People vs Lamahang

Defendant Aurelio Lamahang was charged with the crime of attempted robbery by the CFI of
Iloilo .
FACTS:
 On March 1935, Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets (City of Iloilo), caught the accused in the act of making an opening with
an iron bar on the wall of a store selling cheap goods.
 At that time the owner of the store, Tan Yu, was sleeping inside. The accused only
succeeded in breaking 1 board in unfastening another from the wall, when the policeman
showed up, who instantly arrested him and placed him under his custody.
 CFI: found him guilty of ATTEMPTED ROBBERY with additional penalty for being a
habitual delinquent.

ISSUE:
WON the crime committed was an attempted robbery. – NO
RULING:
Accused was convicted of ATTEMPTED TRESSPASS TO DWELLING, committed by
means of force.
RATIO:
It is necessary to prove that said beginning execution, if carried 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 offense.
Thus, in case of ROBBERY, in order that the simple act of entering by means of force or
violence another person’s dwelling may be considered an attempt to commit this offense, it must
be shown that the offender clearly intended to take possession, for the purpose of gain, of some
personal property belonging to another. In this particular case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred (there was no evidence pointing
towards the accused wanting to rob the place).
From the fact established and stated in the decision, that the accused on the day in question was
making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred
as a logical conclusion that his evident intention was to enter by means of force said store against
the will of its owner. That his final objective, once he succeeded in entering the store, was to rob,
to cause physical injury to the inmates, or to commit any other offense, there is nothing in the
record to justify a concrete finding. 

The relation existing between the facts submitted for appreciation and the offense which said
facts are supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able
to directly infer from them the intention of the perpetrator to cause a particular injury. 

Baleros vs People
Petitioner, Renato Baleros (CHITO) was charged with the crime of attempted rape by RTC of
Manila
Facts:
Version of the Prosecution:
 MALOU, the private complainant, was a medical student of UST in 1991. She and her
maid, Marylou, were tenants of the Celestial Marie Building located in Sampaloc,
Manila, and they were occupying Room 307.
 In the evening of December 12, inside the Unit 307, MALOU slept at around 10:30.
Outside, right in front of her bedroom door, her maid, Marylou, slept on a folding bed.
 Early morning the ff. day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her
down on the bed. She wanted to scream for help but the hands covering her mouth with
the chemical-soaked cloth were very tight.
 MALOU continued to fight off her attacker by kicking him until her right hand got free.
 With this… she was able to grab hold of his sex organ which she squeezed.
 The man let her go and the latter went straight to the bedroom door and roused Marylou.
 Shew also seek help from her classmates who were living in the same building as hers.
 Went she went back to the room, her attacker was nowhere to be found. He escaped
through her window.
 MALOU also testified that her relation with CHITO, who was her classmate…. Was
friendly until a week prior to the attack. CHITO admitted that he likes her but she
rejected him.
 Toxicological examination: found that the cloth contains chloroform, a volatile poison.

Defense of the Accused:

 CHITO denied committing the crime and also denied making any advances on Malou.
 On that particular night, he was at a pool party with his fraternity friends (Tau Sigma Phi
Fraternity). Afterwards, he went to the Celestrial Marie Building where his friend Joseph
was residing at that time. He slept over.
 At 6am of December 13,CHITO woke up. He was told by Rommel Montes that
somebody, whom MALOU was not able to identify, went to the room of MALOU and
tried to rape her.
TRIAL COURT: convicted petitioner of being guilty beyond reasonable doubt of
ATTEMPTED RAPE.
CA: AFFIRMED the TC’s decision

ISSUE:
WON the accused was really guilty of attempted rape. - NO
RULING:
SC REVERSED and SET ASIDE the decision of the CA, AQUITTING petitioner of the charge
of attempted rape.
However, he was GUILTY of light coercion only.
RATIO:

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.16

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is 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.

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 offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce
her to sleep as an overt act that will logically and necessarily ripen into rape. As it were,
petitioner did not commence at all the performance of any act indicative of an intent or attempt
to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was
no attempt on his part to undress Malou, let alone touch her private part. For what reason
petitioner wanted the complainant unconscious, if that was really his immediate intention, is
anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the appellate court even anticipated the next
step that the petitioner would have taken if the victim had been rendered unconscious.

People vs. Labiaga

Regie Labiaga (alias “Banok”) was charged by the RTC of murder of one Judy COnde and of
frustrated murder of Gregorio Conde.

FACTS:

Version of the PROSECUTION:

 At around 7pm on December 23 2000, Gregorio Conde, and his two daughters (Judy and
Glenelyn), were in their home at Brgy. Malayu-an, Ililo.

 Thereafter, Gregorio stepped outside.

 Shortly thereafter, appellant, who was approximately 5 meters away from Gregorio, shot
the latter.

 Gregorio called Judy for help.

 When the 2 sisters rushed to Gregorio’s aid, appellant shot Judy in the abdomen. The 2
other accused was standing behind the appellant.

 Appellant said, “she is already dead,” and the three fled the crime scene.

 Gregorio and Judy were rushed to the hospital. Judy was pronounced dead on arrival
while Gregorio made a full recovery after the treatment of his gunshot wound.

 Autopsy of Judy: death was caused by “cardiopulmonary arrest secondary to Cardiac

Tamponade due to gunshot wound:.

 Gregorio sustained a gunshot wound measuring 1 cm in diameter in his right forearm and
“abrasion wounds hematoma formation” in his right shoulder.”

Version of the DEFENSE:

 Accused admitted that he was present during the shooting incident.

 He claimed, however, that he acted in self-defense.

 Gregorio armed with a shotgun, challenge him to a fight.

  He attempted to shoot appellant, but shotgun jammed.

 Appellant tried to wrest the shotgun from Gregorio, and during the struggle, the shotgun
fired. He claimed that he did not know if anyone was hit by the shotgun.

 Demapang, the other accused, claimed that he was in D&D Ricemill at the time of the
shooting.

RTC: ACQUITTED Demapang due to insufficiency of evidence.

Appellant was convicted of MURDER and FRUSTRATED MURDER.

CA: AFFIRMED the RTC’s decision.

ISSUE:

WON the accused is guilty of frustrated murder. - NO

RULING:

Appellant is guilty of ATTEMPTED MURDER and not frustrated murder.

RATIO:

Article 6 of the Revised Penal Code defines the stages in the commission of felonies:

Art. 6. Consummated, frustrated, and attempted felonies.— Consummated felonies as well as

those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and 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.

There is an attempt 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.

In frustrated murder, there must be evidence showing that the wound would have been fatal were
it not for timely medical intervention.21 If the evidence fails to convince the court that the wound
sustained would have caused the victim’s death without timely medical attention, the accused
should be convicted of attempted murder and not frustrated murder.

In the instant case, it does not appear that the wound sustained by Gregorio Conde was
mortal.
Since Gregorio’s gunshot wound was not mortal, we hold that appellant should be convicted of
attempted murder and not frustrated murder.

People vs Angeles

Appellant Dang Angeles y Guarin was charged for murder, frustrated murder, and attempted
murder by the CA.

FACTS:

Version of the PROSECUTION:

 On April 27, 2010, around 11:30pm, Eric and Mark Evangilista were inside their
residence in Brgy. Gayaman, Pangasinan, celebrating the eve of their sister’s wedding.

 During the celebration, they suddenly heard a loud noise coming from the engine and
muffler of a tricycle.

 Eric and their youngest brother Elmer stepped out of the house to check what the loud
noise was all about. Mark followed them shortly.

 Sonny “Jong” Baynosa occupied the driver’s seat of the nearby parked tricycle where the
noise was coming from. He was with the appellant, James Santos, and Dennis Ramos.

 As Eric and Elmer approached, appellant alighted from the tricycle, walked straight to
and forcefully stabbed Elmer in the right abdomen. The knife snapped.

 When Eric rushed to help Elmer, Baynosa stabbed him (Eric) in the back, below his
shoulder.

 Mark who followed his brothers was stabbed by Santos in his right waist.

 Abelardo rushed to his brothers’ aid. But Ramos also stabbed him in the left stomach.
Santos turned to Abelardo and stabbed the latter in the right abdomen.

 Not to be outdone, appellant grabbed an icepick and joined in. he stabbed abelardo in the
left chest.

 After sustaining multiple stabs on his body, Abelardo fell to the ground.

 Thereafter, appellant walked away while the other men fled on board the tricycle.
  Only after the assailants had left did people approach and rush Elmer, Eric, Mark, and
Abelardo to the hospital. Abelardo was pronounced dead on arrival. Elmer died in the
hospital.

Medical Findings:

a.) Eric: Doctor found a stab wound on his back though it was not fatal.

b.) Mark Ryan: his abdomen was filled with blood flowing from his punctured liver. It was a
fatal injury which could have caused his death were it not for the timely and adequate
medical attendance given him.

Version of the DEFENSE:

 appellant claimed that he was just a silent witness to the unfolding of these tragic events
and has no part whatsoever with the murder of Abelardo and Elmer. He got so scared,
left, and went home.

TC: found appellant guilty of MURDER (Abelardo), FRUSTRATED MURDER (MARK),

and ATTEMPTED MURDER (ERIC).

CA: AFFIRMED with MODIFICATION the RTC’s decision.

Hence, this appeal.

ISSUE:

WON the CA err in affirming the verdict of conviction against appellant for murder, frustrated
murder, and attempted murder.

RULING:

Appeal was DENIED. CA’s decision is AFFIRMED with MODIFICATION.\

Appellant was found guilty of MURDER (Abelardo).

Found guilty of ATTEMPTED MURDER (Eric)

Found guilty of FRUSTRATED MURDER (Mark)

RATIO:
Article 248 of the Revised Penal Code (RPC), as amended by Republic Act No. 7659 (RA
7659)53 provides:

Article 248. Murder. - Any person who, not falling within the provisions of Article 246, shall
kill another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men,
or employing means to weaken the defense or of means or persons to insure or
afford impunity;

x x x          x x x          x x x

Murder requires the following elements: (1) that a person was killed; (2) that the accused killed
him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in
Article 248; and (4) that the killing is not parricide or infanticide.54

There is no question regarding the first and fourth elements. Abelardo died of cardiorespiratory
arrest secondary to hypovolemic shock as a result of the multiple stab wounds inflicted on him.
The prosecution offered in evidence Abelardo's Death Certificate with Registry No. 2010-
13555 and Post-Mortem Examination Report dated April 28, 201056 of Gladiola M. Manaois.
There is no evidence showing that Abelardo was related by affinity or consanguinity with
Angeles, hence, the killing is not parricide or infanticide.

Appellant, however, belies the presence of the second and third elements.

The Court, nonetheless, holds that Abelardo's killing was attended by abuse of superior strength.

This qualifying circumstance is present whenever there is a notorious inequality of forces

between the victim and the aggressor, assuming a situation of superiority of strength notoriously
advantageous for the aggressor selected or taken advantage of by him in the commission of the
crime.79

In murder or homicide, the offender must have the intent to kill. If he or she did not have such
intent, he or she is liable only for physical injuries.84

In Gary Fantastico, et al. v. People of the Philippines, et al.,85 the Court considered the
following determinants of intent to kill: (1) the means used by the malefactors; (2) the nature,
location, and number of wounds sustained by the victim; (3) the conduct of the malefactors
before, at the time, or immediately after the killing of the victim; and (4) the circumstances under
which the crime was committed and the motives of the accused. The Court also considered the
words uttered by the offender at the time he inflicted injuries on the victim as an additional
determinative factor.
We now turn to the different stages of felony: consummated, frustrated, and attempted, as
enumerated and defined under Article 6 of the Revised Penal Code, viz:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as

those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and 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.

There is an attempt when the offender commences the commission of a felony directly or
over acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than this own spontaneous desistance. (Emphasis
supplied)

How does Article 6 insofar as the frustrated and attempted stages apply to Criminal Case Nos. L-8887
and L-8888?

Criminal Case No. L-8887

Eric Evangelista

Eric sustained a single stab wound in the back portion of his right shoulder. Dr. Fernandez testified that
the wound was not fatal and with proper medication, the same would heal in seven (7) to ten (10) days.

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim, or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on
the victim; (d) the manner the crime was committed; (e) the words uttered by the offender at the
time the injuries are inflicted by him on the victim;88 and (f) the circumstances under which the
crime was committed.89

Here, the attendant circumstances showed that appellant and his companions intended to kill Eric
and his brothers Elmer, Abelardo, and Mark Ryan. The three (3) victims sustained multiple fatal
stab wounds. As a result, Elmer and Abelardo died. Mark Ryan was spared due to the timely and
proper medical attendance given him; and Eric was also spared because he sustained a non-fatal
wound. But this does not dissolve appellant's liability for attempted murder.

An overt or external act is 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 spontaneous desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. The raison d'etre  for the law requiring a direct overt act is that, in a majority of
cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is necessary that the
overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made." The act done need not constitute the
last proximate one for completion. It is necessary, however, that the attempt must have a causal
relation to the intended crime. In the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.
In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling
the victim and hitting him three times with a hollow block; they narrowly missed hitting the
middle portion of his head. If Edgardo had done so, Ruben would surely have died.

As stated, the attendant circumstances here clearly show that appellant and his companions did
intend to kill the Evangelista brothers. They were able to deal multiple fatal blows on at least
three (3) of the brothers; but as for Eric, they did not spare him. He was also stabbed by Baynosa.
It just so happened they missed to hit him on a vital part like what they did to Eric's three (3)
brothers.

Valenzuela vs. People

Petitioner Aristotle Valenzuela (petitioner) and Jovy Calderon were charged with the crime of
THEFT.

FACTS:

 On May 19, 1994, Natividad and Calderon were seen outside a supermarket within the
SM complex along North Edsa by Lago, a security guard manning his post at the parking
area of the supermarket.

 Lago saw Natividad wearing an ID with a “Receiving Dispatching Unit” badge and
hauled a push cart with cases of Tide detergent then proceeded to unload these cases in
the open parking space where Calderon waited.

 Natividad returned inside and 5 minutes later came back with more carton of Tide and
unloaded said detergent with the help of Calderon.
  Afterwards, they hailed a cab and unloaded the cartons inside which prompted Lago to
stop them and ask for a receipt of the merchandise they carried.

 Upon questioning the 2 men, they immediately fled and Lago fired a warning shot to alert
his fellow security guards of the incident, causing the two to be shortly apprehended.

 They seized 4 cases of Tide Ultramatic, 1 case of Ultra 25 grams, and 3 additional cases
of detergent totaling P12,090.00.

Version of the accused:

 the two pleaded not guilty and claimed they were innocent bystanders that were
wrongfully brought in by Lago and the other police officers due to a commotion.

 Calderon claimed that during the incident he was inside the supermarket with his
neighbor to withdraw money from the ATM.

 Natividad claims that he was with his coursin in the parking lot walking towards a
tricycle going to pag-asa when they saw Lago fire a shot which caused the 2 to start
running and were apprehended by the police.

RTC: convicted both petitioner and Calderon of the crime of CONSUMMATED THEFT.

 Petitioner argues that he could only be convicted of frustrated theft since at the time he
was apprehended, he was never placed in a position to freely dispose of the merchandise
stolen…

CA: modified the conviction from consummated to FRUSTRATED THEFT.

ISSUE:

WON Aristotle is only guilty of frustrated theft.- NO

RULING:

SC convicted him with the crime of CONSUMMATED THEFT.

RATIO:

Under Article 308 of the Revised Penal Code, the elements of a crime of theft are as follows: 
1. That there be taking of personal property 
2. That said property belongs to another 
3. That the taking be done with intent to gain 
4. That the taking be done without the consent of the owner 
5. That the taking be accomplished without the use of violence against or intimidation of persons
or  force upon things.  
While the Dino/Flores dictum is considerate of the mindset of the offender, the statutory
definition  provided only considers the perspective of intent to gain on the part of the
offender and deprivation of  property on the victim. There is no language in Article 309 that
expressly or impliedly allows that the “free  disposition of the crimes stolen” is in any way
determinative of whether the crime of theft has been  consummated.  
It should be noted that the taking by the petitioner was completed and with intent to gain,
he acquired  physical possession of the cartons of detergent and was able to load these onto
a taxicab and is held  consummated even if he had no opportunity to dispose of the same.
As asserted in People v. Avila, “The  most fundamental notion in the crime of theft is the taking
of the things to be appropriated into the   physical power of the thief …. And it will be here noted
that the definition DOES NOT REQUIRE the taking should be effected against the will of the
owner but merely that it should be without his consent, a  distinction of no slight importance.” 
Conclusively, the Court now claims that under Article 308 of the RPC, theft cannot have a
frustrated stage.  Theft can only be consummated or attempted. The case of Dino nor Flores
shall not convince this ruling  since they both fail to consider that once the offender obtain
possession over the stolen items, the effect  of the felony has been produced as there has been
depravity of property despite the inability of the  offenders to freely dispose of the stolen
property. Evidently, theft is consummated once the victim has  been deprived of his/her property
by on who intended to produce such deprivation for reasons of gain.  
The Court rules that the Dino/Flores rulings are grounded in common sense, BUT they do not
align with  the legislated framework of the crime of theft.  
Thus, under the RPC, there is no crime of frustrated theft and Aristotel’s petition is denied as the
Court  declines to adopt the two rulings in their jurisdiction. The Court proceeds to say that
amendments of the RPC is necessary in order to place cognizance on frustrated theft.  
The Court affirms the lower court’s decision and denying Aristotel’s petition.  

Canceran vs. People

Petitioner was convicted for the crime of CONSUMMATED THEFT.
FACTS:
Version of the Prosecution:
 Prosecution presented Ompoc, a security guard; and Arcenio, the Customer Relation
Officer of Ororama, as witnesses.
 On Oct 6, 2002 – Opmpoc saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic Flakes for which he
paid P,1423;
 That Ompoc went to the packer and asked if the boxes had been checked;
  That upon inspection by Ompoc and the packer, they found out that the contents of the 2
boxes were not Magic Flakes, but 14 smaller boxes of Ponds White Beauty Cream worth
P28,627;
 That Canceran hurriedly left and a chase ensued;
 That upon reaching the Don Mariano gate, Canceran stumbled as he attempted to ride a
jeepney;
 That after being questioned, he tried to settle with the guards and even offered his
personal effects to pay for the items he tried to take;
 That Arcenio refused to settle; and that his personal belongings were deposited in the
office of Arcenio.
Version of the DEFENSE:
 Canceran denied the charges against him. Claimed that he was a promo merchandiser of
La Toneda, Inc.
 On Oct 6 – he was in Ororama to buy medicine for his wife.
 .On his way out, a male person requested him to pay for the items in his cart at the
cashier; that he did not know the name of this man who gave him ₱1,440.00 for payment
of two boxes labelled Magic Flakes;
 that he obliged with the request of the unnamed person because he was struck by his
conscience; that he denied knowing the contents of the said two boxes.
RTC: found Canceran guilty beyond reasonable doubt of CONSUMMATED THEFT.
CA: AFFIRMED with MODIFICATIONS RTC’s ruling.
Hence, this petition.
ISSUE:
WON the accused should be convicted of consummated theft.
RULING:
SC modified the CA’s decision, and found the accused guilty beyond reasonable doubt of the
crime of ATTEMPTED THEFT.
RATIO:

Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.

No less than the Constitution guarantees the right of every person accused in a criminal
prosecution to be informed of the nature and cause of accusation against him.16 It is fundamental
that every element of which the offense is composed must be alleged in the complaint or
information. The main purpose of requiring the various elements of a crime to be set out in the
information is to enable the accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense.17
Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal
property; (2) the property belongs to another; (3) the taking away was done with intent of gain;
(4) the taking away was done without the consent of the owner; and (5) the taking away is
accomplished without violence or intimidation against person or force upon things. "Unlawful
taking, which is the deprivation of one’s personal property, is the element which produces the
felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all."18

"It might be argued, that the ability of the offender to freely dispose of the property stolen delves
into the concept of ‘taking’ itself, in that there could be no true taking until the actor obtains such
degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the
acts of execution have not been completed, the "taking not having been accomplished."19

A careful reading of the allegations in the Information would show that Canceran was charged
with "Frustrated Theft" only. Pertinent parts of the Information read:

x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14
cartons of Ponds White Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega
Center, represented by William Michael N. Arcenio, thus performing all the acts of execution
which would produce the crime of theft as a consequence, but nevertheless, did not produce it by
reason of some cause independent of accused’s will x x x.

[Emphasis and Underscoring Supplied]

As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to
charge Canceran of consummated Theft because the indictment itself stated that the crime was
never produced. Instead, the Information should be construed to mean that Canceran was being
charged with theft in its attempted stage only. Necessarily, Canceran may only be convicted of
the lesser crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was charged
in the complaint or information and on which he was tried. It matters not how conclusive
and convincing the evidence of guilt may be, an accused cannot be convicted in the courts
of any offense, unless it is charged in the complaint or information on which he is tried, or
necessarily included therein. He has a right to be informed as to the nature of the offense
with which he is charged before he is put on trial, and to convict him of an offense higher
than that charged in the complaint or information on which he is tried would be an
unauthorized denial of that right."20 

The crime of theft in its consummated stage undoubtedly includes the crime in its attempted
stage. In this case, although the evidence presented during the trial prove the crime of
consummated Theft, he could be convicted of Attempted Theft only. Regardless of the
overwhelming evidence to convict him for consummated Theft, because the Information did not
charge him with consummated Theft, the Court cannot do so as the same would violate his right
to be informed of the nature and cause of the allegations against him, as he so protests.
What is controlling is not the title of the complaint, nor the designation of the offense charged or
the particular law or part thereof allegedly violated, these being mere conclusions of law made
by the prosecutor, but the description of the crime charged and the particular facts therein
recited. The acts or omissions complained of must be alleged in such form as is sufficient to
enable a person of common understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. No information for a crime will be sufficient if
it does not accurately and clearly allege the elements of the crime charged. Every element
of the offense must be stated in the information… The requirement of alleging the elements of
a crime in the information is to inform the accused of the nature of the accusation against him so
as to enable him to suitably prepare his defense.25

In the subject information, the designation of the prosecutor of the offense, which was
"Frustrated Theft," may be just his conclusion. Nevertheless, the fact remains that the charge was
qualified by the additional allegation, "but, nevertheless, did not produce it by reason of some
cause independent of accused’s will, that is, they were discovered by the employees of Ororama
Mega Center who prevented them from further carrying away said 14 cartons of Ponds White
Beauty Cream, x x x.26 This averment, which could also be deemed by some as a mere
conclusion, rendered the charge nebulous. There being an uncertainty, the Court resolves the
doubt in favor of the accused, Canceran, and holds that he was not properly informed that
the charge against him was consummated theft.

People vs Pajera
Complaint for ATTEMPTED RAPE has been filed against appellant.
Pajera was convicted with the crime of rape (guilty beyond reasonable doubt).
FACTS:
Version of the PROSECUTION:
 around 3am of June 16, 2003, AAA was sleeping beside her 2-year old nephew, BBB, on
the floor of her sister’s room, when the appellant hugged her and kissed her nape and
neck.
 AAA cried, but the appellant covered her and BBB with a blanket.
 Appellant removed AAA’s clothes, short pants, and underwear; he then took off his short
pants and briefs.
 Appellant went on top of AAA, and helf her hands. AAA resisted, but the appellant
parted her legs, and tried to insert his penis into her vagina.
 Appellant stopped when AAA’s cry got louder.
 AAA kicked the appellant as the latter was about to stand up.
 Appellant put his clothes back on, and threatened to kill AAA is she disclosed the
incident to anyone.
 AAA, together with her two siblings, went to the Mandaluyong Poilice Station and
reported the incident.
Version of the DEFENSE:
  He denied the claims against him. Stating that, on the evening of June 16, he was at his
home folding his son’s clothes when 2 policemen entered his house and informed him
that a complaint for attempted rape has been filed against him.
RTC: convicted the appellant of rape.
CA: affirmed RTC’s decision. Explained that a slight penetration of the labia by the male organ
is sufficient to constitute rape, and held that a slight penetration took place when appellant’s
penis touched AAA’s vagina as he was trying to insert it.
ISSUES:
Won the guilty of the crime of consummated rape. - NO
RULING:

We find that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt of the
crime of consummated rape. We convict him instead of ATTEMPTED RAPE, as the evidence
on record shows the presence of all the elements of this crime.

RATIO:
Carnal Knowledge was not proven with moral certainty.
By definition, rape is committed by having carnal knowledge of a woman with the use of force,
threat or intimidation, or when she is deprived of reason or otherwise unconscious, or when she
is under 12 years of age or is demented.20 "Carnal knowledge is defined as the act of a man
having sexual intercourse or sexual bodily connections with a woman."21 Carnal knowledge of
the victim by the accused must be proven beyond reasonable doubt, considering that it is the
central element in the crime of rape.

From the foregoing, we find it clear that the appellant’s penis did not penetrate, but merely
‘touched’ (i.e., "naidikit"), AAA’s private part. In fact, the victim confirmed on cross-
examination that the appellant did not succeed in inserting his penis into her vagina.
Significantly, AAA’s Sinumpaang Salaysay24 also disclosed that the appellant was holding the
victim’s hand when he was trying to insert his penis in her vagina. This circumstance – coupled
with the victim’s declaration that she was resisting the appellant’s attempt to insert his penis into
her vagina – makes penile penetration highly difficult, if not improbable. Significantly, nothing
in the records supports the CA’s conclusion that the appellant’s penis penetrated, however
slightly, the victim’s female organ.

Did the touching by the appellant’s penis of the victim’s private part amount to carnal knowledge
such that the appellant should be held guilty of consummated rape?

Jurisprudence dictates that the labia majora must be entered for rape to be consummated,
and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated
rape; at most, it can only be attempted rape, if not acts of lasciviousness.26 (italics supplied)

Simply put, "rape is consummated by the slightest penile penetration of the labia majora or
pudendum of the female organ."27 Without any showing of such penetration, there can be no
consummated rape; at most, it can only be attempted rape [or] acts of lasciviousness."28

As earlier discussed, the prosecution failed to present sufficient and convincing evidence to
establish the required penile penetration. AAA’s testimony did not establish that the appellant’s
penis touched the labias or slid into her private part. Aside from AAA’s testimony, no other
evidence on record, such as a medico-legal report, could confirm whether there indeed had been
penetration, however slight, of the victim’s labias. In the absence of testimonial or physical
evidence to establish penile penetration, the appellant cannot be convicted of consummated rape.

Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the
offender commenced the commission of the crime directly by overt acts but does not perform all
the acts of execution by reason of some cause or accident other than his own spontaneous
desistance. In People v. Publico,29 we ruled that when the "touching" of the vagina by the
penis is coupled with the intent to penetrate, attempted rape is committed; otherwise, the
crime committed is merely acts of lasciviousness.

In the present case, the appellant commenced the commission of rape by the following overt acts:
kissing AAA’s nape and neck; undressing her; removing his clothes and briefs; lying on top of
her; holding her hands and parting her legs; and trying to insert his penis into her vagina. The
appellant, however, failed to perform all the acts of execution which should produce the crime of
rape by reason of a cause other than his own spontaneous desistance, i.e., the victim's loud cries
and resistance. The totality of the appellant’s acts demonstrated the unmistakable objective to
insert his penis into the victim’s private parts.

Cruz vs. People

Cruz was charged with ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS involving
different victims.
FACTS:
Version of the Prosecution:
 Petitioner Norberto Bartolome and his wife, Belinda Cruz, were engaged in selling of
plastic wares and glass wares in different municipalities around the country. One
December 20, 1993, Norberto and Belinda employed AAA and BBB to help them is
selling their wares in La Union which was then celebrating its fiesta.
 From Pangasinan to La Union, AAA and BBB boarded a passenger jeepney owned by
Norberto. The young girls were accompanied by Norberto, Belinda, Ruben (driver) and a
sales boy named Jess.
  Upon reaching La Union, at aroung 8pm of Dec 20, 1993, they parked in front of Maroon
enterprises. The brought out all the goods and wares.
 Tents were fixed in order that they will have a place to sleep. Belinda and driver
proceeded to Manila in order to get more goods to be sold.
 On the following day, at around 1am, AAA and BBB went to sleep. Less than an hour
later, AAA was awakened when she felt somebody was on top of her.
 Norberto was mashing her breast and touching her private part. A also realized that she
was totally naked.
 AAA tried to push Norberto away. She fought back and kicked Norberto twice.
 Norberto was not able to pursue his lustful desires. Noberto offere her money and told her
not to tell the incident to her mother otherwise, she will be killed.
 AAA went out of the tent to seek help from Jess but she failed to wake him up.
 When AAA returned to their tent, she saw Norberto touching the private parts of BBB.
AAA saw her companion awake but her hands were shaking.
 When she entered the tent, Norberto left and went outside.

Version of the DEFENSE:

 maintains that it was not possible for him to commit the crimes hurled against him. On
the date of the alleged incident, there were many people around who were preparing for
the "simbang gabi". Considering the location of the tents, which were near the road and
the municipal hall, he could not possibly do the dastardly acts out in the open, not to
mention the fact that once AAA and BBB would scream, the policemen in the municipal
hall could hear them. He believes that the reason why the complainants filed these cases
against him was solely for the purpose of extorting money from him.

RTC: found the petitioner guilty beyond reasonable doubt of the crimes of ATTEMPTED
RAPE and ACTS OF LASCIVOUSNESS.
CA: affirm the conviction of the petitioner for ATTEMPTED RAPE but acquitted him of the
acts of lasciviousness due to insufficiency of the evidence.
ISSUE:
WON he committed the crime of attempted rape.
RULING:
SC found the accused guilty of ACTS OF LASCIVIOUSNESS.
RATIO:
To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to
determine the law on rape in effect on December 21, 1993, when the petitioner committed the
crime he was convicted of. That law was Article 335 of the Revised Penal Code, which
pertinently provided as follows:
Article 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:ChanRoblesVirtualawlibrary

1. By using force or intimidation;chanrobleslaw

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge is
defined simply as "the act of a man having sexual bodily connections with a
woman,"16 which explains why the slightest penetration of the female genitalia consummates the
rape. In other words, rape is consummated once the penis capable of consummating the
sexual act touches the external genitalia of the female.
Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt
acts for purposes of the attempted stage has been explained in People v. Lizada:22

An overt or external act is 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 spontaneous desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. 

In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the
acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage requires the commencement of the
commission of the felony directly by overt acts without the offender performing all the acts of
execution that should produce the felony, the only means by which the overt acts performed by
the accused can be shown to have a causal relation to rape as the intended crime is to make a
clear showing of his intent to lie with the female. Accepting that intent, being a mental act, is
beyond the sphere of criminal law,23 that showing must be through his overt acts directly
connected with rape. He cannot be held liable for attempted rape without such overt acts
demonstrating the intent to lie with the female. In short, the State, to establish attempted rape,
must show that his overt acts, should his criminal intent be carried to its complete termination
without being thwarted by extraneous matters, would ripen into rape,24 for, as succinctly put
in People v. Dominguez, Jr.:25cralawred "The gauge in determining whether the crime of
attempted rape had been committed is the commencement of the act of sexual intercourse, i.e.,
penetration of the penis into the vagina, before the interruption."

The petitioner climbed on top of the naked victim, and was already touching her genitalia with
his hands and mashing her breasts when she freed herself from his clutches and effectively ended
his designs on her. Yet, inferring from such circumstances that rape, and no other, was his
intended felony would be highly unwarranted. This was so, despite his lust for and lewd designs
towards her being fully manifest. Such circumstances remained equivocal, or "susceptible of
double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not
permissible to directly infer from them the intention to cause rape as the particular injury. Verily,
his felony would not exclusively be rape had he been allowed by her to continue, and to have
sexual congress with her, for some other felony like simple seduction (if he should employ deceit
to have her yield to him)26 could also be ultimate felony.

We clarify that the direct overt acts of the petitioner that would have produced attempted
rape did not include equivocal preparatory acts. The former would have related to his acts
directly connected to rape as the intended crime, but the latter, whether external or internal, had
no connection with rape as the intended crime. Perforce, his perpetration of the preparatory acts
would not render him guilty of an attempt to commit such felony.27 His preparatory acts could
include his putting up of the separate tents, with one being for the use of AAA and BBB, and the
other for himself and his assistant, and his allowing his wife to leave for Manila earlier that
evening to buy more wares. Such acts, being equivocal, had no direct connection to rape. As a
rule, preparatory acts are not punishable under the Revised Penal Code for as long as they
remained equivocal or of uncertain significance, because by their equivocality no one could
determine with certainty what the perpetrator's intent really was.28

If the acts of the petitioner did not constitute attempted rape, did they constitute acts of
lasciviousness?

It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is
the offender's intent to lie with the female. In rape, intent to lie with the female is
indispensable, but this element is not required in acts of lasciviousness.29 Attempted rape is
committed, therefore, when the "touching" of the vagina by the penis is coupled with the intent
to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female.30 Without such
showing, only the felony of acts of lasciviousness is committed.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her
chastity by his lewdness. "Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant's wrongful act for omission."