Criminal Law – A branch of municipal law which defines crimes, treats of their nature and

provides for their punishment.

Limitations on the power of Congress to enact penal laws (ON)

1. Must be general in application.

2. Must not partake of the nature of an ex post facto law.

3. Must not partake of the nature of a bill of attainder.

4. Must not impose cruel and unusual punishment or excessive fines.

Characteristics of Criminal Law:

1. General – the law is binding to all persons who reside in the Philippines
2. Territorial – the law is binding to all crimes committed within the National Territory of the
Philippines
Exception to Territorial Application: Instances enumerated under Article 2.
3. Prospective – the law does not have any retroactive effect.
Exception to Prospective Application: when new statute is favorable to the accused.
Effect of repeal of penal law to liability of offender
Total or absolute, or partial or relative repeal. — As to the effect of repeal of penal law to
the liability of offender, qualify your answer by saying whether the repeal is absolute or total
or whether the repeal is partial or relative only.
A repeal is absolute or total when the crime punished under the repealed law has been
decriminalized by the repeal. Because of the repeal, the act or omission which used to be a
crime is no longer a crime. An example is Republic Act No. 7363, which decriminalized
subversion.
A repeal is partial or relative when the crime punished under the repealed law continues to
be a crime inspite of the repeal. This means that the repeal merely modified the conditions
affecting the crime under the repealed law. The modification may be prejudicial or
beneficial to the offender. Hence, the following rule:
Consequences if repeal of penal law is total or absolute
(1) If a case is pending in court involving the violation of the repealed law, the same
shall be dismissed, even though the accused may be a habitual delinquent.
(2) If a case is already decided and the accused is already serving sentence by final
judgment, if the convict is not a habitual delinquent, then he will be entitled to a release
unless there is a reservation clause in the penal law that it will not apply to those serving
sentence at the time of the repeal. But if there is no reservation, those who are not habitual
delinquents even if they are already serving their sentence will receive the benefit of the
repealing law. They are entitled to release.
If they are not discharged from confinement, a petition for habeas corpus should be filed to
test the legality of their continued confinement in jail.
If the convict, on the other hand, is a habitual delinquent, he will continue serving the
sentence in spite of the fact that the law under which he was convicted has already been
absolutely repealed. This is so because penal laws should be given retroactive application to
favor only those who are not habitual delinquents.
Consequences if repeal of penal law is partial or relative
(1) If a case is pending in court involving the violation of the repealed law, and the
repealing law is more favorable to the accused, it shall be the one applied to him. So
whether he is a habitual delinquent or not, if the case is still pending in court, the repealing
law will be the one to apply unless there is a saving clause in the repealing law that it shall
not apply to pending causes of action.
(2) If a case is already decided and the accused is already serving sentence by final
judgment, even if the repealing law is partial or relative, the crime still remains to be a
crime. Those who are not habitual delinquents will benefit on the effect of that repeal, so
that if the repeal is more lenient to them, it will be the repealing law that will henceforth
apply to them.
Under Article 22, even if the offender is already convicted and serving sentence, a law which
is beneficial shall be applied to him unless he is a habitual delinquent in accordance with Rule
5 of Article 62.
Consequences if repeal of penal law is express or implied
(1) If a penal law is impliedly repealed, the subsequent repeal of the repealing law will
revive the original law. So the act or omission which was punished as a crime under the
original law will be revived and the same shall again be crimes although during the implied
repeal they may not be punishable.
(2) If the repeal is express, the repeal of the repealing law will not revive the first law,
so the act or omission will no longer be penalized.
These effects of repeal do not apply to self-repealing laws or those which have automatic
termination. An example is the Rent Control Law which is revived by Congress every two
years.
Theories of Criminal Law
1. Classical Theory – Man is essentially a moral creature with an absolute free will to choose
between good and evil and therefore more stress is placed upon the result of the felonious
act than upon the criminal himself.
1. Positivist Theory – Man is subdued occasionally by a strange and morbid phenomenon which
conditions him to do wrong in spite of or contrary to his volition.
Eclectic or Mixed Philosophy
This combines both positivist and classical thinking. Crimes that are economic and social and
nature should be dealt with in a positivist manner; thus, the law is more
compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital
punishmen

BASIC MAXIMS IN CRIMINAL LAW

Doctrine of Pro Reo
Whenever a penal law is to be construed or applied and the law admits of two interpretations
– one lenient to the offender and one strict to the offender – that interpretation which is
lenient or favorable to the offender will be adopted.
Nullum crimen, nulla poena sine lege
There is no crime when there is no law punishing the same. This is true to civil law countries,
but not to common law countries.
Because of this maxim, there is no common law crime in the Philippines. No matter how
wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered
a crime.
Actus non facit reum, nisi mens sit rea
The act cannot be criminal where the mind is not criminal. This is true to a felony
characterized by dolo, but not a felony resulting from culpa. This maxim is not an absolute
one because it is not applied to culpable felonies, or those that result from negligence.
Utilitarian Theory or Protective Theory
The primary purpose of the punishment under criminal law is the protection of society from
actual and potential wrongdoers. The courts, therefore, in exacting retribution for the
wronged society, should direct the punishment to potential or actual wrongdoers, since
criminal law is directed against acts and omissions which the society does not
approve. Consistent with this theory, the mala prohibita principle which punishes an offense
regardless of malice or criminal intent, should not be utilized to apply the full harshness of
the special law.
Sources of Criminal Law
1. The Revised Penal Code
2. Special Penal Laws – Acts enacted of the Philippine Legislature punishing offenses or
omissions.
Construction of Penal Laws
1. Criminal Statutes are liberally construed in favor of the offender. This means that no person
shall be brought within their terms who is not clearly within them, nor should any act be
pronounced criminal which is not clearly made so by statute.
2. The original text in which a penal law is approved in case of a conflict with an official
translation.
3. Interpretation by analogy has no place in criminal law
MALA IN SE AND MALA PROHIBITA
Violations of the Revised Penal Code are referred to as malum in se, which literally means,
that the act is inherently evil or bad or per se wrongful. On the other hand, violations of
special laws are generally referred to as malum prohibitum.

Note, however, that not all violations of special laws are mala prohibita. While intentional
felonies are always mala in se, it does not follow that prohibited acts done in violation of
special laws are always mala prohibita. Even if the crime is punished under a special law, if
the act punished is one which is inherently wrong, the same is malum in se, and, therefore,
good faith and the lack of criminal intent is a valid defense; unless it is the product of criminal
negligence or culpa.

Likewise when the special laws requires that the punished act be committed knowingly and
willfully, criminal intent is required to be proved before criminal liability may arise.
When the act penalized is not inherently wrong, it is wrong only because a law punishes the
same.

Distinction between crimes punished under the Revised Penal Code and crimes punished
under special laws
1. As to moral trait of the offender

In crimes punished under the Revised Penal Code, the moral trait of the offender is
considered. This is why liability would only arise when there is dolo or culpa in the commission
of the punishable act.

In crimes punished under special laws, the moral trait of the offender is not considered; it is
enough that the prohibited act was voluntarily done.

2. As to use of good faith as defense

In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a
valid defense; unless the crime is the result of culpa

In crimes punished under special laws, good faith is not a defense

3. As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime
is taken into account in punishing the offender; thus, there are attempted, frustrated, and
consummated stages in the commission of the crime.

In crimes punished under special laws, the act gives rise to a crime only when it is
consummated; there are no attempted or frustrated stages, unless the special law expressly
penalize the mere attempt or frustration of the crime.

4. As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances
are taken into account in imposing the penalty since the moral trait of the offender is
considered.

In crimes punished under special laws, mitigating and aggravating circumstances are not taken
into account in imposing the penalty.

5. As to degree of participation

In crimes punished under the Revised Penal Code, when there is more than one offender, the
degree of participation of each in the commission of the crime is taken into account in
imposing the penalty; thus, offenders are classified as principal, accomplice and accessory.
In crimes punished under special laws, the degree of participation of the offenders is not
considered. All who perpetrated the prohibited act are penalized to the same extent. There
is no principal or accomplice or accessory to consider.

Test to determine if violation of special law is malum prohibitum or malum in se

Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as
such? If you remove the law, will the act still be wrong?
If the wording of the law punishing the crime uses the word “willfully”, then malice must be
proven. Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa
is not a basis of liability, unless the special law punishes an omission.
When given a problem, take note if the crime is a violation of the Revised Penal Code or a
special law.
Art. 1. This Code shall take effect on January 1, 1932.
Art. 2. Except as provided in the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within the Philippine Archipelago
including its atmosphere, its interior waters and Maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or
obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the exercise of
their functions; or (Some of these crimes are bribery, fraud against national treasury,
malversation of public funds or property, and illegal use of public funds; e.g., A judge who
accepts a bribe while in Japan.)
5. Should commit any crimes against the national security and the law of nations, defined
in Title One of Book Two of this Code. (These crimes include treason, espionage, piracy,
mutiny, and violation of neutrality)
 Rules as to crimes committed aboard foreign merchant vessels:
1. French Rule – Such crimes are not triable in the courts of that country, unless their
commission affects the peace and security of the territory or the safety of the state is
endangered.
1. English Rule – Such crimes are triable in that country, unless they merely affect things
within the vessel or they refer to the internal management thereof. (This is applicable in the
Philippines)
two situations where the foreign country may not apply its criminal law even if a crime was
committed on board a vessel within its territorial waters and these are:
(1) When the crime is committed in a war vessel of a foreign country, because war
vessels are part of the sovereignty of the country to whose naval force they belong;
(2) When the foreign country in whose territorial waters the crime was committed
adopts the French Rule, which applies only to merchant vessels, except when the crime
committed affects the national security or public order of such foreign country.
 Requirements of “an offense committed while on a Philippine Ship or Airship”
 1. Registered with the Philippine Bureau of Customs
2. Ship must be in the high seas or the airship must be in international airspace.
Under international law rule, a vessel which is not registered in accordance with the laws of
any country is considered a pirate vessel and piracy is a crime against humanity in general,
such that wherever the pirates may go, they can be prosecuted.
US v. Bull

A crime which occurred on board of a foreign vessel, which began when the ship was in a
foreign territory and continued when it entered into Philippine waters, is considered a
continuing crime. Hence within the jurisdiction of the local courts.

As a general rule, the Revised Penal Code governs only when the crime committed pertains to
the exercise of the public official’s functions, those having to do with the discharge of their
duties in a foreign country. The functions contemplated are those, which are, under the law,
to be performed by the public officer in the Foreign Service of the Philippine government in a
foreign country.

Exception: The Revised Penal Code governs if the crime was committed within the Philippine
Embassy or within the embassy grounds in a foreign country. This is because embassy grounds
are considered an extension of sovereignty.
Paragraph 5 of Article 2, use the phrase “as defined in Title One of Book Two of this Code.”
This is a very important part of the exception, because Title I of Book 2 (crimes against
national security) does not include rebellion.
Art 3. Acts and omissions punishable by law are felonies.
 Acts – an overt or external act
 Omission – failure to perform a duty required by law. Example of an omission: failure to
render assistance to anyone who is in danger of dying or is in an uninhabited place or is
wounded – abandonment.
 Felonies – acts and omissions punishable by the Revised Penal Code
 Crime – acts and omissions punishable by any law

What requisites must concur before a felony may be committed?

There must be (1) an act or omission; (2) punishable by the Revised Penal Code; and (3) the
act is performed or the omission incurred by means of dolo or culpa.
 How felonies are committed:
1. by means of deceit (dolo) – There is deceit when the act is performed with deliberate
intent.
Requisites:
1. freedom
2. intelligence
3. intent
Examples: murder, treason, and robbery
Criminal intent is not necessary in these cases:
(1) When the crime is the product of culpa or negligence, reckless imprudence, lack of
foresight or lack of skill;
(2) When the crime is a prohibited act under a special law or what is called malum
prohibitum.
In criminal law, intent is categorized into two:
(1) General criminal intent; and
(2) Specific criminal intent.
General criminal intent is presumed from the mere doing of a wrong act. This does not
require proof. The burden is upon the wrong doer to prove that he acted without such
criminal intent.
Specific criminal intent is not presumed because it is an ingredient or element of a crime,
like intent to kill in the crimes of attempted or frustrated homicide/parricide/murder. The
prosecution has the burden of proving the same.
Distinction between intent and discernment
Intent is the determination to do a certain thing, an aim or purpose of the mind. It is the
design to resolve or determination by which a person acts.
On the other hand, discernment is the mental capacity to tell right from wrong. It relates to
the moral significance that a person ascribes to his act and relates to the intelligence as an
element of dolo, distinct from intent.
Distinction between intent and motive
Intent is demonstrated by the use of a particular means to bring about a desired result – it is
not a state of mind or a reason for committing a crime.
On the other hand, motive implies motion. It is the moving power which impels one to do an
act. When there is motive in the commission of a crime, it always comes before the
intent. But a crime may be committed without motive.
If the crime is intentional, it cannot be committed without intent. Intent is manifested by
the instrument used by the offender. The specific criminal intent becomes material if the
crime is to be distinguished from the attempted or frustrated stage.
1. by means of fault (culpa) – There is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
1. Imprudence – deficiency of action; e.g. A was driving a truck along a road. He hit B because
it was raining – reckless imprudence.
2. Negligence – deficiency of perception; failure to foresee impending danger, usually involves
lack of foresight
3. c. Requisites:
1. Freedom
2. Intelligence
3. Imprudence, negligence, lack of skill or foresight
4. Lack of intent
The concept of criminal negligence is the inexcusable lack of precaution on the part of the
person performing or failing to perform an act. If the danger impending from that situation
is clearly manifest, you have a case of reckless imprudence. But if the danger that would
result from such imprudence is not clear, not manifest nor immediate you have only a case
of simple negligence.
 Mistake of fact – is a misapprehension of fact on the part of the person who caused injury to
another. He is not criminally liable.
a. Requisites:
 1. that the act done would have been lawful had the facts been as the accused believed them
to be;
2. intention of the accused is lawful;
3. mistake must be without fault of carelessness.
Example: United States v. Ah Chong.

Ah Chong being afraid of bad elements, locked himself in his room by placing a chair against
the door. After having gone to bed, he was awakened by somebody who was trying to open the
door. He asked the identity of the person, but he did not receive a response. Fearing that
this intruder was a robber, he leaped out of bed and said that he will kill the intruder should
he attempt to enter. At that moment, the chair struck him. Believing that he was attacked,
he seized a knife and fatally wounded the intruder.

Mistake of fact would be relevant only when the felony would have been intentional or
through dolo, but not when the felony is a result of culpa. When the felony is a product of
culpa, do not discuss mistake of fact.
Art. 4. Criminal liability shall be incurred:
1. By any person committing a felony, although the wrongful act done be different
from that which he intended.

Article 4, paragraph 1 presupposes that the act done is the proximate cause of the resulting
felony. It must be the direct, natural, and logical consequence of the felonious act.

 Causes which produce a different result:

1. Mistake in identity of the victim – injuring one person who is mistaken for another (this is a
complex crime under Art. 48) e.g., A intended to shoot B, but he instead shot C because he
(A) mistook C for B.
In error in personae, the intended victim was not at the scene of the crime. It was the
actual victim upon whom the blow was directed, but he was not really the intended victim.
How does error in personae affect criminal liability of the offender?
Error in personae is mitigating if the crime committed is different from that which was
intended. If the crime committed is the same as that which was intended, error in personae
does not affect the criminal liability of the offender.
In mistake of identity, if the crime committed was the same as the crime intended, but on a
different victim, error in persona does not affect the criminal liability of the offender. But if
the crime committed was different from the crime intended, Article 49 will apply and the
penalty for the lesser crime will be applied. In a way, mistake in identity is a mitigating
circumstance where Article 49 applies. Where the crime intended is more serious than the
crime committed, the error in persona is not a mitigating circumstance
2. Mistake in blow – hitting somebody other than the target due to lack of skill or fortuitous
instances (this is a complex crime under Art. 48) e.g., B and C were walking together. A
wanted to shoot B, but he instead injured C.
In aberratio ictus, a person directed the blow at an intended victim, but because of
poor aim, that blow landed on somebody else. In aberratio ictus, the intended victim as well
as the actual victim are both at the scene of the crime.
 aberratio ictus, generally gives rise to a complex crime. This being so, the penalty for
the more serious crime is imposed in the maximum period.
3. Injurious result is greater than that intended – causing injury graver than intended or
expected (this is a mitigating circumstance due to lack of intent to commit so grave a wrong
under Art. 13) e.g., A wanted to injure B. However, B died.
praeter intentionem is mitigating, particularly covered by paragraph 3 of Article 13. In
order however, that the situation may qualify as praeter intentionem, there must be a
notable disparity between the means employed and the resulting felony
 In all these instances the offender can still be held criminally liable, since he is motivated by
criminal intent.
Requisites:
1. the felony was intentionally committed
2. the felony is the proximate cause of the wrong done
 Doctrine of Proximate Cause – such adequate and efficient cause as, in the natural order of
events, and under the particular circumstances surrounding the case, which would
necessarily produce the event.
Requisites:
1. the direct, natural, and logical cause
2. produces the injury or damage
3. unbroken by any sufficient intervening cause
4. without which the result would not have occurred
 Proximate Cause is negated by:
1. Active force, distinct act, or fact absolutely foreign from the felonious act of the accused,
which serves as a sufficient intervening cause.
2. Resulting injury or damage is due to the intentional act of the victim.
proximate cause does not require that the offender needs to actually touch the body of
the offended party. It is enough that the offender generated in the mind of the offended
party the belief that made him risk himself.
 Requisite for Presumption blow was cause of the death – Where there has been an injury
inflicted sufficient to produce death followed by the demise of the person, the presumption
arises that the injury was the cause of the death. Provided:
1. victim was in normal health
2. death ensued within a reasonable time
The one who caused the proximate cause is the one liable. The one who caused the
immediate cause is also liable, but merely contributory or sometimes totally not liable.
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on account of
the employment of inadequate or ineffectual means.
 Requisites: (IMPOSSIBLE CRIME)
1. Act would have been an offense against persons or property
2. Act is not an actual violation of another provision of the Code or of a special penal law
3. There was criminal intent
4. Accomplishment was inherently impossible; or inadequate or ineffectual means were
employed.
 Notes:
 1. Offender must believe that he can consummate the intended crime, a man stabbing another
who he knew was already dead cannot be liable for an impossible crime.
2. The law intends to punish the criminal intent.
3. There is no attempted or frustrated impossible crime.
 Felonies against persons: parricide, murder, homicide, infanticide, physical injuries, etc.
 Felonies against property: robbery, theft, usurpation, swindling, etc.
 Inherent impossibility: A thought that B was just sleeping. B was already dead. A shot B. A
is liable. If A knew that B is dead and he still shot him, then A is not liable.
When we say inherent impossibility, this means that under any and all circumstances, the
crime could not have materialized. If the crime could have materialized under a different set
of facts, employing the same mean or the same act, it is not an impossible crime; it would be
an attempted felony.
 Employment of inadequate means: A used poison to kill B. However, B survived because A
used small quantities of poison – frustrated murder.
 Ineffectual means: A aimed his gun at B. When he fired the gun, no bullet came out because
the gun was empty. A is liable.
Whenever you are confronted with a problem where the facts suggest that an
impossible crime was committed, be careful about the question asked. If the question asked
is: “Is an impossible crime committed?”, then you judge that question on the basis of the
facts. If really the facts constitute an impossible crime, then you suggest than an impossible
crime is committed, then you state the reason for the inherent impossibility.
If the question asked is “Is he liable for an impossible crime?”, this is a catching
question. Even though the facts constitute an impossible crime, if the act done by the
offender constitutes some other crimes under the Revised Penal Code, he will not be liable
for an impossible crime. He will be prosecuted for the crime constituted so far by the act
done by him.
this idea of an impossible crime is a one of last resort, just to teach the offender a
lesson because of his criminal perversity. If he could be taught of the same lesson by charging
him with some other crime constituted by his act, then that will be the proper way. If you
want to play safe, you state there that although an impossible crime is constituted, yet it is a
principle of criminal law that he will only be penalized for an impossible crime if he cannot
be punished under some other provision of the Revised Penal Code.

Art 5. Whenever a court has knowledge of any act which it may deem proper to repress and
which is not punishable by law, it shall render the proper decision and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to believe
that said act should be made subject of legislation.

In the same way the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of
the sentence, when a strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the degree of malice
and the injury caused by the offense.
 When a person is charged in court, and the court finds that there is no law applicable,
the court will acquit the accused and the judge will give his opinion that the said act should
be punished.
 Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and
illegal possession of firearms or drugs. There can be no executive clemency for these
crimes.

Art. 6. Consummated felonies, as well as those which are frustrated and attempted, are
punishable.

A felony is 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 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.
 Development of a crime
1. Internal acts – intent and plans; usually not punishable
2. External acts
1. Preparatory Acts – acts tending toward the crime
2. Acts of Execution – acts directly connected the crime

Stages of Commission of a Crime

Attempt Frustrated Consummated

 Overt acts of
execution are started
 Not all acts of
execution are present
 Due to reasons other
than the spontaneous
desistance of the
perpetrator
 All acts of execution
are present
 Crime sought to be
committed is not
achieved
 Due to intervening
causes independent of
the will of the
perpetrator
 All the acts of
execution are present 
  The result sought is
achieved
 Stages of a Crime does not apply in:
1. Offenses punishable by Special Penal Laws, unless the otherwise is provided for.
2. Formal crimes (e.g., slander, adultery, etc.)
3. Impossible Crimes
4. Crimes consummated by mere attempt. Examples: attempt to flee to an enemy country,
treason, corruption of minors.
5. Felonies by omission
6. Crimes committed by mere agreement. Examples: betting in sports (endings in
basketball), corruption of public officers.
Desistance
Desistance on the part of the offender negates criminal liability in the attempted
stage. Desistance is true only in the attempted stage of the felony. If under the definition of
the felony, the act done is already in the frustrated stage, no amount of desistance will
negate criminal liability.
The spontaneous desistance of the offender negates only the attempted stage but not
necessarily all criminal liability. Even though there was desistance on the part of the
offender, if the desistance was made when acts done by him already resulted to a felony,
that offender will still be criminally liable for the felony brought about his act
In deciding whether a felony is attempted or frustrated or consummated, there are
three criteria involved:
(1) The manner of committing the crime;
(2) The elements of the crime; and
(3) The nature of the crime itself.
 Applications:
1. A put poison in B’s food. B threw away his food. A is liable – attempted murder.[1]
2. A stole B’s car, but he returned it. A is liable – (consummated) theft.
3. A aimed his gun at B. C held A’s hand and prevented him from shooting B – attempted
murder.
4. A inflicted a mortal wound on B. B managed to survive – frustrated murder.
5. A intended to kill B by shooting him. A missed – attempted murder.
6. A doused B’s house with kerosene. But before he could light the match, he was caught
– attempted arson.
7. A cause a blaze, but did not burn the house of B – frustrated arson.
8. B’s house was set on fire by A – (consummated) arson.
9. A tried to rape B. B managed to escape. There was no penetration – attempted rape.
10. A got hold of B’s painting. A was caught before he could leave B’s house – frustrated
robbery.[2]
The attempted stage is said to be within the subjective phase of execution of a
felony. On the subjective phase, it is that point in time when the offender begins the
commission of an overt act until that point where he loses control of the commission of the
crime already. If he has reached that point where he can no longer control the ensuing
consequence, the crime has already passed the subjective phase and, therefore, it is no
longer attempted. The moment the execution of the crime has already gone to that point
where the felony should follow as a consequence, it is either already frustrated or
consummated. If the felony does not follow as a consequence, it is already frustrated. If the
felony follows as a consequence, it is consummated.
although the offender may not have done the act to bring about the felony as a
consequence, if he could have continued committing those acts but he himself did not
proceed because he believed that he had done enough to consummate the crime, Supreme
Court said the subjective phase has passed
NOTES ON ARSON;
The weight of the authority is that the crime of arson cannot be committed in the
frustrated stage. The reason is because we can hardly determine whether the offender has
performed all the acts of execution that would result in arson, as a consequence, unless a
part of the premises has started to burn. On the other hand, the moment a particle or a
molecule of the premises has blackened, in law, arson is consummated. This is because
consummated arson does not require that the whole of the premises be burned. It is enough
that any part of the premises, no matter how small, has begun to burn.
ESTAFA VS. THEFT
In estafa, the offender receives the property; he does not take it. But in receiving the
property, the recipient may be committing theft, not estafa, if what was transferred to him
was only the physical or material possession of the object. It can only be estafa if what was
transferred to him is not only material or physical possession but juridical possession as well.
When you are discussing estafa, do not talk about intent to gain. In the same manner
that when you are discussing the crime of theft, do not talk of damage.
Nature of the crime itself
In crimes involving the taking of human life – parricide, homicide, and murder – in the
definition of the frustrated stage, it is indispensable that the victim be mortally
wounded. Under the definition of the frustrated stage, to consider the offender as having
performed all the acts of execution, the acts already done by him must produce or be capable
of producing a felony as a consequence. The general rule is that there must be a fatal injury
inflicted, because it is only then that death will follow.
If the wound is not mortal, the crime is only attempted. The reason is that the wound
inflicted is not capable of bringing about the desired felony of parricide, murder or homicide
as a consequence; it cannot be said that the offender has performed all the acts of execution
which would produce parricide, homicide or murder as a result.
An exception to the general rule is the so-called subjective phase. The Supreme Court
has decided cases which applied the subjective standard that when the offender himself
believed that he had performed all the acts of execution, even though no mortal wound was
inflicted, the act is already in the frustrated stage.
The common notion is that when there is conspiracy involved, the participants are
punished as principals. This notion is no longer absolute. In the case of People v. Nierra, the
Supreme Court ruled that even though there was conspiracy, if a co-conspirator merely
cooperated in the commission of the crime with insignificant or minimal acts, such that even
without his cooperation, the crime could be carried out as well, such co-conspirator should be
punished as an accomplice only.