ATTEMPTED FELONY

There is an attempt 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.

Elements of Attempted Felony

1. The offender commences the commission of the felony directly by overt acts;
2. The offender does not perform all the acts of execution which should produce the felony;
3. The offenders’ act is not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his
own spontaneous desistance.

“Commences the Commission of the felony directly by overt acts”

When is the commission of the felony deemed commenced directly by overt acts?

Answer: When the following two requisites are present:

1. That there be external acts. (Preparatory Acts plus Acts of Execution)
2. Such external acts have direct connection with the crime intended to be committed. = The
external acts must be related to the overt acts of the crime the offender intended to
commit. They should not be mere preparatory acts, for preparatory acts do not have
direct connection with the crime which the offender intends to commit.

What are overt acts?

Answer: An overt act is some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried 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.

Answer: An overt act may not be by physical activity (US vs. Gloria). There are felonies
where, because of their nature or manner of committing them, the overt acts are not
performed with bodily movement or by physical activity. Thus a proposal consisting in
making an offer of money to a public officer for the purpose of corrupting him is the overt act
in the crime of corruption of public officer.

US vs. Gloria

Facts: Julio Gloria was charged with an attempt to commit the crime of bribery. He is
an unsuccessful candidate for election as president of his town Bayambang, Pangasinan at the
municipal election held on December 01, 1903. He filed a protest with the Provincial Board,
and after said filing and while the same is being considered, he approached the treasurer, a
member of the Board, and offered and promised to give him Php 200.00 if he would “lend his
aid and support to the said protest”.

Issue: Whether or not the act constitutes the overt act of bribery.
 Held: Under Article 3(now Article 6), the said act of offer constitutes an attempt of
committing the crime of bribery. There is an attempt 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. The offer of money is an overt act in the crime of this nature, and its
refusal on the part of the treasurer whom it was offered prevented the consummation of the
crime.

ARTICLE 210. Direct Bribery. — Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer, personally or
through the mediation of another, shall suffer the penalty of prisión correccional in its
minimum and medium periods and a fine of not less than the value of the gift and not more
than three times such value, in addition to the penalty corresponding to the crime agreed
upon, if the same shall have been committed.

If the gift was accepted by the officer in consideration of the execution of an act which does
not constitute a crime, and the officer executed said act, he shall suffer the same penalty
provided in the preceding paragraph; and if said act shall not have been accomplished, the
officer shall suffer the penalties of arresto mayor in its maximum period and a fine of not less
than the value of the gift and not more than twice such value.

If the object for which the gift was received or promised was to make the public officer refrain
from doing something which it was his official duty to do, he shall suffer the penalties of
arresto mayor in its medium and maximum periods and a fine of not less than the value of
the gift and not more than three times such value.

In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the
penalty of special temporary disqualification.

The provisions contained in the preceding paragraphs shall be made applicable to assessors,
arbitrators, appraisal and claim commissioners, experts or any other persons performing
public duties.

“The external acts must be related or with direct connection with the crime intended to be
committed”

1. People vs. Lamahang

Facts: At early dawn on March 2, 1935, Policeman Jose Tomambing caught the accused, Aurelio
Lamahang in the act of making an opening with an iron bar on the wall of a store of cheap goods.
At that time, the owner of the store is sleeping with another chinaman. The accused have only
succeeded in breaking one board an in unfastening another from the wall, when the policeman
suddenly showed up, who instantly arrested him and placed him under custody.

Issue: Whether or not there is an attempted robbery in the case at bar.

Held: There is no doubt that in the case at bar it was the intention of the accused to enter the
store by means of violence, passing through the opening which he had started to make on the
wall, in order to commit and offense which, due to timely arrival of the policeman, did not develop
 beyond the first step of its execution. But it is not sufficient, for the purpose of imposing penal
sanction, that an act objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural relation of the cause
and its effect, with the deed which, upon its consummation, will develop into one of the offenses
defined and punished by law. This is considered as an attempt to commit an indeterminate
offense. To commit such offense, inasmuch as its nature in relation to its objective is ambiguous,
is not a juridical fact from the standpoint of the Penal Code. Thus, the accused cannot be held
liable for attempted Robbery. In order that a simple act of entering by means of force or violence
another person’s dwelling may be considered as attempted robbery, it must be shown that the
offender clearly intended to take possession, for the purpose of gain, of some personal property
belonging to another. In the present case, there is no evidence to support such purpose. The
defendant is guilty of attempted trespass to dwelling. Attempted because not all of the acts of
execution was performed.

ARTICLE 293. Who are Guilty of Robbery — Any person who, with intent to gain, shall take any
personal property belonging to another, by means of violence against or intimidation of any
person, or using force upon anything, shall be guilty of robbery.

ARTICLE 280. Qualified Trespass to Dwelling. — Any private person who shall enter the dwelling
of another against the latter’s will, shall be punished by arresto mayor and a fine not exceeding
1,000 pesos.

If the offense be committed by means of violence or intimidation, the penalty shall be prisión
correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos.

The provisions of this article shall not be applicable to any person who shall enter another’s
dwelling for the purpose of preventing some serious harm to himself, the occupants of the
dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for
the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafés,
taverns, inns and other public houses, while the same are open.

Aggravating Circumstances:
1. Nighttime
2. Former Convictions

Mitigating Circumstances:
Lack of Instructions

What is an indeterminate offense/crime?

Answer: It is one where the purpose of the offender in performing an act is not certain. Its nature
in relation to its objective is ambiguous. Intention must be determined through ACTIONS
not ADMISSION.

2. People vs. Lizada

Facts: In August 1998, the petitioner did then and there willfully, unlawfully, feloniously, by means
of force, violence and intimidation to Analia Orillosa, his stepdaughter, by embracing, kissing, and
touching her private parts. He then proceeded with carnal knowledge to remove her skirt and panty
and placed himself on top of her and tried to insert his penis into her vagina. This allegation was
repeated four times in a different occasion. However medical examination revealed that Analia’s
hymen was intact, and the other parts of her vagina was not injured due to an insertion of average
sized adult Filipino male organ in full erection. The testimony of Rossel, Analia’s sister, also proved
that no insertion of penis happened because the petitioner stopped after he saw her.

Issue: Whether or Not the accused is just guilty of acts of lasciviousness.

Held: The accused is not guilty of acts of lasciviousness only but of attempted rape. There is an
attempt 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.

If he stopped by his own spontaneous desistance, he is not guilty of attempted rape, but he is stopped
by the presence of Analia’s sister. He commenced the commission of rape by undressing and kissing
his victim and lying on top of her. He failed to perform all the acts of execution which should produce
the crime of rape by reason or cause other than his own spontaneous desistance, that is, the timely
arrival of Analia’s sister.

Preparatory Acts vs. Overt Acts

Example of Preparatory Act: Buying poison from a drugstore, in preparation for the killing of
somebody by means of poison. The poison purchased may be used to kill rats or insects.
Hence, the act of buying poison does not necessarily constitute an intention to kill somebody.
It has no direct connection with the crime of murder which the purchaser intended to commit.

Example of Overt Act: if the poison bought mixed with the food intended for someone to eat, not
knowing that it contained poison, put into the mouth a spoonful thereof, that act constitutes
the commission of murder. That’s Preparatory Act plus Act of Execution, to be taken together,
constitute the overt acts of murder. If for some reason or another, that person threw away
the food with poison from his mouth, the liability is attempted murder.

ARTICLE 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate
or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and
shall be punished by the penalty of reclusiónperpetua to death.

ARTICLE 248. Murder. — Any person who, not falling within the provisions of article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusión temporal in its maximum period
to death, if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment
or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or
with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public
calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
There is treachery when the offender commits any of the crimes against the person, 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.

ARTICLE 249. Homicide. — Any person who, not falling within the provisions of article 246 shall kill
another without the attendance of any of the circumstances enumerated in the next preceding article,
shall be deemed guilty of homicide and be punished by reclusion temporal.

Cases not constituting an overt act of Homicide

1. Drawing or trying to draw a pistol

People vs. Tabago

Facts: While Tabago is talking with the Chief of Police, he made a motion to draw a pistol but the
Chief of Police embrace him and prevented him from drawing a pistol. He ordered his two
companions to fire at the Police Chief but unable to do so, because he is embraced by the latter.
One of his companion fired a shot, but was not aimed at anybody.

Held: This is not an overt act of Attempted Homicide. The drawing of pistol is susceptible of
different interpretation. For anytime, Tabago may desist all acts of execution, and had happened,
he will be completely exempt from criminal liability he intended to commit.

Desistance = cessation of offending someone or to commit further harm to anyone.

2. Raising a bolo as if to strike the offended party

US vs. Simeon
Facts: Bali Kan was a night watchman at the railroad station in Manila. Flaviano Simeon, the
defendant, was seen in several occasions walking near that place with a working bolo in his hand
and had been requested by Bali kan to go away but Simeon refused to do so, whereupon Bali kan
pushed the defendant. On the morning in question, while Bali kan was walking toward his house,
he encountered Simeon who, while two yards away, raised his bolo as if about to strike or stab
Bali kan with it. The latter shouted for help and ran away, and immediately thereafter a detective
of the police department arrested Simeon. No blow was struck, nor there is proof of threats to kill
or to do bodily harm.

Issue: Whether or not the acts constitute the commission of frustrated murder or attempted
murder?

Facts: There is NO PROOF whatever from which it may be inferred that Simeon intended to kill
Bali Kan, much less to show that he intended to do so with deliberate premeditation. The crime
committed by the defendant was only that of threatening another with a weapon (Article 285,
par. 1)

ARTICLE 285. Other Light Threats. — The penalty of arresto menor in its minimum period or a fine
not exceeding 200 pesos shall be imposed upon:

1. Any person who, without being included in the provisions of the next preceding article, shall
threaten another with a weapon, or draw such weapon in a quarrel, unless it be in lawful self-
defense.
ATTEMPTED FELONY

There is an attempt 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.

Important words/phrases:

1. “Directly by overt acts”

“Directly” = this word suggests that the offender must commence the commission of the felony
by taking direct part in the execution of the act.

Example: If A induced B to kill C, but B refused to do it, A cannot be held liable for attempted
homicide, because, although there was an attempt on the part of A, such an attempt was not done
directly with physical activity. The inducement made by A to B is in the nature of a proposal,
which is not ordinarily punished by law.

But if B, pursuant to his agreement with A, commenced the commission of crime by shooting C,
with an intent to kill the latter, but missed and did not injure C, both A and B are guilty of
attempted felony, because of conspiracy. When there is conspiracy, the act of one is the act of all.

2. “Does not perform all acts of execution”

If the offender performed all acts of executions, and if the felony is NOT produced, there is
FRUSTRATED felony.

If the offender performed all acts of executions, and if the felony is produced, there is
CONSUMMATED felony.

If anything yet remained for him to do, he would be guilty of ATTEMPTED felony.

3. “By reason of some cause or accident”

Example of Cause: A picked the pocket of B, inside of which there was a wallet containing Php
50.00. Before A could remove it from the pocket of B, the latter discovered, so A failed to perform
all acts of execution of taking the wallet.

Another Example of Cause: People vs. Lizada

Example of Accident: A aimed his pistol to B to kill the latter, but when he pressed the trigger it
jammed and no bullet was fired from the pistol.

4. ‘Other than his own spontaneous desistance”

If the commission of the crime is stopped by the offender’s own desistance, he is not liable. This
may be through fear or remorse, not necessarily by a good motive. The only requirement is that
it is from the person who has begun it, and that he stops of his own free will.
 Reason: It is a sort of reward granted by law to those who, having one foot on the verge of crime,
heed the call of their conscience and return to the path of righteousness.

Requirement for the desistance to be considered:

1. The desistance is made by the person who begun the supposed to be felony, and it’s a free
will

2. The desistance should be made before all acts of execution are performed

Example 1: A stole a chicken under the house of B one evening. Realizing that what he did is
wrong, A returned the chicken. He is still guilty of the crime of theft (with mitigating
circumstances)

Example 2: A attacked and wounded B in the abdomen with a sharp edged weapon, causing
a wound serious enough to have produced death. A was about to assault B again, but desisted.
B was taken to the hospital by another person and was able to survived. A is guilty of
frustrated homicide.

3. The desistance which exempts from criminal liability has reference to the crime intended to
be committed, and has no reference to the crime actually committed by the offender before
his desistance.

Example: A with intent to kill B, fired his pistol at B, but did not hit the latter. B cried and
asked A not to shoot him. A desisted from firing his pistol again. Is A criminally Liable?

Answer: Yes, guilty for grave threats which were already committed by him when he desisted.

Illustration of a case where the accused inflicted injury

The issue before the court was: Should an accused who admittedly shot the victim but is shown to
have inflicted only a slight wound be held accountable for the death of the victim due to a fatal wound
caused by his co-accused?

Held: The slight wound did not cause the death of the victim nor materially contribute to it. His
liability should therefore be limited to the slight injury he caused. However, the fact that he inflicted
a gunshot wound on the victim shows the intent to kill. The use of a gun fired at another certainly
leads to no other conclusion than that there is intent to kill. He is therefore liable for the crime of
attempted homicide and not merely for slight physical injury. (Araneta, Jr. vs. Court of Appeals, G.R.
No. 43527, July 3, 1990)

Subjective Phase of the Offense

In attempted felony, the offender never passes the subjective phase of the offense. Subjective Phase
of the Offense is that portion of the acts constituting the crime, starting from the point where the
offender begins the commission of the crime to that point where he has still control over his acts,
including their (acts') natural course.

If between these two points the offender is stopped by 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, provided the crime is not produced. The acts
then of the offender reached the objective phase of the crime.

Thus, if A, with intent to kill, mixes poison in the soup intended for B, and B begins to take into his
mouth a spoonful of it, until this point, A can still prevent the poisoning of B by voluntarily desisting
and telling B to throw away the substance from his mouth as it contains poison. But from the moment
B swallows it, A has no more control over his acts. The poison is now in B's stomach and it will require
the intervention of a physician to prevent the poisoning of.

If because of the intervention of the physician, B did not die, A will be liable for frustrated murder.
The acts performed by A, following their natural course, passed from the subjective phase to the
objective phase of the crime.

Point where the Point where he has

offender begins the still control over his
commission of the acts, including their
Subjective Phase of If the subjective Objective Phase of the phase has not
crime acts’ natural course.
the Offense been passed, the Offense stage is an
Attempt

If the subjective phase already passes, there is frustrated if the victime did not die

If the subjective phase already passes, there is perfect consummation if the victim died.