SULPICIO INTOD, PETITIONER, VS. HONORABLE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of 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.

From the records, we gathered the following facts.

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 asked him to go with them to
the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told
Mandaya that he wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four (4) men, otherwise, he
would also be killed.

At about 10:00 o’clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at Palangpangan’s house in
Katugasan, Lopez Jaena, 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 turned out; however, that Palangpangan
was in another City and her home was then occupied by her son-in-law and his
family. No one was in the room when the
accused fired the shots. No one was hit
by the gun fire.

Petitioner and his companions were positively identified by
witnesses. One witness testified that
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]

After trial, the Regional Trial Court convicted Intod of
attempted murder. The Court of Appeals
affirmed in toto the trial court’s decision. Hence this petition.

This petition questions the decision of the Regional Trial Court
(RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty
of attempted murder. Petitioner seeks
from this Court a modification of the judgment by holding him liable only for
an impossible crime, citing Article 4(2) of the Revised Penal Code which
provides:

ART. 4(2). CRIMINAL RESPONSIBILITY. — Criminal
Responsibility shall be incurred:

x x x               x x x            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 or ineffectual means.

Petitioner contends that, Palangpangan’s
absence from her room on the night he and his companions riddled it with
bullets made the crime inherently impossible.

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 murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out
that:

x x x. The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to
a cause or accident other than petitioner’s and his co-accused’s own
spontaneous desistance (Art. 3., ibid.) Palangpangan did not sleep at her house
at that time. Had it not been for this
fact, the crime is possible, not impossible.^[3]

Article 4, paragraph 2 is an innovation^[4]
of the Revised Penal Code. This seeks
to remedy the void in the Old Penal Code where:

x x x it was necessary that the execution
of the act has been commenced, that the person conceiving the idea should have
set about doing the deed, employing appropriate means in order that his intent
might become a reality, and finally, 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
criminally liable.^[5]

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 which were it not aimed at something quite impossible
or carried out with means which prove inadequate, would constitute a felony
against person or against property.^[8]
The rationale of Article 4(2) is to punish such criminal tendencies.^[9]

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.^[10]

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.^[11]
There must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act^[12]
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.^[13]
Thus:

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 physical act; and (4) the consequence resulting
from the intended act does not amount to a crime.^[14]

The impossibility of killing a person already dead^[15]
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.^[16]
One example is the 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.^[17]

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 failed to accomplish his end.

One American case has 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 be. It turned
out, however, that the latter was in a different place. The accused failed to hit him and to achieve
his intent. The Court convicted the
accused of an attempt to kill. It held
that:

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 attempt to kill. It is well
settled principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an obstruction in
the way of the thing to be operated upon, and these facts are unknown to the
aggressor at the time, the criminal attempt is committed.

In the case of Stokes vs. State,^[19]
where the accused failed to accomplish his intent to kill the victim because
the latter did not pass by the place where he was lying-in wait, the court held
him liable for attempted murder. The
court explained that:

It was no fault of Stokes that the crime was not committed. x x x It only became impossible by reason of
the extraneous circumstance that Lane did not go that way; and further, that he
was arrested and prevented from committing the murder. This rule of the law has application only
where it is inherently 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
interference or because of miscalculation as to a supposed opportunity to
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.

In the case of Clark vs. State,^[20]
the court held defendant liable for attempted robbery even if there was nothing
to rob. In disposing of the case, the
court quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by
reason of his 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. The community suffers
from the mere alarm of crime. Again:
‘Where the thing intended (attempted) as a crime and what is done is a sort to
create alarm, in other words, excite apprehension that the evil intention will
be carried out, the incipient act which the law of attempt takes cognizance of
is in reason committed.

In State vs. Mitchell,^[21]
defendant, with intent to kill, fired at the window of victim’s room thinking
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.

The aforecited cases are the same cases which have been relied
upon by Respondent to make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot
rely upon 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.

In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made them punishable. Whereas, in the United States, the Code of
Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the
crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the
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 impossibility.^[22]
In U.S. vs. Wilson^[23]
the Court held that:

x x x 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 believed them to be, it
is no defense that in reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be
invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan,^[24]
the accused was indicted for attempting to smuggle letters into and out of
prison. The law governing the matter
made the act criminal if done without the 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 transmittal was achieved with the warden’s knowledge and consent. The lower court held the accused liable for
attempt but the appellate court reversed. It held unacceptable the contention of the state that “elimination of
impossibility as a defense to a charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal legislation, is consistent with the
overwhelming modern view”. In disposing
of this contention, the Court held that the federal statutes did not contain
such provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus
act plus conduct constitutes the offense of attempt irrespective of legal
impossibility 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.

To restate, in the United States, where the offense sought to be
committed is factually impossible of 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
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 nor for an impossible
crime. The only 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.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by 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
impossibility. Ubi lex non
distinguit nec nos distinguere debemos.

The factual situation in the case at bar presents a physical
impossibility which rendered the 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.

To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was a supervening cause
independent of the actor’s will, will render 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
accomplishment x x x”. In that case,
all circumstances which prevented the consummation of the offense will be
treated as an accident independent of the actor’s will which is an element of
attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED, the petition is
hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner
guilty of Attempted Murder is hereby MODIFIED. WE hereby hold Petitioner guilty of an impossible crime as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social
danger and degree of criminality shown by Petitioner, this Court sentences him
to suffer the penalty of six (6) months of arresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.

SO ORDERED.

Feliciano, Regalado, and
Nocon, JJ., concur.

Narvasa, C.J., (Chairman), on
official leave.

^[1]
People vs. Intod, C.A.-G.R. Cr. No. 09205, August 14, 1991; Justice Fidel
P. Purisima, Ponente; Justices Eduardo R. Bengzon and Salome A. Montoya,
concurring.

^[2]
TSN, p. 4, July 24, 1986.

^[3]
Records, p. 65.

^[4]
Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946).

^[5]
Albert, The Revised Penal Code, Annotated 35 (1946).

^[6]
Albert, ibid.

^[7]
Albert, ibid.

^[8]
Albert, ibid.

^[9]
Gregorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed.
1958).

^[10]
Reyes, The Revised Penal Code, 90 (Vol. I, 11th ed., 1977).

^[11]
Reyes, ibid.

^[12]
Reyes, ibid.

^[13]
U.S. vs. Berrigan, 482 F. 2d. 171 (1973).

^[14]
U.S. vs. Berrigan, ibid.

^[15]
Aquino, The Revised Penal Code, 82 (Vol. I, 1987).

^[16]
U.S. vs. Berrigan, supra, n. 13.

^[17]
U.S. vs. Berrigan, ibid.

^[18]
21 L.R.A. 626 (1898).

^[19]
21 L.R.A. N.S. 898 (1908).

^[20]
17 S.W. 145 (1888).

^[21]
71 S.W. 175 (1902).

^[22]
U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).

^[23]
565 F. Supp. 1416 (1983).

^[24]
Supra, n. 13.