Attempted Crimes

REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
[Judicial Region]
Branch [Branch Number]
[City/Municipality], [Province]

PEOPLE OF THE PHILIPPINES,
        Plaintiff,

        -versus-                         Criminal Case No. [Case Number]
                                         For: ATTEMPTED HOMICIDE

[Full Name of Accused],
        Accused.
x----------------------------------------x

INFORMATION

The undersigned Prosecutor accuses [Full Name of Accused] of the crime of
ATTEMPTED HOMICIDE, defined and penalized under Article 249, in relation to
Article 6, of the Revised Penal Code, committed as follows:

That on or about [Date of Commission], in [Barangay/Street], [City/Municipality],
[Province], Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill and without any justifying circumstance,
did then and there willfully, unlawfully, and feloniously attack, assault, and
stab [Full Name of Offended Party] with a [Description of Weapon], thereby
commencing the commission of the crime of homicide directly by overt acts; but
the accused did not perform all the acts of execution which would have produced
the crime of homicide by reason of a cause other than his/her spontaneous
desistance, namely, [State Cause or Accident, such as the timely intervention of
[Name of Intervening Person] or the offended party's successful evasion of the
attack].

CONTRARY TO LAW.

[City/Municipality], Philippines, [Date of Signing].


                                            [Name of Prosecutor]
                                            [Position/Rank]
                                            Office of the [City/Provincial]
                                            Prosecutor
                                            [Office Address]


CERTIFICATION

I certify that a preliminary investigation/inquest has been conducted in
accordance with law; that there is reasonable ground to believe that the
offense charged has been committed and that the accused is probably guilty
thereof; and that this Information is filed with the approval of the
[City/Provincial Prosecutor].


                                            [Name of Prosecutor]
                                            [Position/Rank]

Approved:


                                            [Name of City/Provincial Prosecutor]
                                            [City/Provincial Prosecutor]

Charging an Attempted Felony in an Information

An information for an attempted crime must do more than attach the word attempted to the name of the felony. It must allege facts showing that the accused began the commission of a specific felony by direct overt acts, failed to perform all acts of execution that would have produced it, and failed because of a cause or accident other than voluntary desistance.

The controlling idea is notice. The accused must be informed, from the face of the information, of the nature and cause of the accusation. The designation of the offense guides the charge, but the acts alleged in the body of the information determine what offense is actually charged.

Article 6 of the Revised Penal Code supplies the operative definition: there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than spontaneous desistance. In an information, each part of that definition has a pleading function.

Essential Allegations

The information should identify the felony intended, the criminal intent required by that felony, the overt acts already done, the point at which execution stopped, and the independent cause that prevented further execution or prevented the felony from reaching its consummated stage.

• Specific intended felony. The charge must make clear whether the accused attempted homicide, murder, rape, robbery, arson, theft, or another felony. A generic allegation that the accused attempted to commit a crime is insufficient because attempt is only a stage of execution, not an independent felony unless the law separately punishes the act.
• Criminal intent. The information must allege the intent that gives legal meaning to the overt acts, such as intent to kill in attempted homicide or murder, intent to gain in attempted theft or robbery, or intent to have carnal knowledge in attempted rape.
• Direct overt acts. The acts must be external, physical, and immediately connected with the intended felony. Preparatory acts do not suffice unless they have passed into acts of execution.
• Incomplete execution. The information must show that the accused did not perform all acts of execution that would ordinarily produce the felony. If all acts of execution were performed but the felony was not produced, the proper stage may be frustrated, not attempted.
• Cause independent of desistance. The information must indicate that failure was due to intervention, resistance, misfire, escape, timely aid, police arrival, or another cause not amounting to the accused's spontaneous abandonment.

Legal conclusions may appear in an information, but they cannot replace the factual averments that constitute the offense. The allegation that the accused "attempted to kill" is strengthened, and ordinarily made sufficient, by facts such as stabbing, shooting, poisoning, striking with a deadly weapon, or other acts from which the intent and commencement of execution appear.

Direct Overt Acts and Preparatory Acts

Attempt begins only when the offender crosses from preparation into execution. Buying a weapon, following the victim, waiting at a location, or agreeing on a plan may show preparation or conspiracy, but they do not automatically constitute an attempted felony. The information must allege an act that directly tends toward the production of the felony and would naturally lead to it if not interrupted.

The overt act must reveal the intended felony without relying on speculation. Pointing and firing a loaded gun at a person, thrusting a knife toward a vital part, forcing entry while beginning to take property, or removing the victim's clothing while employing force may be overt acts of execution. Mere possession of a weapon, presence near the scene, or suspicious movement is usually not enough to charge an attempted felony unless connected to an immediate act of execution.

Intent and overt act operate together. An act may be innocent or ambiguous by itself, but criminal when alleged with surrounding facts showing the accused's unlawful purpose. Conversely, a bad intent alone does not create an attempt without a direct act toward the felony.

Spontaneous Desistance

Spontaneous desistance prevents liability for the attempted felony when the accused voluntarily stops before performing all acts of execution. The reason for stopping must come from the accused's own will and not from outside pressure, impossibility discovered at the scene, fear of immediate capture, resistance of the victim, or intervention by third persons.

Desistance does not erase liability for crimes already committed by the acts done. If the accused voluntarily abandons an attempted killing after inflicting injuries, liability for physical injuries may remain. If the acts already constitute threats, coercions, trespass, malicious mischief, or another felony, the information should charge the offense actually completed by those acts.

Once all acts of execution have been performed, later regret or efforts to prevent the result do not reduce the stage to attempted. They may affect intent, causation, mitigation, or civil liability, depending on the facts, but they do not convert a completed execution into spontaneous desistance at the attempted stage.

Attempted, Frustrated, and Consummated Felonies

The distinction affects both the name of the offense and the penalty. A charge for a consummated felony may include the necessarily included attempted or frustrated stage when the facts alleged and proved support only a lower stage. A charge limited to an attempted felony does not give notice of a greater stage unless the body of the information itself alleges the facts constituting that greater offense.

Intent to Kill in Attempted Homicide or Murder

Attempted homicide and attempted murder require intent to kill. The information should allege that the accused acted with intent to kill and should describe acts naturally capable of producing death, such as shooting, stabbing, hacking, strangling, or administering poison. Without an allegation of intent to kill, the facts may charge physical injuries rather than an attempted killing.

The body of the information should also show why death did not occur and why the stage is attempted rather than frustrated. If the accused fired at the victim but missed, was disarmed, was restrained before completing the assault, or the weapon failed before the fatal act could be completed, the stage may be attempted. If the accused inflicted a mortal wound after performing all acts believed necessary to kill, but death was prevented by medical intervention, the stage may be frustrated.

For attempted murder, the qualifying circumstance must be alleged in the information. Treachery, evident premeditation, abuse of superior strength, price or reward, or another qualifying circumstance cannot qualify the offense if omitted from the charge, even if evidence later tends to prove it. The allegation must give factual notice of the circumstance, not merely decorate the accusation with a label.

Attempted Rape

Attempted rape is charged when the accused begins the commission of rape by direct overt acts but carnal knowledge, sexual assault, or the legally punished sexual act is not consummated. The information must allege the mode of rape relied upon, such as force, threat, intimidation, deprivation of reason, unconsciousness, fraudulent machination, grave abuse of authority, or the victim's age when age is the operative circumstance.

The overt acts must be directly connected with the sexual act sought to be accomplished. Acts such as using force to undress the victim, placing oneself in a position to penetrate, attempting penetration, or performing acts immediately leading to the sexual act may support an attempted charge when consummation is prevented by resistance, escape, intervention, or another independent cause.

Acts of lasciviousness should be distinguished from attempted rape. When the acts show lewd design but do not demonstrate intent to proceed to rape, the proper charge may be acts of lasciviousness. When the acts show an immediate intent to consummate rape and execution has begun, the proper charge may be attempted rape.

Attempted Theft and Attempted Robbery

Attempted theft or robbery requires intent to gain and commencement of unlawful taking. The information should allege the property targeted, the owner's possession or ownership, the acts directed toward taking, and the cause that prevented the accused from acquiring possession.

Unlawful taking is generally consummated once the offender obtains possession and control of the property, even briefly, because ability to freely dispose of it is not required for consummation. Thus, if the information itself alleges that the accused already took and carried away the property, the charge may be consummated theft or robbery even if the accused was immediately caught.

For attempted robbery, the information must allege the means that would make the taking robbery rather than theft, such as violence or intimidation against persons, force upon things, or the special mode involved. If violence is alleged but no taking occurs because the victim resists, the accused is intercepted, or entry is prevented, the charge may remain attempted robbery if the facts show direct commencement of the taking.

When homicide occurs by reason or on occasion of an attempted or failed robbery, the charge should reflect the special treatment of attempted robbery with homicide. The information must connect the homicide with the attempted robbery and allege facts showing that the killing occurred by reason or on the occasion of the attempted taking.

Attempted Arson and Other Result Crimes

Attempted arson may arise when the accused begins acts directly intended to burn property but the burning is not produced because the fire is extinguished, the combustible material fails, or another independent cause intervenes before the statutory burning occurs. The information should identify the property, the incendiary acts, and the interrupted execution.

For felonies defined by a prohibited result, the information must show both the intended result and the failure to reach it. If the law punishes the act itself regardless of result, the offense may be consummated even though the offender's broader purpose failed. The drafter must therefore determine whether the felony is result-oriented, act-oriented, or separately punished by special law.

Impossible Crime Distinguished

An impossible crime is not simply a failed attempt. It arises when the act performed 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, and the act does not constitute another offense. Attempted felony assumes that the intended felony could have been produced if execution had continued or if the independent cause had not intervened.

The distinction matters in an information because the factual theory differs. If the victim was already dead before the accused shot him, the charge may involve an impossible crime rather than attempted homicide, because killing a dead person is inherently impossible. If the accused fired at a living victim but missed, the charge may be attempted homicide or attempted murder, because the felony was possible but failed through poor aim, avoidance, or other intervention.

Qualifying and Aggravating Circumstances

Every qualifying circumstance relied upon to change the nature of the attempted offense must be alleged. A circumstance that raises attempted homicide to attempted murder, changes simple robbery to a more serious form, or affects the statutory classification must appear in the information with enough factual detail to notify the accused.

Generic labels are weak when the circumstance has factual components. Alleging treachery is clearer when the information states that the attack was sudden and gave the victim no real chance to defend himself. Alleging abuse of superior strength is clearer when the information states the relative number, strength, weapons, or coordinated action used to overwhelm the victim.

Aggravating circumstances that affect penalty, but do not change the legal designation of the offense, must still be alleged if they are to be appreciated. The rule protects notice and prevents conviction or punishment based on facts not charged.

Variance, Amendment, and Conviction

The stage alleged in an information is material. If the prosecution evidence proves only preparation, there is no attempted felony. If it proves a different completed offense included in the acts alleged, conviction may be for the offense properly included and proved. If it proves a greater offense not charged, conviction for the greater offense violates the right to be informed.

Before arraignment, formal and substantial amendments are generally more freely allowed, subject to the rules. After arraignment, a substantial amendment that changes the nature of the accusation, such as changing attempted homicide to attempted murder by adding a qualifying circumstance, cannot be made without observing the accused's rights. A change that merely clarifies an already alleged fact may be treated differently from one that introduces a new and material element.

When the facts show that the charge was laid in the wrong stage, the remedy depends on timing and prejudice. The prosecution may seek proper amendment when allowed; the court may convict only of the offense charged or necessarily included and proved; and the accused may object when the information fails to allege facts constituting the attempted felony.

Drafting Quality of the Information

A strong information for an attempted crime is concise, factual, and complete. It identifies the accused and offended party, states the place and approximate date, designates the attempted felony, alleges the statutory or doctrinal elements in ordinary language, and includes the facts showing direct overt acts and non-consummation.

The information need not plead evidence, motive, detailed chronology, or every circumstance surrounding the event. It must, however, contain enough facts so that a person of common understanding knows what attempted felony is charged and so that a later judgment can bar another prosecution for the same offense.

The decisive question is whether the body of the information, read as a whole, charges an attempt as defined by law. If the facts allege only preparation, the charge is defective as an attempted felony. If the facts allege full execution without the result, the stage may be frustrated. If the facts allege every element of the completed offense, the label "attempted" will not control over the substance of the accusation.