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FACTS: Petitioner Jacinto was an employee of Megafoam International, received a

check amounting to Pho 10, 000 as payment of Baby Aquino to her purchase to
Megafoam. However, instead of delivering it to Megafoam, she deposited it to her
account. The check was later discovered to be unfunded. Both RTC and CA ruled that
the petitioner was guilty of qualified theft. Petitioner filed a petition for review of certiorari
to SC.
ISSUE: WON petitioner is correctly convicted for the crime of Qualified Theft.

RULING: NO. Petitioner is guilty of committing an impossible crime of theft only. ,

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.

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.

Petition granted. Decision is MODIFIED. Petitioner Gemma T. Jacinto is

found GUILTY of an IMPOSSIBLE CRIME and is sentenced to suffer the penalty of six
(6) months of arrresto mayor, and to pay the costs.

• February 4, 1979: Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, they had a meeting with Aniceto Dumalagan who told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and that Mandaya
should accompany them. Otherwise, he would also be killed.
• February 4, 1979 10:00 pm: All of them armed arrived at Palangpangan's house and fired at
Palangpangan's bedroom but there was no one in the room.
• RTC: convicted Intod of attempted murder based on the testimony of the witness

ISSUE: W/N Intod is guilty attempted murder since it is an impossible crime under Art. 4 (2)

HELD: YES. petition is hereby GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. 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

• 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.
• The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his
formidability to punish criminal tendencies in Art. 4(2)
• Legal impossibility occurs where the intended acts, even if completed, would not amount to a
• 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
4. the consequence resulting from the intended act does not amount to a crime
o Ex: The impossibility of killing a person already dead
• Factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime – this case
o Ex: 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
• United States: where the offense sought to be committed is factually impossible or
accomplishment - attempt to commit a crime; legally impossible of accomplishment - cannot be held
liable for any crime


• May 19, 1994 4:30 pm: Aristotel Valenzuela and Jovy Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago, a
security guard who was then manning his post at the open parking area of the supermarket. Lago
saw Valenzuela, who was wearing an ID with the mark “Receiving Dispatching Unit (RDU)” who
hauled a push cart with cases of detergent of “Tide” brand and unloaded them in an open parking
space, where Calderon was waiting. He then returned inside the supermarket and emerged 5
minutes after with more cartons of Tide Ultramatic and again unloaded these boxes to the same
area in the open parking space. Thereafter, he left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the
cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. As Lago watched, he proceeded
to stop the taxi as it was leaving the open parking area and asked Valenzuela for a receipt of the
merchandise but Valenzuela and Calderon reacted by fleeing on foot. Lago fired a warning shot to
alert his fellow security guards. Valenzuela and Calderon were apprehended at the scene and the
stolen merchandise recovered worth P12,090.
• Valenzuela, Calderon and 4 other persons were first brought to the SM security office before they
were transferred to the Baler Station II of the Philippine National Police but only Valenzuela and
Calderon were charged with theft by the Assistant City Prosecutor.
• They pleaded not guilty.
• Calderon’s Alibi: On the afternoon of the incident, he was at the Super Sale Club to withdraw
from his ATM account, accompanied by his neighbor, Leoncio Rosulada. As the queue for the ATM
was long, he and Rosulada decided to buy snacks inside the supermarket. While they were eating,
they heard the gunshot fired by Lago, so they went out to check what was transpiring and when
they did, they were suddenly grabbed by a security guard
• Valenzuela’s Alibi: He is employed as a “bundler” of GMS Marketing and assigned at the
supermarket. He and his cousin, a Gregorio Valenzuela, had been at the parking lot, walking beside
the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot causing evryon to start running. Then they were apprehended by
• RTC: guilty of consummated theft
• CA: Confirmed RTC and rejected his contention that it should only be frustrated theft since at the
time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.

ISSUE: W/N Valenzuela should be guilty of consummated theft.

HELD: YES. petition is DENIED

• Article 6 defines those three stages, namely the consummated, frustrated and attempted
o A felony is consummated “when all the elements necessary for its execution and
accomplishment are present.”
o It is frustrated “when the offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.”
o It is attempted “when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.”
• Each felony under the Revised Penal Code has a:
o subjective phase - portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the offender which, with prior acts,
should result in the consummated crime
 if the offender never passes the subjective phase of the offense, the crime is merely attempted
o objective phase - After that point of subjective phase has been breached
 subjective phase is completely passed in case of frustrated crimes
• the determination of whether a crime is frustrated or consummated necessitates an initial
concession that all of the acts of execution have been performed by the offender
• The determination of whether the felony was “produced” after all the acts of execution had been
performed hinges on the particular statutory definition of the felony.
• “actus non facit reum, nisi mens sit rea” - ordinarily, evil intent must unite with an unlawful act for
there to be a crime or there can be no crime when the criminal mind is wanting
• In crimes mala in se, mens rea has been defined before as “a guilty mind, a guilty or wrongful
purpose or criminal intent” and “essential for criminal liability.”
• Statutory definition of our mala in se crimes must be able to supply what the mens rea of the
crime is and overt acts that constitute the crime
• Article 308 of the Revised Penal Code (Elements of Theft):
1. that there be taking of personal property - only one operative act of execution by the actor
involved in theft
2. property belongs to another
3. taking be done with intent to gain - descriptive circumstances
4. taking be done without the consent of the owner - descriptive circumstances
5. taking be accomplished without the use of violence against or intimidation of persons or force
upon things - descriptive circumstances
• Abandoned cases:
o U.S. v. Adiao: failed to get the merchandise out of the Custom House - consummated theft
o Diño: Military Police inspected the truck at the check point and found 3 boxes of army rifles -
frustrated theft
o Flores: guards discovered that the “empty” sea van had actually contained other merchandise as
well - consummated theft
o Empelis v. IAC: Fled the scene, dropping the coconuts they had seized - frustrated qualified theft
because petitioners were not able to perform all the acts of execution which should have produced
the felony as a consequence
 cannot attribute weight because definition is attempted
• The ability of the actor “to freely dispose of the articles stolen, even if it were only momentary.”
o We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this
case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the parking lot, and long
enough to load these onto a taxicab.
• Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted (no unlawful taking) or consummated (there is unlawful taking).

• Martina Lourdes Albano (Malou), a medical student of the University of Sto. Tomas, stayed at
Room 307 with her maid Marvilou.
• December 12 10:30 pm: Malou slept. Her maid Marvilou slept on a folding bed right in front of
her bedroom door.
• December 13, 1991 1:00 am: Chito left the fraternity party with Robert Chan and Alberto wearing
a barong tagalog, with t-shirt inside, with short pants with stripes lent by Perla Duran and leather
• December 13, 1991 1:30 am: Chito arrived at the Building wearing a white t-shirt with fraternity
symbols and black shorts with the brand name “Adidas” from a party. He requested permission from
S/G Ferolin to go up to Room 306 leased by Ansbert Co but at that time only Joseph Bernard Africa
was there. Although Chito could not produce the required written authorization, he let him in
because he will be a tenant in the coming summer break. Joseph was awaken by Chito’s knock so
he glanced the alarm clock and let him. He saw him wearing dark-colored shorts and white T-shirt.
• December 13, 1991 1:50 am: Renato Baleros, Jr. y David (Chito) forcefully covered the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects. This
awakened Malou. She struggled but could not move because she was tightly held and pinned down
on the bed. She kicked him and got her right hand free to squeeze his sex organ causing him to let
her go. She went for the bedroom door and woke up Marvilou. She also intercommed S/G Ferolin
saying: "may pumasok sa kuarto ko pinagtangkaan ako". Malou proceed to Room 310 where her
classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying
and seeked help. She saw her bed in a mess and noticed that her nightdress was stained with
blue. Aside from the window with grills which she had originally left opened, another window inside
her bedroom which leads to Room 306 was now open.
• December 13, 1991 3:30 pm: Christian and his roommates, Bernard and Lutgardo were asked by
the CIS people to look for anything not belonging to them in their Unit when Rommel Montes went
inside and found a grey bag.
o Christian knew right away that it belonged to Chito. It contained white t-shirt with fraternity
symbol, a Black Adidas short pants, a handkerchief , 3 white T-shirts, an underwear and socks.
• Chito pleaded NOT Guilty
• 13 witnesses including Malou and her classmates, Joseph Bernard Africa, Rommel Montes,
Renato Alagadan and Christian Alcala
o Malou: Chito was her classmate whom he rejected a week before
o Chito: He only slept and at about 6 to 6:30, Joseph told him that something had happened and
asked him to follow him to Room 310 carrying his gray bag and since no one was there they went to
Room 401 where Renato Alagadan was. He left his grey bag at Room 306 the day before.
• handkerchief and Malou’s night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what Malou sustained on that part of her face where the chemical-
soaked cloth had been pressed
• RTC: guilty of attempted rape
• CA: Affirmed

ISSUE: W/N Chito is guilty of attempted rape

HELD: NO. REVERSED and SET ASIDE. ACQUITTING Renato D. Baleros, Jr. of the charge for
attempted rape. GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor
and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs.

• Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented.
• Under Article 6, in relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts and does not perform
all the acts of execution which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance.
o whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top
of Malou, constitutes an overt act of rape.
o Overt or external act has been defined as some physical activity or deed, indicating the intention
to commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
• Chito was fully clothed and that there was no attempt on his part to undress Malou, let alone
touch her private part
• Verily, while the series of acts committed by the petitioner do not determine attempted rape, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of
the Revised Penal Code.
o As it were, unjust vexation exists even without the element of restraint or compulsion for the
reason that this term is broad enough to include any human conduct which, although not productive
of some physical or material harm, would unjustly annoy or irritate an innocent person
o That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed


• Criminal Case No. 91-5842 and Criminal Case No. 91-5843 were filed against Agapito Listerio y
Prado and Samson dela Torre y Esquela
• Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded
not guilty to the crimes charged. Their other co-accused have remained at large.
• May 14, 1991:
o Marlon Araque’s Version: Marlon and his brother Jeonito were in Purok 4, Alabang, Muntinlupa
to collect a sum of money from Tino. Having failed they turned backAs they were passing Tramo
near Tino’s place, a group composed of Agapito Listerio, Samson dela Torre, George dela Torre,
Marlon dela Torre and Bonifacio Bancaya blocked their path and attacked them with lead pipes and
bladed weapons. Jeonito Araque from behind with 3 stab wounds: 1. upper right portion of his back,
2. lower right portion and 3. middle portion of the left side of his back causing him to fall
down. Marlon was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes
and momentarily lost consciousness. When he regained consciousness 3 minutes later, Jeonito
was already dead and the group fled. He was brought to the hospital for treatment of his forearm
and the shoulder
o Agapito Listerio’s Version: Agapito Listerio is a 39 years old, married, side walk vegetable vendor
and a resident of Purok 4.
 1:00 pm: He was in store of Nimfa Agustin drinking beer with Edgar Demolador and Andres
 2:00 pm: He went to his house and slept
 5:00 pm: Remolador and Gininao woke him up and told him there was a quarrel near the
railroad track
 6:00 pm: 2 policemen passed by going to the house of Samson de la Torre while he was
chatting with Remolador and Gininao and invited them for questioning. But, the two were sent
home. He was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the
death of Jeonito Araque and the frustrated murder of Marlon Araque. When he confronted Marlon
as to why he was being included in the case, the latter replied “because you ejected us from your
• Dr. Manimtim’s Autopsy Reports:
o Marlon Araque: 2 wounds on the forearm and the shoulder were caused by a sharp object like a
knife while the other 2 were caused by a blunt instrument such as a lead pipe
o Jeonito Araque: 3 stab wounds were inflicted from behind by a sharp, pointed and single-bladed
instrument like a kitchen knife, balisong or any similar instrument. Considering the involvement of a
vital organ and a major blood vessel, the first wound was considered fatal. Unlike the first, the
second and third wounds were non-fatal. The first and second wounds were inflicted by knife thrusts
delivered starting below going upward by assailants who were standing behind the victim
• RTC: Attempted Homicide only on the basis of Dr. Manimtim’s testimony that none of the wounds
sustained by Marlon Araque were fatal

ISSUE: W/N there is a conspiracy for frustrated homicide

HELD: YES. appealed decision is AFFIRMED with the following MODIFICATIONS:

1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-
5843 is DELETED;

2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of
Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6) Years of Prision
Correccional, as minimum to Ten (10) Years and One (1) Day of Prision Mayor, as maximum.

After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati
City, which is directed to render judgment based on the evidence against Samson dela Torre y

• Direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and
plots. Conspiracy may be inferred from the acts of the accused before, during and after the
commission of the crime which indubitably point to and are indicative of a joint purpose, concert of
action and community of interest
• conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Conspiracy need not be established by direct evidence of acts
charged, but may and generally must be proved by a number of indefinite acts, conditions and
circumstances, which vary according to the purpose accomplished. Previous agreement to commit
a crime is not essential to establish a conspiracy, it being sufficient that the condition attending to its
commission and the acts executed may be indicative of a common design to accomplish a criminal
purpose and objective
• It is necessary that a conspirator should have performed some overt acts as a direct or indirect
contribution in the execution of the crime planned to be committed. The overt act may consist of
active participation in the actual commission of the crime itself, or it may consist of moral assistance
to his con-conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators
• Conspiracy transcends mere companionship, it denotes an intentional participation in the
transaction with a view to the furtherance of the common design and purpose
o all of them armed with deadly weapons at the locus criminis, indubitably shows their criminal
design to kill the victims
• conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal
wound because in conspiracy, the act of one is the act of all
• Treachery is present when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might
make. That circumstance qualifies the crime into murder.
o all of them armed with bladed weapons and lead pipes, blocked (hinarang) the path of the
victims effectively cutting off their escape
• The commission of the crime was also attended by abuse of superior strength on account of the
fact that accused-appellant and his companions were not only numerically superior to the victims but
also because all of them, armed with bladed weapons and lead pipes, purposely used force out of
proportion to the means of defense available to the persons attacked. However, this aggravating
circumstance is already absorbed in treachery. In the light of the finding of conspiracy, evident
premeditation need not be further appreciated, absent concrete proof as to how and when the plan
to kill was hatched or what time had elapsed before it was carried out.
• What determines whether a felony is attempted or frustrated is whether or not the subjective
phase in the commission of an offense has been passed (NOT gravity of the wound)
• Subjective phase
o portion of the acts constituting the crime included between the act which begins the commission
of the crime and the last act performed by the offender which, with the prior acts, should result in the
consummated crime.
• Objective phase
o Forward the subjective phase
o period occupied by the acts of the offender over which he has control – that period between the
point where he begins and the point where he voluntarily desists.
• If between these two points the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed and it is an attempt.
• If he is not so stopped but continues until he performs the last act, it is frustrated
• frustrated when: (subjective phase is completely passed. Subjectively the crime is complete)
o the offender has performed all the acts of execution which would produce the felony
o the felony is not produced due to causes independent of the perpetrator’s will
• attempted felony: (offender never passes the subjective phase of the offense)
o the offender commits overt acts to commence the perpetration of the crime
o he is not able to perform all the acts of execution which should produce the felony; and
o his failure to perform all the acts of execution was due to some cause or accident other than his
spontaneous desistance
• intent to kill determines whether the infliction of injuries should be punished as attempted or
frustrated murder, homicide, parricide or consummated physical injuries
o intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes can
hardly be doubted given the prevailing facts of the case
o can not be denied that the crime is a frustrated felony not an attempted offense considering that
after being stabbed and clubbed twice in the head as a result of which he lost consciousness and
fell, Marlon’s attackers apparently thought he was already dead and fled
• April 25, 1996 4 pm: Ma. Corazon P. Pamintuan, mother of 4-year old Crysthel Pamintuan, went
to the ground floor of their house to prepare Milo chocolate drinks for her 2 children. There she met
Primo Campuhan, helper of Conrado Plata Jr., brother of Corazon, who was then busy filling small
plastic bags with water to be frozen into ice in the freezer located at the second floor.
• Then she heard Crysthel cry, "Ayo'ko, ayo'ko!" so she went upstairs and saw Primo Campuhan
inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty
were already removed, while his short pants were down to his knees and his hands holding his penis
with his right hand
• Horrified, she cursed "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded
her blows and pulled up his pants. He pushed Corazon aside who she tried to block his path.
Corazon then ran out and shouted for help thus prompting Vicente, her brother, a cousin and an
uncle who were living within their compound, to chase the Campuhan who was apprehended. They
called the barangay officials who detained.
• Physical examination yielded negative results as Crysthel ‘s hymen was intact
• Campuhan: Crysthel was in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor.
• RTC: guilty of statutory rape, sentenced him to the extreme penalty of death
• Thus, subject to automatic review

ISSUE: W/N it was a consummated statutory rape

HELD: NO. MODIFIED. guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term
of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to
fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as
maximum. Costs de oficio.

• People v. De la Peña: labia majora must be entered for rape to be consummated

• Primo's kneeling position rendered an unbridled observation impossible
• Crysthel made a categorical statement denying penetration but her vocabulary is yet as
• Corazon narrated that Primo had to hold his penis with his right hand, thus showing that he had
yet to attain an erection to be able to penetrate his victim
• the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own
assertion that she resisted Primo's advances by putting her legs close together and that she did not
feel any intense pain but just felt "not happy" about what Primo did to her. Thus, she only shouted
"Ayo'ko, ayo'ko!" not "Aray ko, aray ko!
• no medical basis to hold that there was sexual contact between the accused and the victim


• March 20, 1983 Early Morning: Cristina S. Abayan, 19-year old freshman student at the St.
Joseph's College, arrived at her boarding house after her classmates brought her home from a
party. She knocked at the door of her boarding house when a frequent visitor of another boarder
held her and poked a knife to her neck. Despite pleading for her release, he ordered her to go
upstairs with him. Since the door which led to the 1st floor was locked from the inside, they used the
back door to the second floor. With his left arm wrapped around her neck and his right hand poking a
"balisong" to her neck, he dragged her up the stairs. When they reached the second floor, he
commanded herwith the knife poked at her neck, to look for a room. They entered Abayan's room.
He then pushed her hitting her head on the wall. With one hand holding the knife, he undressed
himself. He then ordered her to take off her clothes. Scared, she took off her T-shirt, bra, pants and
panty. He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. Still poked with a knife, she did as told but since she kept moving, only a
portion of his penis entered her. He then laid down on his back and commanded her to mount him.
Still only a small part of his penis was inserted into her vagina. When he had both his hands flat on
the floor. She dashed out to the next room and locked herself in. When he pursued her and climbed
the partition, she ran to another room then another then she jumped out through a window.
• Still naked, she darted to the municipal building, 18 meters in front of the boarding house and
knocked on the door. When there was no answer, she ran around the building and knocked on the
back door. When the policemen who were inside the building opened the door, they found her
naked sitting on the stairs crying. Pat. Donceras, took off his jacket and wrapped it around her. Pat.
Donceras and two other policemen rushed to the boarding house where they heard and saw
somebody running away but failed to apprehend him due to darkness. She was taken to Eastern
Samar Provincial Hospital where she was physically examined.
• Her vulva had no abrasions or discharges.
• RTC: frustrated rape

ISSUE: W/N there is frustrated rape.

HELD: NO. RTC MODIFIED. guilty beyond reasonable doubt of the crime of rape and sentenced to
reclusion perpetua as well as to indemnify the victim in the amount of P30,000
• Correlating Art. 335 and Art. 6, there is no debate that the attempted and consummated stages
apply to the crime of rape.
• Requisites of a frustrated felony are:
o (1) that the offender has performed all the acts of execution which would produce the felony
o (2) that the felony is not produced due to causes independent of the perpetrator's will
• attempted crime the purpose of the offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his intention to perform
o If he has performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt.
• in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually
attains his purpose and, from that moment also all the essential elements of the offense have been
accomplished. Any penetration of the female organ by the male organ is sufficient. Entry of the labia
or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ
• The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible. Dr. Zamora did not rule out penetration of the genital organ of the