G.R. No. 162540 GEMMA T. JACINTO, Petitioner, v.

PEOPLE OF
THE PHILIPPINES, Respondent.
Promulgated:
31 October 2016

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DISSENTING OPINION
VILLAR, J.:
With all due respect to my colleagues, I dissent from the
majority decision convicting the accused-appellant of impossible
crime.
I respectfully submit that the facts in the case failed to qualify to
all the four (4) requisites of impossible crime namely: (1) Act would
have been an offense against persons or property; (2) Act is not an
actual violation of another provision of the Revised Penal Code or of
a special penal law; (3) There was criminal intent; and (4)
Accomplishment was inherently impossible; or inadequate or
ineffectual means were employed.
This majority in this Court modified the judgment by holding the
petitioner liable only for an impossible crime, citing Article 4(2) of the
Revised Penal Code which provides:
ARTICLE 4(2). Criminal Liability. Criminal liability shall be
incurred:
xxxx
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 to ineffectual means. 1

It is a well-known principle in Statutory Construction to construe

Penal Laws strictly against the state and liberally in favor of the
accused and Pro Reo doctrine must be observed by resolving any
ambiguity in favor of the more lenient punishment. In the case at bar,
in order for a person to incur Impossible Crime, the following
elements must all be present:
(1) That a person performs an act which could be an offense
against another person;
(2) That he has an evil intent;
1 REVISED PENAL CODE, Art. 4.

(3) That the crime he intended to commit is impossible of being

consummated, either because of PHYSICAL OR LEGAL
IMPOSSIBILITY or the MEANS EMPLOYED IS INADEQUATE
OR INEFFECTUAL.; and
(4) Provided tThat the act should not constitute violation of any
other provision of the revised penal code.

Physical impossibility has been portrayed in the case of Intod

vs. Court of Appeals2 wherein Intod wants to kill his enemy and
because of that he goes to the house of his enemy. The laborer
whom Intod had inquired in on where the victim could be found
pointed to a room in the house. Nandyan lang po sa kwarto dyan (He
was in that room), So Intod armed himself with his armalite rifle and
fired shots at the room only to discover that the intended victim had
gone to another place. In this case the SC held that Intod is only
liable for impossible crime because there is this physical impossibility
to kill the intended victim.
A good example of ineffectual means is that when a person
intending to kill his rival and invited the latter then subsequently the
offender picked a bottle believing that it contains poison and poured it
in the drink of his rival. but But despite the fact the bottle is almost
empty he is still asking for more. Then the offender found out that the
bottle he poured is just sugar and not poison. Here, there is intent to
kill the victim but because of some ineffectual means the intended
crime was not consummated. HoweverTherefore, he is guilty of
impossible crime.
Legal impossibility can be illustrated in a case where Mr. X
who lost his wrist watch to a snatcher and wanted to own a wrist
watch again pickpocketed in a street in Quiapo a wrist watch. But
when he thoroughly examined, he discovered that it was the same
wrist watch that was snatched by the snatcher. This is an example of
impossible crime by means of legal impossibility because it is legally
impossible for the owner of that thing to be liable for theft. He has an
evil intent on that time but there was a legal impossibility of
committing theft.
Lastly, the act should not constitute violation of any other
provision of the revised penal code. The last element is one of the
most important elements in impossible crime. Because if there are
other crimes that have been committed before the supposed
impossible crime has been consummated then there is no impossible
crime.
An example would be ifFor example, Mr. X is a suitor of a pretty
woman, however, his offer of love was not accepted by the woman.
And he said, ok tatanggapin ko but at the back of his mind By hook
or by crook magiging akin ka din.
2 G.R. No. 103119, October 21, 1992, 215 SCRA 52.

An evening after a month that the incident where his offer of love was
rejected he knew that the girl he was courting was left alone in her
house. He went to the girls house and found that the house was
locked, he peek through the window and sees the girl lying in the
sofa. To get in the house, he climbs the window and sneakily
approached the girl who was lying in the sofa. Believing that the
victim was asleep, the offender began removing the girls underwear
and mounted on her until he was able to penetrate her. The offender
was surprised because the body of girl is already cold only to
discover that the girl had already died 20 minutes ago because of
cardiac arrest.
In the given example above, there is no more impossible crime
there because since there was a the last element required infor an
impossible crime, Provided that the act should not constitute
violation of any other provision of the revised penal code, is absent.
When he entered the house, he already violated ARTICLE 280 which
is a case of TRESSPASS TO DWELING, it already constitute a crime
based on other provision of the law.
So the crime to be charged is only TRESSPASS TO
DWELLING. Had the door been open then it was through the door
that he entered and he penetrated the girl and discovered that she
was already dead then that would be considered as an impossible
crime because of the fact that Rrape is a crime against person.
The Courts Decision omitted to state an important element of
Impossible Crime which is the act should not constitute violation
of any other provision of the revised penal code. This is a
requisite especially applicable in the case at bar.
ARTICLE 49. Penalty to be imposed upon the principals
when the crime committed is different from that intended. - In cases
in which the felony committed is different from that which the
offender intended to commit, the following rules shall be observed:
xxxx
3. The rule established by the next preceding paragraph shall
not be applicable if the acts committed by the guilty person
shall also constitute an attempt or frustration of another crime,
if the law prescribes a higher penalty for either of the latter
offenses, in which case the penalty provided for the attempted or
the frustrated crime shall be imposed in its maximum period. 3
xxxx
ARTICLE 59. Penalty to be imposed in case of failure to
commit the crime because the means employed or the aims sought
3 REVISED PENAL CODE, Art. 49.

are impossible. - When the person intending to commit an offense

has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that
the act intended was by its nature one of impossible
accomplishment or because the means employed by such person
are essentially inadequate to produce the result desired by him, the
court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto
mayor or a fine from 200 to 500 pesos.4 (Emphasis supplied)

The term inherent impossibility in Article 4(2) of the Revised

Penal Code means that under any and all circumstances, the crime
could not have materialized. If the crime could have materialized
under a different set of facts, employing the same mean or the same
act, it is not an impossible crime; it would be an attempted felony.
Thus, even though the facts constituted an impossible crime, if
the act done by the offender constitutes some other crimes under the
Revised Penal Code, he will not be liable for an impossible crime.
The offender will be prosecuted for the other crime committed.
The idea of an impossible crime is a one of last resort, just to
teach the offender a lesson because of his criminal perversity. If he
could be taught of the same lesson by charging him with some other
crime constituted by his act, then that will be the proper way. Although
an impossible crime is constituted, yet it is a principle of criminal law
that he will only be penalized for an impossible crime if he cannot be
punished under some other provision of the Revised Penal Code.
I agree with the basis laid by my fellow magistrates that the
facts in the information of the case have not met the requirements to
be classified as Qualified Theft. For another, I also would like to
express my reservations that I am in the view that Jacinto along with
her other co-accused beforehand were not fit to be charged with
Qualified Theft nor with an Impossible Crime. This inference was
drawn based on the incomplete requisites of impossible crime in the
instant case and because what was committed is actually Attempted
Estafa or Swindling which was not provided in the case information
as follows:
That on or about and sometime in the month of July 1997, in
Kalookan City, Metro Manila, and within the jurisdiction of
this Honorable Court, the abovenamed accused; conspiring
together and 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 establishment, with
grave abuse of trust and confidence reposed upon them with
intent to gain and without the knowledge and consent of the
owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account,
4 REVISED PENAL CODE, Art. 59.

Banco De Oro Check No. 0132649 dated July 14, 1997 in

the sum of P10,000.00, representing payment made by
customer Baby Aquino to the Mega Foam Int'l. Inc. to the
damage and prejudice of the latter in the aforesaid stated
amount of P10,000.00.

Further, the Petitioners argument has merit when the latter

raised the issue that she cannot be convicted of a crime that was not
charged in the information, hence attempted estafa on that note was
not included in the information and could not be used against the
accused nor it would be allowed to be raised in a retrial because that
since it would constitute double jeopardy which is illegal. Thus, it is as
if there are is no valid grounds at all to charge the accused based on
the facts of the case.
According to Blacks Law Dictionary, Swindling or estafa is
cheating and defrauding grossly with deliberate artifice. Usually
applied to a transaction where the guilty party procures the delivery to
him, under the pretended contract, of the personal property of
another, with the felonious design of appropriating it for his own use 5.
It is penalized under Article 315, paragraph 2(a) of the RPC, wherein
estafa is committed by any person who shall defraud another by false
pretenses or fraudulent acts executed prior to or simultaneously with
the commission of the fraud. It is committed by using fictitious name,
or by pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or by
means of other similar deceits6. The applicable penalty would be
that which is two degrees lower than that prescribed by law for the
consummated felony pursuant to Article 51 7 in relation to Article
61(5),8 of the RPC Accordingly, the imposable penalty would be
arresto mayor in its medium period to arresto mayor in its maximum
period9. In citing Article 315(2)(a) of the Revised Penal Code, the
5 Blacks Law Dictionary (9th ed. 2009)
6 REVISED PENAL CODE, Art. 315(2)(a).
7 Art. 51. Penalty to be imposed upon principals of attempted crime. The
penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.
8 Art. 61. - Rules for graduating penalties.For the purpose of graduating the penalties
which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to
be imposed upon persons guilty as principals of any frustrated or attempted felony,
or as accomplices or accessories, the following rules shall be observed:x x x x
(5) When the law prescribes a penalty for a crime in some manner not specifically
provided for in the four preceding rules, the courts, proceeding by analogy, shall
impose corresponding penalties upon those guilty as principals of the frustrated
felony, or of attempt to commit the same, and upon accomplices and accessories.

case of Lateo vs. People of the Philippines 10 lists the ways by which
estafa may be committed, which includes:
ARTICLE 315. Swindling (estafa). - Any person who shall
defraud another by any of the means mentioned herein below x x x,
xxxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business
or imaginary transactions, or by means of other similar deceits.

The elements of the felony (estafa by means of deceit) as used

in the case of Alcantara vs. Court of Appeals 11 are the following, viz.:
(a) that there must be a false pretense or fraudulent representation as
to his power, influence, qualifications, property, credit, agency,
business or imaginary transactions; (b) that such false pretense or
fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud; (c) that the offended
party relied on the false pretense, fraudulent act, or fraudulent means
and was induced to part with his money or property; and (d) that, as a
result thereof, the offended party suffered damage.
Also, in Alcantara vs. CA12, this Court, citing People v. Balasa13
explained the meaning of fraud and deceit, viz.:
[F]raud in its general sense is deemed to comprise anything
calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust, or
confidence justly reposed, resulting in damage to another, or by
which an undue and unconscientious advantage is taken of
another. It is a generic term embracing all multifarious means which
human ingenuity can device, and which are resorted to by one
individual to secure an advantage over another by false
suggestions or by suppression of truth and includes all surprise,
trick, cunning, dissembling and any unfair way by which another is
cheated. And deceit is the false representation of a matter of fact
whether by words or conduct, by false or misleading allegations, or
by concealment of that which should have been disclosed which
9 Pecho v. Sandiganbayan, G.R. No. 111399, November 14, 1994, 238 SCRA
116, 139
10 G.R. No. 161651, June 8, 2011
11 Alcantara v. Court of Appeals, 462 Phil. 72, 88-89 (2003)
12 Supra note 17, at 89.
13 G.R. Nos. 106357 & 108601-02, September 3, 1998, 295 SCRA 49.

deceives or is intended to deceive another so that he shall act upon

it to his legal injury.

In the case of Celino vs. CA 163 SCRA 97, it was held that
Estafa under Art. 315 (2) (a) of the Revised Penal Code is committed
by means of using fictitious name or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business or
imaginary transaction or by means of other similar deceits. Further, in
the case of Villaflor vs. CA 192 SCRA 680, the Court held:
what is material is the fact that appellant was guilty of
fraudulent misrepresentation when knowing that the car was then
owned by the Northern Motors, Inc., still he told the private
complainant that the car was actually owned by him for purposes of
and at the time he obtained the loan from the latter. Indubitably, the
accused was in bad faith in obtaining the loan under such
circumstance.

The attempt to defraud the complainant did not materialize due

to the timely intervention of the National Bureau of Investigation
operatives.
Art. 6, par. 3 of the Revised Penal Code 14 provides that there is
an attempt when the offender convinces (sic) the commission of a
felony directly by overt acts and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance. The
entrapment thus prevented the consummation of the transaction.
[I]n the case of Koh Tieck Heng vs. People 192 SCRA 533 15,
the Court held:
x x x although one of the essential elements of Estafa is
damage or prejudice to the offended party, in the absence of proof
thereof, the offender would x x x be guilty of attempted estafa.
Appellant commenced the commission of the crime of estafa but he
failed to perform all the acts of execution which would produce the
crime not by reason of [their] spontaneous desistance but because
of his apprehension of the author ities before they could obtain
the amount. Since only the intent to cause damage and not the
damage itself has been shown respondent court correctly convicted
appellant of attempted estafa.(Emphasis supplied)

Considering that there is nothing in the records that shows that

the factual findings of the trial court and the appellate court were
erroneous insofar as affirming that the accused attempted to defraud
the owner of MFFI, Mr. Dyhengco and its customer Baby Aquino.
14 REVISED PENAL CODE, Art. 6(3).
15 Koh Tieck Heng v. People, G.R. Nos. 48535-36, December 21, 1990, 192
SCRA 533, 545.

Undoubtedly, petitioners commenced the commission of the crime of

estafa but they failed to perform all the acts of execution which would
produce the crime, not by reason of their own spontaneous
desistance but because of their apprehension by the authorities
before they could obtain the amount. Since only the intent to cause
damage and not the damage itself had been shown, the petitioner
indeed has committed attempted estafa.
In my view, since the petitioner cannot be convicted of Qualified
Theft nor of Impossible Crime, neither can she be charged of a crime
not provided in the information, she must be acquitted. For all these
reasons, I unfortunately depart from the ruling of majority and
perforce submit that the crime committed was attempted estafa which
was inappropriately not included in the information. I reached these
conclusions solely under the peculiar auspices of this case and
through nothing but my honest and conscientious assessment of the
facts parallel to the applicable legal principles. As a magistrate of this
High Court, I am prompted to do no less than fulfill my duty to
faithfully interpret the laws and the Constitution.
WHEREFORE, I vote to GRANT the petition and ACQUIT the
accused-appellant.

CHRISTIAN L. VILLAR
Associate Justice