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Impossible Crime

G.R. No. 103119 October 21, 1992


SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

CAMPOS, JR., J.:


Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV,
Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and
Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to
be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's
house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however,
that Palangpangan was in another City and her home was then occupied by her sonin-law and his family. No one was in the room when the accused fired the shots. No
one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: "We will kill you
(the witness) and especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court
(RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of
attempted murder. Petitioner seeks from this Court a modification of the judgment
by holding him liable only for an impossible crime, citing Article 4(2) of the Revised
Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he
and his companions riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had
it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally
liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at something quite
impossible or carried out with means which prove inadequate, would constitute a
felony against person or against property. 8 The rationale of Article 4(2) is to punish
such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is inherently
impossible of accomplishment: or (2) the means employed is either (a) inadequate
or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire
and expectation is to perform an act in violation of the law; (2) there is intention to
perform the physical act; (3) there is a performance of the intended physical act;
and (4) the consequence resulting from the intended act does not amount to a
crime. 14
The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances


unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter's wallet and finds the pocket empty. 17

Impossible Crime
The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he
thought the police officer would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an attempt to
kill. It is well settled principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an obstruction in the way
of the thing to be operated upon, and these facts are unknown to the aggressor at
the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent
to kill the victim because the latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that way;
and further, that he was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for the crime to
be committed, either by outside interference or because of miscalculation as to a
supposed opportunity to commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court quoted
Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or not. The community
suffers from the mere alarm of crime. Again: Where the thing intended (attempted)
as a crime and what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the incipient act which the
law of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's
room thinking that the latter was inside. However, at that moment, the victim was in
another part of the house. The court convicted the accused of attempted murder.

Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code. Furthermore,
in said jurisdiction, the impossibility of committing the offense is merely a defense to
an attempt charge. In this regard, commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual impossibility. 22 In U.S.
vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime
could have been committed had the circumstances been as the defendant believed
them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for
attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without knowledge and consent of the warden. In this
case, the offender intended to send a letter without the latter's knowledge and
consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense to a charge of
criminal attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing of this
contention, the Court held that the federal statutes did not contain such provision,
and thus, following the principle of legality, no person could be criminally liable for
an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time
as such legislative changes in the law take place, this court will not fashion a new
non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is
factually impossible or accomplishment, the offender cannot escape criminal liability.
He can be convicted of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that the act is penalized, not
as an impossible crime, but as an attempt to commit a crime. On the other hand,
where the offense is legally impossible of accomplishment, the actor cannot be held
liable for any crime neither for an attempt not for an impossible crime. The only
reason for this is that in American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a crime charge that is,
attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.

The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder against
Petitioner. However, we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the American laws regarding
the concept and appreciation of impossible crimes.

The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made the punishable. Whereas, in the United States, the

To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the

Impossible Crime
actor's will, will render useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case all
circumstances which prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element of attempted and
frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision
of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is
hereby MODIFIED. We hereby hold Petitioner 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
Petitioner, 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.
SO ORDERED.

Impossible Crime
G.R. No. 155791. March 16, 2005

Laryngo tracheal lumina congested and edematous containing muddy particles


with bloody path.

MELBA QUINTO, Petitioners,


vs.
DANTE ANDRES and RANDYVER PACHECO, Respondents.

Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody
froth.

DECISION

Brain autolyzed and liquefied.

CALLEJO, SR., J.:

Stomach partly autolyzed.

At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade
4 elementary school pupil, and his playmate, Wilson Quinto, who was also about
eleven years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw respondents
Dante Andres and Randyver Pacheco by the mouth of a drainage culvert. Andres and
Pacheco invited Wilson to go fishing with them inside the drainage culvert. 1 Wilson
assented. When Garcia saw that it was dark inside, he opted to remain seated in a
grassy area about two meters from the entrance of the drainage system. 2

CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory. 9

Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson,
entered the drainage system which was covered by concrete culvert about a meter
high and a meter wide, with water about a foot deep. 3 After a while, respondent
Pacheco, who was holding a fish, came out of the drainage system and left 4without
saying a word. Respondent Andres also came out, went back inside, and emerged
again, this time, carrying Wilson who was already dead. Respondent Andres laid the
boys lifeless body down in the grassy area. 5Shocked at the sudden turn of events,
Garcia fled from the scene. 6 For his part, respondent Andres went to the house of
petitioner Melba Quinto, Wilsons mother, and informed her that her son had died.
Melba Quinto rushed to the drainage culvert while respondent Andres followed her. 7

The NBI filed a criminal complaint for homicide against respondents Andres and
Pacheco in the Office of the Provincial Prosecutor, which found probable cause for
homicide by dolo against the two.
An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac,
charging the respondents with homicide. The accusatory portion reads:
That at around 8 oclock in the morning of November 13, 1995, in the Municipality of
Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy,
conspiring, confederating, and helping one another, did then and there willfully,
unlawfully, and feloniously attack, assault, and maul Wilson Quinto inside a culvert
where the three were fishing, causing Wilson Quinto to drown and die.
CONTRARY TO LAW.10

Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation


(NBI) investigators took the sworn statements of respondent Pacheco, Garcia and
petitioner Quinto.8 Respondent Pacheco alleged that he had never been to the
drainage system catching fish with respondent Andres and Wilson. He also declared
that he saw Wilson already dead when he passed by the drainage system while
riding on his carabao.

After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified
on direct examination that the hematoma at the back of the victims head and the
abrasion on the latters left forearm could have been caused by a strong force
coming from a blunt instrument or object. The injuries in the larynx and trachea also
indicated that the victim died of drowning, as some muddy particles were also found
on the lumina of the larynx and trachea ("Nakahigop ng putik"). Dr. Aguda stated
that such injury could be caused when a person is put under water by pressure or by
force.11 On cross-examination, Dr. Aguda declared that the hematoma on the scalp
was caused by a strong pressure or a strong force applied to the scalp coming from
a blunt instrument. He also stated that the victim could have fallen, and that the
occipital portion of his head could have hit a blunt object.

On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of
the NBI performed an autopsy thereon at the cemetery and submitted his autopsy
report containing the following postmortem findings:

Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons
head could have rendered the latter unconscious, and, if he was thrown in a body of
water, the boy could have died by drowning.

POSTMORTEM FINDINGS

In answer to clarificatory questions made by the court, the doctor declared that the
4x3-centimeter abrasion on the right side of Wilsons face could have also been
caused by rubbing against a concrete wall or pavement, or by contact with a rough
surface. He also stated that the trachea region was full of mud, but that there was
no sign of strangulation.12

The cadaver of Wilson was buried without any autopsy thereon having been
conducted. The police authorities of Tarlac, Tarlac, did not file any criminal complaint
against the respondents for Wilsons death.

Body in previously embalmed, early stage of decomposition, attired with white long
sleeves and dark pants and placed inside a wooden coffin in a niche-apartment
style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.
Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.

After the prosecution had presented its witnesses and the respondents had admitted
the pictures showing the drainage system including the inside portions thereof, 13 the
prosecution rested its case.

Impossible Crime
The respondents filed a demurer to evidence which the trial court granted on the
ground of insufficiency of evidence, per its Order dated January 28, 1998. It also held
that it could not hold the respondents liable for damages because of the absence of
preponderant evidence to prove their liability for Wilsons death.

In their comment on the petition, the respondents aver that since the prosecution
failed to adduce any evidence to prove that they committed the crime of homicide
and caused the death of Wilson, they are not criminally and civilly liable for the
latters death.

The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil
aspect of the case was concerned. In her brief, she averred that

The petition has no merit.

THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO
PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-APPELLEES CIVILLY LIABLE
FOR THE DEATH OF THE VICTIM WILSON QUINTO.14
The CA rendered judgment affirming the assailed order of the RTC on December 21,
2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but rather on a
finding that the accused-appellees did not commit the criminal acts complained of.
Thus, pursuant to the above rule and settled jurisprudence, any civil action ex
delicto cannot prosper. Acquittal in a criminal action bars the civil action arising
therefrom where the judgment of acquittal holds that the accused did not commit
the criminal acts imputed to them. (Tan v. Standard Vacuum Oil Co., 91 Phil. 672)15
The petitioner filed the instant petition for review and raised the following issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY,
LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS
CIVILLY LIABLE FOR THE DEATH OF WILSON QUINTO. 16
The petitioner avers that the trial court indulged in mere possibilities, surmises and
speculations when it held that Wilson died because (a) he could have fallen, his head
hitting the stones in the drainage system since the culvert was slippery; or (b) he
might have been bitten by a snake which he thought was the prick of a fish fin,
causing his head to hit hard on the top of the culvert; or (c) he could have lost
consciousness due to some ailment, such as epilepsy. The petitioner also alleges
that the trial court erred in ruling that the prosecution failed to prove any ill motive
on the part of the respondents to kill the victim, and in considering that respondent
Andres even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony of the Medico-Legal
Expert, Dr. Aguda; the nature, location and number of the injuries sustained by the
victim which caused his death; as well as the locus criminis. The petitioner insists
that the behavior of the respondents after the commission of the crime betrayed
their guilt, considering that respondent Pacheco left the scene, leaving respondent
Andres to bring out Wilsons cadaver, while respondent Andres returned inside the
drainage system only when he saw Garcia seated in the grassy area waiting for his
friend Wilson to come out.
The petitioner contends that there is preponderant evidence on record to show that
either or both the respondents caused the death of her son and, as such, are jointly
and severally liable therefor.

Every person criminally liable for a felony is also civilly liable. 17 The civil liability of
such person established in Articles 100, 102 and 103 of the Revised Penal Code
includes restitution, reparation of the damage caused, and indemnification for
consequential damages.18 When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil action, reserves
the right to institute it separately or institutes the civil action prior to the criminal
action.19 With the implied institution of the civil action in the criminal action, the two
actions are merged into one composite proceeding, with the criminal action
predominating the civil.20
The prime purpose of the criminal action is to punish the offender in order to deter
him and others from committing the same or similar offense, to isolate him from
society, to reform and rehabilitate him or, in general, to maintain social order. 21 The
sole purpose of the civil action is the restitution, reparation or indemnification of the
private offended party for the damage or injury he sustained by reason of the
delictual or felonious act of the accused.22 While the prosecution must prove the
guilt of the accused beyond reasonable doubt for the crime charged, it is required to
prove the cause of action of the private complainant against the accused for
damages and/or restitution.
The extinction of the penal action does not carry with it the extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the civil action that the act or omission from
where the civil liability may arise does not exist. 23
Moreover, a person committing a felony is criminally liable for all the natural and
logical consequences resulting therefrom although the wrongful act done be
different from that which he intended.24 "Natural" refers to an occurrence in the
ordinary course of human life or events, while "logical" means that there is a rational
connection between the act of the accused and the resulting injury or damage. The
felony committed must be the proximate cause of the resulting injury. Proximate
cause is that cause which in natural and continuous sequence, unbroken by an
efficient intervening cause, produces the injury, and without which the result would
not have occurred. The proximate legal cause is that acting first and producing the
injury, either immediately, or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with
its immediate predecessor.25
There must be a relation of "cause and effect," the cause being the felonious act of
the offender, the effect being the resultant injuries and/or death of the victim. The
"cause and effect" relationship is not altered or changed because of the pre-existing
conditions, such as the pathological condition of the victim (las condiciones
patologica del lesionado); the predisposition of the offended party (la predisposicion
del ofendido); the physical condition of the offended party (la constitucion fisica del
herido); or the concomitant or concurrent conditions, such as the negligence or fault
of the doctors (la falta de medicos para sister al herido); or the conditions
supervening the felonious act such as tetanus, pulmonary infection or gangrene. 26

Impossible Crime
The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and the
resulting injury, and the active force is a distinct act or fact absolutely foreign from
the felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the victim. 27
If a person inflicts a wound with a deadly weapon in such a manner as to put life in
jeopardy and death follows as a consequence of their felonious act, it does not alter
its nature or diminish its criminality to prove that other causes cooperated in
producing the factual result. The offender is criminally liable for the death of the
victim if his delictual act caused, accelerated or contributed to the death of the
victim.28 A different doctrine would tend to give immunity to crime and to take away
from human life a salutary and essential safeguard.29 This Court has emphasized
that:
Amid the conflicting theories of medical men, and the uncertainties attendant
upon the treatment of bodily ailments and injuries, it would be easy in many cases
of homicide to raise a doubt as to the immediate cause of death, and thereby to
open a wide door by which persons guilty of the highest crime might escape
conviction and punishment. 30
In People v. Quianzon,31 the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar
to the present, the following: Inasmuch as a man is responsible for the
consequences of his act and in this case, the physical condition and temperament
of the offended party nowise lessen the evil, the seriousness whereof is to be
judged, not by the violence of the means employed, but by the result actually
produced; and as the wound which the appellant inflicted upon the deceased was
the cause which determined his death, without his being able to counteract its
effects, it is evident that the act in question should be qualified as homicide, etc. 32
In the present case, the respondents were charged with homicide by dolo. In People
v. Delim,33 the Court delineated the burden of the prosecution to prove the guilt of
the accused for homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendants agency in the
commission of the act. Wharton says that corpus delictiincludes two things: first, the
objective; second, the subjective element of crimes. In homicide (by dolo) and in
murder cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or suicide;
and (c) that defendant committed the criminal act or was in some way criminally
responsible for the act which produced the death. To prove the felony of homicide or
murder, there must be incontrovertible evidence, direct or circumstantial, that the
victim was deliberately killed (with malice); in other words, that there was intent to
kill. Such evidence may consist inter alia in the use of weapons by the malefactors,
the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the
victim. If the victim dies because of a deliberate act of the malefactor, intent to kill
is conclusively presumed.34

Insofar as the civil aspect of the case is concerned, the prosecution or the private
complainant is burdened to adduce preponderance of evidence or superior weight of
evidence. Although the evidence adduced by the plaintiff is stronger than that
presented by the defendant, he is not entitled to a judgment if his evidence is not
sufficient to sustain his cause of action. The plaintiff must rely on the strength of his
own evidence and not upon the weakness of that of the defendants. 35
Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of
evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil cases, the party
having the burden of proof must establish his case by a preponderance of evidence.
In determining where the preponderance or superior weight of evidence on the
issues involved lies, the court may consider all the facts and circumstance of the
case, the witnesses manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts
to which they testify, the probability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number of witnesses, though
the preponderance is not necessarily with the greater number. 36
In the present case, we rule that, as held by the trial court and the CA, the
prosecution failed to adduce preponderant evidence to prove the facts on which the
civil liability of the respondents rest, i.e., that the petitioner has a cause of action
against the respondents for damages.
It bears stressing that the prosecution relied solely on the collective testimonies of
Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of Dr.
Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on the scalp.
But as to how the deceased sustained the injury, Dr. Aguda was equivocal. He
presented two possibilities: (a) that the deceased could have been hit by a blunt
object or instrument applied with full force; or (b) the deceased could have slipped,
fell hard and his head hit a hard object:
COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused on the back of the
head might be due to the victims falling on his back and his head hitting a
pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong
enough and would fall from a high place and hit a concrete pavement, then it is
possible.
Q Is it possible that if the victim slipped on a concrete pavement and the head hit
the pavement, the injury might be caused by that slipping?
A It is also possible.
Q So when the victim was submerged under water while unconscious, it is possible
that he might have taken in some mud or what?

Impossible Crime
A Yes, Sir.
Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would indicate that
the victim was still alive when he was placed under water. 37
The doctor also admitted that the abrasion on the right side of the victims face
could have been caused by rubbing against a concrete wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face, would it be caused by
the face rubbing against a concrete wall or pavement?

he refused to join respondents Andres and Pacheco inside. 41 Respondent Andres had
no flashlight; only respondent Pacheco had one.
Moreover, Dr. Aguda failed to testify and explain what might have caused the
abrasion on the left forearm of the deceased. He, likewise, failed to testify whether
the abrasions on the face and left forearm of the victim were made ante
mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence that either or both
the respondents hit the deceased with a blunt object or instrument, and,
consequently, any blunt object or instrument that might have been used by any or
both of the respondents in hitting the deceased.

Q When you say that the trachea region was full of mud, were there no signs that
the victim was strangled?

It is of judicial notice that nowadays persons have killed or committed serious crimes
for no reason at all.42However, the absence of any ill-motive to kill the deceased is
relevant and admissible in evidence to prove that no violence was perpetrated on
the person of the deceased. In this case, the petitioner failed to adduce proof of any
ill-motive on the part of either respondent to kill the deceased before or after the
latter was invited to join them in fishing. Indeed, the petitioner testified that
respondent Andres used to go to their house and play with her son before the
latters death:

A There was no sign of strangulation, Your Honor. 38

Q Do you know this Dante Andres personally?

The trial court gave credence to the testimony of Dr. Aguda that the deceased might
have slipped, causing the latter to fall hard and hit his head on the pavement, thus:

A Not much but he used to go to our house and play with my son after going from
her mother who is gambling, Sir.

Q -Could it be possible, Doctor, that this injury might have been caused when the
victim fell down and that portion of the body or occipital portion hit a blunt object
and might have been inflicted as a result of falling down?

Q But you are acquainted with him, you know his face?

A - If the fall if the victim fell and he hit a hard object, well, it is also possible. 39

Q Will you please look around this courtroom and see if he is around?

The trial court took into account the following facts:

A (Witness is pointing to Dante Andres, who is inside the courtroom.) 43

Again, it could be seen from the pictures presented by the prosecution that there
were stones inside the culvert. (See Exhibit "D" to "D-3"). The stones could have
caused the victim to slip and hit his head on the pavement. Since there was water
on the culvert, the portion soaked with water must be very slippery, aside from the
fact that the culvert is round. If the victim hit his head and lost consciousness, he
will naturally take in some amount of water and drown.40

When the petitioners son died inside the drainage culvert, it was respondent Andres
who brought out the deceased. He then informed the petitioner of her sons death.
Even after informing the petitioner of the death of her son, respondent Andres
followed the petitioner on her way to the grassy area where the deceased was:

The CA affirmed on appeal the findings of the trial court, as well as its conclusion
based on the said findings.

A He went with me, Sir.

A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface.


Q Rough surface?
A Yes, Your Honor.

We agree with the trial and appellate courts. The general rule is that the findings of
facts of the trial court, its assessment of probative weight of the evidence of the
parties, and its conclusion anchored on such findings, affirmed no less by the CA, are
given conclusive effect by this Court, unless the trial court ignored, misapplied or
misconstrued cogent facts and circumstances which, if considered, would change
the outcome of the case. The petitioner failed to show any justification to warrant a
reversal of the findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed because even Garcia
testified that the drainage culvert was dark, and that he himself was so afraid that

A Yes, Sir.

Q Did not Dante Andres follow you?

Q So when you went to the place where your son was lying, Dante Andres was with
you?
A No, Sir. When I was informed by Dante Andres that my son was there at the
culvert, I ran immediately. He [was] just left behind and he just followed, Sir.
Q So when you reached the place where your son was lying down, Dante Andres also
came or arrived?
A It was only when we boarded the jeep that he arrived, Sir.44

Impossible Crime
In sum, the petitioner failed to adduce preponderance of evidence to prove a cause
of action for damages based on the deliberate acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No
costs.
SO ORDERED.

Impossible Crime
G.R. No. 129291

July 3, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ENRICO A. VALLEDOR, accused-appellant.
YNARES-SANTIAGO, J.:
This is an appeal from the decision 1 of the Regional Trial Court of Palawan and Puerto
Princesa City, Branch 47, in Criminal Case Nos. 9359, 9401, and 9489, convicting
accused-appellant of the crimes of murder, attempted murder and frustrated
murder, respectively.
The informations filed against accused-appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March, 1991, in the afternoon, at Barangay
Tagumpay, Puerto Princesa City, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with treachery and evident premeditation, with
intent to kill and while armed with a knife, did then and there willfully, unlawfully
and feloniously assault, attack and stab therewith one Elsa Villon Rodriguez thereby
inflicting upon the latter stabbed (sic) wound on the chest, which was the immediate
cause of her death.
CONTRARY TO LAW.2
In Criminal Case No.9401, for attempted murder:
That on or about the 6th day of March, 1991, in the afternoon, at Bgy. Tagumpay,
Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court,
the said accused, with intent to kill, with treachery and evident
premiditation (sic) and while armed with a knife, did then and there willfully,
unlawfully and feloniously assault, attack and stab therewith one Ricardo Maglalang
thereby inflicting upon the latter physical injuries on the different parts of his body,
thus commencing the commission of the crime of murder directly by overt acts and
does not perform all the acts of execution which would produce the felony by reason
of some causes or accident other than his own spontaneous desistance that is, by
the timely and able medical assistance rendered to said Ricardo Maglalang which
prevented his death.
CONTRARY TO LAW.3
In Criminal Case No.9489, for frustrated murder:
That on or about the 6th day of March, 1991 at Bgy. Tagumpay, Puerto Princesa City,
Philippines and within the jurisdiction of this Honorable Court the above-named
accused, with intent to kill with treachery and evidence (sic) premeditation and
while armed with a butcher knife, did then and there willfully, unlawfully and
feloniously assault, attack and stab therewith on (sic) Roger Cabiguen, hitting him
on his right forearm, thus performing all the acts of execution which produce the
crime of murder as a consequence but which nevertheless did not produce it by
reason of causes independent of his will, that is, by the timely and able medical
attendance rendered to him which saved his life.

CONTRARY TO LAW.4
After his arrest, accused-appellant was intermittently confined at the National Center
for Mental Health. Thus, he was arraigned only on February 19, 1993 wherein he
pleaded not guilty.5 Thereafter, the cases were archived until November 15, 1994,
when accused-appellant was declared mentally fit to withstand trial. 6 This time,
accused-appellant admitted commission of the crimes charged but invoked the
exempting circumstance of insanity. The lower court thus conducted reverse and
joint trial, at which the following facts were established:
On March 6, 1991, at around 1:45 in the afternoon, Roger Cabiguen was in his house
at Burgos Street, Barangay Tagumpay, Puerto Princesa City. He was working on a
lettering job inside his bedroom together with his first cousin, then 25-year old Elsa
Rodriguez, and his friends, Simplicio Yayen and Antonio Magbanua. Roger was
working at his table and seated on his bed while Elsa was across the table. Antonio
was on the left side, while Simplicio was seated near the door, on the right side of
Roger.7
All of a sudden, accused-appellant entered the room; uttered Roger's nickname
("Jer") and immediately attacked him with a knife, but Roger was able to parry the
thrust and was stabbed instead on the right forearm. Accused-appellant then
stabbed Elsa Rodriguez on the chest and said, "Ako akabales den, Elsa." (I had my
revenge, Elsa). Thereafter, accused-appellant fled, leaving the stunned Simplicio and
Antonio unharmed.8
Roger and Elsa were immediately brought to the hospital. On their way out, Antonio
noticed a commotion and saw that Ricardo Maglalang, a neighbor of the victim, was
wounded. Antonio learned from the by-standers that Ricardo was likewise stabbed
by accused-appellant.9
Upon reaching the hospital, Elsa was declared dead on arrival. Roger on the other
hand was treated for the 5-centimeter wound sustained by him on his right
forearm.10
Prosecution witness Roger Cabiguen testified that sometime in 1980, accusedappellant suspected him of killing his pet dog. In 1989, accused-appellant courted
Elsa but she jilted him. On one occasion, Elsa spat on and slapped accusedappellant.11
Accused-appellant's defense of insanity was anchored on the following facts:
Accused-appellant, then 30 years of age, was a resident of Barangay Tagumpay,
Puerto Princesa City, and employed as provincial jail guard at the Palawan Provincial
Jail. Sometime in January 1990, Pacita Valledor, his mother noticed that accusedappellant was behaving abnormally. For days he was restless and unable to sleep.
He likewise complained that their neighbors were spreading rumors that he was a
rapist and a thief. This prompted Pacita to bring his son to Dr. Deriomedes de
Guzman, a medical practitioner. Pacita disclosed to Dr. de Guzman that insanity runs
in their family. After examining accused-appellant, Dr. de Guzman diagnosed him as
suffering from "psychosis with schizophrenia." 12 He prescribed a depressant known
as Thoracin, which kept accused-appellant sane for a period two months. 13
On March 4, 1991, Pacita noticed that accused-appellant was again acting strangely.
She left to buy Thoracin but when she returned he was nowhere to be found. 14

Impossible Crime
On March 6, 1991, at around 6:00 in the morning, accused-appellant was seen
swimming across the river of Barangay Caruray, San Vicente, Palawan. Barangay
Captain Rufino Nuez and Barangay Councilman Antonio Sibunga took accusedappellant out of the water and took him on board a pump boat. Inside the boat,
accused-appellant kept on crying and uttering words to the effect that his family will
be killed. Suspecting that accused-appellant was mentally ill, Barangay Captain
Nuez, asked Councilman Sibunga to accompany accused-appellant to Puerto
Princesa City. Sibunga acceded and thereafter took a jeepney with accusedappellant at Barangay Bahile. At about 1:00 in the afternoon, they reached Junction I
at the intersection of the National Highway and Rizal Avenue, Puerto Princesa City.
Suddenly, accused-appellant jumped off the jeepney. Sibunga tried but failed to
chase accused-appellant, who immediately boarded a tricycle. Later that day, he
learned that accused-appellant killed and harmed somebody.15
Meanwhile, at around 2:00 in the afternoon of March 6, 1991, Pacita Valledor was
awakened by her daughter who told her that accused-appellant has returned. She
rushed out of the house and saw him standing in the middle of the road, dusty and
dirty. She asked him where he came from but his answer was "Pinatay niya kayong
lahat." Pacita dragged him inside the house and later learned that he killed and
wounded their neighbors. Thirty minutes later, accused-appellant was arrested and
detained at the city jail.16
On March 11, 1991, Dr. Manuel Bilog, City Health Officer I of Puerto Princesa City
interviewed accused-appellant and thereafter made the following conclusions and
recommendation, to wit:
PHYSICAL EXAMINATION:
Cooperative; talkative but incoherent
Disoriented as to time, place and person

Dr. Oscar Magtang, a psychiatrist assigned at the Medical Service of the PNP, Puerto
Princesa City was likewise presented by the defense to interpret the aforecited
findings of Dr. Melendres.19
On February 28, 1997, the trial court rendered the assailed judgment of conviction.
The dispositive portion thereof reads:
WHEREFORE, premises considered, the accused ENRICO A. VALLEDOR is hereby
found guilty beyond reasonable doubt of the crimes of MURDER in Criminal Case No.
9359; of FRUSTRATED MURDER in Criminal Case No. 9489; and of ATTEMPTED
MURDER in Criminal Case No. 9401 as charged herein. Accordingly he is hereby
sentenced to suffer the penalty of reclusion perpetua in Criminal Case No.
9359;reclusion perpetua in Criminal Case No. 9489; and imprisonment of from EIGHT
(8) YEARS and ONE (1) DAY to TEN (10) YEARS in Criminal Case No. 9401. It is
understood that the accused shall serve these penalties successively or one after
the other.
The accused is also ordered to indemnify the heirs of the deceased victim Elsa Villon
Rodriguez the sum of P50,000.00 and to indemnify the victim Roger Cabiguen, the
sum of P14,000.00 as actual damages, and the sum P15,000.00 for loss of income.
Considering that the accused is found to be suffering from a serious mental disorder
at present as certified to by the National Center for Mental Health, Mandaluyong
City, Metro Manila, the service of his sentence is hereby ordered SUSPENDED
pursuant to Article 12 and 79 of the Revised Penal Code. He (Enrico Valledor) is
ordered shipped to and confined at the National Center for Mental Health,
Mandaluyong City, Metro Manila, for his treatment, until such time that he becomes
fit for the service of his sentence at the national penitentiary, Muntinlupa, Metro
Manila. As to his civil liability, the same is subject to execution after this judgment
shall have become final executory.
IT IS ORDERED.20

DISPOSITION AND RECOMMENDATION:


Respectfully recommending that subject patient be committed to the National
Mental Hospital, Metro Manila for proper medical care and evaluation soonest. 17
The defense offered in evidence the April 27, 1992 medical findings on accusedappellant by Dr. Guia Melendres of the National Center for Mental Health, pertinent
portion of which reads:

Accused-appellant interposed this appeal and raised the lone assignment of error
that:
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT
WHEN HE ALLEGEDLY COMMITTED THE OFFENSE CHARGED HE WAS MENTALLY ILL,
OUT OF HIS MIND OR INSANE AT THE (sic) TIME.21
The appeal has no merit.

REMARKS AND RECCOMENDATION:


In view of the foregoing history, observations, physical mental and psychological
examinations the patient Enrico Valledor y Andusay is found suffering from Psychosis
or Insanity classified under Schizophrenia. This is a thought disorder characterized
by deterioration from previous level of functioning, auditory hallucination, ideas of
reference, delusion of control, suspiciousness, poor judgment and absence of
insight.
Likewise, he is found to be suffering from Psychoactive Substance Use Disorder,
Alcohol, abuse. This is characterized by a maladaptive pattern of psychoactive
substance use indicated by continued use despite knowledge of having a persistent
or recurrent social, occupational, psychological or physical problems. 18

In considering a plea of insanity as a defense, the starting premise is that the law
presumes all persons to be of sound mind. Otherwise stated, the law presumes all
acts to be voluntary, and it is improper to presume that acts were done
unconsciously.22
In People v. Estrada,23 it was held that:
In the eyes of the law, insanity exists when there is a complete deprivation of
intelligence in committing the act. Mere abnormality of the mental faculties will not
exclude imputability. The accused must be "so insane as to be incapable of
entertaining a criminal intent." He must be deprived of reason and act without the
least discernment because there is a complete absence of the power to discern or a
total deprivation of freedom of the will.

Impossible Crime
Since the presumption is always in favor of sanity, he who invokes insanity as an
exempting circumstance must prove it by clear and positive evidence. And the
evidence on this point must refer to the time preceding the act under prosecution or
to the very moment of its execution.
Insanity is evinced by a deranged and perverted condition of the mental faculties
which is manifested in language and conduct. An insane person has no full and clear
understanding of the nature and consequences of his acts. Hence, insanity may be
shown by the surrounding circumstances fairly throwing light on the subject, such as
evidence of the alleged deranged person's general conduct and appearance, his
acts and conduct consistent with his previous character and habits, his irrational
acts and beliefs, as well as his improvident bargains. The vagaries of the mind can
only be known by outward acts, by means of which we read thoughts, motives and
emotions of a person, and through which we determine whether the acts conform to
the practice of people of sound mind.24
In the case at bar, accused-appellant failed to discharge the burden of overcoming
the presumption of sanity at the time of the commission of the crime. The following
circumstances clearly and unmistakably show that accused-appellant was not legally
insane when he perpetrated the acts for which he was charged: 1) Simplicio Yayen
was positioned nearest to accused-appellant but the latter chose to stab Roger and
Elsa; 2) Accused-appellant called out the nickname of Roger before stabbing him; 3)
Simplicio Yayen and Antonio Magbanua who were likewise inside the room were left
unharmed; 4) Accused-appellant, a spurned suitor of Elsa, uttered the words, "Ako
akabales den, Elsa." (I had my revenge, Elsa) after stabbing her; and 5) Accusedappellant hurriedly left the room after stabbing the victims.
Evidently, the foregoing acts could hardly be said to be performed by one who was
in a state of a complete absence of the power to discern. Judging from his acts,
accused-appellant was clearly aware and in control of what he was doing as he in
fact purposely chose to stab only the two victims. Two other people were also inside
the room, one of them was nearest to the door where accused-appellant emerged,
but the latter went for the victims. His obvious motive of revenge against the victims
was accentuated by calling out their names and uttering the words, "I had my
revenge" after stabbing them. Finally, his act of immediately fleeing from the scene
after the incident indicates that he was aware of the wrong he has done and the
consequence thereof.
Accused-appellant's acts prior to the stabbing incident to wit: crying; swimming in
the river with his clothes on; and jumping off the jeepney; were not sufficient to
prove that he was indeed insane at the time of the commission of the crime. As
consistently held by this Court, "A man may act crazy but it does not necessarily and
conclusively prove that he is legally so." 25 Then, too, the medical findings showing
that accused-appellant was suffering from a mental disorder after the commission of
the crime, has no bearing on his liability. What is decisive is his mental condition at
the time of the perpetration of the offense. Failing to discharge the burden of
proving that he was legally insane when he stabbed the victims, he should be held
liable for his felonious acts.
In Criminal Case No. 9489, accused-appellant should be held liable only for
attempted murder and not frustrated murder. The wound sustained by Roger
Cabiguen on his right forearm was not fatal. The settled rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the acts of execution that
would have brought about death.26

Pursuant to Article 51 of the Revised Penal Code, the penalty to be imposed upon
the principal of an attempted crime shall be lower by two degrees than that
prescribed for the consummated felony. Before its amendment by R.A. No. 7659,
Article 248 provided that the penalty for murder was reclusion temporal in its
maximum period to death. Under Article 61(3), the penalty two degrees lower would
be prision correccional maximum to prision mayor medium. As there is no modifying
circumstance, the medium period of the penalty, which is prision mayorminimum,
should be imposed. Under the Indeterminate Sentence Law, accused-appellant is
entitled to a minimum penalty of arresto mayor in its maximum period to prision
correcional in its medium period, the penalty next lower than the penalty for
attempted murder.27
For the murder of Elsa Rodriguez, in Criminal Case No. 9359, the trial court correctly
imposed upon accused-appellant the penalty of reclusion perpetua, considering that
no aggravating or mitigating circumstance was proven by the prosecution.
Accused-appellant's civil liability must be modified. Not being substantiated by
evidence, the award of P14,000.00 as actual damages, and P15,000.00 for loss of
income, to Roger Cabiguen in Criminal Case No. 9489, should be deleted. However,
in lieu thereof, temperate damages under Article 2224 of the Civil Code may be
recovered, as it has been shown that Roger Cabiguen suffered some pecuniary loss
but the amount thereof cannot be proved with certainty. For this reason, an award of
P10,000.00 by way of temperate damages should suffice.28
In addition to the amount of P50,000.00 as civil indemnity which was properly
awarded by the trial court in Criminal Case No. 9359, the heirs of Elsa Rodriguez are
entitled to another P50,000.00 as moral damages which needs no proof since the
conviction of accused-appellant for the crime of murder is sufficient justification for
said award.29 The heirs of the deceased are likewise entitled to the amount of
P29,250.00 representing actual damages30 based on the agreement of the parties.31
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of
Palawan and Puerto Princesa City, Branch 47, is MODIFIED as follows:
1. In Criminal Case No. 9359, accused-appellant Enrico A. Valledor is hereby found
guilty beyond reasonable doubt of the crime of murder and is sentenced to suffer
the penalty of reclusion perpetua; and to indemnify the heirs of the deceased Elsa
Rodriguez the following amounts: P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P29,250.00 as actual damages;
2. In Criminal Case No. 9489, accused-appellant is found guilty beyond reasonable
doubt only of the crime of attempted murder and is sentenced to an indeterminate
penalty of four (4) years and two (2) months ofprision correccional, as minimum, to
eight (8) years of prision mayor, as maximum; and to indemnify Roger Cabiguen in
the amount of P10,000.00 by way of temperate damages;
3. In Criminal Case No. 9401, accused-appellant is found guilty beyond reasonable
doubt of the crime of attempted murder and is sentenced to an indeterminate
penalty of four (4) years and two (2) months ofprision correccional, as minimum, to
eight (8) years of prision mayor, as maximum.
SO ORDERED.

Impossible Crime
G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto
seeking the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
23761 dated December 16, 2003, affirming petitioner's conviction of the crime of
Qualified Theft, and its Resolution 2 dated March 5, 2004 denying petitioner's motion
for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera
and Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of
Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as
follows:
That on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH
DYHENGCO Y CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and deposited in their own account,
Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the aforesaid stated amount
of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone
call sometime in the middle of July from one of their customers, Jennifer Sanalila.
The customer wanted to know if she could issue checks payable to the account of
Mega Foam, instead of issuing the checks payable to CASH. Said customer had
apparently been instructed by Jacqueline Capitle to make check payments to Mega
Foam payable to CASH. Around that time, Ricablanca also received a phone call from
an employee of Land Bank, Valenzuela Branch, who was looking for Generoso
Capitle. The reason for the call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of


Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a phone;
but they could be reached through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed
Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told
Ricablanca of a plan to take the cash and divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of
Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the
latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997
as payment for her purchases from Mega Foam. 4Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the
BDO check bounced.5 Verification from company records showed that petitioner
never remitted the subject check to Mega Foam. However, Baby Aquino said that
she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement
for the dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject
BDO check in his bank account, but explained that the check came into his
possession when some unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with his cash in exchange for
the check without even bothering to inquire into the identity of the woman or her
address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces
of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to
pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to
Ricablanca. They originally intended to proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not push through. However, they agreed
to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to
the house of Anita Valencia; Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only petitioner, her husband, Ricablanca
and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's
factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash
she actually brought out from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the money and upon
returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
petitioner and Valencia were arrested by NBI agents, who had been watching the
whole time.

Impossible Crime
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their hands.
This showed that petitioner and Valencia handled the marked money. The NBI filed a
criminal case for qualified theft against the two and one Jane Doe who was later
identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on
June 30, 1997, but claimed that she had stopped collecting payments from Baby
Aquino for quite some time before her resignation from the company. She further
testified that, on the day of the arrest, Ricablanca came to her mothers house,
where she was staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the
Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her
husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly
had no idea why Ricablanca asked them to wait in their jeep, which they parked
outside the house of Baby Aquino, and was very surprised when Ricablanca placed
the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers. According to her, on the morning of August 21, 1997, Ricablanca called
her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to
the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked, "What is
this?" Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De
Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime ofQUALIFIED THEFT and
each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT
(8) MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.

(c) The accused Jacqueline Capitle is acquitted.


SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated
March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are
as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the
information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable
doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit the
customer's check payment to her employer and, instead, appropriated it for herself;
(2) said property belonged to another the check belonged to Baby Aquino, as it
was her payment for purchases she made; (3) the taking was done with intent to
gain this is presumed from the act of unlawful taking and further shown by the fact
that the check was deposited to the bank account of petitioner's brother-in-law; (4) it
was done without the owners consent petitioner hid the fact that she had received
the check payment from her employer's customer by not remitting the check to the
company; (5) it was accomplished without the use of violence or intimidation against
persons, nor of force upon things the check was voluntarily handed to petitioner by
the customer, as she was known to be a collector for the company; and (6) it was
done with grave abuse of confidence petitioner is admittedly entrusted with the
collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as
the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on
the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam,
but the same was apparently without value, as it was subsequently dishonored.
Thus, the question arises on whether the crime of qualified theft was actually
produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals 9 is highly instructive and applicable to the present case.
In Intod, the accused, intending to kill a person, peppered the latters bedroom with
bullets, but since the intended victim was not home at the time, no harm came to
him. The trial court and the CA held Intod guilty of attempted murder. But upon

Impossible Crime
review by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the crime.
Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons or
property, were it not for theinherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. - When the person intending to
commit an offense has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that the act intended
was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent;
and (3) that its accomplishment was inherently impossible, or the means employed
was either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently
impossible of accomplishment; or (2) the means employed is either (a) inadequate
or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act in order to qualify the
act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime of qualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that
the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the
check being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was eventually dishonored, and Mega Foam
had received the cash to replace the value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the P5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People12 that under the definition of theft in
Article 308 of the Revised Penal Code, "there is only one operative act of execution
by the actor involved in theft the taking of personal property of another."
Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law that theft is already
"produced" upon the "tak[ing of] personal property of another without the latters
consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property
due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all
the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such
acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is the
element which produces the felony in its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check
was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the
check was hatched only after the check had been dishonored by the drawee bank.
Since the crime of theft is not a continuing offense, petitioner's act of receiving the
cash replacement should not be considered as a continuation of the theft. At most,
the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.

Impossible Crime
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or covered by the allegations in
the Information, the Court cannot pronounce judgment on the accused; otherwise, it
would violate the due process clause of the Constitution. If at all, that fraudulent
scheme could have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,

are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTYof an IMPOSSIBLE


CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.
SO ORDERED.

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