Crim Law 1 Case Digest: People V.

Domasian
1993
People v. Domasian

G.R. No. 95322 March 1, 1993

Lessons Applicable:

Laws Applicable: Art. 4

FACTS:
March 11, 1982 morning: While Enrico was walking with Tirso Ferreras, his classmate, along
Roque street in the poblacion of Lopez, Quezon, he was approached by Pablito Domasian who
requested his assistance in getting his father's signature on a medical certificate. Enrico agreed to
help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man
went into a building to get the certificate. Enrico became apprehensive and started to cry when,
instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him
firmly all the while. The man told him to stop crying or he would not be returned to his father. When
they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney driver and handed him an
envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed
for San Vicente. As Enrico was crying and being firmly held, Alexander Grate, the tricycle driver
became suspicious and asked Domasian about his relationship with the boy who told him they were
brothers. Their physical differences and the wide gap between their ages made Grate doubt so he
immediately reported the matter to two barangay tanods when his passengers alighted from the
tricycle. Grate and the tanods went after the two and saw the man dragging the boy. Noticing that
they were being pursued, Domasian was able to escape, leaving Enrico behind. Enrico was on his
way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance
and already looking for him.
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope
containing a ransom note. The note demanded P1 million for the release of Enrico and warned that
otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After
comparing it with some records in the hospital, he gave the note to the police, which referred it to the
NBI for examination
March 11, 1982 1:45 pm: Agra received an envelope containing a ransom note demanding P1
million otherwise Enrico will be killed. . Agra thought the handwriting in the note was familiar so he
referred it to the NBI for examination and it turned out to be Dr. Samson Tans signature.
Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal
detention in the Regional Trial Court of Quezon
o Domasians alibi: at the time of the incident he was watching a mahjong game in a friend's house
and later went to an optical clinic with his wife for the refraction of his eyeglasses
o Dr. Tans alibi: he was in Manila
Enrico, Tirso Ferreras and Grate all pointed Domasian.
RTC: Domasian and Tan guilty as charged and sentenced them to suffer the penalty of reclusion
perpetua and all accessory penalties
Appealed

ISSUE: W/N Domasian and Tan is guilty of kidnapping kidnapping with serious illegal detention

HELD: YES. appealed decision is AFFIRMED

Art. 267. Kidnapping and serious illegal detention may consist not only in placing a person in an
enclosure but also in detaining him or depriving him in any manner of his liberty
Tan claims that the lower court erred in not finding that the sending of the ransom note was an
impossible crime which he says is not punishable.
Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him,
thus:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.
Even before the ransom note was received, the crime of kidnapping with serious illegal detention
had already been committed. The act cannot be considered an impossible crime because there was
no inherent improbability of its accomplishment or the employment of inadequate or ineffective
means. The sending of the ransom note would have had the effect only of increasing the penalty to
death under the last paragraph of Article 267 although this too would not have been possible under
the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it, whether they act through
physical volition of one or all, proceeding severally or collectively. These acts were complementary
to each other and geared toward the attainment of the common ultimate objective, viz., to extort the
ransom of P1 million in exchange for Enrico's life.
The motive for the offense is not difficult to discover. According to Agra, Tan approached him 6
days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no
funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million
pesos if he really wanted to help.

STAGES OF COMMISSION

US VS. EDUAVE

GR NO L-12155 February 2, 1917

Moreland
SUBJECT: Stage of punishable conduct: attempt; never passes subjective phase

FACTS: Defendant Protasio Eduave, who was the querido of the victims mother, attacked the victim from
behind using a bolo creating a gash of 8 and a half inches long and 2 inches deep because the latter
accused the defendant of raping her. Knowing that he has already killed the victim, he threw the body
into the bushes and left. Then, he gave himself up and declared that he had killed the complainant.

ISSUE: In what stage of the crime of murder is committed by Eduave?

HELD:

The Accused is guilty of frustrated murder. The fact that Eduave attacked the victim from behind, in a
vital portion of the body, shows treachery qualifying it as murder. In case of frustrated crimes, the
subjective phased is completely passed making the crime subjectively complete. The crime, however, is
not consummated by reason of the intervention of causes independent of the will of the offender. Adueva
did all that was necessary to commit the crime but it did not result as a consequence due to something
beyond his control.

The crime was not consummated because the elements of the crimes execution and accomplishment
were not complete, as the victim did not die.

Neither was the crime an attempted one because the accuseds actions has already passed the subjective
phase, that is, there was no external force or 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 preventing defendant from performing all the acts of execution necessary to commit the
felony. That external force is the essential element which distinguishes attempted from frustrated felony.
Consequently, the victim did not die because an external element has prevented such death after Eduave
has performed all the necessary acts of execution that would have caused the death of the victim.

++PP vs Eduave (If anything yet remained for him to do, he would be guilty of an attempted
crime.)

US vs Eduave (When the felon thought he had killed and threw the body into the bushes. He
then declared that he killed the complainant but death was not resulted; thus, the accused is
guilty only of Frustrated Murder.)

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.CEILITO ORITA alias "Lito," defendant-appellant
Facts: Ceilito Orita was accused of frustrated rape by the RTC. He appealed to the Court of Appeals for
review. The accused poke a balisong to college freshman Cristina Abayan as soon as she got into her
boarding house early morning after arriving from a party. She knew him as a frequent visitor of another
boarder. She was dragged inside the house up the stairs while his left arm wrapped around her neck, and
his right hand poking the Batangas knife to her neck. Upon entering her room, he pushed her in and got
her head hit on the wall. He immediately undressed while still holding the knife with one hand, and
ordered her to do the same. He ordered her to lie down on the floor and then mounted her. He asked her
to hold his penis and insert it in her vagina, while still poking the knife to her. She followed, but the
appellant could not fully penetrate her in such a position. Next, he laid down on his back and commanded
her to mount him, but he cannot fully penetrate her. When Oritas hands were both flat on the floor,
complainant escaped naked. She ran from room to room as appellant pursued her, and finally jumped out
through a window. She went to the municipal building nearby and knocked on the back door for there
was no answer. When the door opened, the policemen inside the building saw her crying and naked. She
was given a jacket for covering by the first policeman who saw her. The policemen dashed to her
boarding house but failed to apprehend the accused. She was brought to a hospital for physical
examination. Her PE revealed that she is still a virgin, with abrasions on the left breast, left and right
knees, and multiple pinpoint marks on her back, among others. The trial court convicted the accused of
frustrated rape.

Crime Committed: Frustrated Rape

Issue: Whether or not the frustrated stage applies to the crime of rape?

Contention of the Accused: The accused contends that there is no crime of frustrated rape. The trial
court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and the
trial court erred in declaring that the crime of frustrated rape was committed by the accused. He was not
able to fully penetrate in her. The accused also questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint. The accused used the Article 266 of the
RPC to show that he is not guilty of frustrated rape, and Article 6 to stress the difference of
consummated, frustrated, and attempted felonies.

Contention of the People: The victim's testimony from the time she knocked on the door of the municipal
building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Rather than
discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies. The accused committed rape.

Ruling: The decision of the RTC is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty
beyond reasonable doubt of the crime of rape [consummated] and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of P30,000.00.

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. [Art. 266 and Art. 6]
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.
 People vs. Sy Pio

Facts: Sy Pio shot three people early in the morning of September 3, 1949. Tan Siong Kiap, Ong Pian and Jose Sy. Sy
Pio entered the store at 511 Misericordia Sta Cruz Manila and started firing with a .45 caliber pistol. First to be shot
was Jose Sy. Upon seeing Sy Pio fire at Jose Sy, Tan asked what is the idea? thereupon, Sy Pio turned around and
fired at him as well. Tan was shot at his right shoulder and it passed through his back. He ran to a room behind the
store to hide. He was still able to hear gunshots from Sy Pios pistol, but afterwards, Sy Pio ran away.

Tan Siong Kiap was brought to the Chinese General Hospital where his wound was treated. He stayed there from
Septenber 3-12, 1949. He was released upon his request and against physicians advice and was requested to return
for further treatment which he did 5 times in a period of 10 days. His wound was completely healed; he spent P300 for
hospital and doctors fees.

Sy Pio was found by the Constabulary in Tarlac. Lomotan, a police from Manila Police Department went to Tarlac to
get Sy Pio. He admitted to Lomotan that he shot the victims and handed him the pistol used in the shooting.
According to Sy Pios declaration, some months prior to the incident, he was employed in a restaurant owned by Ong
Pian. Sy Pios wife, Vicenta was also employed by Ong Pians partner. When he tried to borrow money from Ong
Pian fpr his wifes sick father, Ong Pian only lent him P1. his wife was able to borrow P20 from her employer.

Afterwards, defendant-appellant was dismissed from his work. Ong Pian presented a list of Sy Pios debts and these
were deducted from his wifes monthly salary. Sy Pio could not remember incurring such debts. As such, he was
resentful of Ong Pians conduct.

In Tan Siong Kiaps case, a few months before Sept3, Sy Pio was able to realize the sum of P70 and he put his money
in a place in his room. The next day, Sy Pio found that his money was gone. Tan tolf Sy Pio that he had probably given
the money to his wife. Thereafter, Sy Pio could hear that he had lost his money gambling. ASo early in the morning of
Sept 3, while Ngo Cho, a Chinaman who has a pistol was away, he got his pistol and went to a restaurant in Ongpin
where Ong Pian worked and shot him. Afterwards he went to Sta Cruz and shot Jose Sy and Tan.

Issues:

Trial court erred in not finding that Tan received the shot accidentally from the same bullet that had been
fired at Jose Sy.

The evidence is not sufficient to sustain the judgment of conviction.

Lower court erred in sentencing him to pay an indemnity of P350.

Defendant-appellant should only be found guilty of less serious physical injuries instead of frustrated murder.

Held:

1. Sy Pio had to turn around to shoot Tan Siong Kiap.

2. There is sufficient proof. (Uncontradicted testimony of the victim, admissions made to Lomotan, testimony of
physician, etc.)
3. Assignment of error must be dismissed. Offended party spent P300 for the hospital fees.

4. The fact that he was able to escape which appellant must have seen, must have produced in the mind of the
defendant-appellant that he was not able to hit his victim at a vital part of the body. The defendant appellant
knew that he had not actually performed all acts of execution necessary to kill his victim. Under these
circumstances, it cannot be said that the subjective phase of the acts of execution had been completed.
PP vs Sy Pio (When the accused enter a store, fired at the owner, and when asked by Kiap
why he fired, he shot Kiap in the right shoulder; Kiap run and hid himself. For shooting
Kiap, the accused was charged with frustrated murder but the court held that he was only
guilty of attempted murder since the accused did not perform all the acts needed.)

People vs. Ravelo

Facts: The accused-appellants are members of the Civilian Home Defense Force (CHDF) stationed at a checkpoint
near the airport of Tandag. At approximately 6:30 PM of May 21, 1984, accused-appellants allegedly kidnapped by
means of force one Reynaldo Gaurano. They then detained Gaurano at the house of Pedro Ravelo, one of the accused.
Thereafter, they assaulted, attacked, and burned Gaurano, with the intent of killing the latter. Reynaldo Gaurano died
on May 22.

At about 1AM of May 22, the accused-appellants also kidnapped by means of force Joey Lugatiman. The latter was
also brought to Ravelo's house where he was tortured. At 5AM, Lugatiman was transferred to the house of accused-
appellant Padilla. There he was tied to the wall with a nylon line and was told he would be killed at 9AM. Shortly after,
accused-appellants had to attend to Gaurano; Lugatiman was thus left alone. He was able to escape.

He reported what happened to him and to Gaurano to the police authorities. RTC convicted the accused-appellants of
murder of Gaurano and frustrated murder of Lugatiman.

In this appeal, counsel for the accused aver that the lower court erred in finding that accused-appellants are guilty of
frustrated murder. Counsel further contends that there can be no frustrated murder absent any proof of intent to kill,
which is an essential element of the offense of frustrated murder. The trial court merely relied on the statement of the
accused-appellants stating they would kill Lugatiman to establish intent to kill.

Issue: Whether the statement by the accused stating that Lugatiman would be killed is sufficient proof of intent to
convict a person of frustrated murder

Held: No

Ratio: In a crime of murder or an attempt of frustration thereof, the offender must have the intent or the actual design
to kill which must be manifested by external acts. A verbal expression is not sufficient to show an actual design to
perpetrate the act. Intent must be shown not only by a statement of the aggressor, but also by the execution of all acts
and the use of means necessary to deliver a fatal blow while the victim is not placed in a position to defend himself.

Tying the victim on 2 by piece of wood and leaving him inside the house of the accused are not acts that would result
in death.

Notes: Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder.
There was no commencement of the criminal act by overt acts which have a direct connection with the crime of murder
intended to be committed. Accused-appellants, therefore, are not guilty of frustrated murder but only of the crime of
slight physical injuries.
People v. Kalalo GR Nos. L-39303-39305 March 17, 2009

FACTS:
On November 10, 1932, the appellants, namely, Felipe Kalalo, Marcelo Kalalo,
Juan Kalalo and Gregorio Ramos, were tried in the Court of First Instance of Batangas, together
with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859
and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the
parties said three cases were tried together and after the presentation of their respective
evidence, the said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and
sentenced the other appellants.
Prior to the commission of the three crimes, the appellant Marcelo Kalalo and
Isabel Holgado, the latter being the sister of one of the deceased, had a litigation over a parcel
of land situated in the barrio of Calumpang in the municipality of San Luis, Batangas. Kalalo
filed two complaints against the said woman in the Court of First Instance of Batangas, alleging
that he, Kalalo cultivated the land in question during 1931 and 1932 but that, when harvest time
came Isabela Holgado reaped all that had been planted thereon. Both complaints were
dismissed.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of
the deceased, ordered the plowing of the disputed land and employed several laborers for that
purpose. Marcelo Kalalo, upon learning about it, went to the place accompanied by his brothers
and Felipa and Juan, his brother-in-law Gregorio Ramos and by Alejandro Garcia. They were all
armed with bolos and upon arriving at the place, they ordered the workers to stop. Having been
informed of the cause of the suspension of the work, Marcelino Panaligan, one of the deceased,
ordered the laborers to continue the work. At this point, Marcelo Kalalo approached Arcadio and
the other appellants approached Marcelino Panaligan and they all simultaneously struck with
their bolos. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received.
After the two had fallen, Marcelo Kalalo took the revolver that Marcelino Panaligan carried, and
fired four shots at Hilario Holgado who was then fleeing from the scene in order to save his own
life.

ISSUE:
WON the appellants are guilty of murder or of simple homicide in each of the cases.

HELD:
It is true that under article 248 of the Revised Penal Code, which defines murder, the
circumstance of abuse of superior strength, if proven to have been presented, raises homicide
to the category of murder;but it is also to be borne in mind that the deceased were also armed,
one of them with a bolo, and the other with a revolver. The risk was even for the contending
parties and their strength was almost balanced because there is no doubt but that, under
circumstances similar to those of the present case, a revolver is as effective as, if not more than
three bolos. For this reason, this court is of the opinion that the acts established in cases Nos.
6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides.
As to the third case, the evidence shows that Marcelo Kalalo fired four successive shots at
Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of
reach of the appellants and their companions and save his own life. The fact that the said
appellant, not having contended himself with firing only once, fired said successive shots at
Hilarion Holgado, added to the circumstance that immediately before doing so he and his co-
appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-
law, respectively, of the former, shows that he was then bent on killing said Hilarion Holgado. He
performed everything necessary on his pat to commit the crime that he determined to commit
but he failed by reason of causes independent of his will, either because of his poor aim or
because his intended victim succeeded in dodging the shots, none of which found its mark.
TheFFD Aacts thus committed by the said appellant Marcelo Kalalo constitute attempted
homicide.

THE ACTS CONSTITUTED ATTEMPTED HOMICIDE.

G.R. No. L-17021 February 23, 1921

THE UNITED STATES, plaintiff-appellee,

vs.
ISAAC DOMINGUEZ, defendant-appellant.

Pablo, Guzman & Lucero for appellant.

Attorney-General Feria for appellee.

VILLAMOR, J.:

The fact which gave rise to the present appeal is described in the information as follows:

That on or about 19th day of January, 1920, in the city of Manila, Philippine Islands, the said
accused who was a salesman at the Philippine Education Co., Inc. did then and there
receive the sum of seven pesos and fifty centavos (pesos 750) from one Lamberto Garcia as
payment for five copies of Sam's "Practical Business Letters" bought from the store of the
said company, which amount should have been turned over and delivered by him (accused)
to the company's cashier or his authorized representative therein; that instead of delivering
the said amount to the said cashier or his representative therein, which he knew it was his
obligation to do, the said accused did then and there willfully, unlawfully and criminally
misappropriate and convert it to his own personal use to the damage and prejudice of the
said Philippine Education Co., Inc. in the sum of seven pesos and fifty centavos (pesos 7.50)
equivalent to 37 pesetas.

At the close of the trial the court found the accused guilty of the crime of estafa of the sum of pesos
7.50 and sentenced him to be imprisoned for two months and one day of arresto mayor, with the
accessories provided by law, and costs.

Appeal having been taken to this to this Supreme Court, the counsel for the accused assigns, as
error committed by the court, its finding that the accused is guilty of the crime charged and its action
in imposing upon him the penalty corresponding to a principal in the crime of estafa.

It is proved that the accused, as salesman of the bookstore "Philippine Education Co., Inc." sold on
the morning of January 19, 1920, five copies of Sams' "Practical Business Letters," of the value of
seven pesos and fifty centavos (pesos 7.50), which the accused should have immediately delivered
to the cashier but which he did not deliver, until after it was discovered that he had sold the books
and received their value without delivering it to the cashier, as was his duty.

The accused alleges that he did not deliver the money immediately after the sale, because the cash
boys were very busy as well as the cashier, while he had to go to the toilet for some necessity, and
upon coming out, the cashier caught him by the arm and asked him for the money, and then he
delivered the sum of pesos 7.50 to him; and that it was not his intention to make use of said money.
Such claim, nevertheless, does not exempt him from the criminal responsibility which he had
incurred, for the evidence before us shows clearly that he attempted to defraud the "Philippine
Education Co., Inc." Upon being asked for the money, he first said that a woman, whom he did not
know, bought books, without having paid, for the reason that she was, according to herself, in a
hurry; and, latter, he went out of the store to talk to a friend who was employed in the Pacific Mail
Steamship Co. to tell him that if anyone should ask him if he (the employee of the Pacific Mail
Steamship Co.) bought books that morning in the store of the "Philippine Education Company" he
should answer affirmatively. Furthermore, he had also declared to the manager of the bookstore that
he used part of the money in purchasing postage stamps.

There can be no doubt as to the injury which the accused would have caused to the interests of the
company in retaining for himself the proceeds of the sale in question.

But the question of law to be decided is whether the fact that the accused retained in his possession
the proceeds of the sale, delivering them to the cashier only after the deceit had been discovered,
constitutes a consummated offense or merely a frustrated offense of estafa.

Should the fact that the accused attempted to get certain bundles of merchandise at the station, by
means of the presentation of the tag sent to the consignee in a letter which must have been taken
from the mail, it not having been proven by whom or how it came to the accused, who did not attain
their object, because the bundles had been withdrawn two or three days before by the consignee, be
considered as an attempted or frustrated offense? The supreme court of Spain in its decision of
January 3, 1876, in deciding the appeal taken by the accused, who alleged that the act constituted
only an attempt and not a frustrated estafa, declared that the appeal was not well taken, on the
ground that the offense is frustrated when the accused performs all the acts of execution which
would have produced the crime, and, nevertheless, do not produce it by reason of causes
independent of the will of the actor, and that in said case the appellant, together with his coaccused
attempted to take possession of the two bundles which they believed were at the station, by going
there and presenting the tag, and they did not succeed because these bundles had already been
taken, which constitutes the frustrated crime.

In his commentaries on the Penal Code Viada asks the following questions: "Is immediate return by
the accused of the thing he intended to convert, as soon as the injured party found out the fraud
committed, sufficient to divest the act of its consummated character and to place it within the limits of
a mere frustrated offense?" "The religious society of Santa Clara deposited, in the year 1868, with D.
Manuel Nuez an oil painting on copper, but when they demanded it a few years afterwards, the
latter delivered to them the same frame but with merely a copy of the original painting, which, upon
his order, a painter had made for the sum of 40 pesetas. The substitution having been afterwards
noted, the society protested and Nuez returned the original, valued at 125 pesetas, and in turn
obtained the copy referred to. But, in the meantime a criminal action having been instituted upon this
fact and prosecuted to trial, the Madrid court, holding that Nuez had defrauded and injured the
society in the amount of the difference in the value of the paintings, sentenced him, as principal in
the consummated crime of estafa, defined in number 5 of article 548 of the Code, to the penalty of
two months and one day of arresto mayor, together with the accessories, and costs. An appeal
having been taken from said judgment, on the ground that it violated among others, article 3 of the
Code, the Supreme Court, declaring that the appeal was well taken, held that the estafa committed
was mere frustrated estafa. 'Considering that while the acts of D. Manuel Nuez appear to have
been actuated by the desire to convert the painting to his own use and the consequent injury of its
owner, and that to that end he performed all the acts which should produce the crime as a
consequence, nevertheless, the injury and the appropriation were not realized, and therefore the
crime was not consummated because of a cause independent of his will, which was the discovery of
the substitution of the plate, after which the owner obtained what belonged to him without the
objection of the depositary and without any delay juridically appreciable therefore, the trial court in
holding as consummated an offense that was frustrated, violated, in failing to apply it, article 3 of the
Code.' " (1 Viada, 65.)

The same author puts and solves the following question: "Where a person appointed Commissioner
to make collection of debts due to the public treasury for real estate taxes owing by a mining
company goes to a store and acts of the owner thereof a certain sum in order that he might not file a
complaint by virtue of which the owner might have to pay a big fine because the establishment was
not registered in the corresponding class, and the owner pays him part of the sum demanded, but he
is in the act caught by agents of the authority who were detailed for the purpose, is he guilty of the
consummated or simply frustrated crime of estafa? The criminal branch of the court of Seville found
him guilty of the former and sentenced him to the penalty of two months and one day of arresto
mayor. But, appeal having been taken from the judgment on the ground that the fact constituted only
an attempt to commit estafa, the Supreme Court, while not of the same opinion, however, held that
the crime committed was merely frustrated: 'Considering that while the acts executed by the
appellant should be qualified, not merely as an attempt, as claimed by the appellant, inasmuch as he
did not limit himself to commencing the acts of execution of the crime, but as a frustrated crime
because the accused performed all the acts of execution which should produce the crime as a result,
such s the obtaining of the money exacted, in this manner apparently realizing his object, but which
acts nevertheless did not produce the crime by reason of a cause independent of his will, which
cause in this case was the appearance of agents of the authority at the place, as a consequence of
the complaint filed by Da. Candelaria Polanco to the treasury deputy, a fact which prevented the
consummation of the crime prosecuted, which would have consisted in completely divesting the
owner of his money, a result prevented by the vigilance of the authorities: Considering that in not so
holding the trial court erred on a point of law, as claimed, and violated the articles of the Penal Code
to which the appeal refers, etc., etc.' " (Viada, Suppl. 1887-1889, p. 8.)

Applying the doctrine, established by the supreme court of Spain in the decisions cited, to the case
at bar, we are of the opinion, and so hold, that the appellant is guilty of the frustrated offense
of estafa of 37 pesetas, inasmuch as he performed all the acts of execution which should produce
the crime as a consequence, but which, by reason of causes independent of his will, did not produce
it, no appreciable damage having been caused to the offended party, such damage being one of the
essential elements of the crime, due to the timely discovery of the acts prosecuted.

From what has been said, it results that the judgment appealed from should, as it is hereby,
modified, and the accused is sentenced to pay a find of 325 pesetas, with subsidiary imprisonment
in case of insolvency, and to pay the costs of the trial. So ordered.

Mapa, C.J., Araullo, Streets and Malcolm, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-31770 December 5, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ANTONINO HERNANDEZ, defendant-appellant.

Crispin Oben for appellant.

Attorney-General Jaranilla for appellee.

AVANCEA, C.J.:

In the judgment appealed from the appellant was convicted of arson and sentenced to eight years
and one daypresidio mayor, with the accessaries of law, and the costs.

On February 3, 1929, Miguel Dayrit, the offended party, was living with his children in his house
situated in the barrio of Duque, municipality of Mabalacat, Province of Pampanga. At a little past
midnight on that date, and after Miguel Dayrit had retired, he noticed that the thatched roof of his
house was on fire. He got up to fetch some water with which to extinguish the fire, when, looking out
of the window, he saw the appellant beside the house, carrying a stick (Exhibit A). Miguel Dayrit
shouted for help, and started to put out the fire, which he succeeded in doing, after a small part of
the roof had burned. In answer to his cries for help, Artemio Tanglao repaired to the place and saw
the defendant running away. Daniel Mallari also came, and on his way to the house met the
defendant.

The appellant knew that Miguel Dayrit and his children lived and were in the house that night.

The testimony of the offended party, corroborated by that of Artemio Tanglao and Daniel Mallari,
establishes beyond all doubt the fact that it was the appellant who set fire to the house. The stick
which Miguel Dayrit saw in the appellant's possession on that night was found leaning against the
house with the end burnt and a rag soaked with petroleum dangling from it. Daniel Mallari
recognized it as the stick which the appellant used in getting guava fruits.

It should be noted, moreover, that prior to the crime, the appellant and the offended party, Miguel
Dayrit, had some disagreements because the offended party suspected that the appellant was
stealing his paddy piled up behind his house. The offended party communicated his suspicions to
the barrio lieutenant, who, together with the complainant, went to the appellant's house, but the latter
armed with a bolo, barred their way, saying that he would cut them to pieces, and that he recognized
no authority. This characteristic violence on the part of the appellant was also shown when, in
pursuance of this information, he was arrested; for he refused to give himself up.

The trial court held that the crime committed was only frustrated arson. We agree with the Attorney-
General that the crime was consummated. The appellant did in fact, set fire to the roof of the house,
and said house was in fact partially burned. With this, the crime of arson was consummated,
notwithstanding the fact that the fire was afterwards extinguished, for, once the fire has been started,
the consummation of the crime of arson does not depend upon the extent of the damage cause. This
court has so held in the cases of United States vs. Go Foo Suy and Go Jancho (25 Phil., 187) and
United States vs. Po Chengco (23 Phil., 487).

The crime of arson having been consummated, as it appears from the facts thoroughly proved,
article 549 of the Penal Code is applicable herein, with the corresponding penalty of cadena
temporal to life imprisonment. And as the aggravating circumstance of nighttime must be taken into
consideration, as having been doubtless sought by the appellant in order to insure the commission
of the crime, the penalty must be imposed in its maximum degree.

In view of these considerations, the judgment appealed from is modified, and in accordance with
article 549 of the Penal Code the appellant is found guilty of the crime of arson, committed in a
dwelling, knowing that within it were the offended party and his children; and, considering one
aggravating circumstance in the commission of the crime, the defendant is sentenced to life
imprisonment, with the accessaries, and the costs.

The appellant is an old man, about 85 years of age, and in view of this, and of the fact that the
damage caused was very slight, the Attorney-General recommends that, in pursuance of the second
paragraph of article 2 of the Penal Code, these facts be explained to the Executive, for the exercise
of his clemency to such an extent as he may deem proper. The suggestion is accepted, and it is
hereby ordered that the clerk forward a copy of this decision, once it becomes final, to the Governor-
General for consideration. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

ART. 10

People vs. Simon

Facts: Oct. 22, 1988, Pampanga. Martin Simon was convicted of violating RA 6425 AII 4 (Dangerous Drugs Act of
1972) through a NARCOM poser-buyer. It was appealed for reversal alleging it was a frame-up (testimonies & evidence
proved otherwise) & evidence was inadmissible (held, because there was no counsel).

Issue: WON correct penalty applied?

Held: No. Conviction modified. There was overlapping error in the law thus the SC had to harmonize conflicting

provisions by providing for degrees of graduation. Rule: degrees applied depending on quantity then apply mitigating
or aggravating circumstance. Least penalty should be prision correccional so as not to depreciate seriousness of crime.
Justified in applying RPC provisions because law adopted penalties under RPC in their technical terms thus
significations and effects will also apply. It rules in people v. Tsang Hin Wai that when special law grants discretion to
SC to apply penalties, Code wont be held. Otherwise, SC should be guided by rules in RPC that being the expert in
criminal law administration.