1
SECOND DIVISION
G.R. No. L-36099 March 29, 1982
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENITO S. TABIJE alias "BENNY," defendant-appellant.
ERICTA, J.:
For the killing of Crispin Ching on November 19, 1971 at Paoay, Ilocos Norte, Benito
S. Tabije Marcos M. Madis and Paulino P. Bagarino were accused of Murder,
allegedly attended by the circumstances of treachery, premeditation and abuse of
superior strength.
On motion of the fiscal, the court dismissed the information with respect to Paulino
Bagarino 1 and Marcos M. Madis. 2 Only Benito Tabije was tried. From the decision
convicting Benito S. Tabije of Murder and sentencing him, among others, to life
imprisonment, he now appeals to this Court.
The dramatis personae involved in this tragic incident are the appellant Benito S.
Tabije, the deceased Crispin Ching, and the sisters, Anita and Lydia, both surnamed
Bugarin. The Bugarin sisters are the first cousins of the appellant.
The deceased and Anita used to be sweethearts. They had planned to get married
and in fact had applied for a marriage license in Paoay, Ilocos Norte. But the
deceased was dissuaded from proceeding with the marriage plan by his elder sister,
Teresita Ching.
The deceased himself sowed the seeds of the tragedy when he also courted Lydia,
sister of Anita. Both Anita and Lydia became the sweethearts of the deceased
Crispin Ching.
In the evening of November 19, 1971, the deceased Crispin Ching who resided at
Laoag City went to Paoay, Ilocos Norte which is the residence of his two
sweethearts. He had an appointment with Lydia Bugarin, Anita's sister, to see a
movie in Paoay, Ilocos Norte. 3 As Crispin was waiting for Lydia Bugarin near the
moviehouse, he met the appellant Benito S. Tabije who was with Marcos Madis,
Paulino Bagarino and Benjamin Lacambra. Sometime later, Eleodoro Oaman arrived
at the moviehouse. Oaman had been ordered by the appellant to fetch a bolo for
him (appellant). Upon the arrival of Oaman the appellant took the bolo from him. 4
When Lydia Bugarin did not show up for her appointment, the appellant suggested
to his companions that they accompany Crispin Ching to the house of the Bugarins.
They all agreed except Benjamin Lacambra who preferred to stay behind. 5
The appellant wanted to bring Crispin Ching to the parents of the Bugarin sisters so
that Ching would talk with the parents of Lydia and Anita about his intentions with
the Bugarin sisters. 6
When they reached the road leading to the house of the Bugarins, the appellant
told Crispin Ching to go ahead. The latter refused, saying he was ashamed. 7
The refusal of the deceased to proceed to the house of the Bugarins led to the fatal
stabbing. The testimonies of the prosecution and the defense conflict on how the
stabbing happened.
The version of the prosecution is that when the appellant and the deceased were
approaching the house of the Bugarins, the deceased hesitated and said, "No, I do
not like to go, I am ashamed." 8 Without warning, the appellant boxed the abdomen
of Crispin Ching. The latter asked, "Why do you do that brother-in-law?" Instead of
replying, the appellant stabbed Crispin Ching in his abdomen. Crispin Ching placed
both his hands over his wound. The appellant stabbed him for the second time.
Crispin Ching pleaded, "Please, forgive me my brother-in-law." Then he slumped to
the ground. The appellant then grabbed Ching and dumped him into a 2-meter
deep canal. 9
On the other hand, the defendant testified that when Crispin Ching refused to
proceed to the house of the Bugarins, the appellant asked Ching three times why he
did not like to go. But the deceased refused to answer. So the appellant "asked him
further whether he (the deceased) was only fooling around with my cousins,
because he first courted the sister of Lydia and then he is again courting Lydia and I
wanted to know if he was fooling around with Lydia." 10
The deceased allegedly answered, "You have no business in this matter because you
never gave me money to spend for this purpose. " Thereupon, the deceased
allegedly boxed the appellant at the left breast. The appellant retaliated by boxing

the deceased twice and "since he (Ching) challenged me (appellant) and wanted to
fight me so I stabbed him twice, sir." 11
The only issue raised by the appellant in this appeal is whether the crime is murder
or homicide to which the defendant offered to plead guilty at the commencement
of the trial. But the offer to plead guilty to a lesser offense was rejected by the fiscal
who insisted that the crime committed was murder. 12
More specifically, the task before Us is to determine whether or not treachery
attended the commission of the offense. We agree with the trial judge that there
was treachery.
According to Eleodoro Oaman while they were on their way to the house of Anita
Bugarin, Crispin Ching was walking with the appellant. There was no conversation
between the two until they were near the house of the Bugarins when Crispin Ching
said, "No, I do not like to go, I am ashamed. " 13 Without warning, the appellant
boxed the abdomen of Crispin Ching. The latter asked, "Why do you do that
brother-in-law." Instead of replying, the appellant stabbed him twice. Crispin Ching
pleaded, "Please, forgive me, my brother-in-law. 14
Crispin Ching did not anticipate the attack. It was completely unexpected on his
part. The appellant and his group deluded Crispin Ching into believing that they
were his friends. The appellant called him "brother-in-law." They offered to escort
him to the house of the Bugarins. 15 Because of these manifestations of friendship
and concern, Crispin Ching was lulled into a false sense of security. Little did he
know the fate that the appellant, his professed "brother-in-law," had prepared for
him.
When an assault is made with a deadly weapon upon an unarmed and
unsuspecting victim who has given no immediate provocation for the
attack, and under conditions which make it impossible for him to evade
the attack, flee, or make defense, the act is properly qualified as
treacherous; and the homicide resulting therefrom is murder. (People vs.
Fabian Ulita, et al, 108 Phil. 730)
The suddenness of the appellants' attack on their unprepared victim, who
had met them with a friendly greeting just before being assaulted, leaves
no doubt that the culprits took measures to forestall any danger to
2
themselves, thereby making their crime murder qualified by alevosia.
(People vs. Narciso de Gracia, et al, 18 SCRA 197, 207)
The appellant had a strong motive to kill the deceased. He felt that the deceased
was just trifling with his two cousins.
Thus, when the deceased refused to proceed to the house of the Bugarins, the
appellant demanded from the deceased "whether he was only fooling around with
my cousins because he first courted the sister of Lydia (referring to Anita) and then
he is again courting Lydia and I wanted to know if he was fooling around with
Lydia." 16 Also, in his written affidavit dated November 24, 1971, 17 the appellant
stated that on the night of November 19, 1971, he (appellant) met "one male
person (Crispin Ching) whom they informed me to be the sweetheart of my cousins
who are sisters." 18 The appellant invited the deceased Crispin Ching to the house of
the Bugarins in order to know the intentions of the deceased with respect to the
two sisters. But when the deceased refused to go to the house of the Bugarins, the
refusal angered the appellant. This can be seen from Question and Answer No. 23
of Exhibit " M " which reads as follows:
Q — What happened next when Crispin Ching did not like to go to
the house of Lydia because he is afraid of the father of Lydia
Bugarin?
A — I talked to him and I told him (Crispin Ching) that I will be the
one to talk to the father of Lydia but still he did not like again I
talked to him and told him that he is making a fool out of them
and that he did not utter a word so that I reiterated what I told
him that he is making a fool out of them but he did not utter a
word and I asked him for the third time if he is making a fool out
of my cousins and he answered me that he is afraid of the father
of Lydia and that I was not able to sense (sic) myself for I
unsheathed my sharp-pointed bolo inside my pocket and I
stabbed him twice.
While motive is not necessary for the conviction of a defendant who is positively
Identified, nevertheless, it may be helpful in determining which of two conflicting
theories is to be believed. In the instant case, the evidence for the prosecution
tends to establish murder. On the other hand, the evidence for the defense tends

to establish only homicide. The presence of a strong motive on the part of the
appellant to kill the deceased makes the story of the prosecution that the crime was
committed with treachery more credible.
On the other hand, the claim of the appellant that the deceased boxed him first
lacks merit. In his statement found in Question and Answer No. 23 of Exhibit "M",
the appellant stated, "I asked him (deceased) for the third time if he is making a fool
out of my cousins and he answered me that he is afraid of the father of Lydia and
that I was not able to sense (sic) myself for I unsheathed my sharp-pointed bolo
inside my pocket and I stabbed him twice." In his affidavit (Exh. "M"), the appellant
never mentioned the fact that the deceased boxed him first.
In another affidavit (Exh. "N") the appellant reiterated the aforequoted statement
when he said, "And because I told him again, maybe you are fooling them and
because he did not answer, I was not able to hold myself and I drew the knife from
my pocket and thrust it twice at him." There is nothing also in Exh. "N" wherein the
appellant stated that the deceased boxed him first.
The crime committed is murder with the qualifying circumstance of treachery, with
neither aggravating or mitigating circumstances attending the commission of the
offense.
WHEREFORE, the decision of the lower court being in accordance with the facts and
the law of the case, We hereby affirm the same. With costs.
Barredo (Chairman), Aquino, Concepcion, Jr., De Castro and Escolin, JJ., concur.
Abad Santos, J., is on leave.
Footnotes
1 p. 22, Record.
2 p. 35, Record.
3 pp. 89-91, tsn, August 5, 1972.
4 pp. 23-26, tsn, March 23, 1972; pp. 89-90, 98, tsn, August 5, .1972.
5 pp. 26-27, tsn, March 23, 1972; pp. 91-94, tsn, August 5, 1972.
6 pp. 92-93, tsn, Id.
7 pp. 45-46, tsn, April 13, 1972.
8 pp. 45-46, tsn, Id.
9 pp. 29-31, 34-35, tsn, March 23, 1972.
3
10 p. 96, tsn, August 5, 1972.
11 pp. 95-97, tsn, August 5, 1972.
12 pp. 2-3, tsn, March 23, 1972.
13 pp. 45-46, tsn April 13, 1972.
14 pp. 29-31, March 23, 1972, tsn.
15 pp. 26-27, tsn, March 23, 1972.
16 p. 96, tsn, August 5, 1972.
17 Exh. "M", pp. 72-74, Record.
18 "Question and Answer No. 13, Exh. "M".
[G. R. No. 148233. June 8, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. LUISITO D. BUSTINERA, appellant.
DECISION
CARPIO MORALES, J.:
From the decision[1] of the Regional Trial Court, Branch 217, Quezon City finding
appellant Luisito D. Bustinera guilty beyond reasonable doubt of qualified theft [2] for
the unlawful taking of a Daewoo Racer GTE Taxi and sentencing him to suffer the
penalty of reclusion perpetua, he comes to this Court on appeal.
In an information[3] dated June 17, 1997, appellant was indicted as follows:
The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified Theft,
committed as follows:
That on or about the 25th day of December up to the 9th day of January, 1997, in
Quezon City, Philippines, the said accused being then employed as one [of] the taxi
Drivers of Elias S. Cipriano, an Operator of several taxi cabs with business address at
corner 44 Commonwealth Avenue, iliman (sic), this City, and as such has free access
to the taxi he being driven, did then and there willfully, unlawfully and feloniously
with intent to gain, with grave abuse of confidence reposed upon him by his
employer and without the knowledge and consent of the owner thereof, take, steal
and carry away a Daewoo Racer GTE Taxi with Plate No. PWH-266
worth P303,000.00, Philippine Currency, belonging to Elias S. Cipriano, to the
damage and prejudice of the said offended party in the amount of P303,000.00.

CONTRARY TO LAW.
Upon arraignment[4] on March 27, 2000, appellant, assisted by counsel de
oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued.
From the evidence for the prosecution, the following version is established.
Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC Transport, the
taxicab business of his father, hired appellant as a taxi driver and assigned him to
drive a Daewoo Racer with plate number PWH-266. It was agreed that appellant
would drive the taxi from 6:00 a.m. to 11:00 p.m, after which he would return it to
ESC Transports garage and remit the boundary fee in the amount of P780.00 per
day.[5]
On December 25, 1996, appellant admittedly reported for work and drove the
taxi, but he did not return it on the same day as he was supposed to.
Q: Now, Mr. Witness, on December 25, 1996, did you report for work?
A: Yes, sir.
Q: Now, since you reported for work, what are your duties and
responsibilities as taxi driver of the taxi company?
A: That we have to bring back the taxi at night with the boundary.
Q: How much is your boundary?
A: P780.00, sir.
Q: On December 25, 1996, did you bring out any taxi?
A: Yes, sir.
Q: Now, when ever (sic) you bring out a taxi, what procedure [do] you
follow with that company?
A: That we have to bring back the taxi to the company and before we leave
we also sign something, sir.
Q: What is that something you mentioned?
A: On the record book and on the daily trip ticket, sir.
Q: You said that you have to return your taxi at the end of the day, what is
then the procedure reflect (sic) by your company when you return a
taxi?
A: To remit the boundary and to sign the record book and daily trip ticket.
Q: So, when you return the taxi, you sign the record book?
A: Yes, sir.
Q: You mentioned that on December 25, 1996, you brought out a taxi?
A: Yes, sir.
4
Q: What kind of taxi?
A: Daewoo taxi, sir.
Q: Now did you return the taxi on December 25, 1996?
A: I was not able to bring back the taxi because I was short of my
boundary, sir.[6]
The following day, December 26, 1996, Cipriano went to appellants house to
ascertain why the taxi was not returned.[7] Arriving at appellants house, he did not
find the taxi there, appellants wife telling him that her husband had not yet
arrived.[8] Leaving nothing to chance, Cipriano went to the Commonwealth Avenue
police station and reported that his taxi was missing.[9]
On January 9, 1997, appellants wife went to the garage of ESC Transport and
revealed that the taxi had been abandoned in Regalado Street, Lagro, Quezon
City.[10] Cipriano lost no time in repairing to Regalado Street where he recovered the
taxi.[11]
Upon the other hand, while appellant does not deny that he did not return the
taxi on December 25, 1996 as he was short of the boundary fee, he claims that he did
not abandon the taxi but actually returned it on January 5, 1997;[12] and that on
December 27, 1996, he gave the amount of P2,000.00[13] to his wife whom he
instructed to remit the same to Cipriano as payment of the boundary fee[14] and to
tell the latter that he could not return the taxi as he still had a balance thereof. [15]
Appellant, however, admits that his wife informed him that when she went to
the garage to remit the boundary fee on the very same day (December 27,
1996),[16] Cipriano was already demanding the return of the taxi.[17]
Appellant maintains though that he returned the taxi on January 5, 1997 and
signed the record book,[18] which was company procedure, to show that he indeed
returned it and gave his employer P2,500.00[19] as partial payment for the boundary
fee covering the period from December 25, 1996 to January 5, 1997.
Continuing, appellant claims that as he still had a balance in the boundary
fee, he left his drivers license with Cipriano;[20] that as he could not drive, which was
the only work he had ever known, without his drivers license, and with the obligation
to pay the balance of the boundary fee still lingering, his wife started working on
February 18, 1997 as a stay-in maid for Cipriano, with a monthly salary
of P1,300.00,[21] until March 26, 1997 when Cipriano told her that she had worked off
the balance of his obligation;[22] and that with his obligation extinguished, his drivers
license was returned to him.[23]

Brushing aside appellants claim that he returned the taxi on January 5, 1997 and
that he had in fact paid the total amount of P4,500.00, the trial court found him guilty
beyond reasonable doubt of qualified theft by Decision of May 17, 2001, the
dispositive portion of which is quoted verbatim:
WHEREFORE, judgment is hereby rendered finding accused guilty beyond
reasonable doubt as charged, and he is accordingly sentenced to suffer the penalty
of Reclusion Perpetua and to pay the costs.
In the service of his sentence, accused is ordered credited with four-fifths (4/5) of
the preventive imprisonment undergone by him there being no showing that he
agreed in writing to abide by the same disciplinary rules imposed upon convicted
prisoners.
SO ORDERED.[24] (Emphasis and italics in the original)
Hence, the present appeal anchored on the following assigned errors:
I.
THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT CONCRETE BASIS
THAT THE ACCUSED-APPELLANT HAS INTENT TO GAIN WHEN HE FAILED TO RETURN
THE TAXI TO ITS GARAGE.
II.
THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.[25]
It is settled that an appeal in a criminal proceeding throws the whole case open
for review, and it becomes the duty of the appellate court to correct such errors as
may be found in the judgment even if they have not been specifically assigned.[26]
Appellant was convicted of qualified theft under Article 310 of the Revised
Penal Code, as amended for the unlawful taking of a motor vehicle. However, Article
310 has been modified, with respect to certain vehicles,[27] by Republic Act No. 6539,
as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING
CARNAPPING.
When statutes are in pari materia[28] or when they relate to the same person or
thing, or to the same class of persons or things, or cover the same specific or
5
particular subject matter,[29] or have the same purpose or object,[30] the rule dictates
that they should be construed together interpretare et concordare leges legibus, est
optimus interpretandi modus.[31]Every statute must be so construed and harmonized
with other statutes as to form a uniform system of jurisprudence, [32] as this Court
explained in City of Naga v. Agna,[33] viz:
. . . When statutes are in pari materia, the rule of statutory construction dictates
that they should be construed together. This is because enactments of the same
legislature on the same subject matter are supposed to form part of one uniform
system; that later statutes are supplementary or complimentary to the earlier
enactments and in the passage of its acts the legislature is supposed to have in
mind the existing legislation on the same subject and to have enacted its new act
with reference thereto. Having thus in mind the previous statutes relating to the
same subject matter, whenever the legislature enacts a new law, it is deemed to
have enacted the new provision in accordance with the legislative policy embodied
in those prior statutes unless there is an express repeal of the old and they all
should be construed together. In construing them the old statutes relating to the
same subject matter should be compared with the new provisions and if possible
by reasonable construction, both should be so construed that effect may be given
to every provision of each. However, when the new provision and the old relating
to the same subject cannot be reconciled the former shall prevail as it is the latter
expression of the legislative will . . . [34] (Emphasis and underscoring supplied;
citations omitted)
The elements of the crime of theft as provided for in Article 308 of the Revised
Penal Code are: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon things. [35]
Theft is qualified when any of the following circumstances is present: (1) the
theft is committed by a domestic servant; (2) the theft is committed with grave abuse
of confidence; (3) the property stolen is either a motor vehicle, mail matter or large
cattle; (4) the property stolen consists of coconuts taken from the premises of a
plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the
property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption,
or any other calamity, vehicular accident or civil disturbance.[36]
On the other hand, Section 2 of Republic Act No. 6539, as amended defines
carnapping as the taking, with intent to gain, of a motor vehicle belonging to another

without the latter's consent, or by means of violence against or intimidation of
persons, or by using force upon things. The elements of carnapping are thus: (1) the
taking of a motor vehicle which belongs to another; (2) the taking is without the
consent of the owner or by means of violence against or intimidation of persons or
by using force upon things; and (3) the taking is done with intent to gain.[37]
Carnapping is essentially the robbery or theft of a motorized vehicle, [38] the
concept of unlawful taking in theft, robbery and carnapping being the same. [39]
In the 2000 case of People v. Tan[40] where the accused took a Mitsubishi Gallant
and in the later case of People v. Lobitania[41] which involved the taking of a Yamaha
motorized tricycle, this Court held that the unlawful taking of motor vehicles is now
covered by the anti-carnapping law and not by the provisions on qualified theft or
robbery.
There is no arguing that the anti-carnapping law is a special law, different from
the crime of robbery and theft included in the Revised Penal Code. It particularly
addresses the taking, with intent to gain, of a motor vehicle belonging to another
without the latter's consent, or by means of violence against or intimidation of
persons, or by using force upon things. But a careful comparison of this special law
with the crimes of robbery and theft readily reveals their common features and
characteristics, to wit: unlawful taking, intent to gain, and that personal property
belonging to another is taken without the latter's consent. However, the anti-
carnapping law particularly deals with the theft and robbery of motor
vehicles. Hence a motor vehicle is said to have been carnapped when it has been
taken, with intent to gain, without the owner's consent, whether the taking was
done with or without the use of force upon things. Without the anti-carnapping
law, such unlawful taking of a motor vehicle would fall within the purview of
either theft or robbery which was certainly the case before the enactment of said
statute.[42] (Emphasis and underscoring supplied; citations omitted.)
It is to be noted, however, that while the anti-carnapping law penalizes the
unlawful taking of motor vehicles, it excepts from its coverage certain vehicles such
as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers, amphibian trucks
and cranes if not used on public highways, vehicles which run only on rails and tracks,
and tractors, trailers and tractor engines of all kinds and used exclusively for
agricultural purposes. By implication, the theft or robbery of the foregoing vehicles
would be covered by Article 310 of the Revised Penal Code, as amended and the
provisions on robbery, respectively.[43]
6
From the foregoing, since appellant is being accused of the unlawful taking of a
Daewoo sedan, it is the anti-carnapping law and not the provisions of qualified theft
which would apply as the said motor vehicle does not fall within the exceptions
mentioned in the anti-carnapping law.
The designation in the information of the offense committed by appellant as
one for qualified theft notwithstanding, appellant may still be convicted of the crime
of carnapping. For while it is necessary that the statutory designation be stated in the
information, a mistake in the caption of an indictment in designating the correct
name of the offense is not a fatal defect as it is not the designation that is controlling
but the facts alleged in the information which determines the real nature of the
crime.[44]
In the case at bar, the information alleges that appellant, with intent to gain,
took the taxi owned by Cipriano without the latters consent. [45] Thus, the indictment
alleges every element of the crime of carnapping,[46] and the prosecution proved the
same.
Appellants appeal is thus bereft of merit.
That appellant brought out the taxi on December 25, 1996 and did not return it
on the same day as he was supposed to is admitted.[47]
Unlawful taking, or apoderamiento, is the taking of the motor vehicle without
the consent of the owner, or by means of violence against or intimidation of persons,
or by using force upon things; it is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to dispose of the same. [48]
While the nature of appellants possession of the taxi was initially lawful as he
was hired as a taxi driver and was entrusted possession thereof, his act of not
returning it to its owner, which is contrary to company practice and against the
owners consent transformed the character of the possession into an unlawful
one.[49] Appellant himself admits that he was aware that his possession of the taxi
was no longer with Ciprianos consent as the latter was already demanding its return.
Q: Also you said that during your direct testimony that when you gave your
wife the P2,500.00, you also told her to go to the company to ask the
company for permission for you to use the taxi since you were then
still short of the boundary. Alright, after telling that to your wife and
after seeing your wife between December 27, 1996 and January 5,
1997, did you ask your wife what was the answer of the company to
that request of yours?

A: He did not allow me, sir, and he even [got] angry with me.
Q: So, when did you learn that the company was not agreeable to your
making use of the taxicab without first returning it to the company?
A: Before the new year, sir.
Q: When you said new year, you were referring to January 1, 1997?
A: Either December 29 or December 30, 1996, sir.
Q: So, are you telling us that even if you knew already that the company
was not agreeable to your making use of the taxicab continually
(sic) without returning the same to the company, you still went
ahead and make (sic) use of it and returned it only on January 5,
1997.
A: Yes, sir.[50] (Emphasis and underscoring supplied)
Appellant assails the trial courts conclusion that there was intent to gain with
the mere taking of the taxi without the owners consent. He maintains that his reason
for failing to return the taxi was his inability to remit the boundary fee, his earnings
that day not having permitted it; and that there was no intent to gain since the taking
of the taxi was not permanent in character, he having returned it.
Appellants position does not persuade.
Intent to gain or animus lucrandi is an internal act, presumed from the unlawful
taking of the motor vehicle.[51] Actual gain is irrelevant as the important
consideration is the intent to gain.[52] The term gain is not merely limited to pecuniary
benefit but also includes the benefit which in any other sense may be derived or
expected from the act which is performed.[53]Thus, the mere use of the thing which
was taken without the owners consent constitutes gain.[54]
In Villacorta v. Insurance Commission[55] which was reiterated in Association of
Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc.,[56] Justice Claudio
Teehankee (later Chief Justice), interpreting the theft clause of an insurance policy,
explained that, when one takes the motor vehicle of another without the latters
consent even if the motor vehicle is later returned, there is theft, there being intent
to gain as the use of the thing unlawfully taken constitutes gain:
Assuming, despite the totally inadequate evidence, that the taking
was temporary and for a joy ride, the Court sustains as the better view[57] that
which holds that when a person, either with the object of going to a certain place,
or learning how to drive, or enjoying a free ride, takes possession of a vehicle
belonging to another, without the consent of its owner, he is guilty of theft because
by taking possession of the personal property belonging to another and using it, his
7
intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment
and pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that
the use of a thing constitutes gain and Cuello Calon who calls it hurt de
uso.[58] (Emphasis and underscoring supplied; citation omitted)
Besides, the trial court did not believe appellants claim that he in fact returned
the taxi on January 5, 1997.
The Court can not (sic) believe accuseds assertion that he returned the subject
vehicle on January 5, 1997 to the garage and that he had in fact paid the amount
of P4,500.00 in partial payment of his unremitted boundary for ten (10) days. He
could not even be certain of the exact amount he allegedly paid the taxicab
owner. On direct-examination, he claimed that he paid Edwin Cipriano on
December 27, 1996 the amount of P2,000.00 and it was his wife who handed said
amount to Cipriano, yet on cross-examination, he claimed that he gave P2,500.00 to
his wife on that date for payment to the taxicab owner.[59]
The rule is well-entrenched that findings of fact of the trial court are accorded
the highest degree of respect and will not be disturbed on appeal absent any clear
showing that the trial court had overlooked, misunderstood or misapplied some facts
or circumstances of weight and significance which, if considered, would alter the
result of the case.[60] The reason for the rule being that trial courts have the distinct
advantage of having heard the witnesses themselves and observed their deportment
and manner of testifying or their conduct and behavior during the trial. [61]
Other than his bare and self-serving allegations, appellant has not shown any
scintilla of evidence that he indeed returned the taxi on January 5, 1997.
Q: You said that you returned the taxi on January 5, 1997, correct?
A: Yes, sir.
Q: Now, Mr. Witness, did you sign any record when you returned the
taxi?
A: Yes, sir.
Q: Do you have any copy of that record?
A: They were the one (sic) in-charge of the record book and I even
voluntarily left my drivers license with them, sir.
Q: You said that you did not return the taxi because you were short of (sic)
boundary, did you turn over any money to your employer when you
returned the taxi?
A: I gave them [an] additional P2,500.00, sir.

Q: At the time when you returned the taxi, how much was your short
indebtedness (sic) or short boundary (sic)?
A: I was short for ten (10) days, and I was able to pay P4,500.00.
Q: Do you have any receipt to show receipt of payment for
this P4,500.00?
A: They were the ones having the record of my payment, and our
agreement was that I have to pay the balance in
installment.[62] (Emphasis supplied)
While appellant maintains that he signed on January 5, 1997 the record book
indicating that he returned the taxi on the said date and paid Cipriano the amount
of P4,500.00 as partial payment for the boundary fee, appellant did not produce the
documentary evidence alluded to, to substantiate his claim. That such alleged record
book is in the possession of Cipriano did not prevent him from producing it as
appellant has the right to have compulsory process issued to secure the production
of evidence on his behalf.[63]
The trial court having convicted appellant of qualified theft instead of
carnapping, it erred in the imposition of the penalty. While the information alleges
that the crime was attended with grave abuse of confidence, the same cannot be
appreciated as the suppletory effect of the Revised Penal Code to special laws, as
provided in Article 10 of said Code, cannot be invoked when there is a legal
impossibility of application, either by express provision or by necessary
implication.[64]
Moreover, when the penalties under the special law are different from and are
without reference or relation to those under the Revised Penal Code, there can be
no suppletory effect of the rules, for the application of penalties under the said Code
or by other relevant statutory provisions are based on or applicable only to said rules
for felonies under the Code.[65]
Thus, in People v. Panida[66] which involved the crime of carnapping and the
penalty imposed was the indeterminate sentence of 14 years and 8 months, as
minimum, to 17 years and 4 months, as maximum, this Court did not apply the
provisions of the Revised Penal Code suppletorily as the anti-carnapping law provides
for its own penalties which are distinct and without reference to the said Code.
The charge being simple carnapping, the imposable penalty is imprisonment for not
less than 14 years and 8 months and not more than 17 years and 4 months. There
can be no suppletory effect of the rules for the application of penalties under the
Revised Penal Code or by other relevant statutory provisions based on, or
8
applicable only to, the rules for felonies under the Code. While it is true that the
penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent
to the duration of the medium period of reclusion temporal, such technical term
under the Revised Penal Code is not given to that penalty for carnapping. Besides,
the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in
the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special
laws of the same formulation. For this reason, we hold that the proper penalty to
be imposed on each of accused-appellants is an indeterminate sentence of 14 years
and 8 months, as minimum, to 17 years and 4 months, as maximum. [67] (Emphasis
and underscoring supplied; citations omitted)
Appellant being then culpable for carnapping under the first clause of Section
14 of Republic Act No. 6539, as amended, the imposable penalty is imprisonment for
not less than 14 years and 8 months, not more than 17 years and 4 months, [68] for, as
discussed above, the provisions of the Revised Penal Code cannot be applied
suppletorily and, therefore, the alleged aggravating circumstance of grave abuse of
confidence cannot be appreciated.
Applying Section 1 of Act No. 4103,[69] as amended, otherwise known as the
Indeterminate Sentence Law, if the offense is punishable by a special law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum term shall
not be less than the minimum prescribed by the same the penalty imposed being a
range.[70]
WHEREFORE, the judgment of the Regional Trial Court of Quezon City, Branch
217, in Crim Case No. Q-97-71956, finding appellant Luisito D. Bustinera guilty
beyond reasonable doubt of qualified theft, is REVERSED and SET ASIDE, and another
judgment entered in its place, finding him guilty beyond reasonable doubt of the
crime of carnapping under Republic Act No. 6539, as amended and sentencing him
to an indeterminate penalty of Fourteen (14) Years and Eight (8) Months, as
minimum, to Seventeen (17) Years and Four (4) Months, as maximum.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
 9

[1]
Records at 90-94. Motor vehicle is any vehicle propelled by any power other than muscular power using
[2]
ART. 310. Qualified theft. The crime of theft shall be punished by the penalties next the public highways, but excepting road rollers, trolley cars, street-
higher by two degrees than those respectively specified in the next sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts,
preceding article, if committed by a domestic servant, or with grave abuse amphibian trucks, and cranes if not used on public highways, vehicles,
of confidence, or if the property stolen is motor vehicle, mail matter or large which run only on rails or tracts, and tractors, trailers and reaction engines
cattle or consists of coconuts taken from the premises of a plantation, fish of all kinds used exclusively for agricultural purposes. Trailers having any
taken from a fishpond or fishery or if property is taken on the occasion of number of wheels, when propelled or intended to be propelled by
fire, earthquake, typhoon, volcanic eruption, or any other calamity, attachment to a motor vehicle, shall be classified as separate motor vehicle
vehicular accident or civil disturbance. (Emphasis and underscoring with no power rating.(Emphasis and underscoring supplied)
[28]
supplied) Statutes which are in pari materia may be independent or amendatory in form;
[3]
Records at 1-2. they may be complete enactments dealing with a single, limited subject
[4]
Id. at 36. matter or sections of a code or revision; or they may be a combination of
[5]
Transcript of Stenographic Notes (TSN), July 10, 2000 at 8. these. [2B N. SINGER, SUTHERLAND STATUTORY
[6] th
TSN, October 9, 2000 at 5-8. CONSTRUCTION 140 (5 ed., 1992)]
[7] [29]
TSN, July 10, 2000 at 14. Natividad v. Felix, 229 SCRA 680, 687 (1994).
[8] [30]
Id. at 9. Philippine Global Communications, Inc. v. Relova, 145 SCRA 385, 394 (1986); City
[9]
Ibid. of Naga v. Agna, 71 SCRA 176, 184 (1976).
[10] [31]
Id. at 9-10. Blacks Law Dictionary (6th ed., 1990) translates the maxim as to interpret, and [in
[11]
Id. at 10. such a way as] to harmonize laws with laws, is the best mode of
[12]
TSN, October 9, 2000 at 8. interpretation.
[13] [32]
Ibid. On cross-examination however, appellant later claimed that the amount he Loyola Grand Villas Homeowners (South) Association, Inc. v. Court of Appeals, 276
gave was P2,500.00. SCRA 681, 696 (1997); Natividad v. Felix, supra; Corona v. Court of Appeals,
[14]
TSN, October 9, 2000 at 18. 214 SCRA 378, 392 (1992).
[15] [33]
Id. at 8. 71 SCRA 176 (1976).
[16] [34]
Id. at 21. Id. at 184.
[17] [35]
Id. at 20. People v. Sison, 322 SCRA 345, 363-364 (2000).
[18] [36]
Id. at 9. Id. at 364.
[19] [37]
Ibid. People v. Napalit, supra at 700; People v. Calabroso, 340 SCRA 332, 342 (2000).
[20] [38]
Id. at 26. People v. Lobitania, 388 SCRA 417, 432 (2002).
[21] [39]
Id. at 29. People v. Fernandez, G.R. No. 132788, October 23, 2003; People v. Sia, 370 SCRA
[22]
Id. at 30. 123, 134 (2001); People v. Santos, 333 SCRA 319, 334 (2000).
[23] [40]
Ibid. 323 SCRA 30 (2000).
[24] [41]
Records at 93. 388 SCRA 417 (2002).
[25] [42]
Rollo at 40. People v. Lobitania, 388 SCRA 417, 432 (2002); People v. Tan, 323 SCRA 30, 39
[26]
People v. Salvador, 398 SCRA 394, 412 (2003); People v. Napalit, 396 SCRA 687, (2000).
[43]
699 (2003); People v. Galigao, 395 SCRA 195, 204 (2003). Vide Izon v. People, 107 SCRA 118, 123 (1981) where this Court said the following:
[27]
Section 2 of Republic Act No. 6539 as amended defines motor vehicle as follows: From the definition cited by the Government which petitioners admit as
authoritative, highways are always public, free for the use of every person.

There is nothing in the law that requires a license to use a public highway to
make the vehicle a "motor vehicle" within the definition given the anti-
carnapping law. If a vehicle uses the streets with or without the required
license, same comes within the protection of the law, for the severity of the
offense is not to be measured by what kind of streets or highway the same
is used; but by the very nature of the vehicle itself and the use to which it is
devoted. Otherwise, cars using the streets but still unlicensed or
unregistered as when they have just been bought from the company, or
only on test runs, may be stolen without the penal sanction of the anti-
carnapping statute, but only as simple robbery punishable under the
provision of the Revised Penal Code. This obviously, could not have been
the intention of the anti-carnapping law.
Going over the enumerations of excepted vehicle, it would readily be noted that any
vehicle which is motorized using the streets which are public, not exclusively
for private use, comes within the concept of motor vehicle. A tricycle which
is not included in the exception, is thus deemed to be that kind of motor
vehicle as defined in the law the stealing of which comes within its penal
sanction. (Emphasis and underscoring supplied)
[44]
People v. Bali-balita, 340 SCRA 450, 469 (2000); People v. Banihit, 339 SCRA 86, 94
(2000); People v. Elamparo, 329 SCRA 404, 416 (2000); People v. Diaz, 320
SCRA 168, 175 (1999).
[45]
Records at 1-2.
[46]
It should be noted that appellant cannot be charged with estafa as it was not
alleged in the information that he had juridical possession of the motor
vehicle. In Santos v. People, 181 SCRA 487, 492 (1990), this Court
distinguished between theft and estafa to wit:
Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino
in his book on the Revised Penal Code, The principal distinction between the
two crimes is that in theft the thing is taken while in estafa the accused
receives the property and converts it to his own use or benefit. However,
there may be theft even if the accused has possession of the property. If
he was entrusted only with the material or physical (natural) or de
facto possession of the thing, his misappropriation of the same constitutes
theft, but if he has the juridical possession of the thing, his conversion of
the same constitutes embezzlement or estafa. (Emphasis and underscoring
supplied; citation omitted)
Moreover, in People v. Isaac, 96 Phil. 931 (1955), this Court convicted a jeepney
driver of theft and not estafa when he did not return the jeepney to its
10
owner since the motor vehicle was in the juridical possession of its owner,
although physically held by the driver. The Court reasoned that the accused
was not a lessee or hirer of the jeepney because the Public Service Law and
its regulations prohibit a motor vehicle operator from entering into any kind
of contract with any person if by the terms thereof it allows the use and
operation of all or any of his equipment under a fixed rental basis. The
contract with the accused being under the boundary system, legally, the
accused was not a lessee but only an employee of the owner. Thus, the
accuseds possession of the vehicle was only an extension of the owners.
[47]
TSN, October 9, 2000 at 5-8.
[48]
People v. Ellasos, 358 SCRA 516, 527 (2001).
[49]
Vide People v. Isaac, supra, where this Court convicted Isaac, who was hired as a
temporary driver of a public service vehicle a jeepney of the crime of theft
when he did not return the same.
[50]
TSN, October 9, 2000 at 22-23.
[51]
People v. Ellasos, supra; People v. Gulinao, 179 SCRA 774, 780 (1989).
[52]
Venturina v. Sandiganbayan, 193 SCRA 40, 46 (1991); People v. Seranilla, 161
SCRA 193, 207 (1988).
[53]
3 R. AQUINO & C. GRINO-AQUINO, THE REVISED PENAL CODE 206 (1997).
[54]
Association of Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc.,
124 SCRA 618, 620-621 (1983); Villacarta v. Insurance Commission, 100
SCRA 467, 474-475 (1980).
[55]
100 SCRA 467 (1980).
[56]
124 SCRA 618, 620-621 (1983).
[57]
According to Justice Florenz Regalado [F. REGALADO, CRIMINAL LAW
CONSPECTUS 543-544 (2003)], historically, opinion as to whether or not the
unlawful taking of the personal property belonging to another must be
coupled with the intent of the offender to permanently deprive the owner
of the said property has been divided:
In one robbery case, it was held that there must be permanency in the taking, or in
the intent for the asportation, of the stolen property (People v. Kho
Choc, CA, 50 O.G. 1667).
In several theft cases, there were divided opinions, one line of cases holding that the
intent of the taking was to permanently deprive the owner thereof
(People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103,
cf. People v. Roxas, CA-G.R. No. 14953, Oct. 31, 1956). The contrary group
of cases argued that there was no need for permanency in the taking or in
its intent, as the mere disturbance of the proprietary rights of the owner

was already apoderamiento (People v. Fernandez, CA, 38 O.G. 985; People
v. Martisano, CA, 48 O.G. 4417).
The second line of cases holding that there need be no intent to permanently
deprive the owner of his property was later adopted by the Supreme
Court, in construing the theft clause in an insurance policy, and ruling that
there was criminal liability for theft even if the car was taken out only for a
joyride but without the owners knowledge
consent. (Villacorta v. Insurance Comm., et al., G.R. No. 54171, Oct. 28,
1980; Assn of Baptists for World Evangelism v. Fieldmens Ins. Co, Inc., G.R.
No. L-28772, Sept. 21, 1983). (Emphasis supplied)
[58]
Villacorta v. Insurance Commission, supra.
[59]
Records at 93.
[60]
People v. Muros, G.R. No. 142511, February 16, 2004.
[61]
Ibid.
[62]
TSN, October 9, 2000 at 9-10.
[63]
RULES OF COURT, Rule 115, sec. 1, par. (g); Vide People v. Woolcock, 244 SCRA
235, 255-256 (1995), where this Court said the following:
Just like appellant Williams, she sought to buttress her aforesaid contention by
lamenting the alleged failure of the State to present in the trial court her
baggage declaration and the confiscation receipt involving these pieces of
her baggage. In the first place, it was not the duty of the prosecution to
present these alleged documents on which she relies for her defense. And,
just as in the case of appellant Williams, it is a source of puzzlement why
she never sought to compel either the prosecutors to produce the
aforesaid documents which were allegedly in the possession of the latter
or the customs office where such declarations are on file. Contrary to her
argument hereon, since such pieces of evidence were equally available to
both parties if sought by subpoena duces tecum, no presumption of
suppression of evidence can be drawn, and these considerations likewise
apply to the thesis of appellant Williams. (Emphasis and underscoring
supplied; citation omitted)
[64]
People v. Simon, 234 SCRA 555, 574 (1994).
[65]
Id. at 576.
[66]
310 SCRA 66 (1999).
[67]
Id. at 99-100. It should be noted, however, that the passage of Republic Act No.
7659, otherwise known as AN ACT TO IMPOSE THE DEATH PENALTY ON
CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED
PENAL CODE, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER
11
PURPOSES, introduced three amendments to the anti-carnapping law: (1)
the change of the penalty of life imprisonment to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase in the commission of the
carnapping to in the course of the commission of the carnapping or on the
occasion thereof. [People v. Latayada, G.R. No. 146865, February 18,
2004; People v. Santos, supra at 333; People v. Paramil, 329 SCRA 456, 464
or (2000); People v. Mejia, 275 SCRA 127, 153 (1997)] With the amendment of
the penalty to life imprisonment to reclusion perpetua, the provisions of the
Revised Penal Code can be suppletorily applied in qualified carnapping or
carnapping in an aggravated form as defined in Section 14 of Republic Act
No. 6539, as amended by Section 20 of Republic Act No. 7659 whenever the
owner, driver or occupant of the carnapped vehicle is killed in the course of
the commission of the carnapping or on the occasion
thereof. In People v. Simon [234 SCRA 555, 574 (1994)], this Court said that
when an offense is defined and punished under a special law but its penalty
is taken from the Revised Penal Code, then the provisions of the said Code
would apply suppletorily. In the case at bar however, appellant is not being
charged with qualified or aggravated carnapping, but only carnapping under
the first clause of the anti-carnapping law. Since the imposable penalty is
imprisonment for not less than 14 years and 8 months and not more than
17 years and 4 months, the provisions of the Revised Penal Code cannot be
applied suppletorily.
[68]
SEC. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as
this term is defined in Section Two of this Act, shall, irrespective of the value
of motor vehicle taken, be punished by imprisonment for not less than
fourteen years and eight months and not more than seventeen years and
four months, when the carnapping is committed without violence or
intimidation of persons, or force upon things, and by imprisonment for not
less than seventeen years and four months and not more than thirty years,
when the carnapping is committed by means of violence against or
intimidation of any person, or force upon things; and the penalty
of reclusion perpetua to death shall be imposed when the owner, driver or
occupant of the carnapped motor vehicle is killed or raped in the course of
the commission of the carnapping or on the occasion thereof. (Emphasis
and underscoring supplied)
[69]
SECTION 1. Hereinafter, in imposing a prison sentence for an offense punishable
by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
 12

that which, in view of the attending circumstances, could be properly

imposed under the rules of the said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code
for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the
same. (Emphasis and underscoring supplied).
[70]
People v. Panida, 310 SCRA 66, 99 (1999).

EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed
against him, but instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in two well-
known decisions1 rendered decades ago by the Court of Appeals, upholding the
existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v.
Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in
1984, in Empelis v. IAC.5 This petition now gives occasion for us to finally and fully
measure if or how frustrated theft is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard
13
who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-
known "Tide" brand. Petitioner unloaded these cases in an open parking space,
where Calderon was waiting. Petitioner then returned inside the supermarket, and
after five (5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space. 7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab
and directed it towards the parking space where Calderon was waiting. Calderon
loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All
these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the
open parking area. When Lago asked petitioner for a receipt of the merchandise,
petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to
alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched
items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of
Ultra 25 grams, and three (3) additional cases of detergent, the goods with an
aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office before they
were transferred on the same day to the Baler Station II of the Philippine National
Police, Quezon City, for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter
was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club
on the afternoon of 19 May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to
buy snacks inside the supermarket. It was while they were eating that they heard

the gunshot fired by Lago, leading them to head out of the building to check what
was
transpiring. As they were outside, they were suddenly "grabbed" by a security
guard, thus commencing their detention.12 Meanwhile, petitioner testified during
trial that he and his cousin, a Gregorio Valenzuela,13 had been at the parking lot,
walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-
asa, when they saw the security guard Lago fire a shot. The gunshot caused him and
the other people at the scene to start running, at which point he was apprehended
by Lago and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner denied having stolen
the cartons of detergent, but he was detained overnight, and eventually brought to
the prosecutor’s office where he was charged with theft. 14 During petitioner’s cross-
examination, he admitted that he had been employed as a "bundler" of GMS
Marketing, "assigned at the supermarket" though not at SM. 15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of
Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses
and established the convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner filed a
brief19 with the Court of Appeals, causing the appellate court to deem Calderon’s
appeal as abandoned and consequently dismissed. Before the Court of Appeals,
petitioner argued that he should only be convicted of frustrated theft since at the
time he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.20 However, in its Decision dated 19 June 2003,21 the Court of
Appeals rejected this contention and affirmed petitioner’s conviction. 22 Hence the
present Petition for Review,23 which expressly seeks that petitioner’s conviction "be
modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both
his felonious intent and his actual participation in the theft of several cases of
detergent with a total value of ₱12,090.00 of which he was charged.25 As such,
14
there is no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The
only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites26 two decisions rendered many years ago by the Court of Appeals: People v.
Diño27 and People v. Flores.28 Both decisions elicit the interest of this Court, as they
modified trial court convictions from consummated to frustrated theft and involve a
factual milieu that bears similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño
and Flores rulings since they have not yet been expressly adopted as precedents by
this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Diño and Flores have attained a level
of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law
annotations,29 and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful
scenarios that populate criminal law exams more than they actually occur in real
life. Indeed, if we finally say that Diño and Flores are doctrinal, such conclusion
could profoundly influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief having to exit with
the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application of Diño and
Flores. The fact that lower courts have not hesitated to lay down convictions for
frustrated theft further validates that Diño and Flores and the theories offered
therein on frustrated theft have borne some weight in our jurisprudential system.
The time is thus ripe for us to examine whether those theories are correct and
should continue to influence prosecutors and judges in the future.

III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first refer to the basic rules on the
three stages of crimes under our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated "when all the elements necessary for
its execution and accomplishment are present." It is frustrated "when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the
offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion
of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime.31 After that point has been
breached, the subjective phase ends and the objective phase begins. 32 It has been
held that if the offender never passes the subjective phase of the offense, the crime
is merely attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively the crime is
complete."34
Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other. So long as the offender fails to
complete all the acts of execution despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally
enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused
as against the acts that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the felony
15
itself was actually produced by the acts of execution. The determination of whether
the felony was "produced" after all the acts of execution had been performed
hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised
Penal Code, while the elements in turn unravel the particular requisite acts of
execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an
important characteristic of a crime, that "ordinarily, evil intent must unite with an
unlawful act for there to be a crime," and accordingly, there can be no crime when
the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes
mala in se,36mens rea has been defined before as "a guilty mind, a guilty or
wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It
follows that the statutory definition of our mala in se crimes must be able to supply
what the mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that "a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be an actus reus. 40
It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embedded which attests
when the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase "shall kill another," thus
making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised
Penal Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force
upon things, shall take personal property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the
local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner, shall
hunt or fish upon the same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be committed.41 In the present
discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another. It is also clear from
the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in
Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition of theft,
which under early Roman law as defined by Gaius, was so broad enough as to
encompass "any kind of physical handling of property belonging to another against
the will of the owner,"43 a definition similar to that by Paulus that a thief "handles
16
(touches, moves) the property of another."44 However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: "[f]urtum est
contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful
taking," to characterize theft. Justice Regalado notes that the concept of
apoderamiento once had a controversial interpretation and application. Spanish
law had already discounted the belief that mere physical taking was constitutive of
apoderamiento, finding that it had to be coupled with "the intent to appropriate
the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing."47 However, a conflicting line of cases
decided by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking48 or an intent to permanently deprive the owner of the
stolen property;49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted apoderamiento. 50 Ultimately, as
Justice Regalado notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his property to constitute an
unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act
that is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only attempted theft
would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts

committed by petitioner, if ordinarily sufficient to produce theft as a consequence,
"do not produce [such theft] by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to consider: that the
felony is not "produced," and that such failure is due to causes independent of the
will of the perpetrator. The second factor ultimately depends on the evidence at
hand in each particular case. The first, however, relies primarily on a doctrinal
definition attaching to the individual felonies in the Revised Penal Code52 as to
when a particular felony is "not produced," despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is
necessary to inquire as to how exactly is the felony of theft "produced." Parsing
through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law — that theft is already "produced" upon
the "tak[ing of] personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to "get the merchandise out of the Custom House," and it appears
that he "was under observation during the entire transaction."54 Based apparently
on those two circumstances, the trial court had found him guilty, instead, of
frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that
"all the elements of the completed crime of theft are present."55 In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of
the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another.
As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not
appear that he was at that moment caught by the policeman but sometime later.
The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as
that of consummated theft instead of frustrated theft inasmuch as nothing appears
in the record showing that the policemen who saw the accused take the fruit from
the adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of
time." (Decision of the Supreme Court of Spain, October 14, 1898.)
17
Defendant picked the pocket of the offended party while the latter was hearing
mass in a church. The latter on account of the solemnity of the act, although
noticing the theft, did not do anything to prevent it. Subsequently, however, while
the defendant was still inside the church, the offended party got back the money
from the defendant. The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the Supreme
Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key
opened up a case, and from the case took a small box, which was also opened with
a key, from which in turn he took a purse containing 461 reales and 20 centimos,
and then he placed the money over the cover of the case; just at this moment he
was caught by two guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused [x x x]
having materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to constitute the crime
which was thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves
did vary, from "sometime later" in the 1898 decision; to the very moment the thief
had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases, as it was
ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only
of frustrated rather than consummated theft. The case is People v.
Sobrevilla,57 where the accused, while in the midst of a crowd in a public market,
was already able to abstract a pocketbook from the trousers of the victim when the
latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same

time shouting for a policeman; after a struggle, he recovered his pocket-book and
let go of the defendant, who was afterwards caught by a policeman." 58 In rejecting
the contention that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking
the pocket-book, and that determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the [accused’s] criminal
liability, which arose from the [accused] having succeeded in taking the pocket-
book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict
the position of petitioner in this case. Yet to simply affirm without further comment
would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and
15 years before Flores. The accused therein, a driver employed by the United States
Army, had driven his truck into the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P. who inspected the
truck and found therein three boxes of army rifles. The accused later contended
that he had been stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of consummated theft, but the
Court of Appeals modified the conviction, holding instead that only frustrated theft
had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused
was to let the boxes of rifles "pass through the checkpoint, perhaps in the belief
that as the truck had already unloaded its cargo inside the depot, it would be
allowed to pass through the check point without further investigation or
18
checking."60 This point was deemed material and indicative that the theft had not
been fully produced, for the Court of Appeals pronounced that "the fact
determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary."61 Support for this
proposition was drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate
de la consumacion del delito de hurto es preciso que so haga en circunstancias tales
que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no
puede decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty
subject to the control and disposal of the culprits, the articles stolen must first be
passed through the M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of execution had been
performed, but before the loot came under the final control and disposal of the
looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the division of the court
that decided it, bore "no substantial variance between the circumstances [herein]
and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The accused
therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly
empty sea van onto his truck at the terminal of the stevedoring company. The truck
driver proceeded to show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the van, and discovered
that the "empty" sea van had actually contained other merchandise as well. 65 The
accused was prosecuted for theft qualified by abuse of confidence, and found

himself convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that "literally frustrated the theft." However,
the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Diño, citing a "traditional ruling" which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that
the said "traditional ruling" was qualified by the words "is placed in a situation
where [the actor] could dispose of its contents at once."66 Pouncing on this
qualification, the appellate court noted that "[o]bviously, while the truck and the
van were still within the compound, the petitioner could not have disposed of the
goods ‘at once’." At the same time, the Court of Appeals conceded that "[t]his is
entirely different from the case where a much less bulk and more common thing as
money was the object of the crime, where freedom to dispose of or make use of it
is palpably less restricted,"67 though no further qualification was offered what the
effect would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic
as to whether the crime of theft was produced is the ability of the actor "to freely
dispose of the articles stolen, even if it were only momentary." Such conclusion was
drawn from an 1888 decision of the Supreme Court of Spain which had pronounced
that in determining whether theft had been consummated, "es preciso que so haga
en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o
menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if
the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in Flores, the
character of the item stolen could lead to a different conclusion as to whether there
could have been "free disposition," as in the case where the chattel involved was of
"much less bulk and more common x x x, [such] as money x x x."68
19
In his commentaries, Chief Justice Aquino makes the following pointed observation
on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is
able to freely dispose of the stolen articles even if it were more or less momentary.
Or as stated in another case[69 ], theft is consummated upon the voluntary and
malicious taking of property belonging to another which is realized by the material
occupation of the thing whereby the thief places it under his control and in such a
situation that he could dispose of it at once. This ruling seems to have been based
on Viada’s opinion that in order the theft may be consummated, "es preciso que se
haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
cases, also states that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated." 72
There are at least two other Court of Appeals rulings that are at seeming variance
with the Diño and Flores rulings. People v. Batoon73 involved an accused who filled
a container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the
trial court found the accused guilty of frustrated qualified theft, the Court of
Appeals held that the accused was guilty of consummated qualified theft, finding
that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime
of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through
the checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Diño,
the Court of Appeals held that the accused were guilty of consummated theft, as
the accused "were able to take or get hold of the hospital linen and that the only
thing that was frustrated, which does not constitute any element of theft, is the use
or benefit that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that
"[w]hen the meaning of an element of a felony is controversial, there is bound to

arise different rulings as to the stage of execution of that felony."77 Indeed, we can
discern from this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed foundational
basis of the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated,
and not consummated, theft. As we undertake this inquiry, we have to reckon with
the import of this Court’s 1984 decision in Empelis v. IAC. 78
As narrated in Empelis, the owner of a coconut plantation had espied four (4)
persons in the premises of his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were subsequently arrested
after the owner reported the incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,79 but further held that the accused were
guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft
was consummated or frustrated was raised by any of the parties. What does
appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners
were not able to perform all the acts of execution which should have produced the
felony as a consequence. They were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment, whether Diño, Flores
or the Spanish authorities who may have bolstered the conclusion. There are
indeed evident problems with this formulation in Empelis.
20
Empelis held that the crime was only frustrated because the actors "were not able
to perform all the acts of execution which should have produced the felon as a
consequence."81 However, per Article 6 of the Revised Penal Code, the crime is
frustrated "when the offender performs all the acts of execution," though not
producing the felony as a result. If the offender was not able to perform all the acts
of execution, the crime is attempted, provided that the non-performance was by
reason of some cause or accident other than spontaneous desistance. Empelis
concludes that the crime was
frustrated because not all of the acts of execution were performed due to the
timely arrival of the owner. However, following Article 6 of the Revised Penal Code,
these facts should elicit the conclusion that the crime was only attempted,
especially given that the acts were not performed because of the timely arrival of
the owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the
present petition. Even if the two sentences we had cited actually aligned with the
definitions provided in Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as
authority on theft. Indeed, we cannot see how Empelis can contribute to our
present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were
considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated
theft is viable in this jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for
frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
España was then in place. The definition of the crime of theft, as provided then,
read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la
apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado,
salvo los casos previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0;
608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish
Supreme Court decisions were handed down. However, the said code would be
revised again in 1932, and several times thereafter. In fact, under the Codigo Penal
Español de 1995, the crime of theft is now simply defined as "[e]l que, con ánimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la
libre disposicion" of the property is not an element or a statutory characteristic of
the crime. It does appear that the principle originated and perhaps was fostered in
the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised at least
three questions for the reader whether the crime of frustrated or consummated
theft had occurred. The passage cited in Diño was actually utilized by Viada to
answer the question whether frustrated or consummated theft was committed "[e]l
que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido,
la arroja al suelo."83 Even as the answer was as stated in Diño, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that decision’s
factual predicate occasioning the statement was apparently very different from
21
Diño, for it appears that the 1888 decision involved an accused who was surprised
by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled. 84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly
recites decisions of the Supreme Court of Spain that have held to that effect. 85 A
few decades later, the esteemed Eugenio Cuello Calón pointed out the inconsistent
application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando
llevaban los sacos de harino del carro que los conducia a otro que tenían preparado,
22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia
situada en el local donde se realizó la sustracción que impidió pudieran los reos
disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si
existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado
acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustración cuando, perseguido el culpable o
sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo
1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually
possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma
cuando la cosa queda de hecho a la disposición del agente. Con este criterio
coincide la doctrina sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el culpable coge o aprehende
la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho de
que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde
su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o
fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente,
los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was
content with replicating the Spanish Supreme Court decisions on the matter, Cuello
Calón actually set forth his own thought that questioned whether theft could truly
be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente." Otherwise put, it would be
difficult to foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed
in Diño and Flores. A final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for such a submission is
hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the
respected Spanish commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt
the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems
in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular
crime in this jurisdiction. It is the legislature, as representatives of the sovereign
people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident
legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new element of
a crime which was unintended by the legislature, or redefine a crime in a manner
that does not hew to the statutory language. Due respect for the prerogative of
Congress in defining crimes/felonies constrains the Court to refrain from a broad
22
interpretation of penal laws where a "narrow interpretation" is appropriate. "The
Court must take heed of language, legislative history and purpose, in order to
strictly determine the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The
ability of the offender to freely dispose of the property stolen is not a constitutive
element of the crime of theft. It finds no support or extension in Article 308,
whether as a descriptive or operative element of theft or as the mens rea or actus
reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1)
that there be taking of personal property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is the taking,
with intent to gain, of personal property of another without the latter’s consent.
While the Diño/Flores dictum is considerate to the mindset of the offender, the
statutory definition of theft considers only the perspective of intent to gain on the
part of the offender, compounded by the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft is susceptible of commission in the
frustrated stage, the question is again, when is the crime of theft produced? There
would be all but certain unanimity in the position that theft is produced when there
is deprivation of personal property due to its taking by one with intent to gain.
Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from the
owner alone has already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquino’s commentaries, as earlier cited, that "[i]n theft or
robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property
stolen delves into the concept of "taking" itself, in that there could be no true
taking until the actor obtains such degree of control over the stolen item. But even

if this were correct, the effect would be to downgrade the crime to its attempted,
and not frustrated stage, for it would mean that not all the acts of execution have
not been completed, the "taking not having been accomplished." Perhaps this point
could serve as fertile ground for future discussion, but our concern now is whether
there is indeed a crime of frustrated theft, and such consideration proves ultimately
immaterial to that question. Moreover, such issue will not apply to the facts of this
particular case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that
he was able to drop these off at a spot in the parking lot, and long enough to load
these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same.92 And long ago, we asserted in People v.
Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing
to be appropriated into the physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be effected animo lucrandi and
without the consent of the owner; and it will be here noted that the definition does
not require that the taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most material in
this respect. Unlawful taking, which is the deprivation of one’s personal property, is
the element which produces the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the
Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once
the offenders therein obtained possession over the stolen items, the effect of the
felony has been produced as there has been deprivation of property. The presumed
inability of the offenders to freely dispose of the stolen property does not negate
23
the fact that the owners have already been deprived of their right to possession
upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of
the offender to freely dispose of the stolen property frustrates the theft — would
introduce a convenient defense for the accused which does not reflect any
legislated intent,95 since the Court would have carved a viable means for offenders
to seek a mitigated penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in
Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as
the size and weight of the property, the location of the property, the number and
identity of people present at the scene of the crime, the number and identity of
people whom the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or stored; and
quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item
would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the
colorful detail, the owner was indeed deprived of property by one who intended to
produce such deprivation for reasons of gain. For such will remain the presumed
fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-completion
of the taking due to these peculiar circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet
they do not align with the legislated framework of the crime of theft. The Revised
Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly
or impliedly allows that the "free disposition of the items stolen" is in any way
 24

determinative of whether the crime of theft has been produced. Diño itself did not CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Associate Justice Associate Justice
Flores was ultimately content in relying on Diño alone for legal support. These cases
do not enjoy the weight of stare decisis, and even if they did, their erroneous MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
appreciation of our law on theft leave them susceptible to reversal. The same holds Associate Justice Associate Justice
true of Empilis, a regrettably stray decision which has not since found favor from
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
this Court.
Associate Justice Associate Justice

We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Diño and Flores rulings, his petition must be denied, for we
CERTIFICATION
decline to adopt said rulings in our jurisdiction. That it has taken all these years for
us to recognize that there can be no frustrated theft under the Revised Penal Code
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the
does not detract from the correctness of this conclusion. It will take considerable
conclusions in the above Decision had been reached in consultation before the case
amendments to our Revised Penal Code in order that frustrated theft may be
was assigned to the writer of the opinion of the Court.
recognized. Our deference to Viada yields to the higher reverence for legislative
intent.
REYNATO S. PUNO
Chief Justice
WHEREFORE, the petition is DENIED. Costs against petitioner.

Footnotes
SO ORDERED.
1
See infra, People v. Diño and People v. Flores.
DANTE O. TINGA
Associate Justice 2
Not accounting for those unpublished or unreported decisions, in the one hundred
year history of this Court, which could no longer be retrieved from the Philippine
WE CONCUR:
Reports or other secondary sources, due to their wholesale destruction during the
Second World War or for other reasons.
REYNATO S. PUNO
Chief Justice 3
See People v. Adiao, infra. There have been a few cases wherein the Court let
stand a conviction for frustrated theft, yet in none of those cases was the issue
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
squarely presented that theft could be committed at its frustrated stage. See
Associate Justice Associate Justice
People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO People v. Tapang, 88 Phil. 721 (1951). In People v. Argel G.R. No. L-45975, 25 May
Associate Justice Associate Justice 1981, 192 SCRA 21, the Court did tacitly accept the viability of a conviction for
frustrated theft, though the issue expounded on by the Court pertained to the
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA proper appellate jurisdiction over such conviction.
Associate Justice Associate Justice
 25

It would indeed be error to perceive that convictions for frustrated theft are In any event, from the time this case had been elevated on appeal to the Court of
traditionally unconventional in this jurisdiction, as such have routinely been handed Appeals, no question was anymore raised on the version of facts presented by the
down by lower courts, as a survey of jurisprudence would reveal. Still, the plain fact prosecution. Thus, any issue relative to these four (4) other suspects should bear no
remains that this Court , since Adiao in 1918, has yet to directly rule on the legal effect in the present consideration of the case.
11
foundation of frustrated theft, or even discuss such scenario by way of dicta. Also identified in the case record as "Rosalada" or "Rosullado." He happened to
be among the four (4) other suspects also apprehended at the scene and brought
In passing, we take note of a recent decision of the Court of Appeals in People v. for investigation to the Baler PNP Station. See id. Rosulada also testified in court in
Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at behalf of Calderon. See Records, pp. 357-390.
12
http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court Records, pp. 330-337.
13
affirmed a conviction for frustrated theft, the accused therein having been caught A person who was neither among the four (4) other suspects (see note 6) nor a
inside Meralco property before he could flee with some copper electrical wire. witness for the defense.
14
However, in the said decision, the accused was charged at the onset with frustrated Rollo, p. 25.
15
theft, and the Court of Appeals did not inquire why the crime committed was only Records, pp. 424-425.
16
frustrated theft. Moreover, the charge for theft was not under the Revised Penal Id. at 472-474; Penned by Judge Reynaldo B. Daway.
17
Code, but under Rep. Act No. 7832, a special law. Id. at 474.
18
Id. at 484.
4 19
53 Phil. 226 (1929). CA rollo, pp. 54-62.
5 20
217 Phil. 377 (1984). Rollo, p. 25.
6 21
Records, pp. 1-2. Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of
7
Rollo, pp. 21-22. Appeals Third Division, concurred in by Associate Justices Martin S. Villarama, Jr.
8
Id. at 22. and Mario L. Guariña.
9 22
See id. at 472. A motion for reconsideration filed by petitioner was denied by the Court of
10
See Records, pp. 7-14. A brief comment is warranted regarding these four (4) Appeals in a Resolution dated 1 October 2003.
23
other apparent suspects. The affidavits and sworn statements that were executed Rollo, pp. 8-15.
24
during the police investigation by security guards Lago and Vivencio Yanson, by SM Id. at 12.
25
employee Adelio Nakar, and by the taxi driver whose cab had been hailed to Id. at 9.
26
transport the accused, commonly point to all six as co-participants in the theft of Id. at at 13-14.
27
the detergents. It is not explained in the record why no charges were brought No. 924-R, 18 February 1948, 45 O.G. 3446.
28
against the four (4) other suspects, and the prosecution’s case before the trial court 6 C.A. Rep. 2d 835 (1964).
29
did not attempt to draw in any other suspects other than petitioner and Calderon. See e.g., L.B. Reyes, I The Revised Penal Code: Criminal Law (13th ed., 2001), at
On the other hand, both petitioner and Calderon claimed during trial that they were 112-113 and R. Aquino, I The Revised Penal Code (1997 ed.), at 122.
30
innocent bystanders who happened to be in the vicinity of the Super Sale Club at Act No. 3185, as amended.
31
the time of the incident when they were haled in, along with the four (4) other See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of
suspects by the security guards in the resulting confusion. See infra. However, both the subjective phase as "that point where [the offender] still has control over his
petitioner and Calderon made no move to demonstrate that the non-filing of the acts, including their (acts’) natural course." See L.B. Reyes, I The Revised Penal
charges against the four (4) other suspects somehow bolstered their plea of Code: Criminal Law (13th Ed., 2001), at 101.
32
innocence. People v. Caballero, 448 Phil. 514, 534 (2003).
33
See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
 26

34 48
U.S. v. Eduave, 36 Phil. 209, 212 (1917). People v. Kho Choc, 50 O.G. 1667, cited in Regalado, id. at 521.
35 49
People v. Pacana, 47 Phil. 48 (1925); cited in Aquino, supra note 29, at 39. See People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v.
also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999). Roxas, CA-G.R. No. 14953, 31 October 1956, all cited in Regalado, supra note 47 at
36
See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135. 521.
37 50
People v. Moreno, 356 Phil. 231, 248 (1998) citing Black's Law Dictionary, 5th ed., People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417,
p. 889. cited in Regalado, supra note 47 at 521.
38 51
Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, REgalado, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No.
490. 54171, 28 October 1980, 100 SCRA 467; Association of Baptists for World
39
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Evangelism v. Fieldmen’s Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505
Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400. (1983). See also People v. Bustinera, supra note 42.
40 52
J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October The distinction being "inconsequential" if the criminal charge is based on a special
1991, 202 SCRA 251, 288. law such as the Dangerous Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838,
41
See also Revised Penal Code, Art. 310, which qualifies theft with a penalty two October 23 1997, 281 SCRA 103, 120.
53
degrees higher "if committed by a domestic servant, or with grave abuse of 38 Phil. 754 (1918).
54
confidence, or if the property stolen is motor vehicle, mail matter or large cattle or Id. at 755.
55
consists of coconuts taken from the premises of the plantation or fish taken from a Id.
56
fishpond or fishery, or if property is taken on the occasion of fire, earthquake, Id. at 755-756.
57
typhoon, volcanic eruption, or any other calamity, vehicular accident or civil Supra note 4.
58
disturbance." Supra note 4 at 227.
42 59
See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing Id.
60
People v. Sison, 322 SCRA 345, 363-364 (2000). People v. Diño, supra note 27 at 3450.
43 61
S. Guevarra, Commentaries on the Revised Penal Code (4th ed., 1946), at 614. Id.
44 62
Id. at 615. Id.
45 63
Id. citing Inst. 4, 1, 1. Id. at 3451.
46 64
Section 1(2) of the Theft Act of 1968 states: "It is immaterial whether the People v. Flores, supra note 28 at 840.
65
appropriation is made with a view to gain, or is made for the thief’s own benefit." Id. at 836. The Court of Appeals in Flores did not identify the character of these
Sir John Smith provides a sensible rationalization for this doctrine: "Thus, to take stolen merchandise.
66
examples from the old law, if D takes P’s letters and puts them down on a lavatory Id. at 841.
67
or backs P’s horse down a mine shaft, he is guilty of theft notwithstanding the fact Id.
68
that he intends only loss to P and no gain to himself or anyone else. It might be People v. Diño, supra note 27 at 841.
69
thought that these instances could safely and more appropriately have been left to People v. Naval and Beltran, CA 46 O.G. 2641.
70
other branches of the criminal law—that of criminal damage to property for See note 62.
71
instance. But there are cases where there is no such damage or destruction of the Aquino, supra note 29 at 122.
72
thing as would found a charge under another Act. For example, D takes P’s diamond Id. at 110.
73
and flings it into a deep pond. The diamond lies unharmed in the pond and a C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.
74
prosecution for criminal damage would fail. It seems clearly right that D should be Id. at 1391. Citations omitted.
75
guilty of theft." J. Smith, Smith & Hogan Criminal Law (9th ed., 1999), at 534. CA G.R. No. 2107-R, 31 May 1949.
47
F. Regalado, Criminal Law Conspectus (1st ed., 2000), at 520.
 27

76
Note the similarity between this holding and the observations of Chief Justice supuesto es evidente que el delito no aparece realizado en toda la extensión precisa
Aquino in note 72. para poderlo calificar como consumado, etc." Id. at 103-104.
77 85
Reyes, supra note 29 at 113. The other examples cited by Viada of frustrated theft are in the case where the
78
Supra note 5. offender was caught stealing potatoes off a field by storing them in his coat, before
79
"Revised Penal Code, Art. 310 states that the crime of theft shall "be punished by he could leave the field where the potatoes were taken, see Viada (supra note 83,
the penalties next higher by two degrees than those respectively expressed in the at 103), where the offender was surprised at the meadow from where he was
next preceding article x x x if the property stolen x x x consists of coconuts taken stealing firewood, id.
86
from the premises of a plantation, x x x." Thus, the stealing of coconuts when they E. Cuello Calon, II Derecho Penal (1955 ed.), at 799 (Footnote 1).
87
are still in the tree or deposited on the ground within the premises is qualified Id. at 798-799.
88
theft. When the coconuts are stolen in any other place, it is simple theft. Stated Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266,
differently, if the coconuts were taken in front of a house along the highway outside citing United States v. Wiltberger, 18 U.S. 76 (1820).
89
the coconut plantation, it would be simple theft only. Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See
[In the case at bar, petitioners were seen carrying away fifty coconuts while they also Dowling v. United States, 473 U.S. 207 (1985).
90
were still in the premises of the plantation. They would therefore come within the See e.g., People v. Bustinera, supra note 42.
91
definition of qualified theft because the property stolen consists of coconuts "taken Aquino, supra note 29, at 110.
92
from the premises of a plantation."] Empelis v. IAC, supra note 5, at 379, 380. People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280
80
Empelis v. IAC, supra note 5, at 380. (2003); People v. Bustinera, supra note 42 at 295.
81 93
Id. 44 Phil. 720 (1923).
82 94
Art. 234, Código Penal Español de 1995. See Ley Orgánica 10/1995, de 23 de Id. at 726.
95
noviembre, del Código Penal, http://noticias.juridicas.com/base_datos/Penal/lo10- Justice Regalado cautions against "putting a premium upon the pretensions of an
1995.html (Last visited, 15 April 2007). The traditional qualifier "but without accused geared towards obtention of a reduced penalty." Regalado, supra note 47,
violence against or intimidation of persons nor force upon things," is instead at 27.
incorporated in the definition of robbery ("robos") under Articulo 237 of the same
Code ("Son reos del delito de robo los que, con ánimo de lucro, se apoderaren de
las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar
donde éstas se encuentran o violencia o intimidación en las personas.")
By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following
manner: "A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it;
and ‘thief’ and ‘steal’ shall be construed accordingly." See Section 1(1), Theft Act
1968 (Great Britain). The most notable difference between the modern British and
Spanish laws on theft is the absence in the former of the element of animo lucrandi.
See note 42.
83
1 S. Viada, Codigo Penal Reformado de 1870 (1926 ed) at 103.
84
"Considerando que según se desprende de la sentencia recurrida, los
dependientes de la sastrería de D. Joaquin Gabino sorprendieron al penado Juan
Gomez Lopez al tomar una capa que había en un maniquí, por lo que hubo de
arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto

EN BANC
G.R. Nos. 143468-71 January 24, 2003
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision[1] of the Regional Trial Court of
Manila, Branch 54, finding accused-appellant Freedie Lizada guilty beyond
reasonable doubt of four (4) counts of qualified rape and meting on him the death
penalty for each count.
I. The Charges
[2]
Accused-appellant was charged with four (4) counts of qualified rape under
four separate Informations. The accusatory portion of each of the four Informations
reads:
That sometime in August 1998 in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means
of force, violence and intimidation upon the person of one ANALIA ORILLOSA y
AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
28
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.[3]
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-
171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de
parte and entered a plea of not guilty to each of the charges. [4] A joint trial then
ensued.
II. Evidence of the Prosecution[5]

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had
three (3) children, namely: Analia, who was born on December 18, 1985;[6] Jepsy, who
was 11 years old, and Rossel, who was nine years old. However, the couple decided
to part ways and live separately. Rose left Bohol and settled in Manila with her young
children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband
and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996,
Rose resigned from her job as a waitress. She secured a loan, bought a truck and used
it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to
put up a video shop in her house. She sold Avon products from house to house to
augment her income. Whenever she was out of their house, Rossel and Analia took
turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He
laid on top of her, removed her T-shirt and underwear. He then inserted his finger in
her vagina.He removed his finger and inserted his penis in her vagina. Momentarily,
she felt a sticky substance coming out from his penis. She also felt pain in her sex
organ. Satiated, accused-appellant dismounted but threatened to kill her if she
divulged to anyone what he did to her. Accused-appellant then returned to his
room. The incident lasted less than one hour.Petrified by the threats on her life,
Analia kept to herself what happened to her.[7]
Sometime in August 1997, accused-appellant entered again the room of Analia,
placed himself on top of her and held her legs and arms. He then inserted his finger
into her sex organ (fininger niya ako). Satiated, accused-appellant left the
room. During the period from 1996 to 1998, accused-appellant sexually abused
private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house
studying her assignments. Accused-appellant was also in the sala. Rossel tended the
video shop while his mother was away. Analia went into her room and lay down in
bed. She did not lock the door of the room because her brother might enter any
time. She wanted to sleep but found it difficult to do so. Accused-appellant went to
his room next to the room of Analia. He, however, entered the room of Analia. He
was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on
top of her, held her hands and legs and fondled her breasts. She struggled to extricate
29
herself. Accused-appellant removed her panty and touched her sex organ. Accused-
appellant inserted his finger into her vagina, extricated it and then inserted his penis
into her vagina. Accused-appellant ejaculated. Analia felt pain in her sex
organ.Momentarily, Rossel passed by the room of Analia after drinking water from
the refrigerator, and peeped through the door. He saw accused-appellant on top of
Analia. Accused-appellant saw Rossel and dismounted. Accused-appellant berated
Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant
then left the room. Analia likewise left the room, went out of the house and stayed
outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge
to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-
appellant was in the sala of the house watching television. Analia tended the video
shop. However, accused-appellant told Analia to go to the sala. She refused, as
nobody would tend the video shop. This infuriated accused-appellant who
threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the
video shop. When Rose returned, a heated argument ensued between accused-
appellant and Analia. Rose sided with her paramour and hit Analia. This prompted
Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the
house on board the motorcycle driven by her mother in going to Don Bosco Street,
Moriones, Tondo, Manila, to retrieve some tapes which had not yet been
returned. When Rose inquired from her daughter what she meant by her
statement, ayoko na, ayoko na, she told her mother that accused-appellant had been
touching the sensitive parts of her body and that he had been on top of her. Rose
was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have
accused-appellant placed under arrest. On November 10, 1998, the two proceeded
to the Western Police District where Analia gave her Affidavit-Complaint to PO1
Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to the police
investigator that accused-appellant had touched her breasts and arms in August,
1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00
p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil, a
medico-legal officer of the NBI. The medico-legal officer interviewed Analia, told him
that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m. [8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which
contained her findings during her examination on Analia, thus:
xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,
developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette,
tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice
measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject
at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude
complete penetration by an average-sized adult Filipino male organ in full erection
without producing any genital injury.[9]
Subsequently, Analia told her mother that mabuti na lang iyong panghihipo
lang ang sinabi ko. When Rose inquired from her daughter what she meant by her
statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng
Paghahabla and charged accused-appellant with rape.[10]
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of
courtship, he and Rose agreed in 1994 to live together as husband and wife. He was
then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house
at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the
children of Rose as if they were his own children. He took care of them, as in fact he
cooked and prepared their food before they arrived home from school. At times, he
ironed their school uniforms and bathed them, except Analia who was already
30
big. Analia was hard-headed because she disobeyed him whenever he ordered her
to do some errands. Because of Analias misbehavior, accused-appellant and Rose
oftentimes quarreled. Rose even demanded that accused-appellant leave their
house. Another irritant in his and Roses lives were the frequent visits of the relatives
of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment
and received a separation pay of P9,000.00 which he used to put up the VHS Rental
and Karaoke from which he earned a monthly income of P25,000.00. While living
together, accused-appellant and Rose acquired two colored television sets, two VHS
Hi-fi recorders, one VHS player, one washing machine, one scooter motor, two VHS
rewinders, one sala set, one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel
to testify against him and used them to fabricate charges against him because Rose
wanted to manage their business and take control of all the properties they acquired
during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant
finding him guilty beyond reasonable doubt of four (4) counts of rape, defined and
penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and
meted on him the death penalty for each count. The dispositive portion of the
decision reads:
From all the evidence submitted by the prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of the crime charged against him in
these four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in
each and every case as provided for in the seventh paragraph, no. 1, Article 335 of
the Revised Penal Code.
SO ORDERED.[11]
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his
brief that:

THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN
ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT
OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision
of the trial court is null and void as it failed to comply with the requirements of
Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997
Rules of Civil Procedure, as amended. He avers that the court a quo made no findings
of facts in its decision. The trial court merely summarized the testimonies of the
witnesses of the prosecution and those of accused-appellant and his witnesses, and
forthwith set forth the decretal portion of said decision. The trial court even failed to
state in said decision the factual and legal basis for the imposition of the supreme
penalty of death on him. The Solicitor General, on the other hand, argues that there
should be no mechanical reliance on the constitutional provision. Trial courts may
well-nigh synthesize and simplify their decisions considering that courts are harassed
by crowded dockets and time constraints. Even if the trial court did not elucidate the
grounds as the legal basis for the penalties imposed, nevertheless the decision is
valid.In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance with
the constitutional requirement as the Court may resolve the case on its merits to
avoid delay in the final disposition of the case and afford accused-appellant his right
to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of
the 1987 Constitution provides that no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is
based. This requirement is reiterated and implemented by Rule 120, Section 2 of the
1985 Rules on Criminal Procedure, as amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.
31
If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission thereof, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal,
accomplice, or accessory after the fact; (c) the penalty imposed upon the accused;
and (d) the civil liability or damages caused by the wrongful act to be recovered
from the accused by the offended party, if there is any, unless the enforcement of
the civil liability by a separate action has been reserved or waived.[14]
The purpose of the provision is to inform the parties and the person reading the
decision on how it was reached by the court after consideration of the evidence of
the parties and the relevant facts, of the opinion it has formed on the issues, and of
the applicable laws. The parties must be assured from a reading of the decision of
the trial court that they were accorded their rights to be heard by an impartial and
responsible judge.[15] More substantial reasons for the requirement are:
For one thing, the losing party must be given an opportunity to analyze the decision
so that, if permitted, he may elevate what he may consider its errors for review by a
higher tribunal. For another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept the verdict in good
grace instead of prolonging the litigation with a useless appeal. A third reason is
that decisions with a full exposition of the facts and the law on which they are
based, especially those coming from the Supreme Court, will constitute a valuable
body of case law that can serve as useful references and even as precedents in the
resolution of future controversies.[16]
The trial court is mandated to set out in its decision the facts which had been
proved and its conclusions culled therefrom, as well as its resolution on the issues
and the factual and legal basis for its resolution. [17] Trial courts should not merely
reproduce the respective testimonies of witnesses of both parties and come out with
its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on direct
and cross examinations and merely made referral to the documentary evidence of
the parties then concluded that, on the basis of the evidence of the prosecution,
accused-appellant is guilty of four (4) counts of rape and sentenced him to death, on
each count.

The trial court even failed to specifically state the facts proven by the
prosecution based on their evidence, the issues raised by the parties and its
resolution of the factual and legal issues, as well as the legal and factual bases for
convicting accused-appellant of each of the crimes charged. The trial court rendered
judgment against accused-appellant with the curt declaration in the decretal portion
of its decision that it did so based on the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the prosecution. It failed to explain
in its decision why it believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that the
trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme penalty
of death on accused-appellant for each count of rape. The trial court merely cited
seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the
trial court is a good example of what a decision, envisaged in the Constitution and
the Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the
infirmity of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the Court
decided to resolve the cases on their merits considering that all the records as well
as the evidence adduced during the trial had been elevated to the Court. [18] The
parties filed their respective briefs articulating their respective stances on the factual
and legal issues.
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.[19] By the very nature of the crime of rape, conviction or acquittal
depends almost entirely on the credibility of the complainants testimony because of
the fact that usually only the participants can testify as to its occurrence. However, if
the accused raises a sufficient doubt as to any material element of the crime, and the
prosecution is unable to overcome it with its evidence, the prosecution has failed to
discharge its burden of proving the guilt of the accused beyond cavil of doubt and
hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for
convenience, as follows:
32
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite
quantum of evidence that he raped the private complainant precisely on September
15, 1998 and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil
show that the hymen of the private complainant was intact and its orifice so small as
to preclude complete penetration by an average size adult Filipino male organ in full
erection without producing any genital injury. The physical evidence belies private
complainants claim of having been deflowered by accused-appellant on four
different occasions. The Office of the Solicitor General, for its part, contends that the
prosecution through the private complainant proved the guilt of accused-appellant
for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private
complainant testified that since 1996, when she was only eleven years old, until 1998,
for two times a week, accused-appellant used to place himself on top of her and
despite her tenacious resistance, touched her arms, legs and sex organ and inserted
his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant
threatened to kill her if she divulged to anyone what he did to her. [20] Although
private complainant did not testify that she was raped on September 15, 1998 and
October 22, 1998, nevertheless accused-appellant may be convicted for two counts
of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are
alleged to have been committed on or about September 15, 1998 and on or about
October 22, 1998. The words on or about envisage a period, months or even two or
four years before September 15, 1998 or October 22, 1998. The prosecution may
prove that the crime charged was committed on or about September 15, 1998 and
on or about October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant
of five (5) counts of rape, four of which were committed in December 1992 (two
counts) and one each in March and April, 1993 and in November, 1995 and one count
of acts of lasciviousness committed in December 1992, on a criminal complaint for
multiple rape, viz:
That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs,

taking advantage of his superior strength over the person of his own twelve (12)
year old daughter, and by means of force, violence and intimidation, did, then and
there, willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra
M. Gianan, against her will and consent, to her damage and prejudice.[22]
On the contention of accused-appellant in said case that his conviction for rape
in December 1992 was so remote from the date (November 1995) alleged in the
Information, so that the latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided under Section 11, Rule
110 of the Rules on Criminal Procedure, as amended, this Court held:
Accused-appellant nevertheless argues that his conviction for rape in December
1992 is so remote from the date (November 1995) alleged in the information, so
that the latter could no longer be considered as being as near to the actual date at
which the offense was committed as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction
for ten counts of rape based on an information which alleged that the accused
committed multiple rape from November 1990 up to July 21, 1994, a time
difference of almost four years which is longer than that involved in the case at
bar. In any case, as earlier stated, accused-appellants failure to raise a timely
objection based on this ground constitutes a waiver of his right to object.[23]
Moreover, when the private complainant testified on how accused-appellant
defiled her two times a week from 1996 until 1998, accused-appellant raised nary a
whimper of protest. Accused-appellant even rigorously cross-examined the private
complainant on her testimony on direct examination. The presentation by the
prosecution, without objection on the part of accused-appellant, of evidence of rape
committed two times a week from 1996 until 1998 (which includes September 15,
1998 and October 22, 1998) to prove the charges lodged against him constituted a
waiver by accused-appellant of his right to object to any perceived infirmity in, and
in the amendment of, the aforesaid Informations to conform to the evidence
adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does
not preclude her having been repeatedly sexually abused by accused-appellant. The
private complainant being of tender age, it is possible that the penetration of the
male organ went only as deep as her labia. Whether or not the hymen of private
complainant was still intact has no substantial bearing on accused-appellants
33
commission of the crime.[24] Even the slightest penetration of the labia by the male
organ or the mere entry of the penis into the aperture constitutes consummated
rape. It is sufficient that there be entrance of the male organ within the labia of
the pudendum.[25] In People vs. Baculi, cited in People vs. Gabayron,[26] we held that
there could be a finding of rape even if despite repeated intercourse over a period of
four years, the complainant still retained an intact hymen without injury. In these
cases, the private complainant testified that the penis of accused-appellant gained
entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote
Pinatong nya yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was
coming out, sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple
rape, instead of qualified rape. The evidence on record shows that accused-appellant
is the common-law husband of Rose, the mother of private complainant. The private
complainant, as of October 1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the private complainant, concurring
with the fact that accused-appellant is the common-law husband of the victims
mother, is a special qualifying circumstance warranting the imposition of the death
penalty.[28] However, said circumstance was not alleged in the Informations as
required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which
was given retroactive effect by this Court because it is favorable to the
accused.[29] Hence, even if the prosecution proved the special qualifying
circumstance of minority of private complainant and relationship, the accused-
appellant being the common-law husband of her mother, accused-appellant is guilty
only of simple rape.Under the given law, the penalty for simple rape is reclusion

perpetua. Conformably with current jurisprudence, accused-appellant is liable to
private complainant for civil indemnity in the amount of P50,000.00 and moral
damages in the amount of P50,000.00 for each count of rape, or a total
of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed
on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-
171390 is defective because the date of the offense on or about August 1998 alleged
therein is too indefinite, in violation of Rule 110, Section 11 of the Revised Rules on
Criminal Procedure which reads:
Sec. 11. Date of commission of the offense.It is not necessary to state in the
complaint or information the precise date the offense was committed except when
it is a material ingredient of the offense.The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission.
(11a)[30]
Accused-appellant further asserts that the prosecution failed to prove that he
raped private complainant in August 1998. Hence, he argues, he should be acquitted
of said charge.The Office of the Solicitor General, for its part, argued that the date on
or about August 1998 is sufficiently definite. After all, the date of the commission of
the crime of rape is not an essential element of the crime. The prosecution adduced
conclusive proof that accused-appellant raped private complainant on or about
August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the
crime. Failure to specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the gravamen of the
crime of rape is carnal knowledge of the private complainant under any of the
circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for a
bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned
under the Information and entered a plea of not guilty to the charge without any
plaint on the sufficiency of the Information. Accused-appellant even adduced his
evidence after the prosecution had rested its case. It was only on appeal to this
Court that accused-appellant questioned for the first time the sufficiency of the
34
Information filed against him. It is now too late in the day for him to do
so. Moreover, in People vs. Salalima,[31] this Court held that:
Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The precise
date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long as
it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we
ruled that allegations that rapes were committed before and until October 15, 1994,
sometime in the year 1991 and the days thereafter, sometime in November 1995
and some occasions prior and/or subsequent thereto and on or about and sometime
in the year 1988 constitute sufficient compliance with Section 11, Rule 110 of the
Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates
when the sexual assaults took place, we believe that the allegations therein that the
acts were committed sometime during the month of March 1996 or thereabout,
sometime during the month of April 1996 or thereabout, sometime during the
month of May 1996 or thereabout substantially apprised appellant of the crimes he
was charged with since all the elements of rape were stated in the informations. As
such, appellant cannot complain that he was deprived of the right to be informed of
the nature of the cases filed against him. Accordingly, appellants assertion that he
was deprived of the opportunity to prepare for his defense has no leg to stand on.
The prosecution proved through the testimony of private complainant that
accused-appellant raped her two times a week in 1998. As in Criminal Cases Nos. 99-
171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-
appellant avers that he is not criminally liable of rape. We agree with accused-
appellant. The collective testimony of private complainant and her younger brother
Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of
short pants but naked from waist up, entered the bedroom of private complainant,
went on top of her, held her hands, removed her panty, mashed her breasts and
touched her sex organ. However, accused-appellant saw Rossel peeping through the
door and dismounted. He berated Rossel for peeping and ordered him to go back to
 35

his room and to sleep. Accused-appellant then left the room of the private You said that he touched your sex organ, will you tell the court with what
complainant. The testimony of private complainant on direct examination reads: part of his body, did he touch your sex organ?
Witness:
Fiscal Carisma:
With his hands, sir.
Q In between 1996 and August 1997? Q What about after November 1998 - - -was this the last incident, this
A Yes, sir, sometimes two (2) times a week. unusual thing that you experienced from the hands of the accused
Q In November of 1998, do you recall of any unusual experience that was this that last time, the one you narrated in November 1998?
happened to you again? A Yes, sir.[32]
A Yes, sir. On cross-examination, the private complainant testified, thus:
Q What was this unusual experience of yours? Atty. Balaba:
A He laid himself on top of me, sir. Q Who was that somebody who entered the room?
Q You said he whom are you referring to? A My stepfather Freedie Lizada, sir.
A Freedie Lizada Jakosalem, sir. Q He was fully dressed at that time, during the time, is that correct?
Q The same person you pointed to earlier? A Yes, sir, he was dressed then, sir.
A Yes, sir. Q And he had his pants on, is that correct?
Q You said he placed himself on top of you in November, 1998, what did A He was wearing a short pants, sir.
he do while he was on top of you? Q Was it a T-shirt that he had, at that time or a polo shirt?
A Hes smashing my breast and he was also touching my arms and my legs, A He was not wearing any shirt then, sir, he was naked.
sir. Q When you realized that somebody was entering the room were you not
Q What else if any madam witness? afraid?
A He was also touching my sex organ, sir. A No, sir, I was not afraid.
Q What else, if any? Q What happened when you realized that somebody entered the room,
Atty. Estorco: and the one who entered was your stepfather, Freedie Lizada?
May we take note of the same objection your honor, the prosecution - - - A I did not mind him entering the room because I know that my brother
Court: was around but suddenly I felt that somebody was holding me.
Same ruling. Let the complainant continue considering that she is crying Q He was holding you, where were you when he held you?
and still young. A I was in the bed, sir, lying down.
Witness: Q You were lying down?
None else, sir. A Yes, sir.
Fiscal Carisma: Q What part of the body did the accused Freedie Lizada touched you?
With what part of his body did he touch your sex organ? A My two arms, my legs and my breast, sir.
Atty. Estorco: Q Do you mean to tell us that he was holding your two arms and at the
Your Honor, that is - - - same time your legs, is that what you are trying to tell us?
Court: A He held me first in my arms and then my legs, sir.
May answer. Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma: Fiscal Carisma:
I will re-propound the question, your honor. Already answered your honor, he held the arms and then the legs.
Court:
 36

Already answered. A I was not able to extricate myself, sir.

Atty. Balaba: Q You were struggling with one arm of Lizada holding your arm, and the
Q Your honor, I am just trying to - - other hand was holding your leg, is that what you are trying to tell
Court: us?
Proceed. A No, sir, its not like that.
Atty. Balaba: Q Could you tell us, what happened, you did not shout for help and you
Q He held your arms with his two hands? were trying to extricate yourself, what happened?
A Only with one hand, sir. A He suddenly went out of the room, sir.
Q Which hand were you touched? Q Now, he went - - -
A I do not know which hand, sir. Court:
Q Which arm of yours was held by Freedie Lizada? You did not shout during that time?
A I could not recall, sir. A No, your honor.[33]
Q Which side of your body was Freedie Lizada at that time? Rossel, the nine-year old brother of the private complainant corroborated in
A I cannot recall, sir. part his sisters testimony. He testified on direct examination, thus:
Q What was the position of Freedie Lizada when he held your arms? Fiscal Carisma: (continuing)
A He was sitting on our bed, sir. Q Now, on November 2, 1998 do you recall where you were at about 3:00
Q Which side of your bed was Freedie Lizada sitting on? oclock?
A I do not know, sir. I cannot recall. A I was outside our house, sir.
Atty. Balaba: Q Where was your house again, Mr. witness, at that time? Where was
Can we take a recess your honor? your house at that date, time and place? At that date and time?
Court: A 1252 Jose Abad Santos, Tondo, Manila, sir.
How long will it take you to finish your cross? Court:
Atty. Balaba: Q The same address?
We will confront the witness with so many things your honor. A Yes, sir.
Court: Fiscal Carisma:
Yes, thats why I am asking you how long will it take you to finish your Q On that date, time and place, do your recall where your sister Anna Lea
cross? Orillosa was?
Atty. Balaba: A Yes, sir.
About another hour, sir. Q Where was she?
Court: A She was sleeping, sir.
So we will be finished by 11:15, proceed. Q Now, on that date, time and place you said you were outside your
Atty. Balaba: house, did you stay the whole afternoon outside your house?
You cannot also remember which leg was held by Freedie Lizada? A No, sir.
A I cannot recall, sir. Q Where did you go next?
Q When this happened, did you not shout for help? A Inside, sir.
A I did not ask for help, I was motioning to resist him, so that he would go Q For what purpose did you get inside your house?
out, sir. I was struggling to free myself from him, sir. A Because I was thirsty, sir.
Q And you were not able to extricate yourself from him? Q So you went to the fridge to get some water?
 37

A Yes, sir. A She was lying straight, but she was resisting, sir.
Q And what happened as you went inside your house to get some water? Q Were you noticed by your sister at that time?
A I saw my stepfather removing the panty of my sister and he touched her A No, sir.
and then he laid on top of her, sir. Q And your sister did not call for help at that time?
Q Do you see your stepfather inside the courtroom now? A No, sir.
A Yes, sir. Q And all this time you saw the accused doing this, from the refrigerator
Q Will you point to him? where you were taking a glass of water?
A He is the one, sir. A Yes, sir.
Court Interpreter: Q Did you not say something to the accused?
Witness pointing to a male person who when asked answers to the name A No, sir, I was just looking.
Freedie Lizada. Q So your sister was lying down when the accused removed her panty, is
Fiscal Carisma: that what you are trying to tell us?
Q This thing that your father was that your stepfather did to your elder A Yes, sir.
sister, did you see this before or after you went to the fridge to get Q And where was the - - - and the accused saw you when he was removing
some water? the panty of your sister?
A I already got water then, sir. A Not yet, sir, but after a while he looked at the refrigerator because he
Q What did you do as you saw this thing being done by your stepfather to might be thirsty.
your elder sister? Q So---you said the accused was touching your sister. What part of her
A I was just looking at them when he saw me, sir. body was touched by the accused?
Q Who, you saw who? You are referring to the accused Freedie Lizada? A Here, sir.
A Yes, sir. Court Interpreter:
Q So, what did you do as you were seen by your stepfather? Witness pointing at the lower portion of the body.
A He scolded me, he shouted at me, he told me something and after that Atty. Balaba:
he went to the other room and slept, sir.[34] Q You saw with what hand was the accused touching your sister?
Rossel testified on cross-examination, thus: A Yes, sir.
Q So you got thirsty, is that correct, and went inside the house? Q What hand was he touching your sister?
A Yes, sir. A This hand, sir.
Q And you took a glass of water from the refrigerator? Court Interpreter:
A Yes, sir. Witness raising his right hand.
Q And it was at this time that you saw the accused Freedie Lizada touching Atty. Balaba:
your sister? Q And which part of your sisters body was the accused touching with his
A Yes, sir. right hand? Your sisters body was the accused touching with his right
Q Where was this refrigerator located? hand?
A In front of the room where my sister sleeps, sir. A Her right leg, sir.
Q So the door of your sisters room was open? Q How about his left hand, what was the accused doing with his left hand?
A Yes, sir. A Removing her panty, sir.
Q And --- okay, you said your sister was sleeping. What was the position of Q Removing her?
your sister when you said the accused removed her panty? A Panty, sir.
 38

Q Which hand of your sister was being removed with the left hand of the on record, we believe that accused-appellant is guilty of attempted rape and not of
accused? acts of lasciviousness.
Court:
Article 336 of the Revised Penal Code reads:
Which?
Atty. Balaba: Art. 336. Acts of Lasciviousness.Any person who shall commit any act of
Which hand, which hand? lasciviousness upon other persons of either sex, under any of the circumstances
Fiscal Carisma: mentioned in the preceding article, shall be punished by prision correccional.[37]
The question is vague, your honor.
Atty. Balaba: For an accused to be convicted of acts of lasciviousness, the prosecution is
Because he said that removing the hand --- burdened to prove the confluence of the following essential elements:
Fiscal Carisma:
1. That the offender commits any act of lasciviousness or lewdness.
He said removing the panty.
Atty. Balaba: 2. That it is done under any of the following circumstances:
Is that panty? Im sorry.
a. By using force or intimidation; or
Q So, the accused was touching with his right hand the left thigh of your
sister ---
b. When the offended party is deprived of reason or otherwise unconscious; or
Fiscal Carisma:
The right thigh.
c. When the offended party is under 12 years of age.[38]
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the
Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of
panty, is that what you are telling to tell us?
immorality which has relation to moral impurity; or that which is carried on a wanton
A Yes, sir.
manner.[39]
Q And your sister all the time was trying to ---was struggling to get free, is
that not correct? The last paragraph of Article 6 of the Revised Penal Code reads:
A Yes, sir, she was resisting. (witness demonstrating)
There is an attempt when the offender commences the commission of a felony
Q She was struggling --- was the accused able to remove the panty?
directly by overt acts, and does not perform all the acts of execution which should
A Yes, sir.
produce the felony by reason of some cause or accident other than his own
Q And all the time you were there looking with the glass of water in your
spontaneous desistance.
hand?
A Yes, sir.[35]
The essential elements of an attempted felony are as follows:
In light of the evidence of the prosecution, there was no introduction of the
penis of accused-appellant into the aperture or within the pudendum of the vagina 1. The offender commences the commission of the felony directly by overt acts;
of private complainant. Hence, accused-appellant is not criminally liable for
consummated rape.[36] 2. He does not perform all the acts of execution which should produce the felony;
The issue that now comes to fore is whether or not accused-appellant is guilty
3. The offenders act be not stopped by his own spontaneous desistance;
of consummated acts of lasciviousness defined in Article 336 of the Revised Penal
Code or attempted rape under Article 335 of the said Code, as amended in relation
to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence

4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance.[40]
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed.[41]
An overt or external act is defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.[42] The raison detre 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.[43] It is necessary that
the 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. [44] The act
done need not constitute the last proximate one for completion. It is necessary,
however, that the attempt must have a causal relation to the intended crime. [45] In
the words of Viada, the overt acts must have an immediate and necessary relation to
the offense.[46]
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.[47] 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.[48] The Supreme Court of Spain, in its decision of March 21,
1892, declared that for overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that acts be of such nature that
39
they themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for designation of the
offense.[49]
There is persuasive authority that in offenses not consummated as the material
damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained but the same must be inferred from the nature of the acts executed
(accion medio).[50] Hence, it is necessary that the acts of the accused must be such
that, by their nature, by the facts to which they are related, by circumstances of the
persons performing the same, and by the things connected therewith, that they are
aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang[51] that:
The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to cause a particular
injury.[52]
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony.[53] The law does not
punish him for his attempt to commit a felony.[54] The rationale of the law, as
explained by Viada:
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el
borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia,
una gracia un perdon que concede la Ley al arrepentimiento voluntario. [55]
As aptly elaborated on by Wharton:
First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned purpose
could be attached. 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. Neither society, nor any private person, has been injured
by his act. There is no damage, therefore, to redress. To punish him after retreat
and abandonment would be to destroy the motive for retreat and abandonment. [56]
 40

It must be borne in mind, however, that the spontaneous desistance of a as amended and is hereby meted the penalty of reclusion perpetua. Accused-
malefactor exempts him from criminal liability for the intended crime but it does not appellant is also hereby ordered to pay private complainant Analia Orillosa the
exempt him from the crime committed by him before his desistance.[57] amounts of P50,000.00 by way of civil indemnity and P50,000.00 by way of moral
damages;
In light of the facts established by the prosecution, we believe that accused-
appellant intended to have carnal knowledge of private complainant. The overt acts 2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of
of accused-appellant proven by the prosecution were not mere preparatory acts. By attempted rape under Article 335 of the Revised Penal Code as amended in relation
the series of his overt acts, accused-appellant had commenced the execution of rape to Article 6 of the said Code and is hereby meted an indeterminate penalty of from
which, if not for his spontaneous desistance, will ripen into the crime of six years of prision correccional in its maximum period, as minimum to ten years
rape. Although accused-appellant desisted from performing all the acts of execution of prision mayor in its medium period, as maximum. Accused-appellant is hereby
however his desistance was not spontaneous as he was impelled to do so only ordered to pay private complainant Analia Orillosa the amount of P25,000.00 by way
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is of moral damages; and,
guilty only of attempted rape.[58] In a case of similar factual backdrop as this case, we
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is
held:
hereby found guilty beyond reasonable doubt of two counts of simple rape, defined
Applying the foregoing jurisprudence and taking into account Article 6 of the in Article 335 of the Revised Penal Code as amended and is hereby meted the penalty
Revised Penal Code, the appellant can only be convicted of attempted rape. He of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to
commenced the commission of rape by removing his clothes, undressing and kissing private complainant Analia Orillosa the amount of P50,000.00 by way of civil
his victim and lying on top of her. However, he failed to perform all the acts of indemnity and the amount of P50,000.00 by way of moral damages for each count,
execution which should produce the crime of rape by reason of a cause other than or a total amount of P200,000.00.
his own spontaneous desistance, i.e., by the timely arrival of the victims
SO ORDERED.
brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as
the crime committed by the appellant is attempted rape, the penalty to be imposed Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
on him should be an indeterminate prison term of six (6) years of prision Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
correccional as minimum to twelve (12) years of prision mayor as maximum. Morales, and Azcuna, JJ.,concur.
Bellosillo, J., on leave.
The penalty for attempted rape is prision mayor which is two degrees lower
than reclusion perpetua.[59] Accused-appellant should be meted an indeterminate [1]
Penned by Judge Manuel T. Muro.
penalty the minimum of which should be taken from prision correccional which has [2]
Accused-appellant was charged under the name Freedie Lizada.
a range of from six months and one day to six years and the maximum of which shall [3]
Original records, pp. 1-4.
be taken from the medium period of prision mayor which has a range of from eight [4]
Id., at 73.
years and one day to ten years, without any modifying circumstance. Accused- [5]
The prosecution presented four witnesses, namely, Analia Orillosa, Rose Orillosa,
appellant is also liable to private complainant for moral damages in the amount
Rossel Orillosa & Dr. Armie Umil.
of P25,000.00. [6]
Exhibit A.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of [7]
Exhibit 2.
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows: [8]
Exhibit C.
[9]
Supra.
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty [10]
Exhibit 2.
beyond reasonable doubt of simple rape under Article 335 of the Revised Penal Code
 41

[11] [48]
Records, p. 147. (The name of accused-appellant is erroneously stated as Fredie Reyes, Revised Penal Code, supra, p. 97.
[49]
Lizada.) People vs. Lamahang, 62 Phil. 703 (1935).
[12] [50]
Rollo, p. 51. 1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935).
[13] [51]
Id., at 53. See note 48.
[14] [52]
Supra. Ibid., p. 707.
[15] [53]
Francisco vs. Permskul, et al., 173 SCRA 327 (1989). Spontaneous means proceeding from natural feeling or native tendency without
[16]
Vide Note 14. external constraint; synonymous with impulsive, automatic and mechanical.
[17]
Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975). (Webster, Third New International Dictionary, p. 2204).
[18] [54]
People vs. Bugarin, 273 SCRA 384 (1997). Reyes, idem, supra, p. 104.
[19] [55]
People vs. Sta. Ana, 291 SCRA 188 (1998). Aquino, Revised Penal Code, Vol. 1, 1987 ed.
[20] [56]
TSN, Orillosa, June 3, 1999, pp. 8-28. Wharton, Criminal Law, Vol. 1, pp. 307-308, supra.
[57]
[21] 340 SCRA 481 (2000). Reyes, Revised Penal Code, supra, p. 105.
[22] [58]
Ibid., p. 489. People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001.
[23] [59]
Ibid., p. 488. Article 51, Revised Penal Code.
[24]
People vs. Cabingas, et al., 329 SCRA 21 (2000).
[25]
People vs. Borja, 267 SCRA 370 (1997).
[26]
278 SCRA 78 (1997).
[27]
TSN, Orillosa, June 3, 1999, pp. 11-12.
[28]
People vs. Torio, 318 SCRA 345 (1999).
[29]
People vs. Alcala, 307 SCRA 330 (1999).
[30]
Id., supra.
[31]
363 SCRA 192 (2001).
[32]
TSN, Orillosa, June 3, 1999, pp. 18-20.
[33]
TSN, Orillosa, June 7, 1999, pp. 39-45.
[34]
TSN, Orillosa, June 28, 1999, pp. 6-10.
[35]
TSN, Orillosa, June 28, 1999, pp. 13-20.
[36]
People vs. Campuhan, 329 SCRA 270 (2000).
[37]
Id., supra.
[38]
Id., supra.
[39]
People vs. Tayag, 329 SCRA 491 (2000).
[40]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra.
[41]
Id., supra, p. 98.
[42]
Id., supra, pp. 98-99.
[43]
People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing Wharton.
[44]
People vs. Gibson, 94 Cal. App. 2d. 468.
[45]
Wharton, Criminal Law, Vol. 1, 12 ed. 287.
[46]
Vide Note 32, p. 47.
[47]
Wharton, Criminal Law, idem, supra, p. 293.

SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court
of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV,
Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio
and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's
house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's bedroom.
Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned
out, however, that Palangpangan was in another City and her home was then
occupied by her son-in-law and his family. No one was in the room when the
accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: "We will kill you
(the witness) and especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2
42
After trial, the Regional Trial Court convicted Intod of attempted murder. The court
(RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of
attempted murder. Petitioner seeks from this Court a modification of the judgment
by holding him liable only for an impossible crime, citing Article 4(2) of the Revised
Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be
incurred:
xxx xxx xxx
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.
Petitioner contends that, Palangpangan's absence from her room on the night he
and his companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the
inherent impossibility of its accomplishment (Art. 4(2), Revised Penal
Code), but due to a cause or accident other than petitioner's and his
accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact, the crime is
possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced,
that the person conceiving the idea should have set about doing the deed,
employing appropriate means in order that his intent might become a
reality, and finally, that the result or end contemplated shall have been

physically possible. So long as these conditions were not present, the law
and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article 4(2)
is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is inherently
impossible of accomplishment: or (2) the means employed is either (a) inadequate
or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the law;
(2) there is intention to perform the physical act; (3) there is a
performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter's wallet and finds the pocket
empty. 17
43
The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he
thought the police officer would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party
imagined where he was, and where the bullet pierced the roof, renders it
no less an attempt to kill. It is well settled principle of criminal law in this
country that where the criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the thing to be operated
upon, and these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent
to kill the victim because the latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only
became impossible by reason of the extraneous circumstance that Lane
did not go that way; and further, that he was arrested and prevented from
committing the murder. This rule of the law has application only where it is
inherently impossible to commit the crime. It has no application to a case
where it becomes impossible for the crime to be committed, either by
outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out of extraneous
acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court quoted
Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason
of his criminal intent, no one can seriously doubt that the protection of the
public requires the punishment to be administered, equally whether in the
unseen depths of the pocket, etc., what was supposed to exist was really
present or not. The community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as a crime and what is done
is a sort to create alarm, in other words, excite apprehension that the evil;
intention will be carried out, the incipient act which the law of attempt
takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's
room thinking that the latter was inside. However, at that moment, the victim was
in another part of the house. The court convicted the accused of attempted
murder.
The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder against
Petitioner. However, we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the American laws regarding
the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made the punishable. Whereas, in the United States, the
Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If
the crime could have been committed had the circumstances been as the
defendant believed them to be, it is no defense that in reality the crime
was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated
for attempting to smuggle letters into and out of prison. The law governing the
44
matter made the act criminal if done without knowledge and consent of the
warden. In this case, the offender intended to send a letter without the latter's
knowledge and consent and the act was performed. However, unknown to him, the
transmittal was achieved with the warden's knowledge and consent. The lower
court held the accused liable for attempt but the appellate court reversed. It held
unacceptable the contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the Model Penal Code and
the proposed federal legislation, is consistent with the overwhelming modern
view". In disposing of this contention, the Court held that the federal statutes did
not contain such provision, and thus, following the principle of legality, no person
could be criminally liable for an act which was not made criminal by law. Further, it
said:
Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in the law take
place, this court will not fashion a new non-statutory law of criminal
attempt.
To restate, in the United States, where the offense sought to be committed is
factually impossible or accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime where
the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime — neither for an attempt not for an impossible
crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge — that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.
 45

The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the
actor's will, will render useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case all
circumstances which prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element of attempted and
frustrated felonies.
hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as
defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by
Petitioner, this Court sentences him to suffer the penalty of six (6) months
of arresto mayor, together with the accessory penalties provided by the law, and to
pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision

of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is
Footnotes 12 Reyes, Ibid.
1 People vs. Intod, C.A-G.R. No. 09205, August 14, 1991; Justice Fidel P. 13 U.S. vs. Berrigan, 482 F. 2nd. 171 (1973).
Purisima, Ponente: Justices Eduardo R. Bengzon and Salome A. Montoya, 14 U.S. vs. Berrigan, Ibid.
concurring. 15 Aquino, The Revised Penal Code, (Vol. I, 1987).
2 TSN, p. 4, July 24, 1986. 16 U.S. vs. Berrigan, supra, p. 13.
3 Records, p. 65. 17 U.S. vs. Berrigan, Ibid.
4 Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946). 18 21 L.R.A. 626 (1898).
5 Albert, Ibid. 19 21 L.R.A. N.S. 898 (1908).
6 Albert, Ibid. 20 17 S.W. 145 (1888).
7 Albert, Ibid. 21 71 S.W. 175 (1902).
8 Albert, Ibid. 22 U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).
9 Grogorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed. 1958). 23 565 F. Supp. 1416 (1983).
10 Reyes, The revised Penal Code, 90 (Vol. I, 11th ed., 1977). 24 Supra, n. 13.
11 Reyes, Ibid.