ATTEMPTED FELONIES l final judgments for robbery and theft have been rendered against him — and in his
obbery and theft have been rendered against him — and in his favor, t
PEOPLE vs LAMAHANG
G.R. No. L-43530 August 03, 1935
FACTS:
The defendant Aurelio Lamahang is on appeal from a decision finding him guilty
of attempted robbery.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat o
n Delgado and C.R. Fuentes streets of the City of Iloilo, caught the
accused in the act of making an opening with an iron bar on the wall of a store of cheap goo
ds located on the last named street.
At that time the owner of the store, Tan Yu, was sleeping inside with another China man.
The accused had only succeeded in breaking one board and in unfastening another from
the wall, when the policeman showed up, who instantly arrested him and placed him under
custody.
ISSUE: WON the accused was erroneously declared guilty of attempted robbery
RULING:
YES, he was erroneously declared guilty of attempted robbery. The accused is then held gui
lty of attempted trespass to dwelling, committed by meansof force, with the aforesaid aggrav
ating and mitigating circumstances and sentenced to three months and one day of arresto
mayor.
RATIONALE:
It is necessary to prove that said beginning of execution, if carried to its complete terminatio
n following its natural course, without being frustrated by external obstacles nor by the volun
tary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense
. In the case of robbery, it must be shown that the offender clearly intended to take possessi
on, for the purpose of gain, of some personal property belonging to another. In the instant c
ase, it may only be inferred as a logical conclusion that his evident intention was to enter by
means of force said store against the will of its owner. That his final objective, once he succ
eeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit
any other offense, there is nothing in the record to justify a concrete finding.
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the materi
al damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascert
ained, but the same must be inferred from the nature of the acts executed (accion medio).
The relation existing between the facts submitted for appreciation and the offense which sai
d facts are supposed to produce must be direct; the intention must be ascertained from the f
acts and therefore it is necessary, in order to avoid regrettable instances of injustice.
Under article 280 of the Revised Penal Code, the Court is of the opinion
that the fact under consideration does not constitute attempted robbery but attempted tresp
ass to dwelling. Against the accused must be taken into consideration the aggravating circu
mstances of nighttime and former convictions, — inasmuch as the record shows that severa
Page 1 of 8
he mitigating circumstance of lack of instruction.
PEOPLE VS. DIO
G.R. No. L-36461. June 29, 1984
FACTS:
An information for robbery with homicide was filed on October 1, 1971, against Danilo Tobias
and a John Doe. The order to arrest Tobias was returned unserved and he is still on the
"Wanted Persons Files." On December 7, 1971, the information was amended to name
Hernando Dio as the John Doe, the appellant herein.
At about noontime, Crispulo Alega, a civil engineer by profession working at the Sugar
Construction Company, with a salary of more than P500.00 a month, went to the
Southeastern College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year high
school student.
They proceeded to the Pasay City Public Market. As they were going up the stairs leading to
the Teresa and Sons Restaurant, Remedios suddenly heard the dropping of her folders and
other things, being carried by Crispulo. When she looked back, she saw a man (Danilo
Tobias) twisting the neck of Crispulo, while the appellant (Hernando Dio) was holding his
(Crispulo's) two hands.
The robbers tried to divest Crispulo of his 'Seiko' wrist watch, but Crispulo resisted their
attempt and fought the robbers which caused Danilo Tobias to stab him on the left side of his
chest.
The victim ran down the stairs but when they reached Pasay Commercial Bank, Crispulo
Alega fell down and expired. At the time of his death, the 'Seiko' watch was still strapped to
his wrist.
The appellant claims in his first assignment of error that he should not have been convicted
of the special complex crime of robbery with homicide because the robbery was not
consummated. He states that there was only an attempted robbery.
ISSUE
Whether or not the crime of robbery was not consummated
RULING:
The Court agrees with the Solicitor General that the evidence adduced show that the
appellant and his companion were unsuccessful in their criminal venture of divesting the
victim of his wrist watch so as to constitute the consummated crime of robbery. When the
victim expired, the 'Seiko' watch was still securely strapped to his wrist. The killing, of Crispulo
Alega may be considered as merely incidental to and an offshoot of the plan to carry out the
robbery, which however was not consummated because of the resistance offered by the
deceased.
This case would properly come under the provision of Article 297 of the Revised Penal Code
which states that by reason or on occasion of an attempted robbery a homicide is committed,
the person guilty of such offenses shall be punished by reclusion temporal in its maximum
period to reclusion perpetua unless the homicide committed shall deserve a higher penalty
under the provisions of this Code.
The crime committed by the appellant is attempted robbery with homicide and the penalty
prescribed by law is reclusion temporal in its maximum period to reclusion perpetua. Since
there was no mitigating or aggravating circumstance, the penalty should be applied in its
medium period. i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Sentence
Law has also to be applied.
Judgment of the trial court is hereby modified; the appellant is found guilty beyond reasonable
doubt of the special complex crime of attempted robbery with homicide and he is sentenced
to suffer an indeterminate penalty of 10 years and 1 day of prision mayoras minimum to 20
years of reclusion temporal as maximum, to indemnify the heirs of Crispulo Alega in the
amount of P30,000.00, and to pay one-half of the costs.
People v. Trinidad
GR No. 79123-25 9 January 1989
Short Version: Lolito Soriano is a fish dealer. His helpers were Ricardo Tan and Marcial Laroa.
While the three were driving on their way to Davao City to sell fish, accused Emeliano Trinidad
asked for a ride to Agusan del Norte. Tan, the driver at that time, suddenly heard two gunshots
-- Soriano and Laroa slumped dead for both were hit on the head. Trinidad had used his
carbine in killing the two victims. Tan was able to get off the car and hail a jeepney passing
by. However, he noticed that Trinidad was also seated at the back of the said jeepney. Tan
immediately got off the jeepney, followed by Trinidad. When the jeepney started to drive away,
Tan suddenly clung to its side, but Trinidad fired two shots, one of which hit Tan on his right
thigh. Tan jumped from the jeep and fortunately a Philippine Constabulary member chanced
upon him and helped him board a bus for Butuan. Trinidad was charged with FRUSTRATED
murder in relation to the shooting of Tan.
Facts: Lolito Soriano is a fish dealer. His helpers were Ricardo Tan and Marcial Laroa. While
the three were driving on their way to Davao City to sell fish, accused Emeliano Trinidad
asked for a ride to Agusan del Norte. Trinidad, a member of the Integrated National Police,
was in uniform and had two firearms, a carbine and a .38 caliber revolver.
Tan was driving the car at that time, and he was instructed by Trinidad to slow down because
they were treading dangerous territory. Tan suddenly heard two gunshots -- Soriano and
Laroa slumped dead for both were hit on the head. Trinidad had used his carbine in killing the
two victims. Tan was able to get off the car and hail a jeepney passing by. However, he
noticed that Trinidad was also seated at the back of the said jeepney. Tan immediately got
off the jeepney, followed by Trinidad. When the jeepney started to drive away, Tan suddenly
clung to its side, but Trinidad fired two shots, one of which hit Tan on his right thigh. Tan
jumped from the jeep and fortunately a Philippine Constabulary member chanced upon him
and helped him board a bus for Butuan.
Page 2 of 8
Trinidad was charged with FRUSTRATED murder in relation to the shooting of Tan, and he
was found guilty by the RTC. On appeal, Trinidad claims that the RTC erred in convicting him
of the crime of frustrated murder.
Issues: W/N Trinidad is correct in contending that he can only be convicted of attempted
murder? YES
Ruling: Trinidad should only be held criminally liable for attempted murder.
Ratio: Trinidad had commenced the commission of the felony directly by overt acts but was
unable to perform all the acts of execution which would have produced it by reason of causes
other than his spontaneous desistance, such as, that the jeep to which TAN was clinging was
in motion, and there was a spare tire which shielded the other parts of his body.
Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the crime is only ATTEMPTED
murder, the accused not having performed all the acts of execution that would have brought
about the death (citing, People v. Pilones)
Pp vs Campuhan
GR No. 129433, March 30, 2000
FACTS:
On April 25, 1996, as Corazon was busy preparing her children’s drinks, she heard one of her
daughters cry, “Ayo’ko, ayo’ko” prompting her to rush upstairs. Thereupon, she saw Primo
Campuhan inside her children’s room kneeling before Crysthel whose pajamas or “jogging
pants” and panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel’s vagina. Physical
examination of the victim yielded negative results. No evident sign of extra-genital physical
injury was noted by the medico-legal officer on Crysthel’s body as her hymen was intact and
its orifice was only 0.5 cm in diameter. On May 27, 1997, Primo Campuhan was found guilty
of statutory rape.
ISSUE:
WON Campuhan is guilty of consummated statutory rape?
HELD: No. Campuhan is found guilty of attempted rape.
In Orita, the court held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the offense
were already present and nothing more was left for the offender to do, having performed all
the acts necessary to produce the crime and accomplish it. The court ruled then that perfect
penetration was not essential, any penetration of the female organ by the male organ,
however slight, was sufficient. Even without rupture of the hymen or laceration of the vagina,
was sufficient to warrant conviction of consummated rape. However, the prosecution utterly
failed to discharge its onus in proving that Primo’s penis was able to penetrate Crysthel’s
vagina.
Under Art 6, in relation to Art. 335, of the RPC, the rape is attempted when the offender
commences of rape directly by overt acts, and does performs all the acts of execution which
should produce the crime rape by reason of some cause or accident other than his own
spontaneous desistance. All the elements of attempted rape – and only attempted rape – are
present in the instant case, hence, the accused should be punished only for it.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO
and SAMSON DELA TORRE y ESQUELA, accused.
Facts:
Culled from the eyewitness account of Marlon Araque, he discloses that around 5:00 p.m. of
August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect
a sum of money from a certain Tino. Having failed to collect anything from Tino, they then
turned back. On their way back while they were passing Tramo near Tino’s place, a group
composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and
Bonifacio Bancaya blocked their path and attacked them with lead pipes and bladed
weapons. His brother, Jeonito, was stabbed from behind and sustained three stab wounds
causing him to fall down. Marlon was hit on the head with lead pipes and momentarily lost
consciousness. When he regained his sense, he saw that his bro Jeonito was already dead.
Their assailants then fled after the incident. Marlon, who sustained injuries in the arm and
back, was thereafter brought to a hospital for treatment.
Accused’s version: he was in the store of Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At around 2:00 o’clock he went to his house
and slept. He was awaken by the two and told him there was a quarrel near the railroad track.
He was invited by the two policemen for questioning with his co-accused Samson dela Torre,
and was implicated in the sinumpaang salaysay of Marlon for the death of Jeonito Araque
and the frustrated murder of Marlon Araque. He professed his innocence and insisted that
Marlon’s testimony is insufficient to convict him of the crimes charged.
Trial Court rendered judgment only against accused Agapito Listerio because his co-accused
Samson dela Torre escaped during the presentation of the prosecution’s evidence and he
was not tried in absentia. Their other co-accuseds have remained at large. The trial court
convicted the accused for the crime of Murder and Attempted Homicide only on the basis of
Dr. Manimtim’s testimony that none of the wounds sustained by Marlon Araque were fatal.
ISSUES:
WON the accused should be charged with Attempted Murder for the reason that none of the
wounds sustained by Marlon were fatal.
WON there is conspiracy.
RULING:
Page 3 of 8
The reasoning of the lower court is flawed because it is not the gravity of the wounds inflicted
which determines whether a felony is attempted or frustrated but whether or not the subjective
phase in the commission of an offense has been passed. By subjective phase is meant “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 the prior acts,
should result in the consummated crime. From that time forward, the phase is objective. It
may also be said to be that period occupied by the acts of the offender over which he has
control – that period between the point where he begins and the point where he voluntarily
desists. If between these two points the offender is stopped by reason of any cause outside
of his own voluntary desistance, the subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.”
It must be remembered that a felony is frustrated when: 1.] the offender has performed all the
acts of execution which would produce the felony; 2.] the felony is not produced due to causes
independent of the perpetrator’s will. On the other hand, in an attempted felony: 1.] the
offender commits overt acts to commence the perpetration of the crime; 2.] he is not able to
perform all the acts of execution which should produce the felony; and 3.] his failure to perform
all the acts of execution was due to some cause or accident other than his spontaneous
desistance.
It bears stressing that intent to kill determines whether the infliction of injuries should be
punished as attempted or frustrated murder, homicide, parricide or consummated physical
injuries. Homicidal intent must be evidenced by acts which at the time of their execution are
unmistakably calculated to produce the death of the victim by adequate means. Suffice it to
state that the intent to kill of the malefactors herein who were armed with bladed weapons
and lead pipes can hardly be doubted given the prevailing facts of the case. It also cannot
be denied that the crime is a frustrated felony not an attempted offense considering that after
being stabbed and clubbed twice in the head as a result of which he lost consciousness and
fell, Marlon’s attackers apparently thought he was already dead and fled.
Conspiracy may be inferred from the acts of the accused before, during and after the
commission of the crime which indubitably point to and are indicative of a joint purpose,
concert of action and community of interest. Indeed –
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To establish the existence of a conspiracy,
direct proof is not essential since it may be shown by facts and circumstances from which
may be logically inferred the existence of a common design among the accused to commit
the offense charged, or it may be deduced from the mode and manner in which the offense
was perpetrated.
Conspiracy need not be established by direct evidence of acts charged, but may and
generally must be proved by a number of indefinite acts, conditions and circumstances, which
vary according to the purpose accomplished. Previous agreement to commit a crime is not
essential to establish a conspiracy, it being sufficient that the condition attending to its
commission and the acts executed may be indicative of a common design to accomplish a
criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy
can be established.

Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence,
as clearly and convincingly as the crime itself. In the absence of direct proof thereof, as in the
present case, it may be deduced from the mode, method, and manner by which the offense
was perpetrated, or inferred from the acts of the accused themselves when such acts point
to a joint purpose and design, concerted action and community of interest. Hence, it is
necessary that a conspirator should have performed some overt acts as a direct or
indirect contribution in the execution of the crime planned to be committed. The overt act may
consist of active participation in the actual commission of the crime itself, or it may consist of
moral assistance to his con-conspirators by being present at the commission of the crime or
by exerting moral ascendancy over the other co-conspirators.
In this case, the presence of accused and his colleagues, all of them armed with deadly
weapons at the locus criminis, indubitably shows their criminal design to kill the victims.
As to the qualifying circumstances, the commission of the crime was attended by treachery.
The manner in which the stab wounds were inflicted on the deceased were clearly meant to
kill without posing any danger to the malefactors considering their locations and the fact that
they were caused by knife thrusts starting below going upward by assailants who were
standing behind the victim. Treachery is present when the offender commits any of the crimes
against persons employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense
which the offended party might make. That circumstance qualifies the crime into murder. The
crime was also attended by abuse of superior strength on account of the fact that accused
and his companions were not only numerically superior to the victims but also because all of
them, armed with bladed weapons and lead pipes, purposely used force out of proportion to
the means of defense available to the persons attacked. However, this aggravating
circumstance is already absorbed in treachery. Furthermore, although alleged in the
information, evident premeditation was not proved by the prosecution. In the light of the
finding of conspiracy, evident premeditation need not be further appreciated, absent concrete
proof as to how and when the plan to kill was hatched or what time had elapsed before it was
carried out.
With regard to the credibility of Marlon’s testimony, it cannot be doubted in this case because
as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the
foregoing excerpts of his testimony that he remembered with a high degree of reliability the
identity of the malefactors.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No.
91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-
5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6)
Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision
Mayor, as maximum.
Page 4 of 8
After finality of this Decision, the records shall be remanded to the Regional Trial Court of
Makati City, which is directed to render judgment based on the evidence against Samson dela
Torre y Esquela.
Doctrine: The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female. Without such
showing, only the felony of acts of lasciviousness is committed.
Cruz v. People
FACTS:
In December 1993, Norberto Cruz (Norberto) and his wife went to La Union to sell plastic and
glass wares. Along with them is AAA and BBB. Upon reaching their destination, they set up
a tent in order that they will have a place to sleep.
At around 1 AM, AAA was awakened when she felt that somebody was on top of her. The
person was Norberto who was mashing her breast and touching her private parts. He fought
back and kicked Norberto twice. He was not able to pursue his lustful desires; he offered AAA
money and told her not to tell the incident to her mother. Thirty minutes later, when AAA
returned to her tent, she again saw Norberto touching private parts of BBB.
Later that day, they reported the incident to the police. Norberto was summoned to the police
station which resulted to an argument. He denied the allegations contending that there were
many people around who were preparing for the “simbang gabi”, and that once AAA and BBB
would scream, the policemen in the municipal hall could hear them.
RTC found Norberto guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE
and ACTS OF LASCIVIOUSNESS. CA promulgated its decision affirming the conviction of
the petitioner for attempted rape in Criminal Case No. 2388, but acquitting him of the acts of
lasciviousness.
ISSUE: WON accused was guilty of attempted rape.
RULING:
NO. There is an attempt, according to Article 6 of the Revised Penal Code, 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 this own spontaneous desistance.
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform
all the acts of execution of having carnal knowledge. If the slightest penetration of the female
genitalia consummates rape, and rape in its attempted stage requires the commencement of
the commission of the felony directly by overt acts without the offender performing all the acts
of execution that should produce the felony, the only means by which the overt acts performed
by the accused can be shown to have a causal relation to rape as the intended crime is to
make a clear showing of his intent to lie with the female.

The petitioner climbed on top of the naked victim, and was already touching her genitalia with
his hands and mashing her breasts when she freed herself from his clutches and effectively
ended his designs on her. It is obvious that the fundamental difference between attempted
rape and acts of lasciviousness is the offender’s intent to lie with the female.
The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female. Without such
showing, only the felony of acts of lasciviousness is committed.
The intent to commit rape should not easily be inferred against the petitioner, even from his
own declaration of it, if any, unless he committed overt acts directly leading to rape. In People
v. Bugarin, the Court said that: The accused was held liable only for acts of lasciviousness
because the intent to commit rape “is not apparent from the act described,” and the intent to
have sexual intercourse with her was not inferable from the act of licking her genitalia.
The Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOMEguilty
of ACTS OF LASCIVIOUSNESS.
Valenzuela v. People, GR No. 160188
Facts:
While a security guard was manning his post the open parking area of a supermarket, he saw
the accused, Aristotel Valenzuela, hauling a push cart loaded with cases of detergent and
unloaded them where his co-accused, Jovy Calderon, was waiting. Valenzuela then returned
inside the supermarket, and later emerged with more cartons of detergent. Thereafter,
Valenzuela hailed a taxi and started loading the boxes of detergent inside. As the taxi was
about to leave the security guard asked Valenzuela for the receipt of the merchandise. The
accused reacted by fleeing on foot, but were subsequently apprehended at the scene. The
trial court convicted both Valenzuela and Calderon of the crime of consummated theft.
Valenzuela appealed before the Court of Appeals, arguing that he should only be convicted
of frustrated theft since he was not able to freely dispose of the articles stolen. The CA
affirmed the trial court’s decision, thus the Petition for Review was filed before the Supreme
Court.
Issue:
Whether or not petitioner Valenzuela is guilty of frustrated theft.
Held:
No. Article 6 of the RPC provides that a felony is consummated when all the elements
necessary for its execution and accomplishment are present. In the crime of theft, the
following elements should be present – (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 intimidating of persons or force upon things. The court
Page 5 of 8
held that theft is produced when there is deprivation of personal property by one with intent
to gain. Thus, it is immaterial that the offender is able or unable to freely dispose the property
stolen since he has already committed all the acts of execution and the deprivation from the
owner has already ensued from such acts. Therefore, theft cannot have a frustrated stage,
and can only be attempted or consummated.
Baleros v. People G.R. No. 138033
February 22, 2006
Lessons Applicable: Attempted Rape
Laws Applicable: Art. 6
FACTS:
Martina Lourdes Albano (Malou), a medical student of the University of Sto. Tomas, stayed
at Room 307 with her maid Marvilou. December 12 10:30 pm: Malou slept. Her maid Marvilou
slept on a folding bed right in front of her bedroom door. December 13, 1991 1:00 am: Chito
left the fraternity party with Robert Chan and Alberto wearing a barong tagalog, with t-shirt
inside, with short pants with stripes lent by Perla Duran and leather shoes. December 13,
1991 1:30 am: Chito arrived at the Building wearing a white t-shirt with fraternity symbols and
black shorts with the brand name “Adidas” from a party. He requested permission from S/G
Ferolin to go up to Room 306 leased by Ansbert Co but at that time only Joseph Bernard
Africa was there.
Although Chito could not produce the required written authorization, he let him in because he
will be a tenant in the coming summer break. Joseph was awaken by Chito’s knock so he
glanced the alarm clock and let him. He saw him wearing dark-colored shorts and white T-
shirt. December 13, 1991 1:50 am: Renato Baleros, Jr. y David (Chito) forcefully covered the
face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying
effects. This awakened Malou. She struggled but could not move because she was tightly
held and pinned down on the bed. She kicked him and got her right hand free to squeeze his
sex organ causing him to let her go. She went for the bedroom door and woke up Marvilou.
She also intercommed S/G Ferolin saying: "may pumasok sa kuarto ko pinagtangkaan ako".
Malou proceed to Room 310 where her classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were staying and seeked help. She saw her bed in a
mess and noticed that her nightdress was stained with blue. Aside from the window with grills
which she had originally left opened, another window inside her bedroom which leads to
Room 306 was now open.
December 13, 1991 3:30 pm: Christian and his roommates, Bernard and Lutgardo were asked
by the CIS people to look for anything not belonging to them in their Unit when Rommel
Montes went inside and found a grey bag. Christian knew right away that it belonged to
Chito. It contained white t-shirt with fraternity symbol, a Black Adidas short pants, a
handkerchief, 3 white T-shirts, an underwear and socks.
Chito pleaded NOT Guilty. 13 witnesses including Malou and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Malou: Chito was her
classmate whom he rejected a week before. Chito: He only slept and at about 6 to 6:30,
Joseph told him that something had happened and asked him to follow him to Room 310
carrying his gray bag and since no one was there they went to Room 401 where Renato
Alagadan was. He left his grey bag at Room 306 the day before.
The handkerchief and Malou’s night dress both contained chloroform, a volatile poison which
causes first degree burn exactly like what Malou sustained on that part of her face where the
chemical-soaked cloth had been pressed
RTC: guilty of attempted rape
CA: Affirmed
ISSUE: W/N Chito is guilty of attempted rape
HELD:
NO. REVERSED and SET ASIDE. ACQUITTING Renato D. Baleros, Jr. of the charge for
attempted rape. GUILTY of light coercion and is accordingly sentenced to 30 days of arresto
menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs.
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By
using force or intimidation; (2) When the woman is deprived of reason or otherwise
unconscious; and (3) When the woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts and does not
perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance.
whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on
top of Malou, constitutes an overt act of rape.
Overt or external act has been 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 voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.
Chito was fully clothed and that there was no attempt on his part to undress Malou, let alone
touch her private part. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, they constitute unjust vexation punishable as light coercion under
the second paragraph of Article 287 of the Revised Penal Code.
As it were, unjust vexation exists even without the element of restraint or compulsion for the
reason that this term is broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy or irritate an innocent
person. That Malou, after the incident in question, cried while relating to her classmates what
Page 6 of 8
she perceived to be a sexual attack and the fact that she filed a case for attempted rape
proved beyond cavil that she was disturbed, if not distressed.
FRUSTRATED FELONIES
People v. Erinia
Short Version: The court held that there was only attempted rape as the entry of the labia was
not proven.
Facts:
CFI Manila convicted Erinia of consummated rape. The victim was 3 years and 11 months
old. The evidence is conclusive that Erinia endeavored to have carnal intercourse with the
victim. However, there may be some doubt whether there was successful penetration before
Erinia was disturbed by the timely intervention of the victim’s mother and sister. The physical
exam done a few hours after the crime only yielded a slight inflammation of the exterior parts
of the organ, indicating that an effort had been made to enter the vagina. When the physician
testified, he expressed doubts as to whether there was an entry. The mother testified in having
found her child’s genital organ covered with a sticky substance.
Issue:
WON there was an attempted rape or consummated rape? Attempted rape.
Ruling: CFI Decision modified into attempted rape.
The court did not agree with the suggestion that penetration was impossible because the child
was of such tender age. That since rape was impossible of consummation, the offense should
only be abusos deshonestos. While it is probably true that a complete penetration was
impossible, such penetration is not essential to the commission of the crime. Penetration of
the labia is sufficient.
Citation of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the
offended party was a child of 3 years and 8 months. Several physicians testified that the labia
of a child of that age can be entered by a man's male organ to the hymen. The defendant was
found guilty of the consummated rape.
Since there is no conclusive evidence of penetration of the genital organ of the victim, the
defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated rape.
The court also held that the sticky substance cannot be considered conclusive evidence of
penetration.
People vs. Caballero
Facts:
In an afternoon of August 03, 1994, Caballero brothers Armando, Marciano and Robito were
in the house of their other brother Ricardo having drinking sessions in the Mondragon
compound. By 7pmof that same day, Eugene Tayactac and Arnold Bacurna arrived in the
sari-sari store of Wilma Broce which was across the Mondragon compound. Later on,
Armando angrily approached Eugene, and the latter insisted that there is no
quarrel between them.
Armando left and after minutes, his brothers joined him, armed with knives. He grabbed
Eugene and when the latter resisted, the other Caballeros ganged up on him. Armando hit
him with the wooden support of clothesline and Eugene was stabbed on the chest three times.
Arnold tried to help but he was also stabbed on the left side of his body and twice on his
forearm. Leonilo Broce, nephew of Wilma, rushed to help but was also stabbed on the chest
by Robito. Eugene and Leonildo eventually died from the sustained wounds. The Caballero
brothers, except for Robito, were convicted of murder for the deaths of Eugene and Leonildo,
and frustrated murder for the injuries of Arnold. The appellants insists that the decision is
incorrect.
Issue:
WON the appellants are guilty of frustrated murder for the injuries of Arnold
Ruling:
Basing the judgment in consideration of the Article 248, Article 6, par. 1 of the Revised Penal
Code, the court, beyond reasonable doubt, found the appellants guilty of the crime frustrated
murder. With the fact that appellant Armando used wooden pole and appellants Ricardo and
Robito used knives, it cannot be denied that there was an intent to kill Arnold. Moreover, the
doctor attended on
Arnold testified that the stab wound inflicted upon Arnold was mortal and may have caused
the latter’s death, if not for the timely and effective medical intervention. WHEREFORE, the
acts committed by the appellants is indeed FRUSTRATED MURDER.
CONSUMMATED FELONIES
UNITED STATES vs TOMAS ADIAO
G.R. No. 13785. October 8, 1918
FACTS:
Tomas Adiao, customs inspector, got a leather bag costing P0.80 from baggage of T.
Murakami and kept it in his desk where it was found by other employees
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ISSUE:
Whether act is consummated theft?
RULING: Aggravating Circumstance, public possession
1. He performed all acts of execution as required by RPC Art. 3. He didn’t need to take it out
of the building
2. Spanish Supreme Court: taking first caught by police still consummated no proof of contr
ary; pickpocket got money but returned it later on, still consummated; took money even if its
on top of safe, still consummated.
HELD: Judgment is reversed.
PEOPLE v. HERNANDEZ
G.R. No. L-23916 | October 14, 1925
Short version: A 70-year old man had carnal knowledge of a 9 year old girl but the trial court
only convicted him of frustrated rape because there was no rupture of the hymen. SC says
no, there was consummation of the crime of rape because it has already be held in numerous
cases that any penetration, w/n reaching the hymen, is sufficient to constitute the crime. It is
enough if the woman's body is entered; and it is not necessary to show to what extent
penetration of the parts has taken place.
Facts:
Accused is a 70-year old man. Offended party is a 9-year old girl. No question as to guilt;
evidence showed that both were living in the same house and taking advantage of the
absence of the other inhabitants, he had intercourse with her by force and intimidation.
In the Info: Defendant Hernandez is accused of raping 12-year old Conrada Jocson,
intimidating and forcing her with a knife. He held this knife should she not accede to his wish
then had carnal knowledge of Jocson. The following aggravating circumstances existed: 1)
accused is the husband of the grandmother of Jocson; 2) grave abuse of confidence: the
offended and the accused lived in the same house.
He admits this but says he was intoxicated and did not know what he was doing. Witness
accounts say that he did not show signs of intoxication during or after the crime.
Trial Court: only frustrated rape, sentenced to 10 years and 1 day of prision mayor (no
consummated rape without a complete penetration of the hymen)
Issue: W/N there was a consummation of the crime --- Yes
Ruling: Judgment appealed from is modified: defendant guilty of the consummated crime of
rape and, in view of the aggravating circumstances, the penalty imposed is increased to 17
years, 4 months and 1 day of reclusion temporal, with the accessory penalties prescribed by
law.

Ratio:

State v. Johnson:

Finding the hymen intact is not always proof that no rape has been committed, nor virginity;
for the case are not rare where the hymen had to be removed after impregnation and in order
to permit delivery.

Any penetration, w/n reaching the hymen, is sufficient to constitute the crime; "scientific and
anatomical distinctions as to where the vagina commences are worthless in a case of rape; it
is enough if the woman's body is entered; and it is not necessary to show to what extent
penetration of the parts has taken place; whether it has gone past the hymen, into what is
anatomically called the hymen, or even so far as to touch the hymen.

Ppl v. Rivers:

While the rupturing of the hymen is not indispensable to a conviction, there must be proof of
some degree of entrance of the male organ "within the labia of Pudendum."

Numerous cases: entry of the labia or lips of the female organ, without rupture or laceration
of the vagina, is sufficient to warrant conviction of the consummated crime of rape

Physician (who examined her immediately after the crime): found the labia and the opening
of the vagina inflamed together with an abundance of semen. Hymen was intact.

From the evidence: accused lay on top of her for over 15 mins and continued his efforts of
penetration; she testifies that the accused succeeded in a partial penetration and that she felt
intense pain.

Thus, crime must be regarded as consummated.

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