16 PEOPLE VS.
LISTERIO
G.R. No. 122099. July 5, 2000
TOPIC: Stages of Execution
DOCTRINE: 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.
ER: Marlon and Jeonito were collecting money. They were blocked by a group of
people (w/ accused Listerio). Jeonito was stabbed from behind, and died. Marlon
was hit by a lead pipe on is head. RTC convicted Listerio for Attempted Homicide for
the injuries sustained by Marlon. SC ruled that Listerio should be guilty of Frustrated
Homicide.
FACTS:
 Listerio was charged with Murder and frustrated Murder for the killing of
Jeonito Aranque.
 Jeonito and his brother Marlon were collecting money from a certain Tino.
They were not able to collect the money so they went home. On their way
home (near Tramo), Listerio and 2 others blocked their path and attacked
them with lead pipes and bladed weapons. Listerio stabbed Jeonito from
behind. Marlon was struck with a lead pipe on his head so he lost
consciousness. When he woke up, Jeonito was alredy dead.
 Listerio contends that he went home and slept. He was awoken by a friend
when there was a commotion near their place (Tramo). Policemen passing
by his house invited him to the police station and was implicated for the
death of Jeonito.
 There were doctors who testified to the wounds sustained by both Jeonito
and Marlon.
o Dr. Manimtim testified that the wounds sustained by Marlon were
not fatal.
 RTC RULING: Convicted Listerio of Murder for the death of Jeonito, and
Attempted Homicide for the injury sustained by Marlon. The 2 others
escaped prison.
ISSUE: W/N Listerio is guilty of attempted homicide for the injuries sustained by
Marlon – NO, he is guilty of frustrated homicide.
RTC convicted Listerio of Attempted Homicide only on the basis of Dr. Manimtim’s
testimony that none of the wounds sustained by Marlon Araque were fatal.
 The reasoning of the lower court on this point 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.
Subjective phase = 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.
IN THIS CASE, Listerio and others stopped hitting Marlon and fled the scene because
they thought that Marlon was already dead after he was hit twice in the head.
IT IS FRUSTRATED WHEN:
 the offender has performed all the acts of execution which would
produce the felony;
 the felony is not produced due to causes independent of the
perpetrator’s will.
IT IS ATTEMPTED WHEN:
 the offender commits overt acts to commence the perpetration of
the crime;
 he is not able to perform all the acts of execution which should
produce the felony; and
 his failure to perform all the acts of execution was due to some
cause or accident other than his spontaneous desistance
The essential element which distinguishes attempted from frustrated felony is that,
in the latter (frustrated), there is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of the crime and the moment
when all the acts have been performed which should result in the consummated
crime.
In relation to the foregoing, 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.

On the issue that Marlon’s testimony is uncorroborated: It is well settled that

witnesses are to be weighed, not numbered, such that the testimony of a single,
trustworthy and credible witness could be sufficient to convict an accused. In here,
Marlon was seen as a credible witness. His testimony was candid and
straightforward.
 The trial judge is the best and the most competent person who can weigh
and evaluate the testimony of witnesses.
 Marlon’s credibility 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.

People v. Listerio
G.R.No. 122099 July 5, 2000
Lessons Applicable: Conspiracy, Attempted or Frustrated Stage
Laws Applicable:
FACTS:
• Criminal Case No. 91-5842 and Criminal Case No. 91-5843 were filed
against Agapito Listerio y Prado and Samson dela Torre y Esquela
• Upon arraignment, accused Agapito Listerio y Prado and Samson
dela Torre y Esquela pleaded not guilty to the crimes charged. Their
other co-accused have remained at large.
• May 14, 1991:
o Marlon Araque’s Version: Marlon and his brother Jeonito were in
Purok 4, Alabang, Muntinlupa to collect a sum of money from Tino.
Having failed they turned backAs 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. Jeonito Araque
from behind with 3 stab wounds: 1. upper right portion of his back, 2.
lower right portion and 3. middle portion of the left side of his back
causing him to fall down. Marlon was hit on the head by Samson dela
Torre and Bonifacio Bancaya with lead pipes and momentarily lost
consciousness. When he regained consciousness 3 minutes later,
Jeonito was already dead and the group fled. He was brought to the
hospital for treatment of his forearm and the shoulder
o Agapito Listerio’s Version: Agapito Listerio is a 39 years old, married,
side walk vegetable vendor and a resident of Purok 4.
 1:00 pm: He was in store of Nimfa Agustin drinking beer with Edgar
Demolador and Andres Gininao
 2:00 pm: He went to his house and slept
 5:00 pm: Remolador and Gininao woke him up and told him there
was a quarrel near the railroad track
 6:00 pm: 2 policemen passed by going to the house of Samson de la
Torre while he was chatting with Remolador and Gininao and invited
them for questioning. But, the two were sent home. He was handed a
Sinumpaang Salaysay executed by Marlon Araque, implicating him for
the death of Jeonito Araque and the frustrated murder of Marlon Araque.
When he confronted Marlon as to why he was being included in the case,
the latter replied “because you ejected us from your house”
• Dr. Manimtim’s Autopsy Reports:
o Marlon Araque: 2 wounds on the forearm and the shoulder were
caused by a sharp object like a knife while the other 2 were caused by a
blunt instrument such as a lead pipe
o Jeonito Araque: 3 stab wounds were inflicted from behind by a sharp,
pointed and single-bladed instrument like a kitchen knife, balisong or any
similar instrument. Considering the involvement of a vital organ and a
major blood vessel, the first wound was considered fatal. Unlike the first,
the second and third wounds were non-fatal. The first and second
wounds were inflicted by knife thrusts delivered starting below going
upward by assailants who were standing behind the victim
• RTC: Attempted Homicide only on the basis of Dr. Manimtim’s
testimony that none of the wounds sustained by Marlon Araque were fatal
ISSUE: W/N there is a conspiracy for frustrated homicide
HELD: YES. 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.
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.
• Direct proof of conspiracy is rarely found for criminals do not write
down their lawless plans and plots. 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
• conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
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 the offender which, with the prior acts, should result in the consummated
establish a conspiracy, it being sufficient that the condition attending to its crime.
commission and the acts executed may be indicative of a common • Objective phase
design to accomplish a criminal purpose and objective o Forward the subjective phase
• It is necessary that a conspirator should have performed some overt o period occupied by the acts of the offender over which he has control
acts as a direct or indirect contribution in the execution of the crime – that period between the point where he begins and the point where he
planned to be committed. The overt act may consist of active voluntarily desists.
participation in the actual commission of the crime itself, or it may consist • If between these two points the offender is stopped by reason of any
of moral assistance to his con-conspirators by being present at the cause outside of his own voluntary desistance, the subjective phase has
commission of the crime or by exerting moral ascendancy over the other not been passed and it is an attempt.
co-conspirators • If he is not so stopped but continues until he performs the last act, it is
frustrated
• Conspiracy transcends mere companionship, it denotes an intentional • frustrated when: (subjective phase is completely passed. Subjectively
participation in the transaction with a view to the furtherance of the the crime is complete)
common design and purpose o the offender has performed all the acts of execution which would
o all of them armed with deadly weapons at the locus criminis, produce the felony
indubitably shows their criminal design to kill the victims o the felony is not produced due to causes independent of the
• conspirator is equally liable for the crime as it is unnecessary to perpetrator’s will
determine who inflicted the fatal wound because in conspiracy, the act of • attempted felony: (offender never passes the subjective phase of the
one is the act of all offense)
• Treachery is present when the offender commits any of the crimes o the offender commits overt acts to commence the perpetration of the
against persons employing means, methods or forms in the execution crime
thereof which tend directly and specially to insure its execution, without o he is not able to perform all the acts of execution which should
risk to himself arising from the defense which the offended party might produce the felony; and
make. That circumstance qualifies the crime into murder. o his failure to perform all the acts of execution was due to some cause
o all of them armed with bladed weapons and lead pipes, blocked or accident other than his spontaneous desistance
(hinarang) the path of the victims effectively cutting off their escape • intent to kill determines whether the infliction of injuries should be
• The commission of the crime was also attended by abuse of superior punished as attempted or frustrated murder, homicide, parricide or
strength on account of the fact that accused-appellant and his consummated physical injuries
companions were not only numerically superior to the victims but also o intent to kill of the malefactors herein who were armed with bladed
because all of them, armed with bladed weapons and lead pipes, weapons and lead pipes can hardly be doubted given the prevailing facts
purposely used force out of proportion to the means of defense available of the case
to the persons attacked. However, this aggravating circumstance is o can not be denied that the crime is a frustrated felony not an
already absorbed in treachery. In the light of the finding of conspiracy, attempted offense considering that after being stabbed and clubbed twice
evident premeditation need not be further appreciated, absent concrete in the head as a result of which he lost consciousness and fell, Marlon’s
proof as to how and when the plan to kill was hatched or what time had attackers apparently thought he was already dead and fled
elapsed before it was carried out.

• What determines whether a felony is attempted or frustrated is

whether or not the subjective phase in the commission of an offense has
been passed (NOT gravity of the wound)
• Subjective phase
o portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by