This article provides general legal information in Philippine context. It is not legal advice for any specific case.

I. Framing the Question

At first glance, “killing someone already dead” sounds like a non-crime—after all, homicide or murder requires a living victim. Yet the Revised Penal Code (RPC) recognizes a category of punishable acts even when the intended crime cannot possibly be completed. These are impossible crimes.

So the real question becomes:

If a person, believing another is alive, attacks or shoots the body with intent to kill, but the target was already dead, does criminal liability arise?

Under Philippine law, the answer is yes, but not for homicide or murder. Liability may attach for an impossible crime under Article 4(2), punishable under Article 59 of the RPC, provided all elements are met.

II. The Concept of Impossible Crimes in the RPC

A. Statutory Basis: Article 4(2)

Article 4 of the RPC lays down instances where criminal liability is incurred. Paragraph 2 states liability also arises:

“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.”

This provision reflects the principle that criminality is grounded in a person’s dangerous intent plus an overt act, even if completion is factually or legally impossible.

B. Penalty: Article 59

Article 59 provides:

The penalty for an impossible crime is arresto mayor (1 month and 1 day to 6 months),
Or a fine, depending on judicial discretion and circumstances.

The law thus punishes the perversity of the actor’s intent, not the result.

III. Elements of an Impossible Crime

Philippine jurisprudence consistently treats the following as essential elements:

The act performed would be an offense against persons or property
- Example: murder, homicide, robbery, theft, arson, etc.
The act is not a violation of another provision of the RPC
- The “impossible crime” rule is subsidiary.
- If another specific crime fits, impossible crime does not apply.
There is criminal intent (mens rea)
- The actor must intend to commit the crime.
Accomplishment is inherently impossible, or the means are inadequate/ineffectual
- Impossibility must be objective, not merely due to external interruption.

IV. “Killing Someone Already Dead” as an Impossible Crime

A. Why It Isn’t Homicide or Murder

Homicide and murder require a living human being as the object of killing.

Once a person is already dead:

There is no “person” to kill.
The result (death) cannot occur again.
Hence there is no consummated, frustrated, or attempted homicide/murder.

B. Why It Can Still Be Punished

Even without a living victim, if:

The offender believes the target is alive, and
Performs overt acts directly aimed to kill,

the law views the conduct as revealing a dangerous criminal intent.

In other words, the actor’s mind and act are criminal, even if reality makes completion impossible.

C. Classic Illustration

Scenario: A stabs B repeatedly in a dark alley intending to kill him. Unknown to A, B had already died minutes earlier from a heart attack.

Legal consequence: A is not liable for homicide/murder, but he may be liable for an impossible crime of homicide or murder.

V. Theories of Impossibility

Philippine doctrine recognizes two main kinds:

A. Inherent (or Legal/Objective) Impossibility

The intended crime cannot be accomplished under any circumstance because the object is not susceptible to the crime.

Examples:

Shooting a corpse believing it alive
Picking an empty pocket thinking it has a wallet
Attempting to poison someone with a harmless substance believed toxic

These are classic impossible crimes.

B. Factual (or Subjective) Impossibility

The crime could be accomplished but fails due to circumstance unknown to the actor.

Example:

Shooting at a bed where the victim is supposed to be, but victim had already left.

Philippine jurisprudence leans toward punishing these too if the impossibility is inherent from the circumstances at the moment of execution, and the act would otherwise be a crime against persons/property.

VI. Distinguishing Impossible Crimes from Attempted or Frustrated Crimes

A common confusion: when does an act become an impossible crime rather than an attempt?

A. Attempted Crime (Article 6)

The offender commences execution by overt acts
But does not perform all acts of execution
Due to cause other than spontaneous desistance

Key: Completion is still possible; it just didn’t happen.

B. Frustrated Crime

All acts of execution are done
But crime is not produced due to causes independent of will

Key: Result was possible and nearly achieved.

C. Impossible Crime

Overt acts are done with intent
But completion is objectively impossible from the start

Key: No matter what the offender does, the intended crime cannot happen.

So if the victim is already dead, impossibility is built in.

VII. Limits and “Subsidiary” Nature of Impossible Crimes

Impossible crime applies only if no other crime fits. The RPC insists the act must not already be punished elsewhere.

A. Example: If Another Crime Actually Occurs

If A shoots a corpse believing B alive and:

In doing so A desecrates the corpse in a legally punishable way,
Or causes property damage,
Or violates a special law,

then liability shifts to that specific crime, not impossible crime.

B. Relevant RPC Provision: Offenses Against the Dead

The RPC punishes certain acts involving corpses, such as:

Article 309/310? (not applicable; those are theft/robbery)
Article 305? (not applicable; arson)

The more relevant provisions include:

Article 249/248 (homicide/murder) — requires living victim
Article 262 (mutilation) — can cover acts on a corpse depending on intent and timing
Article 130 / 131 / 132 (interference with religious worship, etc.) — may apply if facts fit
Article 353 et seq. (defamation) — irrelevant here
Special laws / local ordinances may punish desecration or improper handling of remains.

In short: impossible crime is a fallback, not a catch-all.

VIII. Mental State: The Heart of the Doctrine

Impossible crimes underscore Philippine criminal law’s emphasis on intent plus overt act.

To convict:

Intent to kill must be proven through words, weapon used, manner of attack, etc.
If intent is unclear, liability may fail.

Example:

If A knew B was dead and stabbed anyway for a ritual, the intent is not to kill (already dead). Impossible crime might not apply; another crime may (or none, depending on law).

IX. How Courts Assess These Cases

Courts generally examine:

Was the offender’s purpose criminal?
Did he perform overt acts that would ordinarily lead to a crime against persons/property?
Was failure due to impossibility, not mere interruption?
Is there another crime that better fits?

If all align, an impossible crime conviction is proper.

X. Practical Examples in Philippine Setting

Example 1 — Shooting a Corpse

A fires point-blank into B’s body believing B alive. Autopsy shows B died an hour earlier.

No homicide/murder (no living victim).
Impossible crime of homicide/murder.

Example 2 — Stabbing During Wake

A, fueled by rage, sneaks into the wake to “finish off” B, unaware B is already dead.

If intent to kill is proven: impossible crime.
If intent was to disgrace remains: possible crime involving offenses against the dead or special laws.

Example 3 — Poisoning After Death

A mixes poison into B’s drink, not knowing B died minutes earlier.

Impossible crime of homicide, assuming intent to kill.

XI. Policy Reason: Why Punish the Impossible?

The doctrine protects society from dangerous actors:

Someone willing to kill is a threat even if they fail.
Punishment discourages violent intent from manifesting in overt acts.
It also avoids a loophole where pure chance erases liability.

But the lighter penalty reflects that no actual harm occurred.

XII. Key Takeaways

You cannot legally “kill” someone already dead—so no homicide or murder.
Doing acts intended to kill a dead person is still punishable as an impossible crime if:
- the act would be a crime against persons/property,
- intent is present,
- completion was inherently impossible, and
- no other specific crime applies.
Penalty is arresto mayor or fine (Article 59).
The doctrine is rooted in punishing criminal intent plus dangerous acts, even without a result.

If you want, I can also draft a short case-note style bar-answer version, or a diagram comparing attempted/frustrated/impossible crimes for quick review.