In our jurisdiction, a felony or a crime is divided into three (3) stages: (1) Attempted, (2) Frustrated and (3) Consummated. As a rule, felonies are punishable in their attempted, frustrated and consummated phase. In this week’s column, we will center our discussion in the attempted stage.
Article 6 of the Revised Penal Code defines the stages of felony as follows:
A felony is consummated when all the elements necessary for its execution and accomplishment are present. 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 or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.
Attempted.
The essential elements of an attempted felony are as follows: (1) The offender commences the commission of the felony directly by overt acts; (2) He does not perform all the acts of execution which should produce the felony; (3) The offender’s act be not stopped by his own spontaneous desistance; and (4) The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance
In the attempted stage, the offender already commenced the commission of the felony directly thru overt acts. An overt or external act- is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.[1]
The raison d’ etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is.[2]
It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the “first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.” The act done need not constitute the last proximate one for completion. It is necessary, however that the attempt must have a casual relation to the intended crime. In the words of Vlada, the overt acts must have an immediate and necessary relation to the offense.
Emphasis should also be made that the non-performance of all acts of execution that would consummate the crime was due to a cause or accident other than his spontaneous desistance. If the malefactors do not perform all the facts of execution by reason of their spontaneous desistance, they are not guilty of an attempted felony. The law does not punish them for their attempt to commit a felony. The rationale of the law is explained as follows:
As aptly elaborated on by Wharton: “First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before it is possible for any evil consequences to ensue. Neither society, nor any private person, has been injured by his act. There is no damage, therefore, to redress. To punish him after retreat and abandonment would be to destroy the motive for retreat and abandonment.”[3]
Furthermore, in another case, the Court held that there is no attempted felony when the accused desists from continuing the commission of the felony out of fear or remorse: x x x “[W]hen the action of the felony starts and the accused, because of fear or remorse desists from its continuance, there is no attempt. x x x If the author of the attempt, after having commenced to execute the felony by external acts, he stops by a free and spontaneous feeling, on the brink of the abyss, he is saved. It is a call to repentance, to the conscience, a grace, a pardon which the law grants to voluntary repentance.”xxx[4]
Verily, the desistance may be through fear or remorse. It is not necessary that it be actuated by a good motive. The RPC requires only that the discontinuance of the crime comes from the persons who have begun it, and that they stop of their own free
[1] G.R. No. 180425, July 31, 2008
[2] Idem
[3] G.R. No. 214426, December 02, 2021
[4] Idem