This article explains how Philippine criminal law treats the act of pointing an unloaded firearm at a person and squeezing the trigger. It synthesizes the Revised Penal Code (RPC), as amended (notably by R.A. 10951), and core doctrines from Philippine jurisprudence.

Short answer

Usually, no. If the gun is unloaded and thus incapable of causing death, the act generally falls under the RPC’s doctrine of “impossible crimes” (Art. 4(2) in relation to Art. 59), not attempted homicide (Art. 6 in relation to Art. 249).

However, liability can shift depending on intent, knowledge, and facts:

If the gun was actually loaded (or capable of firing) but failed due to some independent cause, the act can constitute attempted homicide.
If the actor knew the gun was unloaded and only meant to threaten, the proper charge is often grave threats or a related offense—not attempted homicide.
If there are qualifying circumstances (e.g., treachery), the analysis tracks attempted murder rather than attempted homicide.

The legal framework

1) Stages of execution (Art. 6, RPC)

A felony is attempted when:

The offender commences the commission of the felony directly by overt acts;
Does not perform all the acts of execution that would produce the felony;
By reason of some cause or accident other than the offender’s spontaneous desistance.

For attempted homicide, the prosecution must show:

Specific intent to kill (animus interficendi);
An overt act that commences execution of killing;
Non-consummation due to causes independent of the offender’s will.

2) Impossible crimes (Art. 4(2) and Art. 59, RPC)

A person incurs liability when he performs an act that would be an offense against persons or property were it not for:

The inherent impossibility of its accomplishment; or
The employment of inadequate or ineffectual means.

Penalty (Art. 59, as amended by R.A. 10951): arresto mayor or a fine (now up to ₱40,000). Courts select the penalty considering the danger to society shown by the act and the degree of criminality.

Unloaded guns are the textbook example of ineffectual means: pulling the trigger cannot fire a bullet because there is none. If the accused believes the gun is loaded and intends to kill, the act is punishable as an impossible crime—not as attempted homicide—because the means used cannot produce death.

Applying the doctrines to common scenarios

Scenario A — Unloaded gun, offender believes it’s loaded, points and pulls the trigger

Intent to kill: may be inferred from the act.
Capability: absent; the means are ineffectual.
Liability: Impossible crime (Art. 4(2) in relation to Art. 59).

Scenario B — Unloaded gun, offender knows it’s unloaded, points and pulls the trigger “to scare”

Intent to kill: typically absent; intent is intimidation, not killing.
Likely offense: Grave threats (Art. 282) if a threat to cause a wrong (e.g., to kill) is made; otherwise other light threats (Art. 285) or acts of intimidation depending on words and conduct.
Not attempted homicide (no intent to kill; also no capability).

Scenario C — Loaded gun, points at victim, pulls the trigger, but the gun misfires (e.g., defective primer)

Intent to kill: present.
Overt act: present (trigger pull aimed at victim).
Non-consummation: due to independent cause (misfire).
Liability: Attempted homicide (or attempted murder if qualified).

Scenario D — Loaded gun, points but does not pull the trigger

Intent to kill: may be alleged, but proof is weaker.
Overt act: courts often require more than mere preparatory acts; without a trigger pull or shot fired, it can be argued the execution has not yet commenced.
Possible liability: grave threats or related offenses, depending on words and context; not attempted homicide absent a clear commencement of execution.

Scenario E — Fires a gun away from the victim to scare (warning shot)

If no shot is directed at the victim, intent to kill is hard to prove.
Possible liability: illegal discharge of firearms (Art. 254) if the firing falls within its terms, or alarms and scandals (Art. 155) depending on circumstances; not attempted homicide.

Scenario F — Special victims or circumstances

If victim is a person in authority or their agent performing official duties, pointing a gun and pulling the trigger (even unloaded) may couple with direct assault (Art. 148) and related offenses.
If done treacherously, in consideration for a price, or with other qualifying circumstances, the analysis maps to attempted murder, though an unloaded gun typically reverts the result to impossible crime given ineffectual means.

Key elements courts focus on

Intent to kill
- Proven by conduct: aiming at a vital part, pulling the trigger, prior threats, motive.
- Absent intent → threats/other offenses, not attempted homicide.
Capability of the means
- Unloaded gun = ineffectual; points toward impossible crime if intent to kill exists.
- Loaded but misfires = capable means thwarted by independent cause; points to attempted homicide.
Commencement of execution
- Pulling the trigger at the victim is a strong indicator of an overt act beginning execution.
- Mere pointing without more may be preparatory, depending on facts.
Independent cause vs. spontaneous desistance
- Attempt exists only if non-consummation is due to causes independent of the offender’s will.
- If the offender voluntarily desists (e.g., lowers the gun), the stage is not attempted.

Related offenses often charged in the alternative

Grave threats (Art. 282): threatening another with infliction of any wrong amounting to a crime (e.g., “I’ll kill you”), with or without condition or demand; penalties vary (as amended by R.A. 10951).
Other light threats (Art. 285).
Alarms and scandals (Art. 155): discharging firearms in public places; creating serious disturbance.
Illegal discharge of firearms (Art. 254): firing at or near a person without intent to kill, subject to elements.
Direct assault (Art. 148) / Resistance and disobedience (Art. 151): if aimed at persons in authority or their agents.
Violation of special laws (e.g., R.A. 10591 on firearms and ammunition) for unlawful possession, brandishing, or use, when applicable.

Practical charging and defense notes

Information drafting: Prosecutors evaluate intent and means. Where facts show an unloaded gun and a sincere belief it was loaded, an impossible crime charge may be pursued. When knowledge of being unloaded and mere intimidation is evident, threats may be more appropriate.
Evidentiary focus:
- For intent to kill: trajectory, distance, aiming, statements before/after, prior animosity, forensic examination of the firearm.
- For capability: gun examination (was it loaded? chambered? mechanically functional?), presence/absence of ammunition, results of test-firing.
- For stage of execution: witness accounts of a trigger pull vs. mere pointing; safety engaged; hammer fall.
Defenses may argue:
- Lack of intent to kill (mere intimidation);
- Absence of overt act (no trigger pull);
- Ineffectual means (supports impossible crime, lowering penalty exposure);
- Spontaneous desistance (negates attempt);
- Self-defense or defense of relatives/strangers if elements are present.

Decision tree (quick guide)

Was the gun actually capable of firing at the time?
- Yes → Proceed to (2).
- No (e.g., unloaded, firing pin removed) → If intent to kill exists → Impossible crime; if only to threaten → Grave threats/other offense.
Was the trigger pulled with the gun aimed at the victim?
- Yes, and death did not result due to independent cause (misfire/jam) → Attempted homicide/murder (depending on qualifiers).
- No → Likely threats or preparatory acts; not attempted homicide.
Any qualifying circumstances (e.g., treachery)?
- Yes → characterize as attempted murder (if means were capable).
- No → attempted homicide (if means were capable).

Penalty snapshots (as amended by R.A. 10951)

Attempted homicide (Art. 249 in relation to Art. 51–57): the penalty is the penalty next lower in degree than that prescribed by law for the consummated felony, adjusted by the standard rules for stages of execution and participation.
Impossible crime (Art. 59): arresto mayor or fine up to ₱40,000, with judicial discretion guided by social danger and criminality shown.
Grave threats (Art. 282) and other related offenses: penalties depend on whether the threat is conditioned, whether the condition is not unlawful, and whether it is fulfilled; amounts and periods updated by R.A. 10951.

Takeaways

Unloaded gun + trigger pull typically does not make attempted homicide because the means are ineffectual; liability is usually an impossible crime if intent to kill is proven.
Loaded gun + trigger pull aimed at a person, with non-consummation due to independent causes, can be attempted homicide (or attempted murder if qualified).
Intent and capability are the fulcrum; proof rests heavily on firearm condition, ammunition presence, and the specific behavior of the accused.

This overview is for general information on Philippine criminal law. For a real case, outcomes hinge on precise facts, charging strategy, and evidence presented in court.