I. Introduction: Generation of a Crime


A. The first is the Mental Stage


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


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


1). The Preparatory acts: Acts which may or may not lead to the commission of a concrete crime. Being equivocal they are not as rule punishable except when there is an express provision of law punishing specific preparatory acts.


Example: (i) the general rule: buying of a gun, bolo or poison, even if the purpose is to use these to kill a person; so also with conspiracies and proposals. (ii) the exception: possession of picklocks and false keys is punished; as with conspiracies to commit treason, rebellion, sedition and coup d’etat


2) The Acts of execution: the attempted, frustrated and consumated stages


II. Application of Article 6: 

Only to intentional felonies by positive acts but not to: (i). Felonies by omission (ii) Culpable felonies and (iii) Violations of special laws, unless the special law provides for an attempted or frustrated stage. Examples of the exception are The Dangerous Drugs Law which penalizes an attempt to violate some of its provisions, and The Human Security Act of 2007


III. The attempted stage:

"the accused commences the commission of a felonious act directly by overt acts but does not perform all the acts of execution due to some cause or accident other than his own spontaneous desistance”


 A).(1). The attempt which the Penal Code punishes is that which has a connection to a particular, concrete offense, that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to the its realization and commission (2) The act must not be equivocal but indicates a clear intention to commit a particular and specific felony. Thus the act of a notorious criminal in following a woman can not be the attempted stage of any felony.  


B). Overt or external act is some physical deed or activity, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to is complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense

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C). Examples:


1.  The accused pressed a chemically -soaked cloth on the mouth of the woman to induce her to sleep, while he lay on top of her and pressed his body to her. The act is not the overt act that will logically and necessarily ripen into rape.  They constitute unjust vexation. ( Note: it would be attempted rape if he tried to undress the victim or touch her private parts) ( Balleros vs. People, Feb, 22, 2006)

2. One found inside a house but no article was found on him, is liable for trespass and not for attempted theft or robbery even if he is a notorious robber

3. One found removing the glass window panes or making a hole in the wall is not liable for attempted robbery but for attempted trespass


D) The accused has not yet passed the subjective phase or that phase encompassed from the time an act is executed which begins the commission of the crime until the time of the performance of the last act necessary to produce the crime, but where the accused has still control over his actions and their results. 


E).The accused was not able to continue performing the acts to produce the crime. He was prevented by external forces and not because he himself chose not to continue. Such as when his weap0n was snatched, or his intended victim managed to escape, or he was overpowered or arrested.


F). If the accused voluntarily desisted i.e he himself decided not to continue with his criminal purpose, then he is not liable.

1. Reason: This is an absolutory cause by way of reward to those who, having set one foot on the verge of crimes, heed the call of their conscience and return to the path of righteousness.  .

2. The reason for the desistance is immaterial

3. Exceptions: when the accused is liable despite his desistance

a). when the act performed prior to the desistance already constituted the attempted stage of the intended felony. For example: the accused, with intent to kill, shot at the victim but missed after which he “desisted”, his acts already constituted attempted homicide

b). When the acts performed already gave rise to the intended felony. The decision not to continue is not a legal but factual desistance. As in the case of a thief who returned what he stole.

c). When the acts performed constitute a separate offense. Pointing a gun at another and threatening to kill, and then desisting gives rise to grave threats.


IV. The Frustrated Stage:

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


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


B. The non-production of the crime should not be due to the acts of the accused himself, for if it were he would be liable not for the frustrated stage of the intended crime, but possibly for another offense.


Thus: where the accused shot the victim mortally wounding him, but he himself saved the life of his victim, his liability is that for serious physical injuries as the intent to kill is absent.


C. Attempted vs. Frustrated Homicide/murder. Where the accused, with intent to kill, injured the victim but the latter did not die, when is the crime attempted or frustrated?


1. First View:  “The subjective phase doctrine”. If at that point where the accused has still control over the results of his actions but is stopped by reason outside of his own desistance and the subjective phase has not been passed, the offense is attempted

2. Second View: The Mortal Wound or Life Threatening Injury Doctrine:  If a mortal wound or life threatening injury had been inflicted, the offense is frustrated, else it is attempted ( Palaganas vs. PP., Sept. 12, 2006)   

3. Third View:  The belief of the accused should be considered in that if the accused believed he has done all which is necessary to produce death, then it is frustrated.


V. Consummated.

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


VI. Factors to Consider in determining the proper stage.


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


B. The elements of the felony.  


1. Theft: it is consummated once the article is in the material physical possession of the accused, whether actual or constructive. His ability to dispose off the thing his immaterial and does not constitute an element.


N.B. Decisions of the CA as to bulky items where the accused must have the opportunity dispose off or appropriate the articles have already been reversed. The doctrine now is that theft has no frustrated stage ( Valenzuela vs. PP. June 21, 2007)  


2. Estafa: It is not the material possession but the existence of damage which consumates the crime.


 3. Robbery with Force Upon Things: The thing must be brought out of the building to consumate the crime.


C. The Nature of the Felony Itself


1. Crimes which require the participation of two persons have no frustrated stage. Examples: Adultery and concubinage; corruption of a public official.

2. There are crimes which are punished according to their results and not the intention of the accused such as physical injuries.

3. As to Arson: it is consumated once a part of the building is burned. It has been ruled that if the accused lit certain materials but no part of the building as burned, the crime is in its frustrated stage and if there was no material which was as yet lit, then arson is still in its attempted. Thus one who places sacks soaked in gasoline near the post and lit it but no part of the building was burned, committed frustrated arson. 


(Personal Opinion: there can be no frustrated stage, but only attempted stage if the fire was not yet applied to the building.  But if fire was applied to the building or a part thereof but no part of the building was burned, then it is attempted. The only consideration is whether or not the accused succeeded in burning a part of the building.  If no part of the building was burned, it is still attempted arson no matter how far gone were the acts of the accused).