EN BANC

[G.R. No. 43530. August 3, 1935.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO

LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Solicitor-General Hilado for appellee.

SYLLABUS

1. CRIMINAL LAW; ATTEMPT TO COMMIT AN INDETERMINATE CRIME. —

The attempt 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 thereof 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.

2. ID.; ID. — It is not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed should constitute a mere beginning of execution; it is necessary to establish
its unavoidable relation, like the logical and natural relation of the cause and its effect, to the deed
which, upon its consummation, will ripen into one of the crimes defined and punished by the Code;
it is necessary to prove that such 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.

3. ID.; ID.; ATTEMPTED ROBBERY. — In order that a simple act of entering by means
of force or violence another person's dwelling may be considered as attempted robbery, 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 present case, there is no evidence in the record from
which such purpose of the accused may reasonably be inferred.

4. ID.; ID.; ID. — 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 T. Y.'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 its occupants, or to commit any other offense, there
is nothing in the record to justify a concrete finding.

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 5. ID.; ATTEMPTED TRESPASS TO DWELLING. — 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). The accused
may be convicted and sentenced for an attempt to commit this crime, in accordance with the weight
of the evidence and the allegations contained in the information.

DECISION

RECTO, J : p

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
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 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.

"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 punishable 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
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 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 two 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.

Avanceña, C.J., Abad Santos, Hull and Vickers, JJ., concur.

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