SECOND DIVISION

G.R. No. 103119 October 21, 1992 SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS !" PEOPLE OF THE PHILIPPINES, respondents.

CA#POS, $R., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirmin in toto the !ud ment of the "e ional #rial Court, $ranch %IV, Oro&uieta Cit', findin him uilt' of the crime of attempted murder. (rom the records, we athered the followin facts. In the mornin of (e)ruar' *, +,-,, Sulpicio Intod, .or e Pan asian, Santos #u)io and Avelino Dali di went to Salvador /anda'a0s house in 1atu asan, 2ope3 .aena, /isamis Occidental and as4ed him to o with them to the house of $ernardina Palan pan an. #hereafter, /anda'a and Intod, Pan asian, #u)io and Dali di had a meetin with Aniceto Dumala an. 5e told /anda'a that he wanted Palan pan an to )e 4illed )ecause of a land dispute )etween them and that /anda'a should accompan' the four 6*7 men, otherwise, he would also )e 4illed. At a)out +8988 o0cloc4 in the evenin of the same da', Petitioner, /anda'a, Pan asian, #u)io and Dali di , all armed with firearms, arrived at Palan pan an0s house in 1atu asan, 2ope3 .aena, /isamis Occidental. At the instance of his companions, /anda'a pointed the location of Palan pan an0s )edroom. #hereafter, Petitioner, Pan asian, #u)io and Dali di fired at said room. It turned out, however, that Palan pan an was in another Cit' and her home was then occupied )' her son:in:law and his famil'. No one was in the room when the accused fired the shots. No one was hit )' the un fire. Petitioner and his companions were positivel' identified )' witnesses. One witness testified that )efore the five men left the premises, the' shouted9 ;<e will 4ill 'ou 6the witness7 and especiall' $ernardina Palan pan an and we will come )ac4 if 6 sic7 'ou were not in!ured;. 2 After trial, the "e ional #rial Court convicted Intod of attempted murder. #he court 6"#C7, as affirmed )' the Court of Appeals, holdin that Petitioner was uilt' of attempted murder. Petitioner see4s from this Court a modification of the !ud ment )'

holdin him lia)le onl' for an impossi)le crime, citing Article *6=7 of the "evised Penal Code which provides9 Art. *6=7. C"I/INA2 "ESPONSI$I2I#>. ? Criminal "esponsi)ilit' shall )e incurred9 @@@ @@@ @@@ =. $' an' person performin an act which would )e an offense a ainst persons or propert', were it not for the inherent impossibility of its accomplishment or on account of the emplo'ment of inade&uate or ineffectual means. Petitioner contends that, Palan pan an0s a)sence from her room on the ni ht he and his companions riddled it with )ullets made the crime inherentl' impossi)le. On the other hand, "espondent People of the Philippines ar ues that the crime was not impossi)le. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. "espondent alle ed that there was intent. (urther, in its Comment to the Petition, respondent pointed out that9 . . . #he crime of murder was not consummated, not )ecause of the inherent impossi)ilit' of its accomplishment 6Art. *6=7, "evised Penal Code7, )ut due to a cause or accident other than petitioner0s and his accused0s own spontaneous desistance 6Art. A., Ibid.7 Palan pan an did not sleep at her house at that time. 5ad it not )een for this fact, the crime is possi)le, not impossi)le. 3 Article *, para raph = is an innovation % of the "evised Penal Code. #his see4s to remed' the void in the Old Penal Code where9 . . . it was necessar' that the e@ecution of the act has )een commenced, that the person conceivin the idea should have set a)out doin the deed, emplo'in appropriate means in order that his intent mi ht )ecome a realit', and finall', that the result or end contemplated shall have )een ph'sicall' possi)le. So lon as these conditions were not present, the law and the courts did not hold him criminall' lia)le. & #his le al doctrine left social interests entirel' unprotected. ' #he "evised Penal Code, inspired )' the Positivist School, reco ni3es in the offender his formida)ilit', ( and now penali3es an act which were it not aimed at somethin &uite impossi)le or carried out with means which prove inade&uate, would constitute a felon' a ainst person or a ainst propert'. ) #he rationale of Article *6=7 is to punish such criminal tendencies. 9 Bnder this article, the act performed )' the offender cannot produce an offense a ainst person or propert' )ecause9 6+7 the commission of the offense is inherentl' impossi)le

of accomplishment9 or 6=7 the means emplo'ed is either 6a7 inade&uate or 6)7 ineffectual. 10 #hat the offense cannot )e produced )ecause the commission of the offense is inherentl' impossi)le of accomplishment is the focus of this petition. #o )e impossi)le under this clause, the act intended )' the offender must )e )' its nature one impossi)le of accomplishment. 11 #here must )e either impossi)ilit' of accomplishin the intended act 12 in order to &ualif' the act an impossi)le crime. 2e al impossi)ilit' occurs where the intended acts, even if completed, would not amount to a crime. 13 #hus9 2e al impossi)ilit' would appl' to those circumstances where 6+7 the motive, desire and e@pectation is to perform an act in violation of the lawC 6=7 there is intention to perform the ph'sical actC 6A7 there is a performance of the intended ph'sical actC and 6*7 the conse&uence resultin from the intended act does not amount to a crime. 1% #he impossi)ilit' of 4illin a person alread' dead
1&

falls in this cate or'.

On the other hand, factual impossi)ilit' occurs when e@traneous circumstances un4nown to the actor or )e'ond his control prevent the consummation of the intended crime. 1' One e@ample is the man who puts his hand in the coat poc4et of another with the intention to steal the latter0s wallet and finds the poc4et empt'. 1( #he case at )ar )elon s to this cate or'. Petitioner shoots the place where he thou ht his victim would )e, althou h in realit', the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost e@actl' the same as this one. In People vs. Lee Kong, 1) the accused, with intent to 4ill, aimed and fired at the spot where he thou ht the police officer would )e. It turned out, however, that the latter was in a different place. #he accused failed to hit him and to achieve his intent. #he Court convicted the accused of an attempt to 4ill. It held that9 #he fact that the officer was not at the spot where the attac4in part' ima ined where he was, and where the )ullet pierced the roof, renders it no less an attempt to 4ill. It is well settled principle of criminal law in this countr' that where the criminal result of an attempt is not accomplished simpl' )ecause of an o)struction in the wa' of the thin to )e operated upon, and these facts are un4nown to the a ressor 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 4ill the victim )ecause the latter did not pass )' the place where he was l'in :in wait, the court held him lia)le for attempted murder. #he court e@plained that9

It was no fault of Stro4es that the crime was not committed. . . . It onl' )ecame impossi)le )' reason of the e@traneous circumstance that 2ane did not o that wa'C and further, that he was arrested and prevented from committin the murder. #his rule of the law has application onl' where it is inherentl' impossi)le to commit the crime. It has no application to a case where it )ecomes impossi)le for the crime to )e committed, either )' outside interference or )ecause of miscalculation as to a supposed opportunit' to commit the crime which fails to materiali3eC in short it has no application to the case when the impossi)ilit' rows out of e@traneous acts not within the control of the part'. In the case of Clark vs. State, 20 the court held defendant lia)le for attempted ro))er' even if there was nothin to ro). In disposin of the case, the court &uoted /r. .ustice $ishop, to wit9 It )ein an accepted truth that defendant deserves punishment )' reason of his criminal intent, no one can seriousl' dou)t that the protection of the pu)lic re&uires the punishment to )e administered, e&uall' whether in the unseen depths of the poc4et, etc., what was supposed to e@ist was reall' present or not. #he communit' suffers from the mere alarm of crime. A ain9 <here the thin intended 6attempted7 as a crime and what is done is a sort to create alarm, in other words, e@cite apprehension that the evilC intention will )e carried out, the incipient act which the law of attempt ta4es co ni3ance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to 4ill, fired at the window of victim0s room thin4in that the latter was inside. 5owever, at that moment, the victim was in another part of the house. #he court convicted the accused of attempted murder. #he aforecited cases are the same cases which have )een relied upon )' "espondent to ma4e this Court sustain the !ud ment of attempted murder a ainst Petitioner. 5owever, we cannot rel' upon these decisions to resolve the issue at hand. #here is a difference )etween the Philippine and the American laws re ardin the concept and appreciation of impossi)le crimes. In the Philippines, the "evised Penal Code, in Article *6=7, e@pressl' provided for impossi)le crimes and made the punisha)le. <hereas, in the Bnited States, the Code of Crimes and Criminal Procedure is silent re ardin this matter. <hat it provided for were attempts of the crimes enumerated in the said Code. (urthermore, in said !urisdiction, the impossi)ilit' of committin the offense is merel' a defense to an attempt char e. In this re ard, commentators and the cases enerall' divide the impossi)ilit' defense into two cate ories9 le al versus factual impossi)ilit'. 22 In U S vs. !ilson 23 the Court held that9 . . . factual impossi)ilit' of the commission of the crime is not a defense. If the crime could have )een committed had the circumstances )een as the

defendant )elieved them to )e, it is no defense that in realit' the crime was impossi)le of commission. 2e al impossi)ilit', on the other hand, is a defense which can )e invo4ed to avoid criminal lia)ilit' for an attempt. In U S vs. "errigan, 2% the accused was indicated for attemptin to smu le letters into and out of prison. #he law overnin the matter made the act criminal if done without 4nowled e and consent of the warden. In this case, the offender intended to send a letter without the latter0s 4nowled e and consent and the act was performed. 5owever, un4nown to him, the transmittal was achieved with the warden0s 4nowled e and consent. #he lower court held the accused lia)le for attempt )ut the appellate court reversed. It held unaccepta)le the contention of the state that ;elimination of impossi)ilit' as a defense to a char e of criminal attempt, as su ested )' the /odel Penal Code and the proposed federal le islation, is consistent with the overwhelmin modern view;. In disposin of this contention, the Court held that the federal statutes did not contain such provision, and thus, followin the principle of le alit', no person could )e criminall' lia)le for an act which was not made criminal )' law. (urther, it said9 Con ress has not 'et enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of le al impossi)ilit' until such time as such le islative chan es in the law ta4e place, this court will not fashion a new non:statutor' law of criminal attempt. #o restate, in the Bnited States, where the offense sou ht to )e committed is factuall' impossi)le or accomplishment, the offender cannot escape criminal lia)ilit'. 5e can )e convicted of an attempt to commit the su)stantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penali3ed, not as an impossi)le crime, )ut as an attempt to commit a crime. On the other hand, where the offense is le all' impossi)le of accomplishment, the actor cannot )e held lia)le for an' crime ? neither for an attempt not for an impossi)le crime. #he onl' reason for this is that in American law, there is no such thin as an impossi)le crime. Instead, it onl' reco ni3es impossi)ilit' as a defense to a crime char e ? that is, attempt. #his is not true in the Philippines. In our !urisdiction, impossi)le crimes are reco ni3ed. #he impossi)ilit' of accomplishin the criminal intent is not merel' a defense, )ut an act penali3ed )' itself. (urthermore, the phrase ;inherent impossi)ilit'; that is found in Article *6=7 of the "evised Penal Code ma4es no distinction )etween factual or ph'sical impossi)ilit' and le al impossi)ilit'. Ubi le# non disting$it nec nos disting$ere debemos . #he factual situation in the case at )ar present a ph'sical impossi)ilit' which rendered the intended crime impossi)le of accomplishment. And under Article *, para raph = of the "evised Penal Code, such is sufficient to ma4e the act an impossi)le crime. #o uphold the contention of respondent that the offense was Attempted /urder )ecause the a)sence of Palan pan an was a supervenin cause independent of the actor0s will,

will render useless the provision in Article *, which ma4es a person criminall' lia)le for an act ;which would )e an offense a ainst persons or propert', were it not for the inherent impossi)ilit' of its accomplishment . . .; In that case all circumstances which prevented the consummation of the offense will )e treated as an accident independent of the actor0s will which is an element of attempted and frustrated felonies. <5E"E(O"E, P"E/ISES CONSIDE"ED. the petition is here)' D"AN#ED, the decision of respondent Court of Appeals holdin Petitioner uilt' of Attempted /urder is here)' /ODI(IED. <e here)' hold Petitioner uilt' of an impossi)le crime as defined and penali3ed in Articles *, para raph =, and E, of the "evised Penal Code, respectivel'. 5avin in mind the social dan er and de ree of criminalit' shown )' Petitioner, this Court sentences him to suffer the penalt' of si@ 6F7 months of arresto mayor, to ether with the accessor' penalties provided )' the law, and to pa' the costs. SO O"DE"ED.