Impossible Crime

I was watching CSI:NY and the storyline involved a father shooting the daughter’s boyfriend inside an apartment.  He missed the boyfriend but the bullet went out of the window, hit the window of a passing commuter train and hit a man sitting on the train.

After a forensic investigation, it turns out that the man was already dead when the bullet hit him.  This led me to ask myself whether this is an impossible crime as defined in the Revised Penal Code, which provides:

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)

Interestingly, in the recent case of 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.

Here, the accused was a collector for a company called Mega Foam Int’l Inc. (Mega Foam) and received a PhP10,000 check as payment from a Mega Foam customer.  However, instead of turning over the check to Mega Foam, the accused took the check and had it deposited into her brother-in-law’s bank account.  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.  According to the Supreme Court:

. . . the personal property subject of the theft must have 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. Thus, the question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. . .

. . . the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod in this wise . . .

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal the latter’s wallet, but gets nothing since the pocket is empty.

Herein petitioner’s case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner’s evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.

Going back to CSI:NY, a person who tries to murder a dead person is guilty of an impossible crime  (see People vs. Balmores, 85 Phil. 493, 496 (1950).  In his book, Justice Reyes writes:

A fired at B, who was lying on bed, not knowing that B was dead hours before.  In crime against persons, as would have been in this case, it is necessary that the victim could be injured or killed.  A dead person cannot be injured or killed.  Had B been alive when he was shot, and as a consequence he died, the crime committed by A would have been murder, a crime against persons.”  (Reyes, I Revised Penal Code, p. 86 [2008])

One of the requisites of an impossible crime is that “the act was done with evil intent”.  In CSI:NY, the father had the evil intent of injuring/killing the daughter’s boyfriend but did not have the evil intent of killing a commuter.  Was the father guilty of an impossible crime?

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