ARTICLE 6. Consummated, frustrated, and attempted felonies.

— Consummated felonies as well

as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present.

and it is frustrated when the offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences 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.

(Memorize this Article)

STAGES OF EXECUTION OF A CRIME:

1. ATTEMPTED 2. FRUSTRATED 3. CONSUMMATED.

The classification of stages ONLY applies to crimes punishable by the RPC and not punished by Special law.

The purpose of classifying penalties through these stages is to bring about a proportionate penalty and
equitable punishment.

-There are certain crimes however punished by RPC which do not admit these 3 stages.

The penalties are graduated according to the degree of severity. If consummated, the penalty prescribed by
the law. If Frustrated, one degree lower. If attempted, two degrees lower.
But there are felonies which do not admit division. This means that certain crimes are always
consummated when committed.
There are crimes which have no frustrated stage, it is either attempted or consummated only. Example:
Rape, only attempted and Consummated. Likewise, theft, there is no frustrated stage because the moment the
offender obtains physical possession of the stolen thing motivated my intent to gain, it is already completed even
if the latter is unable to freely dispose of the property stolen. (Valenzuela vs. People, G.R. No. 1601888, June 21,
2007)
MANNERS OF COMMITTING A CRIME:

1. FORMAL CRIME - it is a crime consummated in one instant by a single act. No attempt. Example: Oral
defamation, slander, and false testimony and impossible crime.

2. CRIMES CONSUMMATED BY MERE ATTEMPT – Flight to Enemy’s country (Art 121) Corruption of
minors (Art 340)

3. FELONY BY OMISSION – No attempted stage. No need to execute an act. Just fail to do an act which
you are required by law to do is ALREADY A CRIME.

Example: Failure to render assistance to a person in danger in an uninhabited place is a crime. No stage of
execution.

Art. 275. Abandonment of person in danger and abandonment of one's own victim. — The penalty of
arresto mayor shall be imposed upon:

1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place
wounded or in danger of dying, when he can render such assistance without detriment to himself, unless
such omission shall constitute a more serious offense.

2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or
injured.

3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child
to the authorities or to his family, or shall fail to take him to a safe place. (Revised Penal Code)

4. MATERIAL CRIMES - These are the crimes that admit 3 stages. ATTEMPTED, FRUSTRATED,
CONSUMMATED. These are the crimes punishable by RPC.

What is an ATTEMPTED FELONY?

1. ATTEMPTED FELONY - when the offender commences 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.
ELEMENTS:

a) The offender commences the commission of a felony directly by OVERT ACTS.

Meaning, the offender starts to execute the crime by OVERT ACTS. OVERT ACT is EXTERNAL ACT or PHYSICAL
ACTIVITY or DEED on the part of the offender directly connected or related to the crime intended to be
committed.

PREPARATORY ACT or PLANNING is not an over act because the latter is susceptible to different interpretation
and usually does not have any connection with the crime intended to be committed.
EXAMPLE: A and B are husband and wife. A meets C and is willing to marry her but A is already married to B. A
plan to eliminate his wife by poisoning. He goes to drugstore and buys an arsenic poison. On the way home. A
meets D who asked him about who is sick in the family. A confesses that he would use the arsenic poison to kill
his wife B in order to marry C. D goes directly to the police and reports that A is going to kill his wife B. The
police immediately go to A’s house and finds him still unwrapping the poison. The police ask him if he is
planning to kill B through poison and he says YES. The police arrest him and charges him with ATTEMPTED
PARRICIDE. Is the charge correct?

ANSWER: NO. No overt act yet of attempted parricide. A does not yet commence the commission of a crime
directly by overt acts when he unwraps the poison. DIRECTLY here means the overt act must have a direct
connection to the crime intended to be committed. Such overt act of unwrapping a poison is not a
criminal act yet.

Do not determine the overt act with what the offender SAYS or THINKS but by what HE DOES.
Because overt act is an external act directly related with the crime intended to be committed. In criminal law,
you are not allowed to speculate, or imagine what crime intended to be committed.

ANOTHER EXAMPLE: A is roaming around aimlessly in the property of B. Later, A is seen by the police enters
the house through window. He is immediately arrested and when asked A admits that he plans to rob the house
of B. The police charges him with Attempted Robbery. Is the charge correct?
ANSWER: NO. In attempted robbery, the offender already completes all acts performed by him leading to
robbery. The act of entering the dwelling of B is not yet indicative of robbery although that maybe what he wants
to commit. A has not yet taken anything yet with intent to gain by use of force upon thing or through
intimidation of person. His act of entering the dwelling without the owner’s consent is just an act of trespass to
dwelling. For this crime, it is already a consummated Trespass to Dwelling under Art 280 of the RPC which
punishes a person who shall enter the dwelling of another against the latter’s will. .
Another example: The offender is arrested detaching some wood panels of a store to steal inside the store.
Can he be charged of attempted robbery? Answer: No. In criminal law, the act of removing wood panels indicates
only at most the intention to enter. He can only be prosecuted for attempted trespass under Art 281 of the RPC of
other form of trespass.

DO NOT IMAGINE WHAT THE OFFENDER IS GOING TO DO NEXT. Judge him by what he is doing or
what he has just done.

EXAMPLES OF ACTS NOT CONSIDERED OVERT ACTS FOR KILLING.

Drawing a pistol or trying to draw a pistol and raising a bolo as if to strike the offended party with it.
They are not overt acts of killing because it is not yet a proof of any intention to kill or to do a bodily harm. To be
an overt act or external act, it must have a direct connection with the crime intended to be committed by the
offender.

The intention of the accused must be viewed from his external acts and not from his admission. The
commencement of the felony must be DIRECTLY from overt acts – meaning the offender MUST PERSONALLY
EXECUTE THE COMMISSION of the crime with physical activity or by taking direct part of the execution of the act.

Example: If A induces B to commit a crime but B fails to do it, A is not guilty of attempted felony because there
is no physical activity in the attempt. The inducement of A is in the nature of a PROPOSAL which is not
ordinarily punishable. But if B commits it, B and A are liable for conspiracy. The act of one is the act of all.

b) The offender does not perform all the acts of execution which should produce the felony.

In attempted stage - there is something LEFT to be done by the accused to produce the crime. If the offender
performs all the acts of execution and NOTHING IS LEFT TO BE DONE BY THE ACCUSED – the stage of
execution is FRUSTRATED if the felony is NOT produced. If it is felony is produced, it is CONSUMMATED.
The existence of overt act is essential only in attempted stage because in Frustrated and Consummated, all acts
of execution are already performed.

c) The offender’s act is not STOPPED by his SPONTANEOUS DESISTANCE.

WHAT HAPPENS IF THERE IS A SPONTANEOUS DESISTANCE ON THE PART OF THE OFFENDER BEFORE HE
PERFORMS ALL ACTS OF EXECUTION OF THE OFFENSE?

Answer: the desistance in the attempted stage negates criminal liability in the attempted stage of the felony.
But if all acts of execution of the offense are already performed, no amount of desistance will negate criminal
liability in the attempted stage...

The spontaneous desistance of the offender negates only his criminal liability in the attempted stage but not
necessarily the criminal liability for the felony already committed.

EXAMPLE: A, B and C plan to kill D in his house in the evening. When the evening arrives, only A and B enter
into the house of D to kill him. C does not go there anymore because of fear or remorse. Only B and C are liable,
but A does not commit any crime even on the attempted stage. It is because of his spontaneous desistance with
reference to the crime intended to be committed.

Reason: It is a sort of reward by law to those who on the verge of crime, heed the call of conscience and return
to the path of righteousness.

In the attempted stage, the reason why the offender did not perform all acts of execution SHOULD NOT BE HIS
SPONTANEOUS DESISTANCE. Otherwise, there is no attempted felony.

d) The reason of the nonperformance of all the acts of execution was due to some cause or
accident other than his own spontaneous desistance.

To be an Attempted felony, the reason the offender fails to perform all acts of execution which should produce
the felony is because of some CAUSE or ACCIDENT.
 Example of CAUSE: A picked the wallet of B but before A could remove it from his pocket, B grabbed his
hand and prevented the wallet from being removed or taken. The timely discovery of B is a CAUSE.

Example of ACCIDENT: A aimed his pistol to B to kill the latter but when A pressed the trigger, it jammed,
and no bullet was fired from the pistol. The jamming of the pistol is an ACCIDENT.
In the offender’s desistance in the attempted stage, the law does not punish him in the attempted stage. This is
an ABSOLUTORY CAUSE which negates criminal liability.

IMPORTANT POINTS TO REMEMBER ABOUT DESISTANCE in ATTEMPTED STAGE:

-The desistance maybe through fear or remorse not necessarily actuated by a good motive.

The law requires him only to discontinue to commit the crime and that he stops of his own free will.

The DESISTANCE must be MADE before all acts of execution are performed; otherwise, the offender
is liable for the latter for consummated felony.

EXAMPLE: Mr. A steal the watch of Mr. B. After one day, Mr. A realizes that what he does is wrong and sinful, so
he returns the watch to B. Mr. A is liable already for consummated felony of theft because he already performs all
acts of execution which should produce a felony before he returns the watch.
The DESISTANCE which EXEMPTS a person from CRIMINAL LIABILITY has reference to the crime
intended to be committed and NOT THE CRIME ACTUALLY COMMITTED BY THE OFFENDER BEFORE
HIS DESISTANCE.

To be exempting, the desistance refers to the crime intended to be committed not the crime already committed.

Example: A fires at B who is not mortally wounded. A aims again and says, “Now I will kill you”, B begs so hard
that A changes his mind and walks away. What is the liability of A?

Answer: On the first shooting, A is liable for attempted homicide. The first shooting, there is already an attempt,
and no desistance is made here. Whereas, in the second aiming of the gun, there is desistance already and that
exempts him for the crime HE INTENDED TO COMMIT (homicide) But it does not exempt him for the crime
ALREADY COMMITTED before his desistance, that is GRAVE THREATS. In other words, he is liable already for
GRAVE THREATS because he already commits this before desisting.
 2. FRUSTRATED STAGE: it is frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.

Elements:

1. The Offender already performs all acts of execution which would produce a felony as a
consequence.”

When the offender PERFORMS ALL ACTS OF EXECUTION, this means that there is NOTHING IS LEFT TO BE DONE
BYTHE OFFENDER to complete his acts because he has already performed the LAST ACT necessary to commit the
crime.

This is the difference in ATTEMPTED stage from FRUSTRATED STAGE. Because in the Attempted stage, the
offender has merely commenced it by overt act but there is still left for him to do the last act to produce the
felony but he is prevented due to cause or accident a other than his own desistance.
-
Stages of Commission of a Crime
Attempt Frustrated Consummated
 Overt acts of  All acts of execution  All the acts of
execution are started are present execution are
 Not all acts of  Crime sought to be present
execution are committed is not  The result sought is
present achieved achieved
 Due to reasons other  Due to intervening
than the causes independent
spontaneous of the will of the
desistance of the perpetrator
perpetrator

To further distinguish the two STAGES, you need to know the SUBJECTIVE PHASE and OBJECTIVE
PHASE OF THE FELONY.
The SUBJECTIVE PHASE is that portion of the acts constituting the crime, starting from the point the offender
begins the commission of the crime to the point that he has still control over his acts, including the natural
course. If between these TWO points, the offender is stopped by any cause OUTSIDE his spontaneous
desistance, (CAUSE OR ACCIDENT) the subjective phase has not been passed and it is still an ATTEMPTED
STAGE.

But if the offender is not stopped and he PERFORMS the last act, the felony is FRUSTRATED, provided the crime is
not produced.

But if the crime is produced, it is CONSUMMATED. In this case, the offender has already reached the OBJECTIVE
PHASE – it is this portion that the offender has no more control over his act. If all the acts of execution have
been performed by him. He is just going to wait for it and the crime will be consummated.

EXAMPLE: Mr. A with intent to kill B mixes a poison in the soft drink of B. Now B takes the said bottle of softdrink
and starts to drink it. From the time B takes the bottle by his hand to the time B is about to swallow the drink
with poison, the act is still in the subjective phase because A has still a control by telling B to throw it because it
has a poison. But once B swallows it, A has no more control. In that case, the act has already reached the
objective phase. If the B dies, it is consummated but if B survives due to medical intervention NOT of the will of A,
it is frustrated.

MORE ILLUSTRATIONS:

A puts poison in B’s food. B throws away his food. A is liable - attempted murder. 1

A steals B’s car, but he returns it. A is liable - (consummated) theft.

A aims his gun at B. C holds A’s hand and prevents him from shooting B - attempted murder.

A inflicts a mortal wound on B. B manages to survive - frustrated murder.

A intends to kill B by shooting him. A misses - attempted murder.

1
The difference between murder and homicide will be discussed in Criminal Law II. These crimes are found in Articles 248 and 249, Book II of the Revised Penal
Code.
A douses B’s house with kerosene but before he could light the match, he is caught - attempted arson.

A causes a blaze, but does ot burn the house of B - frustrated arson.

B’s house is set on fire by A - (consummated) arson.

A tries to rape B. B manages to escape. There was no penetration - attempted rape.

A gets hold of B’s painting. A is caught before he could leave B’s house - frustrated robbery. 2

RULE IN CRIMES INVOLVING KILLINGS IN DETERMINING THE STAGES OF THE CRIME: -

In the crimes involving KILLINGS, if the injury or wound is already MORTAL or FATAL, it is already between the
FRUSTRATED or CONSUMMATED STAGE because the wound is now sufficient to produce the felony intended to be
committed.

2. but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

In frustrated felony, the felony should not be produced otherwise, it is consummated. If the felony is not
produced, you have to know the CAUSES that prevents its consummation.

These are the rules:

a) If the cause that prevents its consummation due to the intervention of a THIRD PARTY, it is FRUSTRATED.

b) If the cause that prevents is consummation is due to the ACT OF THE OFFENDER himself, there is NO
FRUSTRATED FELONY. Why, to be a frustrated felony, the prevention of the consummation must be
independent of the will of the perpetrator or offender.

c) If the consummation is prevented due to the act of the will of the offender, there is no frustrated felony
on the crime intended to be committed, but he maybe held liable for some other crime.

The difference between theft and robbery will be discussed in Criminal Law II. These crimes are found in Title Ten, Chapters One and Three, Book II of the
Revised Penal Code.
Example: A stabs B with treachery and the wound is mortal. When A sees B bleeding profusely, he brings him to
the hospital and B survives due to the timely medical intervention. There is no frustrated murder here. At most A
will be liable for Serious Physical Injury. In this case B did not die because A brings him to the hospital due to
cause dependent of the will of the perpetrator.

-THERE ARE CRIMES WHICH DO NOT ADMIT FRUSTRATED STAGE:

1. Rape –(RA 8353) skin to skin contact of penis and the drawbridge consummates rape. Slight penetration is
already consummated. There is an attempted but no frustrated.

2. Indirect bribery – a mere accepting of a gift consummates the crime. (Art 211)

3. Adultery and Concubinage – carnal knowledge is sufficient.

4. Physical injuries – consummated always. Basis is the gravity of the injury inflicted. If there is an injury, it
could be classified as slight, less serious or serious.
5. Arson – Attempted or consummated.
6. Formal crimes – crimes which are always consummated. Defamation or slander
7. Theft – either attempted or consummated. The mere act of taking and the offender has complete control – it
is consummated.

In these cases, we cannot say that the offender has performed all the acts of execution unless there is an
indication that the felony as a consequence is already realized.

SPECIAL CONSIDERATION FOR FRUSTRATED STAGE: (The Belief of the accused is considered in the
determination of the stage of execution).

Example: Mr. A shots B but is not mortally wounded. A can shot him again but since B pretends to be dead
already. A does not bother to shoot him again and goes away. Here B does not sustain a fatal would. Is the crime
committed frustrated homicide or merely attempted homicide or physical injuries?

As a rule, when the wound is not mortal or fatal since no complete acts of execution was made, the crime is
attempted homicide only.
In one case decided by the Supreme Court in People vs. Sy Pio, 94 Phil 885, the Supreme Court has
determined the stage of execution not solely on the basis of the offender’s act BUT ALSO CONSIDERED HIS
BELIEF. Sometimes, even if the accused has not performed all the acts of execution therefore the crime is
ordinarily in the ATTEMPTED STAGE, but because the offender believes that he has consummated the crime and
has performed all the acts of execution, it is deemed FRUSTRATED already. No less than the accused believes
that he has performed all acts of execution, so why should the court rule otherwise? Hence, in this question, the
crime is deemed FRUSTRATED not only attempted.

How do you now distinguish ATTEMPTED and FRUSTRATED?

1. In both stages, the offender has not attained his criminal purpose.

2. In attempted, the offender merely commences the commission of the crime directly by overt acts
but did not perform all acts of execution, but in FRUSTRATED, the offender has already performed
all acts of execution which would produced a felony as a consequence.

In other words, in attempted felony, the offender has not yet passed the subjective phase but in
Frustrated, the offender has already reached the objective phase.

3. CONSUMMATED FELONY: A felony is consummated when all the elements necessary for its
execution and accomplishment are present;

Every crime has its own elements which must be present to be a punishable offense. In consummated felony, all
the elements necessary for its execution and accomplishment must be present.

What happens if not all elements of the crime are not present or proved during the trial . The following
may be the result:

(1) The felony is not considered consummated.

(2) The felony is not shown to have been committed.
(3) Another felony is shown to have been committed.

Example: In homicide, the death is the element of the offense. If this is not proven, the crime can be attempted
or frustrated.
In theft, the element of intent to gain is not proved, no theft.

In estafa, the element of deceit or abuse of confidence must be proved, otherwise, it is only a civil liability.

To be consummated, all the elements must be present and proved.

HOW DO YOU DETERMINE WHETHER A CRIME IS ONLY ATTEMPTED, FRUSTRATED, or

CONSUMMATED? In other words, whether a crime allows the 3 stages or 2 stages only or one stage only?
Consider the following: Nature of the offense, the Elements of Felony and the Manner of committing a felony.