G.R. No. 103119 October 21, 1992 Art. 4(2). CRIMINAL RESPONSIBILITY.

— Criminal Responsibility shall be

incurred:
SULPICIO INTOD, petitioner,
vs. xxx xxx xxx
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
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 or ineffectual means.
CAMPOS, JR., J.:
Petitioner contends that, Palangpangan's absence from her room on the night he and his
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of companions riddled it with bullets made the crime inherently impossible.
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City,
finding him guilty of the crime of attempted murder. On the other hand, Respondent People of the Philippines argues that the crime was not impossible.
Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted
From the records, we gathered the following facts. murder. Respondent alleged that there was intent. Further, in its Comment to the Petition,
respondent pointed out that:
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and . . . The crime of murder was not consummated, not because of the inherent
asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya cause or accident other than petitioner's and his accused's own spontaneous
that he wanted Palangpangan to be killed because of a land dispute between them and that desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time.
Mandaya should accompany the four (4) men, otherwise, he would also be killed. Had it not been for this fact, the crime is possible, not impossible. 3

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void
Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, in the Old Penal Code where:
Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. . . . it was necessary that the execution of the act has been commenced, that the
It turned out, however, that Palangpangan was in another City and her home was then occupied by person conceiving the idea should have set about doing the deed, employing
her son-in-law and his family. No one was in the room when the accused fired the shots. No one appropriate means in order that his intent might become a reality, and finally,
was hit by the gun fire. that the result or end contemplated shall have been physically possible. So long
as these conditions were not present, the law and the courts did not hold him
Petitioner and his companions were positively identified by witnesses. One witness testified that criminally liable. 5
before the five men left the premises, they shouted: "We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by
the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as which were it not aimed at something quite impossible or carried out with means which prove
affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. inadequate, would constitute a felony against person or against property. 8 The rationale of Article
Petitioner seeks from this Court a modification of the judgment by holding him liable only for an 4(2) is to punish such criminal tendencies. 9
impossible crime, citing Article 4(2) of the Revised Penal Code which provides:
Under this article, the act performed by the offender cannot produce an offense against person or In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the
property because: (1) the commission of the offense is inherently impossible of accomplishment: victim because the latter did not pass by the place where he was lying-in wait, the court held him
or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 liable for attempted murder. The court explained that:

That the offense cannot be produced because the commission of the offense is inherently It was no fault of Strokes that the crime was not committed. . . . It only became
impossible of accomplishment is the focus of this petition. To be impossible under this clause, the impossible by reason of the extraneous circumstance that Lane did not go that
act intended by the offender must be by its nature one impossible of accomplishment. 11 There way; and further, that he was arrested and prevented from committing the
must be either impossibility of accomplishing the intended act 12 in order to qualify the act an murder. This rule of the law has application only where it is inherently
impossible crime. impossible to commit the crime. It has no application to a case where it
becomes impossible for the crime to be committed, either by outside
Legal impossibility occurs where the intended acts, even if completed, would not amount to a interference or because of miscalculation as to a supposed opportunity to
crime. 13 Thus: commit the crime which fails to materialize; in short it has no application to the
case when the impossibility grows out of extraneous acts not within the control
of the party.
Legal impossibility would apply to those circumstances where (1) the motive,
desire and expectation is to perform an act in violation of the law; (2) there is
intention to perform the physical act; (3) there is a performance of the intended In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there
physical act; and (4) the consequence resulting from the intended act does not was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
amount to a crime. 14
It being an accepted truth that defendant deserves punishment by reason of his
The impossibility of killing a person already dead 15 falls in this category. criminal intent, no one can seriously doubt that the protection of the public
requires the punishment to be administered, equally whether in the unseen
depths of the pocket, etc., what was supposed to exist was really present or not.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the The community suffers from the mere alarm of crime. Again: Where the thing
actor or beyond his control prevent the consummation of the intended crime. 16 One example is intended (attempted) as a crime and what is done is a sort to create alarm, in
the man who puts his hand in the coat pocket of another with the intention to steal the latter's other words, excite apprehension that the evil; intention will be carried out, the
wallet and finds the pocket empty. 17 incipient act which the law of attempt takes cognizance of is in reason
committed.
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim
would be, although in reality, the victim was not present in said place and thus, the petitioner In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking
failed to accomplish his end. that the latter was inside. However, at that moment, the victim was in another part of the house.
The court convicted the accused of attempted murder.
One American case had facts almost exactly the same as this one. In People vs.  Lee Kong, 18 the
accused, with intent to kill, aimed and fired at the spot where he thought the police officer would The aforecited cases are the same cases which have been relied upon by Respondent to make this
be. It turned out, however, that the latter was in a different place. The accused failed to hit him and Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon
to achieve his intent. The Court convicted the accused of an attempt to kill. It held that: these decisions to resolve the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible
attempt to kill. It is well settled principle of criminal law in this country that crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal
where the criminal result of an attempt is not accomplished simply because of Procedure is silent regarding this matter. What it provided for were attempts of the crimes
an obstruction in the way of the thing to be operated upon, and these facts are enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the
unknown to the aggressor at the time, the criminal attempt is committed. offense is merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual The factual situation in the case at bar present a physical impossibility which rendered the
impossibility. 22 In U.S. vs.  Wilson 23 the Court held that: intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised
Penal Code, such is sufficient to make the act an impossible crime.
. . . factual impossibility of the commission of the crime is not a defense. If the
crime could have been committed had the circumstances been as the defendant To uphold the contention of respondent that the offense was Attempted Murder because the
believed them to be, it is no defense that in reality the crime was impossible of absence of Palangpangan was a supervening cause independent of the actor's will, will render
commission. useless the provision in Article 4, which makes a person criminally liable for an act "which would
be an offense against persons or property, were it not for the inherent impossibility of its
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability accomplishment . . ." In that case all circumstances which prevented the consummation of the
for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters offense will be treated as an accident independent of the actor's will which is an element of
into and out of prison. The law governing the matter made the act criminal if done without attempted and frustrated felonies.
knowledge and consent of the warden. In this case, the offender intended to send a letter without
the latter's knowledge and consent and the act was performed. However, unknown to him, the WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of
transmittal was achieved with the warden's knowledge and consent. The lower court held the respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED.
accused liable for attempt but the appellate court reversed. It held unacceptable the contention of We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4,
the state that "elimination of impossibility as a defense to a charge of criminal attempt, as paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and
suggested by the Model Penal Code and the proposed federal legislation, is consistent with the degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6)
overwhelming modern view". In disposing of this contention, the Court held that the federal months of arresto mayor, together with the accessory penalties provided by the law, and to pay the
statutes did not contain such provision, and thus, following the principle of legality, no person costs.
could be criminally liable for an act which was not made criminal by law. Further, it said:
SO ORDERED.
Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal impossibility G.R. No. 162540               July 13, 2009
until such time as such legislative changes in the law take place, this court will
not fashion a new non-statutory law of criminal attempt.
GEMMA T. JACINTO, Petitioner,
vs.
To restate, in the United States, where the offense sought to be committed is factually impossible PEOPLE OF THE PHILIPPINES, Respondent.
or accomplishment, the offender cannot escape criminal liability. He can be convicted of an
attempt to commit the substantive crime where the elements of attempt are satisfied. It appears,
therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a DECISION
crime. On the other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime — neither for an attempt not for an impossible crime. The only PERALTA, J.:
reason for this is that in American law, there is no such thing as an impossible crime. Instead, it
only recognizes impossibility as a defense to a crime charge — that is, attempt. Before us is a petition for review on certiorari  filed 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,
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution 2 dated
impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by March 5, 2004 denying petitioner's motion for reconsideration.
itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised
Penal Code makes no distinction between factual or physical impossibility and legal Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline
impossibility. Ubi lex non distinguit nec nos distinguere debemos. 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 Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner
within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and of Mega Foam, Joseph Dyhengco.
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 Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain handed petitioner a BDO check for ₱10,000.00 sometime in June 1997 as payment for her
and without the knowledge and consent of the owner thereof, did then and there willfully, purchases from Mega Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner
unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No. also called her on the phone to tell her that the BDO check bounced. 5 Verification from company
0132649 dated July 14, 1997 in the sum of ₱10,000.00, representing payment made by customer records showed that petitioner never remitted the subject check to Mega Foam. However, Baby
Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid Aquino said that she had already paid Mega Foam ₱10,000.00 cash in August 1997 as replacement
stated amount of ₱10,000.00. for the dishonored check.6

CONTRARY TO LAW.3 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
The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the arrived at his house around the first week of July 1997 to have the check rediscounted. He parted
events that transpired to be as follows. 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
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner disregarded it as he didn’t know where to find the woman who rediscounted the check.
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of
₱10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and
petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land worked out an entrapment operation with its agents. Ten pieces of ₱1,000.00 bills provided by
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam. given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
if she could issue checks payable to the account of Mega Foam, instead of issuing the checks proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push
payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make through. However, they agreed to meet again on August 21, 2007.
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 On the agreed date, Ricablanca again went to petitioner’s house, where she met petitioner and
Capitle. The reason for the call was to inform Capitle that the subject BDO check deposited in his Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
account had been dishonored. 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
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the
asking the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the
bounced check. Ricablanca explained that she had to call and relay the message through Valencia, cash she actually brought out from the premises was the ₱10,000.00 marked money previously
because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave
and former co-employee of Jacqueline Capitle at Mega Foam. ₱5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by
NBI agents, who had been watching the whole time.
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 Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found
cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline 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 IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
Generoso Capitle.
(a) the sentence against accused Gemma Jacinto stands;
The defense, on the other hand, denied having taken the subject check and presented the following
scenario. (b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor  medium.
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 (c) The accused Jacqueline Capitle is acquitted.
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 SO ORDERED.
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 A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner
why Ricablanca asked them to wait in their jeep, which they parked outside the house of Baby Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.
Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents
arrested them. 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:
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 1. Whether or not petitioner can be convicted of a crime not charged in the information;
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 2. Whether or not a worthless check can be the object of theft; and
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 3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable
arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten doubt.8
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 petition deserves considerable thought.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its The prosecution tried to establish the following pieces of evidence to constitute the elements of
Decision, the dispositive portion of which reads: 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
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y for Mega Foam, did not remit the customer's check payment to her employer and, instead,
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable appropriated it for herself; (2) said property belonged to another − the check belonged to Baby
doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to – this is presumed from the act of unlawful taking and further shown by the fact that the check
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum. 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
SO ORDERED.7 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
The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the company; and (6) it was done with grave abuse of confidence – petitioner is admittedly entrusted
dispositive portion of which reads, thus: with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the Under this article, the act performed by the offender cannot produce an offense against persons or
personal property subject of the theft must have some value, as the intention of the accused property because: (1) the commission of the offense is inherently impossible of accomplishment;
is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides or (2) the means employed is either (a) inadequate or (b) ineffectual.
that the penalty to be imposed on the accused is dependent on the value of the thing stolen.
That the offense cannot be produced because the commission of the offense is inherently
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same impossible of accomplishment is the focus of this petition. To be impossible under this clause, the
was apparently without value, as it was subsequently dishonored. Thus, the question arises on act intended by the offender must be by its nature one impossible of accomplishment. There must
whether the crime of qualified theft was actually produced. be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in
order to qualify the act as an impossible crime.
The Court must resolve the issue in the negative.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the crime.
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 xxxx
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, The impossibility of killing a person already dead falls in this category.
both of the Revised Penal Code, because of the factual impossibility of producing the crime.
Pertinent portions of said provisions read as follows:
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
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e.,
xxxx 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.
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 Herein petitioner's case is closely akin to the above example of factual impossibility given
inadequate to ineffectual means. (emphasis supplied) 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
Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly
or the aims sought are impossible. - When the person intending to commit an offense has already enriched. Were it not for the fact that the check bounced, she would have received the face value
performed the acts for the execution of the same but nevertheless the crime was not produced by thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance
reason of the fact that the act intended was by its nature one of impossible accomplishment or of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime
because the means employed by such person are essentially inadequate to produce the result from being produced. The thing unlawfully taken by petitioner turned out to be absolutely
desired by him, the court, having in mind the social danger and the degree of criminality shown by worthless, because the check was eventually dishonored, and Mega Foam had received the cash to
the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 replace the value of said dishonored check.1avvphi1
pesos.
The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money, which she
Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense thought was the cash replacement for the dishonored check, is of no moment. The Court held
against persons or property; (2) that the act was done with evil intent; and (3) that its in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code,
accomplishment was inherently impossible, or the means employed was either inadequate or "there is only one operative act of execution by the actor involved in theft ─ the taking of personal
ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under property of another." Elucidating further, the Court held, thus:
Article 4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:
x x x Parsing through the statutory definition of theft under Article 308, there is one apparent Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles
answer provided in the language of the law — that theft is already "produced" upon the "tak[ing 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the
of] personal property of another without the latter’s consent." penalty of six (6) months of arrresto mayor, and to pay the costs.

xxxx SO ORDERED.

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

xxxx

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 ₱5,000.00 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