G.R. No.

L-43530

Republic of the Philippines

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

Honesto K. Bausa for appellant.Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of
First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two
years and four months of prision correccional and to an additional penalty of ten years and one
day of prision mayor for being an habitual delinquent, with the accessory penalties of the law,
and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo,
the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is
erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that
which has a logical relation 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 its realization and
consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code.
There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store
by means of violence, passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman Tomambing, did not
develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing
penal sanction, that an act objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural relation of the cause
and its effect, with the deed which, upon its consummation, will develop into one of the offenses
defined and punished by the Code; it is necessary to prove that said beginning of execution, if
carried to its 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. Thus, in case of robbery, in order that the simple act of entering by
means of force or violence another person's dwelling may be considered an attempt to commit
this offense, it must be shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may reasonably be inferred. From
the fact established and stated in the decision, that the accused on the day in question was making
an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a
logical conclusion that his evident intention was to enter by means of force said store against the
will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to
cause physical injury to the inmates, or to commit any other offense, there is nothing in the record
to justify a concrete finding.1avvphil.et

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly
be ascertained, but the same must be inferred from the nature of the acts executed
(accion medio). Hence, the necessity that these acts be such that by their very nature, by
the facts to which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any doubt, that
they are aimed at the consummation of a crime. Acts susceptible of double interpretation
, that is, in favor as well as against the culprit, and which show an innocent as well as a
punishable act, must not and can not furnish grounds by themselves for attempted nor
frustrated crimes. The relation existing between the facts submitted for appreciation and
the offense which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer from them the intention of
the perpetrator to cause a particular injury. This must have been the intention of the
legislator in requiring that in order for an attempt to exist, the offender must commence
the commission of the felony directly by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit an offense, they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of March 21, 1892 that
in order to declare that such and such overt acts constitute an attempted offense it is
necessary that their objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for the designation of the offense: .
...

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and
Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article
280 of the Revised Penal Code, this offense is committed when a private person shall enter the
dwelling of another against the latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar forced the wall of said store
by breaking a board and unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose
Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the prohibition of the owner or
inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25
Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil.,
292.) Against the accused must be taken into consideration the aggravating circumstances of
nighttime and former convictions, inasmuch as the record shows that several final judgments
for robbery and theft have been rendered against him and in his favor, the mitigating
circumstance of lack of instruction. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the very fact which in this case
constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods
and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to
attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and
medium periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the
same Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.