ARTICLE 6.

Consummated,, Frustrated, and Attempted The offender commences the commission of the felony
Felonies. — Consummated felonies, as well as those which directly by overt acts;
are frustrated and attempted, are punishable. 2. He does not perform all the acts of execution which
should produce the felony;
A felony is consummated when all the elements necessary 3. The offender's act is not stopped by his own
for its execution and accomplishment are present; and it is spontaneous desistance;
frustrated when the offender performs all the acts of 4. The non-performance of all acts of execution was due to
execution which would produce the felony as a consequence cause or accident other than his spontaneous desistance.
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator. Desistance at the attempted stage exempts the offender
from criminal liability.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not When is the commission of a felony deemed commenced
perform all the acts of execution which should produce directly by overt acts? When the following two requisites
the felony by reason of some cause or accident other than are present:
his own spontaneous desistance. (1) That there be external acts;
(2) Such external acts have direct connection with the
Consummated felony, defined. crime intended to be committed.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present. An overt act is some physical activity or deed, indicating
the intention to commit a particular crime, more than a
Frustrated felony, defined. mere planning or preparation, which if carried to its
It is frustrated when the offender performs all the acts complete termination following its natural course, without
of execution which would produce the felony as a being frustrated by external obstacles nor by the
consequence but which, nevertheless, do not produce it by voluntary desistance of the perpetrator, will logically and
reason of causes independent of the will of the necessarily ripen into a concrete offense.
perpetrator.
 Under the Revised Penal Code, there is no crime
Attempted felony, defined. of frustrated theft
There is an attempt when the offender commences the  In case of robbery by the use of force upon
commission of a felony directly by overt acts and does not things, in order that he simple act of entering by means
perform all the acts of execution which should produce of force another person's dwelling may be considered an
the felony by reason of some cause or accident other than attempt to commit this offense, it must be shown that
his own spontaneous desistance. the offender clearly intended to take possession, for the
purpose of gain of some personal property of another
INDETERMINATE STATE – refers to the phase where
the purpose of the overt acts committed by the accused is Momentary possession is sufficient to make the crime of
uncertain or indefinite. The purpose is susceptible of theft consummated. The opportunity to completely
having two or more interpretations. dispose of the property taken or to profit from the act is
NOT NECESSARY.

Internal acts, such as mere ideas in the mind of a person, Element of “ASPORTACION” or the taking of a personal
are not punishable even if, had they been carried out, they property belonging to another is essential to the
would constitute a crime. determination of robbery and theft.

Mere intention producing no effect is no more a crime than The intention of the accused must be viewed from the
a mere effect without the intention is a crime. nature of the acts executed by him, and not from his
admission.

SUBJECTIVE PHASE OF FELONY – refers to the phase ATTEMPTED FELONY

starting from the first act committed by the offender to
begin the commission of the crime up to the last act over Only offenders who personally execute the commission of
which he still has control a crime can be guilty of attempted felony. The word
"directly" suggests that the offender must commence the
Subjective phase = attempted stage commission of the felony by taking direct part in the
execution of the act.
Preparatory acts — ordinarily they are not punishable.

Acts of execution — they are punishable under the If the offender has performed all the acts of execution —
Revised Penal Code nothing more is left to be done — the stage of execution is
that of a frustrated felony, if the felony is not produced;
ELEMENTS OF ATTEMPTED FELONY or consummated, if the felony is produced.
One who takes part in planning a criminal act but desists CONSUMMATED FELONY
in its actual commission is exempt from criminal liability.

The Code requires only that the discontinuance of

the crime comes from the person who has begun it, and
that he stops of his own free will.

The desistance should be made before all the acts of

Overt act + death = consummated
execution are performed.
Mortal wound + intent to kill – death = frustrated
Non-mortal wound + intent to kill = attempted
It must be borne in mind that the spontaneous desistance
Non-mortal wound + no intent to kill = physical injuries
of a malefactor exempts him from criminal liability for the
intended crime but it does not exempt him from the crime
All the elements of the felony must be proven in order for
committed by him before his desistance.
the crime to be decided as consummated
Frustrated felony.
In determining whether the felony is only attempted or
Elements:
frustrated or it is consummated, (1) the nature of the
1. The offender performs all the acts of execution;
offense, (2) the elements constituting the felony, as well
2. All the acts performed would produce the felony as a
as (3) the manner of committing the same, must be
consequence;
considered.
3. But the felony is not produced;
4. By reason of causes independent of the will of the
In robbery by the use of force upon things (Arts. 299 and
perpetrator.
302), since the offender must enter the building to
commit the crime, he must be able to carry out of the
In frustrated felony, the offender must perform all the
building the thing taken to consummate the crime.
acts of execution. Nothing more is left to be done by the
offender, because he has performed the last act
In robbery with violence against or intimidation of persons
necessary to produce the crime. This element distinguishes
(Art. 294), the crime is consummated the moment the
frustrated felony from attempted felony.
offender gets hold of the thing taken and I or is in a
position to dispose of it freely.
Deadly weapons were used, blows were directed at the
vital parts of the body, the aggressors stated their
A mortal wound is one which is sufficient to cause the
purpose to kill and thought they had killed. The subjective
victim’s death whereas a non-mortal wound is not
phase of the crime was entirely passed, and subjectively
sufficient to cause such.
speaking, the crime was complete.

INTENT TO KILL PROVEN:

Mortal wound = Frustrated; absence of MW = attempted
a) Motive
b) Nature or number of weapons used in commission of
If the crime is not produced because the offender himself
crime
prevented its consummation, there is no frustrated felony,
c) Nature and number of wounds inflicted
for the 4th element is not present.
d) Manner of crime
e) Words uttered by the offender during commission
In other words, in frustrated felony, the offender has
reached the objective phase; in attempted felony, the
MANNER OF COMMITTING THE CRIME
offender has not passed the subjective phase.

FORMAL CRIMES – consummated in one instant. No

The essential element which distinguishes attempted from
attempted stage (i.e. slander, false testimony)
frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency
CRIMES CONSUMMATED BY MERE
between the beginning of the consummation of the crime
ATTEMPT/PROPOSAL
and the moment when all of the acts have been performed
(i.e. flight to enemy’s country, corruption of minors)
which should result in the consummated crime; while
in the former there is such intervention and the offender
FELONY BY OMMISSION (no attempted stage)
does not arrive at the point of performing all of the acts
which should produce the crime.
CRIMES REQUIRING THE INTERVENTION OF TWO
PERONS TO COMMIT THEM ARE CONSUMMATED BY
But while in impossible crime, the evil intent of the
MERE AGREEMENT
offender cannot be accomplished, in attempted or
frustrated felony the evil intent of the offender is
MATERIAL CRIMES –has 3 stages of execution
possible of accomplishment.
 but continues until he performs the last act, it is
The Supreme Court believes frustrated rape is a dead frustrated.
provision.
Rivera v. People, G.R. No. 166326, 25 January 2006, 480
SCRA 188

FACTS: Ruben Rodil used to work as a taxi driver until his

life was threatened by a would-be rapist. His wife
supported the family by being a manicurist. A heated
argument ensued between him and Edgardo Rivera. On the
following day, while Rodil was on the way to the store with
his 3-year-old daughter, Edgardo and his brothers ganged
up on Rodil by mauling him. Accused Edgardo hit him 3
times with a hollow block in the parietal area. They only
stopped upon the arrival of the police.

Petitioners contend that the CA erred in deciding that

they are guilty of frustrated murder because intent to kill
was not proven

US V EDUAVE ISSUE: WON THE CA ERRED IN THEIR DECISION TO

CHARGE PETITIONERS FOR FRUSTRATED MURDER
FACTS: The accused rushed upon the girl suddenly and
struck her from behind, in part at least, with a sharp bolo, HELD: Yes. Petitioners are guilty only of attempted
producing a frightful gash in the lumbar region and slightly murder.
to the side eight and one-half inches long and two inches
deep, severing all of the muscles and tissues of that part. Intent to kill was shown by the fact that the (3) brothers
helped each other maul the defenseless victim, and even
ISSUE: WON THE RESPONDENT IS GUILTY OF after he had already fallen to the ground; that one of
FRUSTRATED MURDER? them even picked up a cement hollow block and proceeded
to hit the victim on the head with it three times; and that
HELD: YES. We are satisfied that there was an intent to it was only the arrival of the policemen that made the
kill in this case. A deadly weapon was used. The blow was appellants desist from their concerted act of trying to kill
directed toward a vital part of the body. The aggressor Ruben Rodil.
stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up he An essential element of murder and homicide, whether in
declared that he had killed the complainant. their consummated, frustrated or attempted stage, is
intent of the offenders to kill the victim immediately
If he has performed all of the acts which should result in before or simultaneously with the infliction of injuries.
the consummation of the crime and voluntarily  desists Intent to kill is a specific intent which the prosecution
from proceeding further, it cannot be an attempt. must prove by direct or circumstantial evidence, while
general criminal intent is presumed from the commission of
The essential element which distinguishes attempted from a felony by dolo.
frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency  The essence of treachery is the sudden and
between the beginning of the commission of the crime and unexpected attack on the victim. Even if the attack is
the moment when all of the acts have been performed frontal but is sudden and unexpected, giving no
which should result in the consummated crime; while in the opportunity for the victim to repel it or defend himself,
former there is such intervention and the offender does there would be treachery.
not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that Baleros v. People, G.R. No. 138033, 22 February 2006, 483
point by some cause apart from his voluntary desistance. SCRA 10

It may also be said to be that period occupied by the acts FACTS: In early morning of December 1991, Renato
of the offender over which he has control — that period Baleros went to the dormitory room of Martina Lourdes T.
between the point where he begins  and the points where Albano (Malou), placed himself on top of her, and pressed a
he voluntarily desists. If between  these two points the handkerchief soaked in chloroform. Malou struggled to
offender is stopped by reason of any cause outside of his free herself in the hands of Baleros and succeeded by
own voluntary desistance, the subjective phase has not grabbing his sexual organ and squeezing it.
been passed and it is an attempt. If he is not so stopped
Malou immediately reported the incident to the security petitioner was fully clothed and that there was no attempt
guard and her maid. on his part to undress Malou, let alone touch her private
part.
The morning after, the police said to the tenants of the
dormitory to grab the things that are theirs. The room Verily, while the series of acts committed by the
was left with an unclaimed bag which Christian, one of the petitioner do not determine attempted rape, as earlier
tenants, knew right away that was Renato’s. Among the discussed, they constitute unjust vexation punishable as
contents of the bag was a handkerchief with a volatile light coercion under the second paragraph of Article 287
substance.They later found out that Renato was a suitor of of the Revised Penal Code.
Malou which she rejected a week ago.
As it were, unjust vexation exists even without the
RTC found Renato guilty of attempted rape. CA further element of restraint or compulsion for the reason that
affirmed the decision. this term is broad enough to include any human conduct
which, although not productive of some physical or
ISSUE: material harm, would unjustly annoy or irritate an innocent
person.25 The paramount question is whether the
Whether the Court of Appeals erred in affirming RTC offender’s act causes annoyance, irritation, torment,
Manila’s conviction of Baleros with attempted rape distress or disturbance to the mind of the person to whom
it is directed.
HELD: Yes.
WHEREFORE, the assailed Decision of the Court of
Positive identification pertains essentially to proof of Appeals affirming that of the Regional Trial Court of
identity and not per se to that of being an eyewitness to Manila, is hereby REVERSED and SET ASIDE and a new
the very act of commission of the crime. There are two one entered ACQUITTING petitioner Renato D. Baleros,
types of positive identification. A witness may identify a Jr. of the charge for attempted rape. Petitioner,
suspect or accused as the offender as an eyewitness to however, is adjudged GUILTY of light coercion and is
the very act of the commission of the crime. This accordingly sentenced to 30 days of arresto menor and to
constitutes direct evidence. There may, however, be pay a fine of ₱200.00, with the accessory penalties
instances where, although a witness may not have actually thereof and to pay the costs. 
witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as Art. 7. When light felonies are punishable. — Light
the perpetrator of a crime as when, for instance, the felonies are punishable only when they have been
latter is the person or one of the persons last seen with consummated, with the exception of those committed
the victim immediately before and right after the against persons or property.
commission of the crime. This is the second type of
positive identification, which forms part of circumstantial Light felonies are those infractions of law for the
evidence commission of which the penalty of arresto menor or a fine
not exceeding 200 pesos, or both, is provided.

Sec. 4. Circumstantial evidence, when sufficient – The light felonies punished by the Revised Penal Code:
Circumstantial evidence is sufficient for conviction if – 1. Slight physical injuries. (Art. 266)
2. Theft. (Art. 309, pars. 7 and 8)
a) There is more than one circumstance; 3. Alteration of boundary marks. (Art. 313)
4. Malicious mischief. (Art. 328, par. 3; Art. 329, par. 3)
b) The facts from which the inferences are derived are 5. Intriguing against honor. (Art. 364)
proven; and
Light felonies are punishable only when they have been
c) The combination of all the circumstances is such as to consummated.
produce a conviction beyond reasonable doubt. Exception:
Light felonies committed against persons or property,
In People vs. Lamahang,17 stated that "the attempt which are punishable even {{attempted or frustrated.
the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is THEFT
the beginning of the execution of the offense by overt Valenzuela v. People, G.R. No. 160188, 21 June 2007
acts of the perpetrator, leading directly to its realization
and consummation. While a security guard was manning his post the open
parking area of a supermarket, he saw the accused,
As it were, petitioner did not commence at all the Aristotel Valenzuela, hauling a push cart loaded with cases
performance of any act indicative of an intent or attempt of detergent and unloaded them where his co-accused,
to rape Malou. It cannot be overemphasized that Jovy Calderon, was waiting. Valenzuela then returned
inside the supermarket, and later emerged with more
cartons of detergent. Thereafter, Valenzuela hailed a taxi
and started loading the boxes of detergent inside. As the
taxi was about to leave the security guard asked
Valenzuela for the receipt of the merchandise. The
accused reacted by fleeing on foot, but were subsequently
apprehended at the scene. The trial court convicted both
Valenzuela and Calderon of the crime of consummated
theft. Valenzuela appealed before the Court of Appeals,
arguing that he should only be convicted of frustrated
theft since he was not able to freely dispose of the
articles stolen. The CA affirmed the trial court’s decision,
thus the Petition for Review was filed before the Supreme
Court.
ISSUE: WON petitioner Valenzuela is guilty of
frustrated theft.

HELD:

We thus conclude that under the Revised Penal Code,

there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the
Diño and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has ISSUE: WON THE CRIME OF ROBBERY WAS NOT
taken all these years for us to recognize that there can be CONSUMMATED
no frustrated theft under the Revised Penal Code does not
detract from the correctness of this conclusion. It will HELD:
take considerable amendments to our Revised Penal Code in
order that frustrated theft may be recognized. Our We have scrutinized the record, particularly the
deference to Viada yields to the higher reverence for testimonial evidence, and indeed there is no doubt that the
legislative intent. appellant had a hand in the death of Crispulo Alega. There
remains to be considered, however, the claims of the
ROBBERY appellant which are made in the assignment of errors.

People v. Dio, L-36461, 29 June 1984, 130 SCRA 151 When by reason or on occasion of an attempted or
FACTS: frustrated robbery a homicide is committed, the person
guilty of such offenses shall be punished by reclusion
temporal in its maximum period to reclusion
perpetua, unless the homicide committed shall deserve a
higher penalty under the provisions of this Code.

The crime committed by the appellant is attempted

robbery with homicide and the penalty prescribed by law is
reclusion temporal in its maximum period to reclusion
perpetua. Since there was no attendant mitigating nor
 aggravating circumstance, the penalty should be applied in City, * dated 29 August 1988, in Criminal Case No. 20092,
its medium period finding him and his co-accused Reynaldo, Ronaldo and
Simplicio, all surnamed Canasares, guilty beyond reasonable
People v. Salvilla, G.R. No. 86163, 26 April 1990. doubt of the crime of "Robbery with Serious Physical
BIENVENIDO SALVILLA, REYNALDO CANASARES, Injuries and Serious Illegal Detention"
RONALDO CANASARES, and SIMPLICIO CANASARES,
BIENVENIDO SALVILLA, defendant-appellant. ILLEGAL TRESPASS

FACTS: four defendants committed were armed with People v. Lamahang, L-43530, 3 August 1935, 61 Phil.
handguns and grenade at the time they committed the 703
robbery at the New Iloilo Lumber Yard. Defendant
threatened Severino Choco and her two daughters to give  The defendant Aurelio Lamahang is  on appeal f
them 20k. They were taken as hostages and defendants rom a decision finding him guilty of attempted robbery.
further requested addtl P 100k as exchange for their  At early dawn on March 2, 1935, policeman Jose T
release. omambing, who was patrolling his beat on Delgado and C.R
. Fuentes streets of the City of Iloilo, caughtthe accused 
Simultaneously, police have already surrounded the area in the act of making an opening with an iron bar on t
and proceeded to negotiate with them. Defendants agreed he wall of a store of cheap goods located on the last 
to receive the P50k and release 2 hostages but refuse to named street.
surrender. Police were forced to assault the place.  At that time the owner of the store, Tan Yu, was 
sleeping inside with another Chinaman.
ISSUE:  The accusedhad only succeeded in breaking one 
board and in unfastening another from the wall, whe
1. The lower court erred in holding that the crime charged n the policeman showed up, who instantly arrested him 
was consummated and in not holding that the same was and placed him under custody.
merely attempted.
2. The lower court erred in not appreciating the mitigating ISSUE: Won the accused was guilty of attempted robbery
circumstance of voluntary surrender.
Thus, as in the case of People vs. Lamahang, when the
HELD: accused, for the purpose of entering the dwelling of
another broke one board and unfastened another from the
1.The crime is consummated when the robber acquires wall but before he could start entering through the
possession of the property, even if for a short time, and opening thus created he was arrested by a policeman, the
it is not necessary that the property be taken into the crime committed was only attempted trespass to dwelling,
hands of the robber, or that he should have actually because there was something yet for him to do, that is, to
carried the property away, out of the physical presence commence entering the dwelling through that opening in
of the lawful possessor, or that he should have made his order to perform all the acts of execution.
escape with it" (People vs. Quinn, 176 P 2d 404; Woods
vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; Acts susceptible of double interpretation, that is, in favor
People vs. Clark, 160 P 2d 553). as well as against the accused, and which show an innocent
as well as a punishable act, must not and cannot furnish
2. Anent the second assignment of error, the "surrender" of grounds by themselves for attempted crime.
the Appellant and his co-accused cannot be considered in
their favor to mitigate their liability. To be mitigating, a The crime committed was attempted trespass to dwelling,
surrender must have the following requisites: (a) that because the intention of the accused was obviously
the offender had not been actually arrested; (b) that disclosed by his act of making an opening through the wall,
the offender surrendered himself to a person in and that was to enter the store against the will of its
authority or to his agent; and (c) that the surrender was owner who was then living there. (People vs. Lamahang, 61
voluntary (People vs. Canamo, G.R. No. L-62043, 13 Phil. 703)
August 1985, 138 SCRA 141).
PHYSICAL INJURIES HOMICIDE AND MURDER
The "surrender" by the Appellant and his co-accused
hardly meets these requirements. They were, indeed, People v. Borinaga, G.R. No. 33463, 18 December 1930,
asked to surrender by the police and military authorities 55 Phil. 433
but they refused until only much later when they could no
longer do otherwise by force of circumstances when they FACTS: Harry Mooney contracted Borinaga to build him a
knew they were completely surrounded and there was no fish pond. Upon finishing 2/3 of the said pond, Borinaga
chance of escape. was already claiming his payment to which Mooney refused.
Borinaga then threatened Mooney. After lunch, while
Accused Bienvenido Salvilla alone appeals from the Mooney was sitting on his back, Borinaga stroke him with a
Decision of the Regional Trial Court, Branch 28, Iloilo knife but missed and hit the chair instead.
The foregoing occurrences gave rise to the prosecution of There is proposal when the person who has decided to
Basilio Borinaga in the Court of First Instance of Leyte commit a felony proposes its execution to some other
for the crime of frustrated murder. person or persons.

ISSUE: WON Borinaga was guilty of frustrated murder

HELD:
Thus, when A approached B stealthily from behind and
made a movement with his right hand to strike B on the
back with a deadly knife, but the blow, instead of reaching
the spot intended, landed on the frame of the back of the
chair on which B was sitting at the time and did not cause
the slightest physical injury on B, the stage of execution
should have been that of attempted murder only, because
without inflicting a deadly wound upon a vital spot of which
B should have died, the crime of murder would not be
An agreement to commit a crime is a reprehensible act
produced as a consequence.
from the viewpoint of morality, but as long as the
conspirators do not perform overt acts in furtherance of
The homicidal intent of the accused was plainly evidenced.
their malevolent design, the sovereignty of the State is
The attendant circumstances conclusively establish that
not outraged and the tranquility of the public remains
murder was in the heart and mind of the accused. More
undisturbed. However, when in resolute execution of a
than mere menaces took place. The aggressor stated his
common scheme, a felony is committed by two or more
purpose, which was to kill, and apologized to his friends for
malefactors, the existence of a conspiracy assumes pivotal
not accomplishing that purpose. A deadly weapon was used.
importance in the determination of the liability of the
The blow was directed treacherously toward vital organs
perpetrators. (People vs. Peralta, 25 SCRA 759)
of the victim. The means used were entirely suitable for
accomplishment. The crime should, therefore, be qualified
as murder because of the presence of the circumstance of
treachery.

The case of People vs. Borinaga, 55 Phil. 433, is now

superseded by the case of People vs. Kalalo, 59 Phil. 715,
which sustains the above opinion. In crimes against
persons, such as murder, which require that the victim
should die to consummate the felony, it is necessary for
the frustration of the same that a mortal wound is
inflicted.

Thus, in his dissenting opinion in the case of People vs.

Borinaga, supra, Justice Villareal said: "It is true that the
frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was
the wounding of said Mooney in the back and not his death,
had he been wounded. It is the preventing of death by
causes independent of the will of the perpetrator, after
all the acts of execution had been performed, that
constitutes frustrated felony (of murder), and not the
preventing of the performance of all the acts of execution
which constitute the felony."

Art. 8. Conspiracy and proposal to commit felony. —

Conspiracy and proposal to commit felony are punishable
only in the cases in which the law specially provides a
penalty therefor.

A conspiracy exists when two or more persons come to

an agreement concerning the commission of a felony and
decide to commit it.