In the Philippine adversarial system, the distinction between a consummated, frustrated, and attempted felony is vital for determining both the nature of the crime and the severity of the imposable penalty. Under Article 6 of the Revised Penal Code (RPC), a felony is attempted when the offender begins the commission of a felony directly by overt acts, but 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.
To secure a conviction for Attempted Homicide, the prosecution must establish specific legal elements beyond a reasonable doubt.
1. Essential Elements of Attempted Homicide
For a charge of Homicide to be classified in its attempted stage, the following three conditions must coexist:
- The offender uses overt acts to execute the crime: The accused must have moved beyond mere preparation (the "internal" phase) and into the "external" phase of execution.
- The offender fails to perform all acts of execution: The process is interrupted before the accused can complete everything necessary to cause the victim's death.
- The interruption is involuntary: The failure to complete the crime must be due to an outside cause or accident (e.g., a bystander intervening, the weapon jamming, or the victim escaping), rather than the offender's own "spontaneous desistance."
- The intent to kill (Animus Interficiendi) is present: This is the most critical element. Without the clear intent to kill, the act may only be classified as Physical Injuries (Serious, Less Serious, or Slight).
2. The Requirement of "Overt Acts"
An overt act is a physical activity that indicates the intention of the agent to commit a specific felony. In Attempted Homicide, the act must have a direct connection to the killing.
- Example: Drawing a firearm and aiming it at a vital part of the victim's body, only to have the gun grabbed by a witness, constitutes an overt act.
- Distinction: Buying a knife or waiting at a corner is generally considered "preparatory" and not yet "attempted," unless the physical execution of the assault begins.
3. The Central Role of Intent to Kill
Since the victim survives in an attempted felony, the court must determine whether the offender actually intended to end the victim's life. Philippine jurisprudence typically looks at several "badges of intent":
| Criteria | Indicator of Intent to Kill |
|---|---|
| Nature of the Weapon | Use of lethal weapons (firearms, long blades) vs. blunt objects or hands. |
| Location of Wounds | Aiming for "vital zones" (head, chest, abdomen) vs. extremities (arms, legs). |
| Force of the Blow | The degree of violence used during the attack. |
| Statements | Verbal threats made by the accused before or during the assault. |
| Conduct | The behavior of the accused after the victim is wounded (e.g., continuing the attack). |
Legal Note: If the wounds inflicted are not mortal and there is no clear evidence of intent to kill, the accused cannot be convicted of Attempted Homicide; they will instead be liable for Physical Injuries.
4. Attempted vs. Frustrated Homicide
The line between "Attempted" and "Frustrated" is often a point of contention in Philippine litigation. The "Subjective Phase" vs. "Objective Phase" test is applied:
- Attempted Homicide: The offender is still in the subjective phase. They have not yet performed all the acts of execution. (e.g., The offender fires a shot but misses, or is tackled before they can fire).
- Frustrated Homicide: The offender has reached the objective phase. They have performed all acts necessary to kill the victim, but the victim survives due to causes independent of the offender's will (e.g., the offender stabs the victim in the heart, but timely medical intervention saves the victim's life).
5. The Defense of Spontaneous Desistance
The law provides an "escape hatch" for those who have a change of heart. If the offender begins the overt acts but voluntarily stops before completing the execution, they are exempt from criminal liability for the attempted felony.
However, they remain liable for any other crimes committed during that window. For instance, if an offender breaks into a house to kill someone but decides to leave before attacking, they are not liable for Attempted Homicide, but they may still be charged with Trespass to Dwelling.
6. Penalties Under the Revised Penal Code
The penalty for a felony is typically graduated based on the stage of execution. Under Article 51 of the RPC, the penalty for an attempt is two degrees lower than that prescribed for the consummated felony.
- Consummated Homicide: Reclusion temporal (12 years and 1 day to 20 years).
- Frustrated Homicide: One degree lower — Prision mayor (6 years and 1 day to 12 years).
- Attempted Homicide: Two degrees lower — Prision correccional (6 months and 1 day to 6 years).