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Consummated, frustrated, attempted, A6 Revised Penal Code

1. Concept

Duty of the court – the Revised Penal Code imposes certain duties over courts in connection with acts which should be repressed but which are not covered by the law.

a. Legal basis

Article 6. Consummated, frustrated, and attempted felonies. – Consummated felonies as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.

(Revised Penal Code)

b. The 3 stages of a crime

The three (3) stages of a crime:

1) Attempted felonies;

2) Frustrated felonies; and

3) Consummated felonies.

c. Subjective phase vs Objective phase

Each felony under the Revised Penal Code has a “subjective phase,” or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. After that point has been breached, the subjective phase ends and the objective phase begins. It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted. On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, “[s]ubjectively the crime is complete.” (Valenzuela v. People, En Banc, G.R. No. 160188, June 21, 2007, Per Tinga, J.)

NB: The subjective phase and the objective phase is relevant in distinguishing between frustrated crimes and attempted crimes.

1) Subjective phase: Attempted crime

In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. (Epifanio v. People, G.R. No. 157057, June 26, 2007, Per Austria-Martinez, J.)

2) Post-subjective phase: Frustrated crime

On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that was necessary to consummate the crime; however, the crime is not consummated by reason of the intervention of causes independent of the will of the offender. (Epifanio v. People [2007], supra.)

Homicide

In homicide cases, 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 barring medical intervention or attendance. If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim; or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. (Epifanio v. People [2007], supra.)

Intent to kill may be proved by evidence of:

1) Motive;

2) The nature or number of weapons used in the commission of the crime;

3) The nature and number of wounds inflicted on the victim;

4) The manner the crime was committed; and (e) words uttered by the offender at the time the injuries were inflicted by him on the victim. (Epifanio v. People [2007], supra.)

Epifanio v. People, G.R. No. 157057, June 26, 2007, Per Austria-Martinez, J.:

• In the present case, the intent to kill is very evident and was established beyond reasonable doubt through the unwavering testimony of Crisaldo on the manner of execution of the attack as well as the number of wounds he sustained. Crisaldo was stabbed from behind by [the Accused]. When Crisaldo turned around, [the Accused] continued his assault, hitting Crisaldo on the left arm as the latter tried to defend himself. The treacherous manner in which [the Accused] perpetrated the crime is shown not only by the sudden and unexpected attack upon the unsuspecting victim but also by the deliberate manner in which the assault was perpetrated.

• Nonetheless, [the Accused] failed to perform all the acts of execution, because Allan came to the aid of Crisaldo and [the Accused] was forced to scamper away. He did not voluntarily desist from stabbing Crisaldo, but he had to stop stabbing when Allan rushed to help Crisaldo and recognized [the Accused]. Thus, the subjective phase of the crime had not been completed.

d. Distinguishing each stage

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code. (Valenzuela v. People [2007], supra.)

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was “produced” after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent. (Valenzuela v. People [2007], supra.)

e. Mens rea

The long-standing Latin maxim “actus non facit reum, nisi mens sit rea” supplies an important characteristic of a crime, that “ordinarily, evil intent must unite with an unlawful act for there to be a crime,” and accordingly, there can be no crime when the criminal mind is wanting. (Valenzuela v. People [2007], supra.)

Accepted in this jurisdiction as material in crimes mala in se, mens rea has been defined before as “a guilty mind, a guilty or wrongful purpose or criminal intent,” and “essential for criminal liability.” It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that “a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.” The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. (Valenzuela v. People [2007], supra.)

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase “shall kill another,” thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives. (Valenzuela v. People [2007], supra.)

2. Consummated

A felony is consummated when all the elements necessary for its execution and accomplishment are present.  (REVISED PENAL CODE, Article 6)

a. Concept

Of the three stages of a crime, consummated crime is the one wherein all of the elements of the crime have been committed by the offender and thus producing the intended crime and/or another crime which is likewise covered by the same overt acts.

For example, in the crime of murder, if the offender commits all of the elements to qualify the crime of murder – and the dies or is dead, then the crime is consummated murder or just murder.

3. Frustrated

[A felony] is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. (REVISED PENAL CODE, Article 6)

a. Concept

In a frustrated crime, the offender commits all of the essential element of the crime yet the crime does not happen due to reasons not attributable to the offender.

For example, in the crime of murder, if the offender commits all of the elements to qualify the crime of murder – but the victim survives or does not die, then the crime is frustrated murder. It would have been consummated murder if the victim died as killing is an important element in murder.

b. Distinguished

Frustrated crimes are distinguished from consummated as follows.

1) Frustrated vs Consummated

 FrustratedConsummated
Overt actsThe offender has performed all the acts of execution which should produce the felony as a consequence.The offender has performed all the acts of execution producing the felony as a consequence.
Cause for incomplete performanceThe reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator.N/A – The crime is accomplished.

4. Attempted

There is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance. (REVISED PENAL CODE, Article 6)

a. Concept

1) Foreign force or agency

In the leading case of United States v. Eduave, Justice Moreland, speaking for the Court, distinguished an attempted from a frustrated felony. He said that to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his intention to perform. (Epifanio v. People [2007], supra.)

b. Distinguished

Attempted crimes are distinguished from consummated and frustrated as follows.

1) Attempted vs Consummated

 AttemptedConsummated
Overt actsThe offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.The offender has perfomed all the acts of execution producing the felony as a consequence.
Cause for incomplete performanceThe reason for the non-fulfillment of the crime is a cause or accident other than the offender’s own spontaneous desistance.N/A – The crime is accomplished.
a) Theft

[U[nder Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. (Valenzuela v. People, En Banc, G.R. No. 160188, June 21, 2007, Per Tinga, J.)

2) Attempted vs Frustrated

 AttemptedFrustrated
Overt actsThe offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.The offender has performed all the acts of execution which should produce the felony as a consequence.
Cause for incomplete performanceThe reason for the non-fulfillment of the crime is a cause or accident other than the offender’s own spontaneous desistance.The reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator.
(Endentino v. People, G.R. No. 206632, February 7, 2018, Per Del Castillo, J.)
a) Parricide, murder or homicide, or only lesiones (physical injuries)

[I]n order to determine whether the crime committed is attempted or frustrated parricide, murder or homicide, or only lesiones (physical injuries), the crucial points to consider are:

1) Whether the injury sustained by the victim was fatal, and

2) Whether there was intent to kill on the part of the accused. (Endentino v. People [2018], supra.)

It must be stressed that it is not the gravity of the wounds alone which determines whether a felony is attempted or frustrated, but whether the assailant had passed the subjective phase in the commission of the offense. (Epifanio v. People, G.R. No. 157057, June 26, 2007, Per Austria-Martinez, J.)

[I]n order to convict an accused for the crime of Frustrated Murder or Homicide, as the case may be, the nature of the wounds sustained by the victim should be fatal. Otherwise, the accused can only be convicted of Attempted Murder or Homicide. The crucial point to consider is the nature of the wound inflicted which must be supported by independent proof showing that the wound inflicted was sufficient to cause the victim’s death without timely medical intervention. (Oliveros, Jr. v. People, G.R. No. 242552, March 03, 2021, Per Caguioa, J.)

[W]hen the character of the wounds sustained by the victim is doubtful, any doubt should be resolved in favor of the accused. (Oliveros, Jr. v. People [2021], supra.)

When nothing in the evidence shows that the wound would be fatal without medical intervention, the character of the wound enters the realm of doubt; under this situation, the doubt created by the lack of evidence should be resolved in favor of the petitioner. Thus, the crime committed should be attempted, not frustrated, homicide. (Serrano v. People, G.R. No. 175023, July 5, 2010, Per Brion, J.)

U.S. v. Eduave, En Banc, G.R. No. L-12155, February 2, 1917, Per Moreland, J.:

• We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself up he declared that he had killed the complainant.

• There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-half inches long and two inches deep, severing all of the muscles and tissues of that part.

• The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her mother’s querido and was living with her as such at the time the crime here charged was committed.

• That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second place, that it is attempted and not frustrated homicide.

• As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and that being so the crime would have been qualified as murder if death had resulted.

• As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder.

• The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.

• To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed.

• On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control.

• The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control — that period between the point where he begins and the points where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.

• That the case before us is frustrated is clear.

References

Title I – Felonies and Circumstances which Affect Criminal Liability, Book I, Act No. 3815, Revised Penal Code

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