A few days ago, someone asked me this question:

“I watched a frightening movie, and this movie reinforced my belief that my neighbor is an aswang (she looks hideous and goes out evenings only, and everyone whispers she is a demon). So I pass by her house and decide to do a civic thing and start shooting at her bedroom. The bullets all hit her… later the coroner finds out she had been dead all evening before I arrive. Can I be liable?”

Notwithstanding the fact that aswangs, vampires and Santa Clause does not exist, there is a crime in the situation. No, it isn’t murder, rather, it is the commission of an impossible crime. The Case of Jacinto vs The Philippines illustrates the following codal provision of the civil code:

Article 4(2). Criminal Responsibility. – Criminal responsibility shall be incurred . . .

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. (emphasis supplied)

In layman’s terms, one is guilty of committing an impossible crime- punishable by up to 6 mos in prison- when one intentionally and maliciously commits an act that would be damaging to persons or property but the means undertaken fails is woefully incompetent, impotent or niggardly.

In the case above, committing murder had been impossible as the intended victim was already dead. You can’t slay a dead person.

Impossible crimes are punished nonetheless as the evil intent attended the commission of the act.

Let’s look at a more realistic case involving bouncing checks. Gemma T. Jacinto vs. People of the Philippines, G.R. No. 162540,  July 13, 2009, the Supreme Court found an accused guilty of an impossible crime and sentenced her to six (6) months of arrresto mayor.

The case narrates the story of Accused who was a collector for a company called Mega Foam. Accused collected a P10,000 check as payment from a Mega Foam customer.  Rather than taking the short and narrow path, she took the check and deposited into her relative’s bank account.  Here’s where karma bites. It turns out the the check was not funded.

Both the regional trial court and the Court of Appeals ruled that the accused was guilty of qualified theft.  The Supreme Court modified the judgment and ruled that the accused was guilty of an impossible crime.  The basis is Art 308 and 310 of the Revised Penal Code

Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, xxx

As may be gleaned from Articles 308 and 310 of the Revised Penal Code, the personal property subject of the theft must hold some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored. 

Since what was taken had no value, but there was evil intent, the Accused couldn’t be held liable for Qualified Theft, but rather for Impossible Crime on the following bases

  • Accused performed all the acts to consummate the crime of qualified theft, which is a crime against property;
  • Accused’ evil intent cannot be denied, as the mere act of unlawfully taking the check meant showed her intent to gain
  • The crime of qualified theft was not produced because of the extraneous circumstance that the check was unfunded and was subsequently dishonored.

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