Article 3. Definitions. - Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill.

Article 4. Criminal liability. - Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that which he
intended.
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 an account of the employment of inadequate or ineffectual
means.

If a person holds a cashier at gun point not knowing that the cash register is empty, he/she just committed an impossible
crime. If a person shoots someone without knowing the gun was not loaded, he/she just committed an impossible crime.

Can a person be penalized for committing an Impossible Crime? Yes.

Article 4(2) of Revised Penal Code (RPC) makes an Impossible Crime a criminal act. An Impossible Crime is committed 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 an account of the employment of inadequate or ineffectual means. The penalty for
this offense is Arresto Mayor (1 month and 1 day to 6 months) or a fine from P200 to P500. (Article 59, RPC)

Below are a few examples of Impossible Crimes:

Four culprits armed with firearms and with intent to kill Palangpangan went to the house of the latter. After having
pinpointed his house, all four fired their guns and riddled the house with bullets. It so happened that Palangpangan was not
home that night. The accused intended to commit murder but there was an inherent impossibility of committing murder
because Palangpangan was not at home. The court imposed a penalty of six months imprisonment. (Intod v. Court of
Appeals, G.R. No. 103119 October 21, 1992)

With intent to kill, the accused tried to poison Juan. Juan was not poisoned, however, because unknown to the accused,
what he mixed with the food of Juan was powdered milk, not poison. In this case, the accused is guilty of an impossible
crime. Criminal liability is incurred by the accused although no crime was accomplished because his act of trying to poison
Juan, in itself, is already criminal.

A person who tries to murder a dead person is also guilty of an impossible crime. A dead person cannot be injured or killed
again. (People vs. Balmores, 85 Phil. 493 (1950))

Another example is a 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 rationale of Article 4(2) is to punish criminal tendencies. The impossibility of accomplishing the criminal intent is not a
defense in the Philippines but the act is penalized by itself.

Examples of an impossible crime, which formerly was not punishable but is now under article 59 of the Revised Penal Code,
are the following: (1) When one tries to kill another by putting in his soup a substance which he believes to be arsenic when
in fact it is common salt; and (2) when one tries to murder a corpse. (Guevara, Commentaries on the Revised Penal Code,
4th ed., page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim., 343.)

Under article 4, these are the means on how a person can incur criminal liability. And under paragraph 2 it pertains to IMPOSSIBLE
CRIME.
Basically, impossible crime is not a felony, because it is just an act. An act that would be an offense against person or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

But why is it being punished, since it is not a felony? The answer is that it is being punished because of the CRIMINAL MIND OF THE
OFFENDER.

So, in order for a person to incur impossible crime these are the following elements:

1. That a person performs an act which could be an offense against another person.
2. That he has an evil intent
3. That the crime he intended to commit is impossible of being consummated, either because of PHYSICAL OR LEGAL
IMPOSSIBILITY or the MEANS EMPLOYED IS INADEQUATE OR INEFFECTUAL.
4. Provided that the act should not constitute violation of any other provision of the revised penal code.

PHYSICAL IMPOSSIBILITY:

Physical impossibility has been actualized in the case of INTOD VS PEOPLE. In this case, Intod wants to kill his enemy and because
of that he goes to house of his enemy. The laborer whom intod had inquired, on where the victim could be found pointed to a room in
the house. “Nandyn lang po sa kwarto dyn (He was in that room)” So Intod armed with his armalite riffle, fired shots at the room only
to discover that, the intended victim had gone to another place. In this case, the SC held that Intod is only liable for impossible crime,
because there is this physical impossibility to kill the intended victim.

INEFFECTUAL MEANS:

Example: A person intending to kill his rival and invited his rival, and then the offender pick a bottle believing it contains person and
pour it in the drink of his rival but despite the fact the bottle is almost finished he is still asking for more. Then he found that the bottle
he poured is just sugar and not poison. Here there is an intent to kill the victim but because of some ineffectual means the intended crime
was not consummated. However, he is guilty of impossible crime.

LEGAL IMPOSSIBILITY:

X who lost his wristwatch to a snatcher and wanted to own a wristwatch again. He pickpocket in Quiapo a wristwatch, when he examined,
he discovered that it was the same wrist watch that was snatched by the snatcher. This is an example of impossible crime by means of
legal impossibility because it is legally impossible for the owner of that thing to be liable for theft. He has an evil intent on that time but
there was a legal impossibility of committing theft.

LAST ELEMENT: Provided that the act should not constitute violation of any other provision of the revised penal code.

The last element is one of the most important elements in impossible crime. Because if there are other crimes that has been committed
before the supposed impossible crime has been consummated then there is no impossible crime.

EXAMPLE: X is a suitor of a pretty woman. But his offer of love was not accepted by the woman. And he said, “ok tatangapin ko” but
at the back of his mind “By hook or by crook magiging akin ka din” So one evening, one month after that incident where his offer of
love was not accepted. Learning that the girl he was courting was left alone in her house. He went to the house. And then he found the
house to be closed, he peek through the window and sees the girl lying in the sofa.

But the door is locked in the inside. To get inside of the house he climb the window and surreptitiously approached the girl who lying
in the sofa and believing she was asleep he began removing her underwear and mounted on her until he was able to penetrate her. But
he was surprised because the body of girl is already cold only to discover that the girl had already died 20 minutes ago because of cardiac
arrest.

1. What was there an IMPOSSIBLE CRIME committed?

2. There is no more impossible crime there because there was a last element in impossible crime “Provided that the act should not
constitute violation of any other provision of the revised penal code.

When he entered the house, he already violated ARTICLE 280 which is a case of TRESSPASS TO DWELING, it already constitute a
crime based on other provision of the law.
So the crime to be charged is only TRESSPASS TO DWELLING. Had the door been open then it was through the door that he entered
and he penetrated the girl and discovered that she was already dead then that would be considered as an impossible crime. Because
rape now is a crime against person.

TRIVIA: Prior to the enactment of R.A 8353, there is no impossible crime of rape, because rape is still a crime against chastity and not
a crime against person. It is only when a new provision of the RPC was inserted in Title 8, that is ARTICLE 266-A. It transforms the
crime of rape to crime against chastity to crime against person.

G.R. No. 103119 October 21, 1992 SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.

IMPOSSIBLE CRIME

What then is an impossible crime? Is it an offense which is not most likely to transpire? Or is it not penalize?

Here’s a sample scenario. In a public crowded place, a person with intent to gain, illegally and successfully took the wallet
belonging to another, but unfortunately upon searching the entries of the wallet not even a single centavo was found inside.

Another example, a wife and her paramour were unintentionally found by her husband, who came from a long and tiring
work assigned in the other town, as both were naked and seemed to have been fall in a deep sleep. And because of what he
saw, his heart crushed and without any doubt took his gun and shot both his wife and the other man.

Eventually, based on the forensic investigations and police reports conducted, it was found out that his wife and the
paramour were already dead three hours before the husband came to their house.

These two examples fall under the category of what is defined by the Revised Penal Code as an impossible crime. This crime
is committed 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. [1]

In the first example, the crime committed is against the property of another. The purpose of gaining was not accomplished
considering that no money was found inside the wallet. Hence, there is an impossibility of crime of theft.

A crime against the person is what transpires in the second example. Killing an already dead person can neither fall under
the crime of murder nor homicide since you can no longer inflict or employ harm or injury to a cadaver. As such, there is an
impossibility of a crime of murder or homicide.

And the penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are
impossible shall be arresto mayor or a fine from 200 to 500 pesos. This is when the person intending to commit an offense
has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the
fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the
degree of criminality shown by the offender shall be penalized by the law.

What is an impossible crime?

An impossible crime is one where the acts performed would have been a crime against person or property but which is not accomplished
because of its inherent impossibility or because of the employment of inadequate or ineffectual means.

What are the requisites of impossible crime?

The requisites of an impossible crime are:

1. That the act performed would be an offense against persons or property;
2. That the act was done with evil intent; and
3. That its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. (Jacinto vs.
People, G.R. No. 162540, July 13, 2009)
4. That the act performed should not constitute a violation of another provision of the RPC.

What are the 2 kinds of inherent impossibility?

1. Legal impossibility - occurs where the intended acts, even if completed, would not amount to a crime. It would apply to those
circumstances where
a. the motive, desire and expectation is to perform an act in violation of the law;
b. there is intention to perform the physical act;
c. there is a performance of the intended physical act; and
d. The consequence resulting from the intended act does not amount to a crime. (Intod vs. CA)

Examples:

A. Killing a person already dead. A dead person cannot be injured or killed again. (People vs. Balmores, 85 Phil. 493 (1950) of
the offender knew that the victim is already dead when he stabbed him, he will not be liable for an impossible crime because his mind
was not criminal.

B. X stole a watch from the possession of C which turned out to be the watch he owns but lost 2 weeks earlier. X cannot be the thief of
his own property. In theft, it is essential that the offender take a personal property belonging to another.

2) Factual impossibility - occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation
of the intended crime.

Examples:

A. A 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.

B. X shoots the place where he thought his victim Z would be, although in reality, Z was not present in said place.

Four culprits, all armed with firearms and with intent to kill, went to the intended victim’s house and after having pinpointed
the latter’s bedroom, all four fired at and riddled the said room with bullets, thinking that the intended victim was already
there as it was about 10:00 in the evening. It so happened that the intended victim did not come home that evening and so
was not in her bedroom at that time. Eventually the culprits were prosecuted and convicted by the trial court for attempted
murder. CA affirmed the judgment, but the SC modified the same and held the petitioner liable only for the so-called
impossible crime. (Intod vs. CA, G.R. No. 103119, October 21, 1992)

C. Accused was a collector for a company called Mega Foam Int’l Inc. and received a P10, 000 check as payment from a
Mega Foam customer. However, instead of turning over the check to Mega Foam, the accused took the check, and had it
deposited into her brother-in-law’s bank account. It turns out the check was not funded.

In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property.
Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her
intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face
value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken
by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had
received the cash to replace the value of said dishonored check. (Jacinto vs. People)

What will be the liability of the offender if the crime is not produced although there is adequate or effectual means employed?

If the crime is not produced although there is adequate or effectual means employed, it cannot be impossible crime but a frustrated
felony. So, if a sufficient quantity of poison was administered to the victim but he did not die, the felony was not produced due to his
possible impunity to the poison, which is an act independent of the will of the offender. (Gregorio, Fundamentals of Criminal Law
Review)

The act performed should not constitute a violation of another provision of the RPC

● A administered abortive drugs upon his girlfriend B whom he believed to be pregnant which turned out not to be true. B became ill
for more than 30 days. B will not be liable for impossible crime of abortion but for for serious physical injuries.

● A, with intent to take the watch of B who was then leaning on a tree, stabbed the latter and then took his watch. It turned out that B
had been dead hours before. What crime/s were committed?

If B were alive before he was stabbed, A would have been liable for robbery with homicide. Seemingly, A is liable for impossible crime
of homicide because there is an inherent impossibility of killing B because the latter was already dead before the assault. But A could
not be liable for impossible crime of homicide because also committed another crime which is theft. Thus, A is liable for theft.

● A was driving his car around Roxas Boulevard when a person hitched a ride. Because this person was exquisitely dressed, A readily
welcomed the fellow inside his car and he continued driving. When he reached a motel, A suddenly swerved his car inside. A started
kissing his passenger, but he found out that his passenger was not a woman but a man, and so he pushed him out of the car, and gave
him fist blows. Is an impossible crime committed? If not, is there any crime committed at all?

It cannot be an impossible crime, because the act would have been a crime against chastity. The crime is physical injuries or acts of
lasciviousness, if this was done against the will of the passenger. There are two ways of committing acts of lasciviousness. Under Article
336, where the acts of lasciviousness were committed under circumstances of rape, meaning to say, there is employment of violence or
intimidation or the victim is deprived of reason. Even if the victim is a man, the crime of acts of lasciviousness is committed. This is a
crime that is not limited to a victim who is a woman. Acts of lasciviousness require a victim to be a woman only when it is committed
under circumstances of seduction. If it is committed under the circumstances of rape, the victim may be a man or a woman.

Is there an impossible crime of rape?

Yes, because rape now is a crime against persons. Ex. A raped the corpse of Z. (Boado, Notes and Cases on the Revised Penal Code)

Why is impossible crime punished?

 The rationale of Article 4(2) is to punish such criminal tendencies. (Intod vs. CA)
 The purpose of punishing impossible crime is to suppress criminal propensity or criminal tendencies. Objectively, the offender
has not committed a felony, but subjectively, he is a criminal.

What is the penalty for impossible crime?

When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime
was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger
and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500
pesos. (Art. 59, RPC)

Criminal law has attempted to clarify the intent requirement by creating the concepts of "specific intent" and "general intent
. “Specific refers to a particular state of mind that seeks to accomplish the precise act that the law prohibits for
example, a specific intent to commit rape. Sometimes it means an intent to do something beyond that which is done, such
as
assault with intent to commit rape. The prosecution must show that the defendant purposely or knowingly committed the
crime at issue.

General intent refers to the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that th
e
defendant intended the precise harm or the precise result that occurred. Thus, in most states, a defendant who kills a pers
on with a gun while intoxicated, to the extent that the defendant is not aware of having a gun, will be guilty of second-
degree murder. The law will infer that the defendant had a general intent to kill.

[G.R. NO. 162540: July 13, 2009]

GEMMA T. JACINTO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a Petition for Review on Certiorarifiled by petitioner Gemma T. Jacinto seeking the reversal of
the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming
petitioner's conviction of the crime of Qualified Theft, and its Resolution2 dated March 5, 2004 denying
petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle,
was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified
Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping
one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH
DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of trust
and confidence reposed upon them with intent to gain and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing
payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the
latter in the aforesaid stated amount of P10, 000.00.

CONTRARY TO LAW.3

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events
that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco
De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of P10, 000.00. The check
was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then the collector
of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso Capitle, the
husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing, merchandising
and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the
middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline Capitle to make check payments to Mega Foam
payable to CASH. Around that time, Ricablanca also received a phone call from an employee of Land Bank,
Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle that
the subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the
latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check.
Ricablanca explained that she had to call and relay the message through Valencia, because the Capitles did
not have a phone; but they could be reached through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby
Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it
equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the
advise of Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed
petitioner a BDO check for P10, 000.00 sometime in June 1997 as payment for her purchases from Mega
Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner also called her on the phone to
tell her that the BDO check bounced.5 Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that she had already paid Mega
Foam P10, 000.00 cash in August 1997 as replacement for the dishonored check.6

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank
account, but explained that the check came into his possession when some unknown woman arrived at his
house around the first week of July 1997 to have the check rediscounted. He parted with his cash in
exchange for the check without even bothering to inquire into the identity of the woman or her address.
When he was informed by the bank that the check bounced, he merely disregarded it as he didn't know
where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an
entrapment operation with its agents. Ten pieces of P1, 000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was
tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding
the bounced BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby
Aquino's place to have the check replaced with cash, but the plan did not push through. However, they
agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner's house, where she met petitioner and Jacqueline
Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle
decided not to go with the group because she decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only
Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that she was getting
cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10, 000.00
marked money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to
the jeep, gave P5, 000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested
by NBI agents, who had been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder
on the palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled
the marked money. The NBI filed a criminal case for qualified theft against the two and one Jane Doe who
was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed
that she had stopped collecting payments from Baby Aquino for quite some time before her resignation from
the company. She further testified that, on the day of the arrest, Ricablanca came to her mother's house,
where she was staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's house.
Since petitioner was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to
hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan City.
She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the
house of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI
agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It
was never part of her job to collect payments from customers. According to her, on the morning of August
21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca)
to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission during cross-
examination that she did not know where Baby Aquino resided, as she had never been to said house. They
then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded
to Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait
for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money
and so she even asked, "What is this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision,
the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa,
Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the
crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5)
YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8)
MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive
portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale
Jacinto, but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and
Resolution of the CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime
of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1)
the taking of personal property - as shown by the fact that petitioner, as collector for Mega Foam, did not
remit the customer's check payment to her employer and, instead, appropriated it for herself; (2) said
property belonged to another − the check belonged to Baby Aquino, as it was her payment for purchases
she made; (3) the taking was done with intent to gain - this is presumed from the act of unlawful taking
and further shown by the fact that the check was deposited to the bank account of petitioner's brother-in-
law; (4) it was done without the owner's consent - petitioner hid the fact that she had received the check
payment from her employer's customer by not remitting the check to the company; (5) it was accomplished
without the use of violence or intimidation against persons, nor of force upon things - the check was
voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and
(6) it was done with grave abuse of confidence - petitioner is admittedly entrusted with the collection of
payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal
property subject of the theft must have some value, as the intention of the accused is
to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the
penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was
apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the crime
of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the accused,
intending to kill a person, peppered the latter's bedroom with bullets, but since the intended victim was not
home at the time, no harm came to him. The trial court and the CA held Intod guilty of attempted murder.
But upon review by this Court, he was adjudged guilty only of an impossible crime as defined and
penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the
factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:

Article 4 (2). Criminal Responsibility. - Criminal responsibility shall be incurred:

x x x

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 to
ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the
aims sought are impossible. - When the person intending to commit an offense has already performed the
acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that
the act intended was by its nature one of impossible accomplishment or because the means employed by
such person are essentially inadequate to produce the result desired by him, the court, having in mind the
social danger and the degree of criminality shown by the offender, shall impose upon him the penalty
of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against
persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the
inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod10 in this wise:

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.

x x x

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. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man
puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing
since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this
case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against
property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for
Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was
only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the
time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the
cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5, 000.00 marked money, which she thought
was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v.
People12 that under the definition of theft in Article 308 of the Revised Penal Code, "there is only one
operative act of execution by the actor involved in theft ─ the taking of personal property of another."
Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law - that theft is already "produced" upon the "tak[ing of] personal property
of another without the latter's consent."

x x x

x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft
is produced when there is deprivation of personal property due to its taking by one with intent to gain.
Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued from such acts of execution. x x x
x x x
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment
the offender gains possession of the thing, even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one's personal property, is the element which produces
the felony in its consummated stage. x x x 13

From the above discussion, there can be no question that as of the time that petitioner took possession
of the check meant for Mega Foam, she had performed all the acts to consummate the crime of
theft, had it not been impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5, 000.00 cash as supposed replacement for the dishonored check was no longer necessary
for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give
cash as replacement for the check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement
should not be considered as a continuation of the theft. At most, the fact that petitioner was caught receiving
the marked money was merely corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its
issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not included or
covered by the allegations in the Information, the Court cannot pronounce judgment on the accused;
otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent scheme could
have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated
December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto
is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of
the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months
of arrresto mayor, and to pay the costs.

SO ORDERED.

When the offender commits continued crimes

 Continued crimes – refers to a single crime consisting of a series of acts but all arising from one criminal
resolution. Although there is a series of acts, there is only one crime committed, so only one penalty shall be
imposed.
 Examples of continued crimes:
a) a collector of a commercial firm misappropriates for his personal use several amounts collected by him
from different persons. There is only one crime because the different and successive appropriations are
but the different moments during which one criminal resolution arises.
b) Juan stole 2 books belonging to 2 different persons. He commits only one crime because there is unity of
thought in the criminal purpose of the offender.
 A continued crime is not a complex crime as offender does not perform a single act but a series of acts.
Therefore:
a) penalty not to be imposed in the maximum
b) no actual provision punishing a continued crime – it’s a principle applied in connection w/ 2 or more
crimes committed w/ a single intention.
 Continued crime is different from a transitory crime. Transitory crime is “moving crime”.

Example: kidnapping someone for ransom and moving him to another venue. The offenders can be prosecuted
and tried in either of the 2 areas.

REAL/MATERAIAL PLURALITY CONTINUED CRIME

There is a series of acts performed by the offender Same

Each act performed constitutes a separate crime Different acts constitute only one crime because all of
because each act is generated by a criminal impulse the acts performed arise from one criminal resolution.
Examples of Continuing Crime:
1. estafa
2. libel
3. BP22
4. Robbery with homicide (?)
5.

Akin to the extant case is that of People v. De la Cruz, wherein the robbery that took place in several houses
belonging to different persons, when not absolutely unconnected, was held not to be taken as separate and
distinct offenses. They formed instead, component parts of the general plan to despoil all those within the
vicinity. In this case, the Solicitor General argued that the [appellant] had committed eight different robberies,
because the evidence shows distinct and different acts of spoilation in different houses, with several victimized
persons. The Highest Tribunal, however, ruled that the perpetrated acts were not entirely distinct and
unconnected from one another. Thus, the single offense or crime.