Article-6.docx

Article 6. Stages in the Commission of a Felony 1. People vs. Lamahang, GR 43530 (August 3, 1935) Facts: Aurelio Lamahang was caught opening with an iron bar a wall of a store of cheap goods in Fuentes St. Iloilo. He broke one board and was unfastening another when a patrolling police caught him. Owners of the store were sleeping inside store as it was early dawn. Court of First Instance: Convicted of attempt of robbery Issue: WON crime is attempted robbery? Held: No. Attempted trespass to dwelling. Attempt should have logical relation to a particular and concrete offense which would lead directly to consummation. Necessary to establish unavoidable connection & logical & natural relation of cause and effect. Important to show clear intent to commit crime. In case at bar, we can only infer that his intent was to enter by force, other inferences are not justified by facts. Groizard: infer only from nature of acts executed. Acts susceptible of double interpretation can’t furnish ground for themselves. Mind should not directly infer intent. Spain SC: necessary that objectives established or acts themselves obviously disclose criminal objective. 2.

Baleros vs. People, 483 SCRA 10 (February 22, 2006) Renato “Chito” Baleros, Jr. vs People Facts: Early morning of Dec. 13, 1991, Malou was awakened by a smell of chemical on a piece of cloth pressed on her face. She struggled to break free but his attacker was pinning her down, holding her tightly. When her right hand finally got free, she grabbed and squeezed the sex organ of his attacker. The man let her go, enabling Marilou to seek help from her maid and classmates living nearby. An investigation was conducted in which the evidences pointed to Chito as the attacker. The RTC thus found Chito guilty for attempted rape and ordered him to suffer an indeterminate sentence (from prision correccional as minimum to prision mayor as maximum) and to pay Malou PHP 50,000. Chito made an appeal to the CA only to be denied. He moved for a reconsideration but to no avail. He thus made an appeal to the SC arguing that: 1. There was not enough evidence to find him guilty of the crime 2. Prosecution failed to satisfy all requisites for conviction 3. Circumstances relied on to convict him were unreliable, inconclusive and contradictory. 4. There was no motive. 5. The awarding of damages to complainant was improper and unjustified. 6. In failing to appreciate in his favour the constitutional presumption of innocence and that moral certainty has not been met, he should be acquitted on the basis that the offense charged has not been proved beyond reasonable doubt. Issues: 1. Whether the evidence adduced by prosecution has established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape 2. Whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape Held: 1. No. The court’s decision was merely based on speculations. 2. Yes. SC reversed and modifies the decision of the CA, acquitting Chito of attempted rape. He is adjudged guilty of light coercion and is ordered to serve 30 days of arresto mayor and pay PHP 200. Doctrine/Ratio: Art. 335 of the RPC, 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 woman is deprived of reason or otherwise unconscious 3. When woman is under 12 years of age or demented Art. 6 of the RPC defines attempted rape when 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. The attempt which RPC punishes is the act that has logical connection to the crime that should it have been successful, the attempt would lead to the consummation of rape. However, there was no carnal knowledge in the case. The pressing of a chemicalsoaked cloth while on top of Malou did not necessarily constitute an overt act of rape. Moreover, the petitioner did not commence any act that was indicative of an intent to rape Malou. The petitioner was fully clothed; there was no attempt to neither undress her nor touch her private part. In the crime of rape, penetration is an essential requisite. Therefore for an attempted rape, accused must have commenced the act of penetrating but for some cause or accident other than his own spontaneous desistance, the penetration was not completed. Thus petitioner’s act of lying on top of her, embracing and kissing her or touching her private part do not constitute rape or attempted rape.

3. People vs. Fredie Lizada, 396 SCRA 62 (January 24, 2003) Doctrine: The spontaneous desistance of a malefactor exempts him from criminal liability for the intended crime but it does not exempt him from the crime committed by him before his desistance. FACTS: In August 1998, the petitioner did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation Analia Orillosa, his stepdaughter, by embracing, kissing, and touching her private parts. He then proceeded with carnal knowedge to remove her skirt and panty and placed himself on top of her and tried to insert his penis into her vagina. This allegation was repeated four times in a different occasions. However, medical examination revealed that Analia’s hymen was intact, and the other parts of her vagina was not injured due to an insertion of average-sized adult Filipino male organ in full erection. The testimony of Rossel, Analia’s sister, also proved that no insertion of penis happened because the petitioner stopped after he saw her. Hence, petitioner was charged for four counts of qualified rape under four separate information. RTC accused guilty beyond reasonable doubt of the crime charged against him and sentenced to Death Penalty in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code. However, petitioner averred in his brief that the prosecution failed to prove his guilt beyond reasonable doubt and that the testimony of Rossel was not taken into consideration in the decision. ISSUE: WON Lizada is guilty of acts of lasciviousness only. RULING: NO. Accused-appellant is guilty of attempted rape and not of acts of lasciviousness. 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. The essential elements of an attempted felony are as follows: 1. The offender commencesthe commission of the felony directly by overt acts; 2. He does not performall the acts of execution which should producethe felony; 3. The offenders act be not stopped by his own spontaneousdesistance; 4. The non-performance of all acts of executionwas due to causeor accident other than his spontaneous desistance. The first requisite of an attempted felony consists of two elements, namely: (1) That there be external acts; (2) Such external acts have direct connection with the crime intended to be committed. If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty of an attempted felony.The law does not punish him for his attempt to commit a felony. Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing his victim and lying on top of her. However, he 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., by the timely arrival of the victims brother. Thus, his penis merely touched Mary Joys private organ. Accordingly, as the crime committed by the appellant is attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum.

4. People vs. Abella, GR 198400 (October 7, 2013) FE ABELLA y PERPETUA v. PEOPLE OF THE PHILIPPINES G.R. No. 198400 October 7, 2013 REYES, J.: Facts: On October 7, 1998, petitioner-accused Fe Perpetua Abella, a farmer, baker and trisicad driver, was charged with frustrated homicide after he hacked one, BENIGNO ABELLA y PERPETUA, with the use of a scythe, hitting the latter’s neck thereby inflicting the following injuries: (1) hacking wound left lateral aspect neck; and (2) incised wound left hand dorsal aspect. After the Information was filed, the petitioner remained at large and was only arrested by agents of the National Bureau of Investigation on October 7, 2002. During the arraignment, the petitioner pleaded not guilty. Pre-trial and trial thus proceeded. The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner fighting with Alejandro Tayrus and a certain Dionisio Ybañes (Dionisio). Benigno was able to convince the petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the houses of Alejandro and Dionisio to apologize for the petitioner’s conduct. Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two scythes, one in each of his hands. Benigno instructed Alejandro and Dionisio to run away. The petitioner wanted to enter Alejandro’s house, but Benigno blocked his way and asked him not to proceed. The petitioner then pointed the scythe, which he held in his left hand, in the direction of Benigno’s stomach, while the scythe in the right hand was used to hack the latter’s neck once. Benigno fell to the ground and was immediately taken to the hospital while the petitioner ran to chase Alejandro. Benigno incurred an expense of more than P10,000.00 for hospitalization, but lost the receipts of his bills. He further claimed that after the hacking incident, he could no longer move his left hand and was thus deprived of his capacity to earn a living as a carpenter. Dr. Ardiente, a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to Benigno after the latter was hacked by the petitioner, testified that Benigno sustained the abovementioned injuries. Benigno was initially

confined in the hospital on September 6, 1998 and was discharged on September 23, 1998. The defense relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the hacking incident occurred, is about four (4) hours drive away. Fernando Fernandez, a friend of petitioner, testified that on September 6, 1998, he saw the petitioner gathering woods to make a hut. Later in the evening, at around 5:00 p.m., Urbano Cabag spotted the petitioner drinking tuba in the store of Clarita Perpetua. RTC Ruling: The RTC convicted the petitioner of the crime of Frustrated Homicide. Petitioner Fe Abella was sentenced to suffer an indeterminate penalty of Six (6) years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and O ne (1) day to Twelve (12) years of prision mayor as maximum. The petitioner then filed an appeal before the CA primarily anchored on the claim that the prosecution failed to prove by clear and convincing evidence the existence of intent to kill which accompanied the single hacking blow made on Benigno’s neck. The CA Ruling: The CA affirmed petitioner’s conviction for frustrated homicide but modified the sentence to imprisonment of six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium period, as maximum. The CA held that Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide is reclusion temporal, or twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the same Code, the penalty for a frustrated crime is one degree lower than that prescribed by law. Thus, frustrated homicide is punishable by prision mayor, or six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or aggravating circumstances, the maximum of the indeterminate penalty should be taken from the medium period of prision mayor. To determine the minimum of the indeterminate penalty, prision mayor should be reduced by one degree, which is prision correccional, with a range of six (6) months and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken from the full range of prision correccional. Hence this Petition for Review on Certiorari under Rule 45 Issue: WON the RTC and the CA erred in rendering judgments which are not in accordance with law and applicable jurisprudence and which if not corrected, will cause grave injustice and irreparable damage to the petitioner Held: NO. To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without medical intervention or attendance. In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim. The petitioner invokes the doctrine in Pentecostes, Jr. to argue that homicidal intent is absent, in Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician certified that the injury would require medical attendance for ten days, but the victim was in fact promptly discharged from the hospital the following day. In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is possible to have complications resulting from these injuries because the wounds were extensive and they were big and they were open wounds, so there is a possibility of infections resulting from these kinds of wounds, and the instrument used was not a sterile instrument contaminated with other things." No complications developed from Benigno’s wounds which could have caused his death, but he was confined in the hospital for a period of 17 days. From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck was determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require imagination to figure out that a single hacking blow in the neck with the use of a scythe could be enough to decapitate a person and leave him dead. While no complications actually developed from the gaping wounds in Benigno’s neck and left hand, it perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser degree of medical attention. This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did not die from the hacking incident by reason of a timely medical intervention provided to him, which is a cause independent of the petitioner’s will. All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of the crime charged. WHEREFORE the instant petition is DENIED. The Decision of the Court of Appeals in is AFFIRMED with MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the offended party moral damages in the amount of P25,000.00 and temperate damages in the amount of P25,000.00. Further, the monetary awards for damages shall be subject to interest at the legal rate of six percent (6%) per annum from the date of finality of this Decision until fully paid.

5. People vs. Labiaga, GR 202867 (July 15, 2013) DOCTRINE: In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for timely medical intervention. 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.

FACTS: Sometime in December of 2003 in Iloilo, accused Regie Labiaga (Regie) and three others conspired, confederated and helped one another, with an unlicensed firegun, willfully and unlawfully shot Judy Conde (Jojo) in different parts of her breast whiched caused her death thereafter. The same individuals also conspired to kill Gregorio Condea and later succeeded. Appellant said that the shooting of Conde was an act of self-defense Conde challenged him to a gunfight. RTC ruled out his defense. RTC convicted the appelant of murder adn frustrated murder. CA affirmed the decision with modifications as to civil indemnities. ISSUE: WON Regie is guilty of frustrated murder. RULING: NO. In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for timely medical intervention. 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. Under Article 51 of the Revised Penal Code, the corresponding penalty for attempted murder shall be two degrees lower than that prescribed for consummated murder under Article 248, that is, prision correccional in its maximum period to prision mayor in its medium period. Section 1 of the Indeterminate Sentence Law provides: Appellant Regie Labiaga is GUILTY of Attempted Murder and shall suffer an indeterminate sentence ranging from two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum.

6. Valenzuela vs. People, GR 160188 (June 27, 2007) Applications of the provisions of Article 6 of the Revised Penal Code; Stages of theft Facts: While a security guard was manning his post the open parking area of a supermarket, he saw the accused, Aristotel Valenzuela, hauling a push cart loaded with cases of detergent and unloaded them where his co-accused, Jovy Calderon, was waiting. Valenzuela then returned inside the supermarket, and later emerged with more cartons of detergent. Thereafter, Valenzuela hailed a taxi and started loading the boxes of detergent inside. As the taxi was about to leave the security guard asked Valenzuela for the receipt of the merchandise. The accused reacted by fleeing on foot, but were subsequently apprehended at the scene. The trial court convicted both Valenzuela and Calderon of the crime of consummated theft. Valenzuela appealed before the Court of Appeals, arguing that he should only be convicted of frustrated theft since he was not able to freely dispose of the articles stolen. The CA affirmed the trial court’s decision, thus the Petition for Review was filed before the Supreme Court. Issue: Whether or not petitioner Valenzuela is guilty of frustrated theft. Held: No. Article 6 of the RPC provides that a felony is consummated when all the elements necessary for its execution and accomplishment are present. In the crime of theft, the following elements should be present – (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; and (5) that the taking be accomplished without the use of violence against or intimidating of persons or force upon things. The court held that theft is produced when there is deprivation of personal property by one with intent to gain. Thus, it is immaterial that the offender is able or unable to freely dispose the property stolen since he has already committed all the acts of execution and the deprivation from the owner has already ensued from such acts. Therefore, theft cannot have a frustrated stage, and can only be attempted or consummated.

7. Canceran vs. People, GR 206442 (July 1, 2015) This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012 Decision[1] and the March 7, 2013 Resolution[2] of the Court of Appeals (CA), in CA-G.R. CR No. 00559, which affirmed and modified the September 20, 2007 Judgment[3]of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-141, convicting petitioner Jovito Canceran (Canceran) for consummated Theft. The records disclose that Caneeran, together with Frederick Vequizo and Marcial Diaz, Jr., was charged with "Frustrated Theft." The Information reads: That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery Department, Lapasan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Jovito Caneeran, conspiring, confederating together and mutually helping one another with his co-accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr., a Unilever Philippines merchandiser both of Ororama Mega Center, with intent to gain and without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream valued at P28,627,20, 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, 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, to the damage and prejudice of the Ororama Mega Center. Article 308 in relation to Article 309, and 6 of the Revised Penal Code. [4] Version of the Prosecution To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc), a security guard; and William Michael N. Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega Center (Ororama), as its witnesses. Through their testimonies,

the prosecution established that on or about October 6, 2002, Ompoc saw Caneeran approach one of the counters in Ororama; that Caneeran was pushing a cart which contained two boxes of Magic Flakes for which he paid P1,423.00; 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 two boxes were not Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth P28,627.20; that Caneeran hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Caneeran 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. [5] Version of the DefensE Canceran vehemently denied the charges against him. He claimed that he was a promo merchandiser of La Tondena, Inc. and that on October 6, 2002, he was in Ororama to buy medicine for his wife. On his way out, after buying medicine and mineral water, a male person of around 20 years of age 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 P1,440.00 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; that after paying at the cashier, he went out of Ororama towards Limketkai to take a jeepney; that three persons ran after him, and he was caught; that he was brought to the 4th floor of Ororama, where he was mauled and kicked by one of those who chased him; that they took his Nokia 5110 cellular phone and cash amounting to P2,500.00; and that Ompoc took his Seiko watch and ring, while a certain Amion took his necklace.[6] Canceran further claimed that an earlier Information for theft was already filed on October 9, 2002 which was eventually dismissed. In January 2003, a second Information was filed for the same offense over the same incident and became the subject of the present case.[7] The Ruling of the Regional Trial Court In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable doubt of consummated Theft in line with the ruling of the Court in Valenzuela v. People[8] that under Article 308 of the Revised Penal Code (RPC), there is no crime of "Frustrated Theft." Canceran was sentenced to suffer the indeterminate penalty of imprisonment from ten (10) years and one (1) day to ten (10) years, eight (8) months of prision mayor, as minimum, to fourteen (14) years, eight (8) months of reclusion temporal, as maximum.[9] The RTC wrote that Canceran's denial deserved scant consideration because it was not supported by sufficient and convincing evidence and no disinterested witness was presented to corroborate his claims. As such, his denial was considered self-serving and deserved no weight. The trial court was also of the view that his defense, that the complaint for theft filed against him before the sala of Judge Maximo Paderanga was already dismissed, was not persuasive. The dismissal was merely a release order signed by the Clerk of Court because he had posted bail.[10] The Ruling of the Court of Appeals Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time. The CA held that there could be no double jeopardy because he never entered a valid plea and so the first jeopardy never attached. [11] The CA also debunked Canceran's contention that there was no taking because he merely pushed the cart loaded with goods to the cashier's booth for payment and stopped there. The appellate court held that unlawful taking was deemed complete from the moment the offender gained possession of the thing, even if he had no opportunity to dispose of the same. [12] The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the penalty ranging from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor, as maximum. Canceran moved for the reconsideration of the said decision, but his motion was denied by the CA in its March 7, 2013 resolution. Hence, this petition. As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether Canceran should be acquitted in the crime of theft as it was not charged in the information; and 2] whether there was double jeopardy. Canceran argues that the CA erred in affirming his conviction. He insists that there was already double jeopardy as the first criminal case for theft was already dismissed and yet he was convicted in the second case. Canceran also contends that there was no taking of the Ponds cream considering that "the information in Criminal Case No. 2003-141 admits the act of the petitioner did not produce the crime of theft."[13] Thus, absent the element of taking, the felony of theft was never proved. In its Comment,[14] the Office of the Solicitor General (OSG) contended that there was no double jeopardy as the first jeopardy never attached. The trial court dismissed the case even before Canceran could enter a plea during the scheduled arraignment for the first case. Further, the prosecution proved that all the elements of theft were present in this case. In his Reply,[15] Canceran averred that when the arraignment of the first case was scheduled, he was already bonded and ready to enter a plea. It was the RTC who decided that the evidence was insufficient or the evidence lacked the element to constitute the crime of theft. He also stressed that there was no unlawful taking as the items were assessed and paid for. The Court's Ruling The Court finds the petition partially meritorious. 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 P28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus performing ail 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] Indeed, an accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information filed against him.[21] An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. [22] 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. The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption or preamble of the information nor from the specification of the law alleged to have been violated - these being conclusions of law - but by the actual recital of facts in the complaint or information." [23] In the case of Domingo v. Rayala,[24] it was written: 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. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. 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. No double jeopardy when the first jeopardy never attached Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA. No person shall be twice put in jeopardy for punishment for the same offense. The rule of double jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. This principle is founded upon the law of reason, justice and conscience. [27] Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and he, already bonded, was ready to enter a plea. It was the RTC who decided that there was insufficient evidence to constitute the crime of theft.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. [28] Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the RTC. Even assuming that he was able to raise the issue of double jeopardy earlier, the same must still fail because legal jeopardy did not attach. First, he never entered a valid plea. He himself admitted that he was just about to enter a plea, but the first case was dismissed even before he was able to do so. Second, there was no unconditional dismissal of the complaint. The case was not terminated by reason of acquittal nor conviction but simply because he posted bail. Absent these two elements, there can be no double jeopardy. Penalty of Attempted Theft The penalty for consummated theft is prision mayor in its minimum and medium periods.[29] The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon principals in an attempt to commit a felony. [30] The basis for reduction of penalty by two degrees is the penalty prescribed by law for the consummated crime. Also, when the offenses defined in the RPC are punished with a penalty composed of two periods, like in the crime of theft, the penalty lower by one degree is formed by two periods to be taken from the same penalty prescribed. [31] Here, the products stolen were worth P28,627.20. Following Article 309 par. 1 of the RPC, the penalty shall be the maximum period of the penalty prescribed in the same paragraph, because the value of the things stolen exceeded P22,000.00. In other words, a special aggravating circumstance shall affect the imposable penalty. Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of Arresto Mayor Minimum to Arresto Mayor Medium. In view of the special aggravating circumstance under Article 309 (1), the maximum penalty should be Arresto MayorMaximum to Prision Correccional Minimum in its maximum period. WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March 7, 2013 Resolution of the Court of Appeals m CA-G.R. CR No. 00559 are hereby MODIFIED, in that, the Court finds accused Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted Theft. Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from Four (4) Months of Arresto Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision Correccional, as maximum. SO ORDERED. 8. People vs. Pareja, GR 188979 (September 5, 2012) G.R. No. 188979 September 5, 2012 PEOPLE OF THE PHILIPPINES vs. CHRISTOPHER PAREJA y VELASCO FACTS: At around 3:30 a.m. of June 16, 2003, AAA was sleeping beside her two-year old nephew, BBB, on the floor of her sister’s room, when the appellant hugged her and kissed her nape and neck. 5 AAA cried, but the appellant covered her and BBB with a blanket.6 The appellant removed AAA’s clothes, short pants, and underwear; he then took off his short pants and briefs.7 The appellant went on top of AAA, and held her hands. AAA resisted, but the appellant parted her legs using his own legs, and then tried to insert his penis into her vagina.8 The appellant stopped when AAA’s cry got louder; AAA kicked the appellant’s upper thigh as the latter was about to stand up. The appellant put his clothes back on, and threatened to kill AAA if she disclosed the incident to anyone. Immediately after, the appellant left the room.9 AAA covered herself with a blanket and cried.10 The prosecution charged the appellant before the RTC with the crime of rape The RTC convicted the appellant of rape The CA affirmed the RTC decision. It explained that a slight penetration of the labia by the male organ is sufficient to constitute rape. ISSUE: WON the rape was consummated. HELD: The Court ruled in the negative. 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. 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. 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. 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. "In rape cases, the prosecution bears the primary duty to present its case with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion." 42 We emphasize that a conviction cannot be made to rest on possibilities; strongest suspicion must not be permitted to sway judgment. In the present case, the prosecution failed to discharge its burden of proving all the elements of consummated rape.

9. Norberto Cruz vs. People, GR 166441 (October 8, 2014) FACTS: Petitioner Norberto Bartolome and his wife were engaged in the selling of plastic wares and glass wares in different municipalities around the country. Norberto and his wife employed AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. Two tents were fixed in order that they will have a place to sleep. At around 1:00 o'clock in the morning, AAA and BBB went to sleep. Less than an hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered her not to scream or she'll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back and kicked Norberto twice. Norberto was not able to pursue his lustful desires. Norberto offered 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 the house boy but she failed to wake him up. Thirty minutes later, 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 finally entered the tent, Norberto left and went outside. Crime charged: Attempted Rape (with respect to AAA) & Acts of Lasciviousness (with respect to BBB) RTC Ruling: Petitioner was found guilty of both crimes. CA Ruling: Petitioner was found guilty with respect to the crime of attempted rape but was acquitted with respect to the crime of acts of lasciviousness due to insufficiency of evidence. Petitioner argued that the record does not indicate if he himself was also naked, or that his penis was poised to penetrate her. ISSUE: Is the petitioner guilty of the crime of attempted rape? HELD: NO. In attempted rape, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. Accepting that intent, being a mental act, is beyond the sphere of criminal law, 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. 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) could also be ultimate felony. 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. The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of said AAA embracing and touching her vagina and breast." With such allegation of the information being competently and satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His embracing her and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her.