G.R. No. L-654              December 24, 1946URSU LUANGCO, petitioner-appellant, vs.THE PROVINCIAL WARDEN OF LEYTE, respondent-appellee.Julio Siayngco for appellant.First Assistant Solicitor General Reyes and Assistant Solicitor General Gianzon for appellee. FERIA, J.:This is an appeal from the order of the Court of First Instance of Leyte, which dismissed the appellant's petition for habeas corpus on the ground of pendency of another action, because in case G. R. No. L-142 (p. 473, ante), the petition for habeas corpus filed by the same appellant and others in the Court of First Instance of Leyte on the ground of nullity of the sentence of the Court of Special Criminal Jurisdiction of Leyte, on which is based the petition in the present case, was denied, and their appeal from the order denying the writ in said case G.R. No. L-142 was pending in this Court when the order now on appeal was rendered.The office of the Solicitor General submits in its brief that "the lower court did not err in denying the present petition," but contends that the crime of robbery charged in the information in cases Nos. 2 and 3 in which the defendant was convicted and sentenced to death, the nullity of which is being assailed not only in this but in the previous case, is the one penalized in article 294 of the Revised Penal Code, because the crime charged was robbery with homicide, and Act No. 65 of the Assembly of the so-called Republic of the Philippines adopted only article 293 and not article 294 of the said Code.It is true that in the said cases No. 2 and 3, the felony charged is robbery and homicide committed by reason thereof, and the information does not say whether the appellant was being charged for violation of said Act No. 65 or of article 294 of the Revised Penal Code. But it is not less true that said Act No. 65 in penalizing the crime of robbery in general as defined in article 293 of the Revised Penal Code, if committed by persons charged with the supervision and control of the production, procurement, and distribution of foods and other necessaries, has adopted and penalized all kinds of robbery embraced in the definition thereof in said article 293. This article does not punish but only defines the crime of robbery in general, saying that "any person who with intent to gain, shall take any personal property, belonging to another, by means of violence against or intimidation of any person, or using force upon anything, shall be guilty of robbery." The different kinds or forms of robbery so defined are penalized by said Act No. 65, not with the penalties fixed in articles 294 to 300 for each kind or form of robbery therein described, but with a heavier penalty the maximum of which was life imprisonment or death, at the discretion of the Court of Special Criminal Jurisdiction, depending upon the form and manner of, and the circumstance attending, its commission. In other words said Act No. 65 penalized all cases of robbery as defined in general in said article 293, committed by means of either violence against or intimidation by means of either violence against or intimidation of person, or force upon a thing, in whatever form and manner, in any place, and under any circumstance, with a penalty ranging from imprisonment to death in the discretion of the court; and did not adopt the provisions of articles 294 to 300 because they penalized with fixed penalties each and every one of the different forms and manners of committing the robberies therein described.Although in the complaint filed against the appellant in the cases Nos. 2 and 3 in the Court of First Instance of Leyte, acting as Court of Special Criminal Jurisdiction, no reference was made, either to Act No. 65 of the so-called Republic of the Philippines, or to article 294 of the Revised Penal Code, there is no doubt that the appellant was charged with violation of Act No. 65, for he was then a member of the Philippine Constabulary; the information was filed with, and the appellant was convicted by, a Court of Special Criminal Jurisdiction; the order appealed from states that the petitioner is serving sentence rendered by the Court of Special Criminal Jurisdiction of Leyte under said Act No. 65; and this Court has already so held in the case G.R. No. L-142.lawphil.netThe lower court did not, therefore, err in holding that there was another action pending between the same parties and for the same cause, and dismissing the petition for habeas corpus filed by the appellant (sec. 2, Rule 73, in connection with sec. 1 [d], Rule 8, Rules of Court).The decision appealed from is therefore affirmed, with costs against the appellant. So ordered.

G.R. No. L-18507             March 31, 1966THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.ROMUALDO RODRIGO, defendant-appellee.Office of the Solicitor General for the plaintiff-appellant.A. G. Rabasar for the defendant-appellee.MAKALINTAL, J.:The Solicitor General appeals from the order of the Court of First Instance of Masbate affirming the order of the Justice of the Peace Court of Pio V. Corpuz, which dismissed the following amended complaint:

Undersigned Special Counsel under oath accuses ROMUALDO RODRIGO of the crime of THEFT OF LARGE CATTLE, committed as follows:That on or about March 8, 1960, and months previous at Tubod, Pio A. Corpuz, Masbate, and within the jurisdiction of this Honorable Court, the abovenamed accused deliberately did there and there wilfully, unlawfully, feloniously, and criminally kept in his possession one male horse which is specifically described under Certificate of Ownership of Large Cattle No. 4685981, legally belonging to FELIX MUERTEIGUE, said accused knowing as he does that the aforementioned horse was stolen from the ranch of said Felix Muertigue at Casabangan, Pio V. Corpuz, Masbate, and deliberately failed as he did fail to deliver the same to the authorities or to its owner. The value of the aforecited horse is no less than ONE HUNDRED FIFTY PESOS (P150.00), all to the damage and prejudice of said owner of the aforementioned amount.

The only question raised is whether or not the lower court erred in ruling that the foregoing complaint is defective because the element of "intent to gain" is not alleged.A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed (Section 5, Rule 110, Revised Rules of Court). The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but 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 pronounced his proper judgment (Section 8, Id).

The complaint in question designates the offense charged as "theft of large cattle." This is the crime defined in Article 310 of the Revised Penal Code, in connection with Article 308 thereof.1äwphï1.ñët

Art. 308. Who are liable for theft.—Theft is committed by any person who, with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.Theft is likewise committed by:1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products.Art. 310. Qualified theft.—The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, ... if the property stolen is ... large cattle.

Under the first paragraph of Article 308 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 (U.S. vs. De Vera, 43 Phil. 1000). But under paragraph 2, subparagraph (1), the elements are (1) the finding of lost property; and (2) the failure of the finder to deliver the same to the local authorities or to its owner. In this kind of theft intent of gain is inferred from the deliberate failure to deliver the lost property to the proper person, the finder knowing that the property does not belong to him.Appellee contends that since the complaint refers to a stolen horse it does not fall under said particular paragraph, "stolen property" not being the same as "lost property." The argument is without merit. The word "lost" is generic in nature, and embraces loss by stealing or by any act of a person other than the owner, as well as by the act of the owner himself or through some casual occurrence. If anything, the finder who fails deliberately to return the thing lost may be considered more blameworthy if the loss was by stealing than through some other means.We, therefore, find that the complaint filed against defendant-appellee satisfies the requirements of Rule 110, sections 5 and 8, in charging the offense of theft of large cattle defined in Article 310, in relation to Article 308. paragraph 2, subparagraph 1 of the Revised Penal Code.The order appealed from is set aside and the case remanded to the lower court for further proceedings. No pronouncement as to costs.Revised Penal Code Article 248 - MurderAny person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period 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.

 2. In consideration of a price, reward, or promise.

 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

 5. With evident premeditation.

 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.Revised Penal Code Article 249 - HomicideAny person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.Revised Penal Code Article 246 - ParricideAny person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

STAGES IN THE COMMISSION OF A CRIME Introduction: Generation of a Crime A. The first is the Mental Stage 

General Rule: Mental acts such as thoughts, ideas, opinions and beliefs, are not subject of penal legislations. One may express an idea which is contrary to law, morals or is unconventional, but as long as he does not act on them or induce others to act on them, such mental matters are outside the realm of penal law and the person may not be subjected to criminal prosecution. 

B. The Second: The External Stage which is where the accused performs acts which are observable 

1). The Preparatory acts: Acts which may or may not lead to the commission of a concrete crime. Being equivocal they are not as rule punishable except when there is an express provision of law punishing specific preparatory acts. Example: (i) the general rule: buying of a gun, bolo or poison, even if the purpose is to use these to kill a person; so also with conspiracies and proposals. (ii) the exception: possession of picklocks and false keys is punished; as with conspiracies to commit treason, rebellion, sedition and coup d’etat 2) The Acts of execution: the attempted, frustrated and consumated stages   

II. Application of Article 6: Only to intentional felonies by positive acts but not to: (i). Felonies by omission (ii) Culpable felonies and (iii) Violations of special laws, unless the special law provides for an attempted or frustrated stage. Examples of the exception are The Dangerous Drugs Law which penalizes an attempt to violate some of its provisions, and The Human Security Act of 2007 III. The attempted stage:"the accused commences the commission of a felonious act directly by overt acts but does not perform all the acts of execution due to some cause or accident other than his own spontaneous desistance” 

 A).(1). The attempt which the Penal Code punishes is that which has a connection to a particular, concrete offense, that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to the its realization and commission (2) The act must not be equivocal but indicates a clear intention to commit a particular and specific felony. Thus the act of a notorious criminal in following a woman can not be the attempted stage of any felony.   B). Overt or external act is some physical deed or activity, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to is 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 offenseNormal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} C). Examples: 

1.  The accused pressed a chemically -soaked cloth on the mouth of the woman to induce her to sleep, while he lay on top of her and pressed his body to her. The act is not the overt act that will logically and necessarily ripen into rape.   They constitute unjust vexation. ( Note: it would be attempted rape if he tried to undress the victim or touch her private parts) ( Balleros vs. People, Feb, 22, 2006)2. One found inside a house but no article was found on him, is liable for trespass and not for attempted theft or robbery even if he is a notorious robber3. One found removing the glass window panes or making a hole in the wall is not liable for attempted robbery but for attempted trespass

 D) The accused has not yet passed the subjective phase or that phase encompassed from the time an act is executed which begins the commission of the crime until the time of the performance of the last act necessary to produce the crime, but where the accused has still control over his actions and their results. .E).The accused was not able to continue performing the acts to produce the crime. He was prevented by external forces and not because he himself chose not to continue. Such as when his weap0n was snatched, or his intended victim managed to escape, or he was overpowered or arrested. F). If the accused voluntarily desisted i.e he himself decided not to continue with his criminal purpose, then he is not liable.

1. Reason: This is an absolutory cause by way of reward to those who, having set one foot on the verge of crimes, heed the call of their conscience and return to the path of righteousness.  .2. The reason for the desistance is immaterial3. Exceptions: when the accused is liable despite his desistance

a). when the act performed prior to the desistance already constituted the attempted stage of the intended felony. For example: the accused, with intent to kill, shot at the victim but missed after which he “desisted”, his acts already constituted attempted homicideb). When the acts performed already gave rise to the intended felony. The decision not to continue is not a legal but factual desistance. As in the case of a thief who returned what he stole.c). When the acts performed constitute a separate offense. Pointing a gun at another and threatening to kill, and then desisting gives rise to grave threats. 

IV. The Frustrated Stage:the accused has performed all the acts of execution necessary to produce the felony but the crime is not produced by reason of causes independent of the will of the accused. 

A. The accused has passed the subjective phase and is now in the objective phase, or that portion in the commission of the crime where the accused has performed the last act necessary to produce the intended crime and where he has no more control over the results of his acts. 

B. The non-production of the crime should not be due to the acts of the accused himself, for if it were he would be liable not for the frustrated stage of the intended crime, but possibly for another offense. Thus: where the accused shot the victim mortally wounding him, but he himself saved the life of his victim, his liability is that for serious physical injuries as the intent to kill is absent. C. Attempted vs. Frustrated Homicide/murder. Where the accused, with intent to kill, injured the victim but the latter did not die, when is the crime attempted or frustrated?

          1. First View:  “The subjective phase doctrine”. If at that point where the accused has still control over the results of his actions but is stopped by reason outside of his own desistance and the subjective phase has not been passed, the offense is attempted2. Second View: The Mortal Wound or Life Threatening Injury Doctrine:  If a mortal wound or life threatening injury had been inflicted, the offense is frustrated, else it is attempted ( Palaganas vs. PP., Sept. 12, 2006)   3. Third View:  The belief of the accused should be considered in that if the accused believed he has done all which is necessary to produce death, then it is frustrated.

 V. Consummated.When all the elements of the crime are present whether it be the intended crime or a different crime

 VI. Factors to Consider in determining the proper stage. 

A. The manner of the commission of the crime and how it is defined by the RPC. Some crimes have only the consumated stage (Formal crimes) such as threats, coercion, alarms and scandal, slander, acts of lasciviousness. In rape the gravamen is whether there is penetration or not, no matter how slight, hence rape is either attempted or consummated.

 B. The elements of the felony.   

1. Theft: it is consummated once the article is in the material physical possession of the accused, whether actual or constructive. His ability to dispose off the thing his immaterial and does not constitute an element. N.B. Decisions of the CA as to bulky items where the accused must have the opportunity dispose off or appropriate the articles have already been reversed. The doctrine now is that theft has no frustrated stage ( Valenzuela vs. PP. June 21, 2007)   2. Estafa: It is not the material possession but the existence of damage which consumates the crime.  3. Robbery with Force Upon Things: The thing must be brought out of the building to consumate the crime. 

C. The Nature of the Felony Itself 

1. Crimes which require the participation of two persons have no frustrated stage. Examples: Adultery and concubinage; corruption of a public official.2. There are crimes which are punished according to their results and not the intention of the accused such as physical injuries.3. As to Arson: it is consumated once a part of the building is burned. It has been ruled that if the accused lit certain materials but no part of the building as burned, the crime is in its frustrated stage and if there was no material which was as yet lit, then arson is still in its attempted. Thus one who places sacks soaked in gasoline near the post and lit it but no part of the building was burned, committed frustrated arson.  (Personal Opinion: there can be no frustrated stage, but only attempted stage if the fire was not yet applied to the building.   But if fire was applied to the building or a part thereof but no part of the building was burned, then it is attempted. The only consideration is whether or not the accused succeeded in burning a part of the building.  If no part of the building was burned, it is still attempted arson no matter how far gone were the acts of the accused).

Stages of Execution of a Felony(Art.6)1) Consummated- All elements necessary for its execution and accomplishment are present.2) Frustrated- The offender has performed all the acts of execution to produce the felony as a consequence but the crime does not result due to some cause independent of the will of the offender.3) Attempted- The offender begins the commission of the felony by direct overt acts of execution which should produce felony as a consequence by reason of some cause or accident either than his own spontaneous desistance.e.g.Arson- Even if the only portion of the building is burned, arson is consummated. The total burning of the building is not necessary to consummate the crime.Rape- Even if there is only a slight penetration, the rape is consummated (People vs. Hernandez 49 Phil.980)Estafa- Unlike the crime of theft, damage is an essential element in estafa.