REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS

DIVISION II, CITY OF MANILA

SULPICIO Y. INTOD,

Accused-Appellant.

CA. G.R.

NO. 103119

-versus-

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee.

Pursuant to the

Notice of this Honorable Court,

Accused-Appellant

Sulpicio Y. Intod

By counsel most respectfully submits his

APPELLANT’S BRIEF

1
 SUBJECT INDEX

CONTENTS PAGE

COVER PAGE 1

SUBJECT INDEX 2

TABLE OF AUTHORITIES 3

ASSIGNMENT OF ERROR 3

STATEMENT OF THE CASE 4-7

STATEMENT OF FACTS 7-9

ISSUE 9

ARGUMENTS 9-14

A. The trial court gravely erred in convicting the accused

of a crime which he was not charged with. The
conviction is based on a crime, which was of an
Impossible Crime, is a lesser felony not necessary in the
commission of Attempted Murder, thereby violating his
constitutional right to criminal due process.

B. The trial court convicted accused of said crime despite

that it held in its decision that he was not guilty of the
crime charged in the Information.

PRAYER 14-15

APPENDIX 16

TABLE OF AUTHORITIES

2
PHILIPPINE JURISPRUDENCE

People vs. Abad Santos, 76 Phil. 744 --- p. 10

People vs. Purisima, 85 SCRA 542 --- p. 10

People vs. Austria, 94 Phil. 897 --- p. 11

Pentecostes, Jr. vs. People, G.R. No. 167766, April 7, 2010 --- p. 11

PHILIPPINE STATUTE

Article III, Sec. 1, 1987 Constitution

Article 4 (2), Revised Penal Code

Rule 110, Sec. 8, Rules of Court

ASSIGNMENT OF ERRORS

The trial court committed the following errors:

1. The court convicted the accused of a crime which he was not

formally charged with.

2. The court erred in not acquitting the accused despite its own

admission that in its decision that the accused is not guilty of the

crime charged in the Information.

I. STATEMENT OF THE CASE

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 Nature of the Action

1.1. This is an appeal from the decision of the court a quo granting

the Motion for Reconsideration, dated August 14, 1991, filed

by the public prosecutor against the accused-appellant in the

case People vs. Intod. It held that 1) the accused is not guilty

of the crime of Attempted Murder because of the inherent

impossibility of its commission, and rather 2) accused-

appellant is to be convicted of the crime of impossible crime

under Art. 4, par. 2, Revised Penal Code.

1.2. The case arose when the plaintiff-appellee charged accused-

appellant Sulpicio Intod, Jorge Pangasian, Santos Tubio and

Avelino Daligdig with the Attempted Murder of BERNARDINA

PALANGPANGAN. The court a quo would later acquit all

accused except herein accused-appellant, and convicted the

latter of the crime of Impossible Crime, one that was not

formally charged the plaintiff-appellee.

Summary of the Proceedings

1.3. An Information1 for Attempted Murder was issued by the the

Provincial Prosecutor of Misamis Occidental against herein

accused-appellant Sulpicio Intod, Jorge Pangasian, Santos

1
Rollo, p. 3

4
 Tubio and Avelino Daligdig. After trial on the merits, a

decision was rendered as follows:

“WHEREFORE, PREMISES CONSIDERED, ACCUSED SULPICIO

INTOD, JORGE PANGASIAN, SANTOS TUBIO AND AVELINO

DALIGDIG are NOT GUILTY of Attempted Murder. However,

this court hereby holds accused INTOD alone 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 Accused INTOD, 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.”2

1.4. From the aforesaid decision, a Motion for Reconsideration3

was filed, alleging that there has been an acquittal of the

accused-appellant the crime charged, hence he should be

relieved from any criminal liability, much less of a crime which

he was not formally charged with, for said crime was not a

lesser felony that is necessary in the commission of

Attempted Murder.

2
Rollo, p.18.
3
Rollo, p.19

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 1.5. On April 28, 1992, the Motion for Reconsideration was denied

and in an Order.4

Rulings and Orders of the Court

1.6. The dispositive portion of the decision dated November 25,

1994:

“WHEREFORE, PREMISES CONSIDERED, ACCUSED SULPICIO

INTOD, JORGE PANGASIAN, SANTOS TUBIO AND AVELINO

DALIGDIG are NOT GUILTY of Attempted Murder. However,

this court hereby holds accused INTOD alone 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 Accused INTOD, 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.”5

1.7. The dispositive portion of the Order granting the Motion for

Reconsideration dated April 28, 1995:

“WHEREFORE, ACCUSED SULPICIO INTOD’s guilt and

conviction of an Impossible Crime is hereby maintained.

4
Rollo, p. 25.
5
Rollo, p.18.

6
 SO ORDERED.”6

1.8. Hence, this appeal.

II. STATEMENT OF FACTS

2.1. The controversy alleged in the complaint began by narrating

that the accused-appellant INTOD, and his alleged co-

conspirators Pangasian, Tubio and Daligdig, all of whom

armed with guns, went to the house of one BERNARDINA

PALANGPANGAN’s house at Lopez Jaena, Misamis Occidental

the evening of February 4, 1974.

2.2. At the instance of the accused-appellant, pointing to the

location of the bedroom of PALANGPANGAN, they peppered

said area of the house with bullets.

2.3. However, at the time of the alleged assault, BERNARDINA

PALANGPANGAN was not is said room peppered with bullets.

A witness positively identified all the accused in the original

complaint to have taken part in the act. By the help of said

witness who ran away from accused-appellant, the peace

officers responded to the scene and arrested all of the original

accused

6
Rollo, p.20

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 2.4. Pangasian, Tubio and Daligdig claimed that they only

accompanied accused-appelant because they threatened

them that they will kill them too if they did not accompany

him in killing the target PALANGPANGAN.7

2.4.1. An information was issued by the Misamis Oriental

Provincial Prosecutor, and a criminal complaint based upon

which was filed before the RTC 123 of Misamis Occidental.

After trial on the merits, a decision was rendered as

follows: “WHEREFORE, PREMISES CONSIDERED, ACCUSED

SULPICIO INTOD, JORGE PANGASIAN, SANTOS TUBIO

AND AVELINO DALIGDIG are NOT GUILTY of Attempted

Murder. However, this court hereby holds accused INTOD

alone 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 Accused INTOD, 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.” 8

2.5. A Motion for Reconsideration was filed but was denied and an

Order was issued, stating:

7
Records, at p.38.
8
Rollo, p.18.

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 “WHEREFORE, ACCUSED SULPICIO INTOD’s guilt and

conviction of an Impossible Crime is hereby maintained.

SO ORDERED.”9

III. ISSUES

3.1 Whether or not the court committed an error for convicting

the accused of a crime not formally charged him in the

original complaint, of a lesser felony not necessary in the

commission of Attempted Murder.

3.2 Whether or not the court committed the grave error of not

totally relieving the accused-appellant from criminal

liability despite the fact that it has already held that he is

not guilty of the crime charged.

IV. ARGUMENTS

A. The trial court gravely erred in convicting the

accused of a crime which he was not charged
with. The conviction is based on a crime, which
was of an Impossible Crime, is a lesser felony not
necessary in the commission of Attempted
Murder, thereby violating his constitutional right
to criminal due process.

4.1. No less than the 1987 Constitution stated that, “No person

shall be deprived of life, liberty or property without due

9
Rollo, p.20.

9
 process of law xxx”.10 In criminal cases, a complaint “shall

state the designation of the offense given by the

statute”.11 The purpose of such requirement of specific

designation of the offense being imputed the accused is

based on his right to be informed of the nature and cause

of the accusation alleged against him.12 This is also

essential so as to avoid surprise and to afford him the

opportunity to prepare his defense accordingly.13

4.2. The policy of the Constitution is clear regarding this rule,

so that the accused’s right to criminal due process is

properly observed. Now, being charged a specific offense,

he prepared his defense regarding such offense charged;

he may not be tried then for any offense other than that

alleged, except when there is a lesser offense necessary in

the commission of the crime charged.

4.3. Consistent with the due process guarantee of the

Constitution is that, the judgment to be rendered by the

trial court must be regarding only on what he has been

charged and tried.

4.4. According to settled jurisprudence, a defendant can be

convicted only of the crime with which he is charged. The

philosophy behind this rule is that an accused cannot be

10
Article III, Sec. 1
11
Rule 110, Sec. 8, Rule of Court
12
People vs. Abad Santos, 76 Phil. 744
13
People vs. Purisima, 85 SCRA 542

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 convicted of a crime he was not informed,14 thereby

violating his right to criminal due process. It cannot

anymore be clear that the accused cannot be convicted of

a crime he was never charged or tried with. The only

exception to this rule is when the conviction is based on an

offense necessarily included in the offense charged.

4.5. In the case at bar, it is clear from the records that the

Information and complaint is for Attempted Murder. Herein

accused-appellant has been tried with the elements of said

crimed being proved for him to incur criminal liability. Then

all of a sudden, the trial court acquitted him of the crime

charged then convicting him of an offense – that is,

Impossible Crime - not formally imputed against him, nor

was the same necessarily included in the crime charged.

4.6. Attempted homicide is committed when the accused had

performed all the acts of execution which would have

produce the crime of Murder as a consequence, but which,

nevertheless, did not produce it by reason of causes

independent of his own will.15

On the other hand, an Impossible Crime is committed “by

any person performing an act which would be an offense

against persons or property, were it not for the inherent

14
People vs. Austria, 94 Phil. 897
15
Pentecostes, Jr. vs. People, G.R. No. 167766, April 7, 2010.

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 impossibility of its accomplishment or on account of the

employment of inadequate or ineffectual means.”

4.7. The trial court never stated in categorical language that

Impossible Crime is necessarily included in the commission

of the crime of Attempted Murder. In fact, there is a great

deal of difference between the two. In an attempted stage

of an offense, there is a physical and legal possibility that

the accused can perform all the acts of execution of an

offense, but because of causes other than his own

spontaneous desistance, he does not consummate the

felony. On the other hand, in an impossible crime, there is

absolutely not possible that the accused can consummate

the crime because of the inherent impossibility of the

means employed by him due to the circumstances of its

commission.

4.8. There is none in the Revised Penal Code or in

jurisprudence that an Impossible Crime is necessarily

included in crimes against persons or property.

4.9. Clearly, an accused can only be convicted of an offense he

is charged and tried with. In this case, the records are

clear that the accused was not charged of the crime of an

Impossible Crime. Hence, the trial court gravely erred in

convicted him of this offense.

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 4.10. And assuming arguendo that Impossible crime is

necessarily included in Attempted Murder, the penalty of

an impossible crime is a last resort only because it does

not apply when the act done by the accused falls under

some other crime in the Revised Penal Code.

4.11. It is hereby admitted that the crime charged should have

been “Malicious Mischief”, the wilful damaging of another’s

property for the sake of causing damage due to hate,

revenge or other evil motive. Since the act alleged falls

within its provisions, the penalty of impossible crime

cannot be charged.

4.12. By this time, the prescriptive period of the offense of five

(5) years has already lapsed, hence said crime could no

longer be initiated against herein accused-appellant. In

jurisprudence, an accused cannot be convicted for the

lesser offense necessarily included in the crime charged if

at the time of the filing of the information, the lesser

offense shall have prescribed.

B. The trial court convicted accused of said crime

despite that it held in its decision that he was not
guilty of the crime charged in the Information

4.13. By categorical language, the accused has been acquitted

by the trial court of the crime of Attempted Murder. It

stated by clearly that:

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 “WHEREFORE, PREMISES CONSIDERED, ACCUSED

SULPICIO INTOD, JORGE PANGASIAN, SANTOS TUBIO

AND AVELINO DALIGDIG are NOT GUILTY of Attempted

Murder.”16

4.14. The only remedy of the trial court is to acquit the accused

and not fine some other offense and penalty to convict him

for. Courts of justice are in the aim of administration of

justice. It should not be a vehicle for unjust practices nor

its discretion be unlawful and unsound.

4.15. When the accused is not guilty of the offense charged and

tried, the trial court is not to look for seek some other

basis where criminal liability of the non-guilty accused may

be anchored. It is not a prosecutor, and even prosecutors

are bound only by the evidence attendant in the case

before him. When acquittal warrants, the trial court has no

discretion but to rendered judgment in accordance thereto.

V. PRAYER

WHEREFORE, the premises considered, Appellant respectfully pray

that this Honorable Court annul the decision of the trial court

convicting the accused-appellant of an impossible crime.

16
Rollo, p.18.

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Appellant further prays for such other relief as may be just and

equitable in the premises.

Makati City, Manila, Philippines, this 14th day of February 2019.

VI. APPENDIX

Copy of the appealed order of the Regional Trial Court, Branch 123,

Misamis Occidental, dated August 14, 1990. (Appendix “A”).

By Appellant’s Counsel:

JOSE PAULINO M. DOMINGO

PTR NO. 0016687/J AN 14, 2009/MAKATI CITY
IBP NO. 775414/J AN 12, 2009/MAKATI CITY
ROLL NO. 49518
MCLE COMPLIANCE NO.II-0015132 JAN 5, 2019

QUASAR AND QUASAR LAW

Unit 301 Rose Building
Raffles Drive, Makati Avenue
Makati City, Philippines
Tel. No.: (032) 555-3799
Fax : (032) 555-3855
E-mail : quasarlawoffices@gmail.com

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 EXPLANATION

Due to the shortage of messengerial services and lack of time this

Appellant’s Brief is being served to the other parties by registered mail

in accordance with Section 11, Rule 13 of the Revised Rules of Court.

COPY FURNISHED:

(2 COPIES)

MARTIN MARTIN
Acting Provincial Prosecutor
Misamis Occidental Prosecution Office
123 Lopez Jaena Drive,
Misamis Occidental

APPENDIX “A”

RTC Decision on PEOPLE vs. Intod

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