Republic of the Philippines In the morning of February 4, 1979, the room when the accused fired the

SUPREME COURT Sulpicio Intod, Jorge Pangasian, Santos shots. No one was hit by the gun fire.
Manila Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Petitioner and his companions were
SECOND DIVISION Katugasan, Lopez Jaena, Misamis positively identified by witnesses. One
Occidental and asked him to go with witness testified that before the five
them to the house of Bernardina men left the premises, they shouted:
Palangpangan. Thereafter, Mandaya "We will kill you (the witness) and
G.R. No. 103119 October 21, 1992 and Intod, Pangasian, Tubio and especially Bernardina Palangpangan
Daligdig had a meeting with Aniceto and we will come back if (sic) you were
SULPICIO INTOD, petitioner, Dumalagan. He told Mandaya that he not injured". 2
vs. wanted Palangpangan to be killed
HONORABLE COURT OF APPEALS and because of a land dispute between After trial, the Regional Trial Court
PEOPLE OF THE them and that Mandaya should convicted Intod of attempted murder.
PHILIPPINES, respondents. accompany the four (4) men, The court (RTC), as affirmed by the
otherwise, he would also be killed. Court of Appeals, holding that
Petitioner was guilty of attempted
At about 10:00 o'clock in the evening of murder. Petitioner seeks from this
CAMPOS, JR., J.: the same day, Petitioner, Mandaya, Court a modification of the judgment by
Pangasian, Tubio and Daligdig, all holding him liable only for an
Petitioner, Sulpicio Intod, filed this armed with firearms, arrived at impossible crime, citing Article 4(2) of
petition for review of the decision of Palangpangan's house in Katugasan, the Revised Penal Code which provides:
the Court of Appeals 1 affirming in Lopez Jaena, Misamis Occidental. At the
toto the judgment of the Regional Trial instance of his companions, Mandaya Art. 4(2). CRIMINAL
Court, Branch XIV, Oroquieta City, pointed the location of Palangpangan's RESPONSIBILITY. —
finding him guilty of the crime of bedroom. Thereafter, Petitioner, Criminal Responsibility
attempted murder. Pangasian, Tubio and Daligdig fired at shall be incurred:
said room. It turned out, however, that
From the records, we gathered the Palangpangan was in another City and xxx xxx xxx
following facts. her home was then occupied by her
son-in-law and his family. No one was in 2. By any person
performing an act which
 would be an offense its accomplishment (Art. contemplated shall have
against persons or 4(2), Revised Penal been physically possible.
property, were it not for Code), but due to a So long as these
the inherent cause or accident other conditions were not
impossibility of its than petitioner's and his present, the law and the
accomplishment or on accused's own courts did not hold him
account of the spontaneous desistance criminally liable. 5
employment of (Art. 3., Ibid.)
inadequate or Palangpangan did not This legal doctrine left social interests
ineffectual means. sleep at her house at entirely unprotected. 6 The Revised
that time. Had it not Penal Code, inspired by the Positivist
Petitioner contends that, been for this fact, the School, recognizes in the offender his
Palangpangan's absence from crime is possible, not formidability, 7 and now penalizes an
her room on the night he and his impossible. 3 act which were it not aimed at
companions riddled it with something quite impossible or carried
bullets made the crime Article 4, paragraph 2 is an out with means which prove
inherently impossible. innovation 4 of the Revised Penal Code. inadequate, would constitute a felony
This seeks to remedy the void in the Old against person or against
On the other hand, Respondent People Penal Code where: property. 8 The rationale of Article 4(2)
of the Philippines argues that the crime is to punish such criminal tendencies. 9
was not impossible. Instead, the facts . . . it was necessary that
were sufficient to constitute an attempt the execution of the act Under this article, the act performed by
and to convict Intod for attempted has been commenced, the offender cannot produce an offense
murder. Respondent alleged that there that the person against person or property because: (1)
was intent. Further, in its Comment to conceiving the idea the commission of the offense is
the Petition, respondent pointed out should have set about inherently impossible of
that: doing the deed, accomplishment: or (2) the means
employing appropriate employed is either (a) inadequate or (b)
. . . The crime of murder means in order that his ineffectual. 10
was not consummated, intent might become a
not because of the reality, and finally, that That the offense cannot be produced
inherent impossibility of the result or end because the commission of the offense
is inherently impossible of The impossibility of killing a person The fact that the officer
accomplishment is the focus of this already dead 15 falls in this category. was not at the spot
petition. To be impossible under this where the attacking
clause, the act intended by the offender On the other hand, factual impossibility party imagined where
must be by its nature one impossible of occurs when extraneous circumstances he was, and where the
accomplishment. 11 There must be unknown to the actor or beyond his bullet pierced the roof,
either impossibility of accomplishing control prevent the consummation of renders it no less an
the intended act 12 in order to qualify the intended crime. 16 One example is attempt to kill. It is well
the act an impossible crime. the man who puts his hand in the coat settled principle of
pocket of another with the intention to criminal law in this
Legal impossibility occurs where the steal the latter's wallet and finds the country that where the
intended acts, even if completed, pocket empty. 17 criminal result of an
would not amount to a crime. 13 Thus: attempt is not
The case at bar belongs to this category. accomplished simply
Legal impossibility Petitioner shoots the place where he because of an
would apply to those thought his victim would be, although obstruction in the way of
circumstances where (1) in reality, the victim was not present in the thing to be operated
the motive, desire and said place and thus, the petitioner upon, and these facts
expectation is to failed to accomplish his end. are unknown to the
perform an act in aggressor at the time,
violation of the law; (2) One American case had facts almost the criminal attempt is
there is intention to exactly the same as this one. In People committed.
perform the physical act; vs. Lee Kong, 18 the accused, with intent
(3) there is a to kill, aimed and fired at the spot In the case of Strokes
performance of the where he thought the police officer 19
vs. State, where the accused failed to
intended physical act; would be. It turned out, however, that accomplish his intent to kill the victim
and (4) the consequence the latter was in a different place. The because the latter did not pass by the
resulting from the accused failed to hit him and to achieve place where he was lying-in wait, the
intended act does not his intent. The Court convicted the court held him liable for attempted
amount to a crime. 14 accused of an attempt to kill. It held murder. The court explained that:
that:
It was no fault of Strokes acts not within the apprehension that the
that the crime was not control of the party. evil; intention will be
committed. . . . It only carried out, the incipient
became impossible by In the case of Clark vs. State, 20 the act which the law of
reason of the court held defendant liable for attempt takes
extraneous attempted robbery even if there was cognizance of is in
circumstance that Lane nothing to rob. In disposing of the case, reason committed.
did not go that way; and the court quoted Mr. Justice Bishop, to
further, that he was wit: In State vs. Mitchell, 21 defendant, with
arrested and prevented intent to kill, fired at the window of
from committing the It being an accepted victim's room thinking that the latter
murder. This rule of the truth that defendant was inside. However, at that moment,
law has application only deserves punishment by the victim was in another part of the
where it is inherently reason of his criminal house. The court convicted the accused
impossible to commit intent, no one can of attempted murder.
the crime. It has no seriously doubt that the
application to a case protection of the public The aforecited cases are the same cases
where it becomes requires the punishment which have been relied upon by
impossible for the crime to be administered, Respondent to make this Court sustain
to be committed, either equally whether in the the judgment of attempted murder
by outside interference unseen depths of the against Petitioner. However, we cannot
or because of pocket, etc., what was rely upon these decisions to resolve the
miscalculation as to a supposed to exist was issue at hand. There is a difference
supposed opportunity to really present or not. between the Philippine and the
commit the crime which The community suffers American laws regarding the concept
fails to materialize; in from the mere alarm of and appreciation of impossible crimes.
short it has no crime. Again: Where the
application to the case thing intended In the Philippines, the Revised Penal
when the impossibility (attempted) as a crime Code, in Article 4(2), expressly provided
grows out of extraneous and what is done is a sort for impossible crimes and made the
to create alarm, in other punishable. Whereas, in the United
words, excite States, the Code of Crimes and Criminal
Procedure is silent regarding this governing the matter made the act constitutes the offense
matter. What it provided for were criminal if done without knowledge and of attempt irrespective
attempts of the crimes enumerated in consent of the warden. In this case, the of legal impossibility
the said Code. Furthermore, in said offender intended to send a letter until such time as such
jurisdiction, the impossibility of without the latter's knowledge and legislative changes in the
committing the offense is merely a consent and the act was performed. law take place, this court
defense to an attempt charge. In this However, unknown to him, the will not fashion a new
regard, commentators and the cases transmittal was achieved with the non-statutory law of
generally divide the impossibility warden's knowledge and consent. The criminal attempt.
defense into two categories: legal lower court held the accused liable for
versus factual impossibility. 22 In U.S. attempt but the appellate court To restate, in the United States, where
vs. Wilson 23 the Court held that: reversed. It held unacceptable the the offense sought to be committed is
contention of the state that factually impossible or
. . . factual impossibility "elimination of impossibility as a accomplishment, the offender cannot
of the commission of the defense to a charge of criminal attempt, escape criminal liability. He can be
crime is not a defense. If as suggested by the Model Penal Code convicted of an attempt to commit the
the crime could have and the proposed federal legislation, is substantive crime where the elements
been committed had the consistent with the overwhelming of attempt are satisfied. It appears,
circumstances been as modern view". In disposing of this therefore, that the act is penalized, not
the defendant believed contention, the Court held that the as an impossible crime, but as an
them to be, it is no federal statutes did not contain such attempt to commit a crime. On the
defense that in reality provision, and thus, following the other hand, where the offense is legally
the crime was principle of legality, no person could be impossible of accomplishment, the
impossible of criminally liable for an act which was actor cannot be held liable for any
commission. not made criminal by law. Further, it crime — neither for an attempt not for
said: an impossible crime. The only reason
Legal impossibility, on the other hand, for this is that in American law, there is
is a defense which can be invoked to Congress has not yet no such thing as an impossible crime.
avoid criminal liability for an attempt. enacted a law that Instead, it only recognizes impossibility
In U.S. vs. Berrigan, 24 the accused was provides that intent plus as a defense to a crime charge — that
indicated for attempting to smuggle act plus conduct is, attempt.
letters into and out of prison. The law
This is not true in the Philippines. In our accomplishment . . ." In that case all
jurisdiction, impossible crimes are circumstances which prevented the
recognized. The impossibility of consummation of the offense will be
accomplishing the criminal intent is not treated as an accident independent of
merely a defense, but an act penalized the actor's will which is an element of
by itself. Furthermore, the phrase attempted and frustrated felonies.
"inherent impossibility" that is found in
Article 4(2) of the Revised Penal Code WHEREFORE, PREMISES CONSIDERED.
makes no distinction between factual the petition is hereby GRANTED, the
or physical impossibility and legal decision of respondent Court of
impossibility. Ubi lex non distinguit nec Appeals holding Petitioner guilty of
nos distinguere debemos. Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner
The factual situation in the case at bar guilty of an impossible crime as defined
present a physical impossibility which and penalized in Articles 4, paragraph 2,
rendered the intended crime and 59 of the Revised Penal Code,
impossible of accomplishment. And respectively. Having in mind the social
under Article 4, paragraph 2 of the danger and degree of criminality shown
Revised Penal Code, such is sufficient to by Petitioner, this Court sentences him
make the act an impossible crime. to suffer the penalty of six (6) months
of arresto mayor, together with the
To uphold the contention of accessory penalties provided by the
respondent that the offense was law, and to pay the costs.
Attempted Murder because the
absence of Palangpangan was a SO ORDERED.
supervening cause independent of the
actor's will, will render useless the Feliciano, Regalado and Nocon, JJ.,
provision in Article 4, which makes a concur.
person criminally liable for an act
"which would be an offense against Narvasa, C.J., is on leave.
persons or property, were it not for the
inherent impossibility of its