant posed in his person. It cannot be said, therefore, that the attack
made against him was "unexpected."

Held: NO

Ratio:
1. Conspiracy was present.
a. acts to have aimed toward the accomplishment of the same unlawful object,
each doing a part so that their combined acts, though apparently independent,
are in fact connected and cooperative, indicating closeness of personal
association and a concurrence of sentiments.
i. The accused appellant together with the other accused arrived at the
crime scene at the same time
ii. Accused-appellant alighted from the same tricycle where the other
accused rode,
iii. Accused-appellant and the other accused successively assaulted the
victims
2. Murder was present
a. Person was killed
b. Accused killed that person
c. Attended by qualifying circumstances (superior strength + appreciation of
treachery in the first 3 attacks)
d. Not parricide or infanticide
3. Stages of felony
a. No intent to kill – physical injuries
b. With intent to kill – consummated, attempted, frustrated homicide/murder
i. (Motive)
ii. Nature or number of weapons used
iii. Nature or number of wounds
iv. Manner of crime committed
v. Conduct of accused before and after commission
vi. Circumstances surrounding the crime
c. Attempted – Victim 3
i. External acts
ii. External acts have direct connection with the intended crime
d. Frustrated – Victim 2
i. all the acts of execution which could have produced the crime – stabbed;
fatal wound; would have died
ii. did not produce it for reasons independent of his or her will – saved by
doctor
Quijano v. People (2021)
Doctrine: Frustrated vs. Attempted
To support conviction for frustrated murder, the prosecution must establish beyond reasonable
doubt that the victim’s wound would have been fatal without timely medical intervention. Without
this crucial fact, the accused may only be convicted of attempted murder.

Facts: Victim sleeping at home. Accused banged at their door calling for victim. Victim rose from
bed. Flashlight. Accused shot him on the shoulder (vital spot). Victim pleaded accused to stop.
Victim = hospital = operation = two weeks confinement. Medical expert no longer connected
with the hospital at the time of hearing. Expert testimony said wound was fatal (was not really
present at that time – hearsay evidence)

Neighbors – saw accused w/ gun and victim w/ wounds

RTC: frustrated murder

CA: affirmed. Testimony of expert (doctor) was admitted. Exception to hearsay rule.

Issue: W/N expert testimony was sufficient proof to prove frustrated murder considering that the
expert witness did not treat the accused at that time.
- no treachery so attempted/frustrated homicide lng daw
- banged and called the victim’s name – not sudden and unexpected

Held: NO. Hence, attempted murder only not frustrated.

SIDENOTE ON MURDER:
On swift/sudden
In a long line of cases, the Court clarified that treachery shall still be appreciated even if the
victim was forewarned of the attack. The decisive factor is that despite the warning, the
execution of the attack made it impossible for the victim to defend himself or to retaliate.

On premediation
In the instant case, the prosecution failed to identify the time when Quijano decided to shoot
Andong. Without this crucial data, it is impossible to conclude that indeed, there was a sufficient
period of time that passed between the former's determination to kill and his actual execution,
which allowed him to meditate and reflect on his plans.

Ratio:
Determination of Fatality of wound = testimony of the physician who issued the victim’s
medical certificate + medical certificate
1. Extent of the injury
2. Form of wound
3. Region of the body
4. Entrance of disease/infection
5. Age and constitution of person injured
6. Opportunities for administering proper treatment
Lacking of either is insufficient roof of frustrated murder/homicide.
Unfortunately, the prosecution failed to present Dr. Manubag, the physician who treated Andong
and administered the alleged life-saving procedure. The Medical Certificate alone, without the
testimony of Dr. Manubag is inadequate proof of the nature and extent of Andong's injury. This
lacuna may not be filled with the testimony of the expert witness Dr. Paradela.
1. General description of wound
2. Number of days victim was in the hospital
3. Familiarity of manubag’s signature
4. Connection with the hospital
5. One lone question about the fatality

Elements of Consummated Felony

1. Felonies are consummated
2. when all elements necessary for its execution and accomplishment are present

US v. Adiao (1918)
Facts: Accused, custom inspector, stole leather belt (P0.80) from baggage of victim (jap). Hid
the belt in his desk at the Custom House because he was under observation during the entire
transaction. Found by other employees.

TC: Frustrated theft

W/N frustrated theft?

Held: No. Consummated.

Ratio: Performed all the acts to accomplish theft. The fact that the defendant was under
observation during the entire transaction and that he was unable to get the merchandise out of
the Custom House, is not decisive.
Same ruling as that SC of Spain:
1. fruit. Thief. Policeman caught him red-handed.
2. Money. Church. Took it. Victim was able to retrieve the money.
3. Thief. Purse containing money. Caught by two guards. Consummated
robbery
a. The accused . . . 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
b. 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.

People v. Hernandez (1926)

Fact: Accused, 70, had intercourse with the granddaughter (9) of his wife. Nobody was home.
By force (knife). Intoxicated. Did not know what he was doing. Witnesses claimed otherwise.
Labia inflamed. Abundance of semen. Hymen intact. 15mins worth of penetration. Lying on top.
Felt pain.
TC: Frustrated rape. Not consummated without complete penetration of the hymen

Issue: Frustrated rape?

Held: NO

Ratio:
the court held that "finding the hymen intact is not always proof that no rape has been
committed, nor of virginity; for the cases are not rare where the hymen had to be removed after
impregnation and in order to permit delivery.”

In the following cases it has been held that 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 of the consummated crime of rape.

Valenzuela v. People (2007)

FRUSTRATED THEFT – NIL; only consummated or attempted theft
Thus, theft cannot have a frustrated stage under Art. 308 RPC. Theft can only be
attempted or consummated.
The fact that an offender was able to succeed in obtaining physical possession of the stolen
item, no matter how momentary, was able to consummate theft.
“ability of the actor to freely dispose of the items stolen even if it were more or less
momentary at the time of apprehension” is determinative as to whether theft is
consummated or frustrated (not a constitutive element of theft) – disposal is
immaterial since deprivation has already ensued.
Guided by legislative intent

Facts: Petitioner and companion were caught trying to take home unloaded cases of Tide
detergent by a security guard (PUSHCART). Open parking space of SM North EDSA. Hailed
taxi. Was about to load inside. Security stopped the taxi from leaving. Asked for of the receipt.
Petitioner and companion left taxi and fled on foot. Security guard fire warning shots to alert
other guards. Petitioner arrest. Merchandise recovered (4 cases of Tide Ultramatic, 1 case of
Ultra 25g, and 3 cases of detergent worth Php. 12k+)

Charged with theft

RTC: Consummated theft
CA: Affirmed
Petitioner: only frustrated

Issue: Frustrated?

Held: NO

Ratio:
Each felony 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 should result in the consummated crime. After that point has been breached, the
subjective phase ends and the objective phase begins.

Elements of theft:
1. taking of personal property – took tide detergent and placed them in the parking area of
the supermarket
2. property belongs to another - supermarket
3. intent to gain (presumed)
4. without owner’s consent – no receipt
5. no violence or intimidation - obvious

Consummated Theft:
1. Apoderamiento (unlawful taking) – obtained and loaded the items in a pushcart
a. Taking of another’s property without consent
2. animo lucrandi (Intent of acquiring gain)

Completion of the operative act that is “the taking of personal property of another”
establishes that the transgression went beyond the attempted stage.

Unlawful taking (apoderamiento) is hence deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to dispose of the same. This is the
element which produces that felony (theft) in its consummated stage.

DOUBLE CHECK DINO AND FLORES CASES!!

Where’s the physical boundary for theft sa store?

1. Past the cashier?

People v. Again (2020)

Facts: Accused stole Samsung cellphone worth Php10k from victim who was waling alone. Hold
up. Gun point. Searched bag. No jewelry so just the cellphone. Raped her – grass part of the
road. Laid her down. Removed her clothes. Tried to insert penis but not fully erect. Gave up.
Ordered victim to walk and not look back. No laceration, erythema and abrasion in her vaginal
orifice. Presence of grass stalk and two seeds near her anus.

RTC: robbery with attempted rape.

CA: robbery with consummated rape.

Issue: Consummated rape?

Held: YES

Ratio:
The Court agrees with the CA that the crime of rape was consummated.
According to Article 6 of the RPC, a felony is consummated when all the
elements necessary for its execution and accomplishment are present.
In the instant case, the crime of rape is deemed consummated even
when the man’s penis merely enters the labia or lips of the female organ.
A mere knocking of accused’s penis at the door of the pudenda,
regardless of the extent of erection, is sufficient to constitute the crime
of rape. The Court held that complete or total penetration of the private
organ is not necessary to consummate the crime of rape, that the
slightest penetration is sufficient.

Complex crime of Robbery with Rape

1. the taking of personal property is committed with violence or intimidation against
persons; - declared a hold-up at gun point
2. the property taken belongs to another;
3. the taking is characterized by intent to gain or animus lucrandi; and - cellphone
4. the robbery is accompanied by rape
NOTE: It contemplates a situation where the original intent of the accused was to take, with
intent to gain, personal property belonging to another and rape was committed by reason or on
the occasion of the robbery and not the other way around.

The fact that the medical examination showed no laceration,

erythema, and abrasion in her vaginal orifice is immaterial. "Carnal
knowledge," unlike its ordinary connotation of sexual intercourse, does not
necessarily require that the vagina be penetrated or that the hymen be
ruptured.

This is based from the physical fact that the labias are
physically situated beneath the mons pubis or the vaginal surface, such that
for the penis to touch either of them is to attain some degree of penetration
beneath the surface of the female genitalia.

ARTICLE 7. When Light Felonies are Punishable. — Light felonies are

punishable only when they have been consummated, with the exception of
those committed against person or property.

ARTICLE 9. Grave Felonies, Less Grave Felonies and Light Felonies.

— Grave felonies are those to which the law attaches the capital
punishment or penalties which in any of their periods are afflictive, in
accordance with article 25 of this Code.
Less grave felonies are those which the law punished with penalties which
in their maximum period is correccional, in accordance with the
abovementioned article.
Light felonies are those infractions of the law for the commission of which
the penalty of arresto menor or a fine not exceeding forty thousand pesos
or both is provided.