SECOND DIVISION

[G.R. No. 103119. October 21, 1992.]

SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF

APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

Public Attorney's Office for petitioner.

SYLLABUS

1. CRIMINAL LAW; REVISED PENAL CODE; ARTICLE 4, PARAGRAPH 2 THEREOF

AN INNOVATION; PURPOSE; RATIONALE. — Article 4, paragraph 2 is an innovation
of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code
where: . . . it was necessary that the execution of the act has been commenced, that
the person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him criminally
liable. This legal doctrine left social interests entirely unprotected. The Revised
Penal Code, inspired by the Positivist School, recognizes in the offender his
formidability, and now penalizes an act which were it not aimed at something quite
impossible or carried out with means which prove inadequate, would constitute a
felony against person or against property. The rationale of Article 4(2) is to punish
such criminal tendencies.

2. ID.; ID.; ID.; LEGAL IMPOSSIBILITY; EXPLAINED; FACTUAL IMPOSSIBILITY;

EXPLAINED; CASE AT BAR. — Under this article, the act performed by the offender
cannot produce an offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual. That the offense cannot be
produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the
act intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act in order to qualify the act as an
impossible crime. Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime. Thus: Legal impossibility would apply to
those circumstances where (1) the motive, desire and expectation is to perform an
act in violation of the law; (2) there is intention to perform the physical act, (3)
there is a performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. The impossibility of
killing a person already dead falls in this category. On the other hand, factual
impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. One example
is the man who puts his hand in the coat pocket of another with the intention to
steal the latter's wallet and finds the pocket empty. The case at bar belongs to this
category. Petitioner shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place and thus, the petitioner
failed to accomplish his end.

3. ID.; DIFFERENCE BETWEEN PHILIPPINE AND AMERICAN LAWS REGARDING

CONCEPT AND APPRECIATION OF IMPOSSIBLE CRIMES; CASE AT BAR. — There is a
difference between the Philippine and the American laws regarding the concept and
appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in
Article 4(2), expressly provided for impossible crimes and made them punishable.
Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into two
categories: legal versus factual impossibility. . . To restate, in the United States,
where the offense sought to be committed is factually impossible of
accomplishment, the offender cannot escape criminal liability. He can be convicted
of an attempt to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an impossible crime,
but as an attempt to commit a crime. On the other hand, where the offense is
legally impossible of accomplishment, the actor cannot be held liable for any crime
— neither for an attempt nor for an impossible crime. The only reason for this is
that in American law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge — that is, attempt. This is
not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act
penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in
Article 4(2) of the Revised Penal Code makes no distinction between factual or
physical impossibility and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos. The factual situation in the case at bar presents physical
impossibility which rendered the intended crime impossible of accomplishment. And
under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make
the act an impossible crime. To uphold the contention of respondent that the
offense was Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless the provision
in Article 4, which makes a person criminally liable for an act "which would be an
offense against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case, all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the
actor's will which is an element of attempted and frustrated felonies.

DECISION

CAMPOS, JR., J :p
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affi rming in toto the judgment of the Regional Trial Court, Branch XIV,
Oroquieta City, finding him guilty of the crime of attempted murder. prLL

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio
and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's
house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however,
that Palangpangan was in another city and her home was then occupied by her son-
in-law and his family. No one was in the room when the accused fired the shots. No
one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: "We will kill you
(the witness) and especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The Court
of Appeals affirmed in toto the trial court's decision. Hence this petition. prLL

This petition questions the decision of the Regional Trial Court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by holding him
liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code
which provides:

ARTICLE 4(2). Criminal Responsibility . — Criminal responsibility shall be

incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he
and his companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the

inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code),
but due to a cause or accident other than petitioner's and his co-accused's
own spontaneous desistance (Art. 3., ibid.) Palangpangan did not sleep at
her house at that time. Had it not been for this fact, the crime is possible,
not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to

remedy the void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced,
that the person conceiving the idea should have set about doing the deed,
employing appropriate means in order that his intent might become a reality,
and finally, that the result or end contemplated shall have been physically
possible. So long as these conditions were not present, the law and the
courts did not hold him criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his formidability, 7
and now penalizes an act which were it not aimed at something quite impossible or
carried out with means which prove inadequate, would constitute a felony against
person or against property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9

Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently
impossible of accomplishment; or (2) the means employed is either (a) inadequate
or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. 11 There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act 12 in order to qualify
the act as an impossible crime. LibLex

Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:

Legal impossibility would apply to those circumstances where (1) the motive,
desire and expectation is to perform an act in violation of the law; (2) there
is intention to perform the physical act, (3) there is a performance of the
intended physical act; and (4) the consequence resulting from the intended
 act does not amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

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

The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.

One American case has facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he
thought the police officer would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking party
imagined where he was, and where the bullet pierced the roof, renders it no
less an attempt to kill. It is a well settled principle of criminal law in this
country that where the criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the thing to be operated
upon, and these facts are unknown to the aggressor at the time, the
criminal attempt is committed.

In the case of Stokes vs. State , 19 where the accused failed to accomplish his intent
to kill the victim because the latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The court explained that: LLphil

It was no fault of Stokes that the crime was not committed . . . It only
became impossible by reason of the extraneous circumstance that Lane did
not go that way; and further, that he was arrested and prevented from
committing the murder. This rule of the law has application only where it is
inherently impossible to commit the crime. It has no application to a case
where it becomes impossible for the crime to be committed, either by
outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has no
application to the case when the impossibility grows out of extraneous acts
not within the control of the party.

In the case of Clark vs. State, 20 The court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court quoted
Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason

of his criminal intent, no one can seriously doubt that the protection of the
public requires the punishment to be administered, equally whether in the
unseen depths of the pocket, etc., what was supposed to exist was really
 present or not. The community suffers from the mere alarm of crime. Again:
'Where the thing intended (attempted) as a crime and what is done is a sort
to create alarm, in other words, excite apprehension that the evil intention
will be carried out, the incipient act which the law of attempt takes
cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's
room thinking that the latter was inside. However, at that moment, the victim was
in another part of the house. The court convicted the accused of attempted murder.

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

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made them punishable. Whereas, in the United States, the
Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that: LexLib

. . . factual impossibility of the commission of the crime is not a defense. If

the crime could have been committed had the circumstances been as the
defendant believed them to be, it is no defense that in reality the crime was
impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicted for
attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without the knowledge and consent of the warden. In
this case, the offender intended to send a letter without the latter's knowledge and
consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense to a charge of
criminal attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing of this
contention, the Court held that the federal statutes did not contain such provision,
and thus, following the principle of legality, no person could be criminally liable for
an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal impossibility
until such time as such legislative changes in the law take place, this court
will not fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is
factually impossible of accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime where
the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime — neither for an attempt nor for an impossible
crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.

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

To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the
actor's will, will render useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case, all
circumstances which prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element of attempted and
frustrated felonies.

WHEREFORE, PREMISES CONSIDERED, the petition is hereby GRANTED, the

decision of respondent Court of Appeals holding Petitioner guilty of Attempted
Murder is hereby MODIFIED. WE hereby hold Petitioner guilty of an impossible
crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Having in mind the social danger and degree of criminality
shown by Petitioner, this Court sentences him to suffer the penalty of six (6)
months of arresto mayor, together with the accessory penalties provided by the law,
and to pay the costs.

SO ORDERED.

Feliciano, Regalado and Nocon, Jr., JJ ., concur.

Narvasa, C .J ., on official leave.

Footnotes

1. People vs. Intod, C.A.-G.R. Cr. No. 09205, August 14, 1991; Justice Fidel P.
Puris ima, Ponente; Justices Eduardo R. Bengzon and Salome A. Montoya,
concurring.

2. TSN, p. 4, July 24, 1986.

3. Records, p. 65.

4. Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946).

5. Albert, The Revised Penal Code, Annotated 35 (1946).

6. Albert, ibid.

7. Albert, ibid.

8. Albert, ibid.

9. Gregorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed.
1958).

10. Reyes, The Revised Penal Code, 90 (Vol. I, 11th ed., 1977).

11. Reyes, ibid.

12. Reyes, ibid.

13. U.S. vs. Berrigan, 482 F. 2d. 171 (1973).

14. U.S. vs. Berrigan, ibid.

15. Aquino, The Revised Penal Code, 82 (Vol. I, 1987).

16. U.S. vs. Berrigan, supra, n. 13.

17. U.S. vs. Berrigan, ibid.

18. 21 L.R.A. 626 (1898).

19. 21 L.R.A. N.S. 898 (1908).

20. 17 S.W. 145 (1888).

21. 71 S.W. 175 (1902).

22. U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).

23. 565 F. Supp. 1416 (1983).

24. Supra, n. 13.