[G.R. No. 122099.

 July 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON
DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
YNARES-SANTIAGO, J.:
FACTS: Agapito Listerio, Samson dela Torre, and several others who are still at large were charged in two
(2) separate Amended Informations with Murder and Frustrated Murder for the deadly assault on the
brothers Jeonito Araque and Marlon Araque.
- In Criminal Case No. 91-5843, the Amended Information [2] for Frustrated Homicide charges: That
on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila,
Philippines and within the jurisdiction this Honorable Court, the above-named accused,
conspiring, confederating together, mutually helping and aiding one another, with intent to kill
did then and there willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed
weapon one Marlon Araque y Daniel on the vital portions of his body, thereby inflicting serious
and mortal wounds which would have cause[d] the death of the said victim thus performing all
the acts of execution which should have produce[d] the crime of Homicide as a consequence but
nevertheless did not produce it by reason of causes independent of their will, that is by timely
and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death.
- Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded
not guilty to the crimes charged. Their other co-accused have remained at large.
- Trial thereafter ensued after which the RTC rendered judgment only against accused Agapito
Listerio because his co-accused Samson dela Torre escaped during the presentation of the
prosecutions evidence and he was not tried in absentia.
- Accused Agapito Listerio was found guilty of Attempted Homicide in Criminal Case No. 91-5843
- The trial court convicted accused-appellant of Attempted Homicide only on the basis of Dr.
Manimtims testimony that none of the wounds sustained by Marlon Araque were fatal.
- Dissatisfied, accused Agapito Listerio interposed this appeal
ISSUE: WON the RTC erred in convicting accused Agapito Listerio of of Attempted Homicide only on the
basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque were fatal.
HELD: YES. The reasoning of the lower court on this point is flawed because it is not the gravity of the
wounds inflicted which determines whether a felony is attempted or frustrated but whether or not the
subjective phase in the commission of an offense has been passed. 
LAW: Meaning of Subjective Phase:
- By subjective phase is meant that portion of the acts constituting the crime included between
the act which begins the commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the consummated crime. From that
time forward, the phase is objective. 
- It may also be said to be that period occupied by the acts of the offender over which he has
control that period between the point where he begins and the point where he voluntarily
desists.  If between these two points the offender is stopped by reason of any cause outside of
his own voluntary desistance, the subjective phase has not been passed and it is an attempt.  If
he is not so stopped but continues until he performs the last act, it is frustrated.
Attempted v. Frustrated:

Attempted Frustrated

1.] the offender commits overt acts to commence 1.] the offender has performed all the acts of
the perpetration of the crime; execution which would produce the felony;
2.] he is not able to perform all the acts of 2.] the felony is not produced due to causes
execution which should produce the felony; and independent of the perpetrators will.
3.] his failure to perform all the acts of
execution was due to some cause or accident
other than his spontaneous desistance
ADDITIONAL INFO: The distinction between an attempted and frustrated felony was lucidly differentiated
thus in the leading case of U.S. v. Eduave:

A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime
by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which
should produce the crime. In other words, to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment
when he has performed all of the acts which should produce the crime as a consequence, which acts it is
his intention to perform. 

If he has performed all  the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it cannot be an attempt. 

Attempted Frustrated
-there is an intervention of a foreign or extraneous -there is no intervention of a foreign or extraneous
cause or agency and the offender does not arrive at cause or agency between the beginning of the
the point of performing all  of the acts which commission of crime and the moment when all the
should produce the crime.  acts have been performed which should result in
the consummated crime
- He is stopped short of that point by some cause
apart from his voluntary desistance.
-The offender never passes the subjective phase of - The subjective phase is completely passed.
the offense Subjectively the crime is complete. Nothing
interrupted the offender while he was passing
- He is interrupted and compelled to desist by the through the subjective phase. The crime, however,
intervention of outside causes before the subjective is not consummated by reason of the intervention
phase is passed of causes independent of the will of the offender. 

- He did all that was necessary to commit the

crime. If the crime did not result as a consequence
it was due to something beyond his control.

APPLICATION: (Attempted/Frustrated murder/homicide/parricide v. Consummated physical

injuries)- INTENT TO KILL-determinative factor: In relation to the foregoing, it bears stressing that
intent to kill determines whether the infliction of injuries should be punished as attempted or frustrated
murder, homicide, parricide or consummated physical injuries. Homicidal intent must be evidenced by
acts which at the time of their execution are unmistakably calculated to produce the death of the
victim by adequate means.
-Suffice it to state that the intent to kill of the malefactors herein who were armed with bladed
weapons and lead pipes can hardly be doubted given the prevailing facts of the case. 
-It also cannot be denied that the crime is a frustrated felony not an attempted offense
considering that after being stabbed and clubbed twice in the head as a result of which he lost
consciousness and fell, Marlons attackers apparently thought he was already dead and fled.
DISPOSITIVE PORTION: Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal
Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of
Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision
Mayor,  as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City,
which is directed to render judgment based on the evidence against Samson dela Torre y Esquela.
SO ORDERED.
G.R. No. L-26298             January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, 
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant
OSTRAND, J.:

FACTS: This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant
guilty of the crime of consummated rape.

- The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive
that the defendant endeavored to have carnal intercourse with her, but there may be some doubt
whether he succeeded in penetrating the vagina before being disturbed by the timely intervention
of the mother and the sister of the child.

- The physician who examined the genital organ of the child a few hours after the commission of
the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort
had been made to enter the vagina, but in testifying before the court he expressed doubts as to
whether the entry had been effected.

- The mother of the child testified that she found its genital organ covered with a sticky substance,
but that cannot be considered conclusive evidence of penetration.

CONTENTION OF ACCUSED: It has been suggested that the child was of such tender age that
penetration was impossible; that the crime of rape consequently was impossible of consummation; and
that, therefore, the offense committed should be treated only as abusos deshonestos (indecent assault).

ISSUE: WON the offense committed should be treated only as abusos deshonestos (indecent assault).

HELD-PENETRATION OF LABIA SUFFICIENT FOR THE CONSUMMATION OF RAPE; Complete

penetration, not essential: NO. It is probably true that a complete penetration was impossible, but
such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of
the labia.

HOWEVER: There being no conclusive evidence of penetration of the genital organ of the offended
party, the defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated
rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the
aggravating circumstance of abuse of confidence existed and the penalty must therefore be imposed in its
maximum degree.

DISPOSITIVE: The judgment appealed from is modified and the defendant-appellant is hereby found
guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prision mayor, with the
accessory penalties prescribed by law, and with the costs in both instances. So ordered.
G.R. No. L-23916             October 14, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
DOMINGO HERNANDEZ, defendant-appellant.
OSTRAND, J.:

FACTS: The defendant is accused of the crime of rape

- The defendant is a man 70 years of age and the offended party is a child of 9 years, the
granddaughter of the defendant's wife.
- There can be no question as to the defendant's guilt. The evidence shows that he and the
offended party were living in the same house and that taking advantage of the absence of the
other inhabitants of the house, he had intercourse with the child by force and violence.
- The court below found the defendant guilty of frustrated rape. In holding that the crime was
frustrated, the court seems to have been of the opinion that there can be no consummated rape
without a complete penetration of the hymen.

ISSUE: WON there can be no consummated rape without a complete penetration of the hymen.

HELD: NO. Entry of the labia or lips of the female organ, merely, without rupture of the hymen or
laceration of the vagina, is sufficient to warrant conviction of the consummated crime of rape.

The law may now indeed be considered as settled that while the rupturing of the hymen is not
indispensable to a conviction, there must be proof of some degree of entrance of the male organ "within
the labia of Pudendum.

APPLICATION: In the present case the physician who examined the offended party immediately after the
commission of the crime found the labia and the opening of the vagina inflamed together with an
abundance of semen, though the hymen was intact. It also appears from the evidence that the
defendant lay on top of the child for over fifteen minutes and continued his efforts of penetration during
that period; the child testifies that the defendant succeeded in a partial penetration and that she felt
intense pain. In these circumstances, the crime must be regarded as consummated.

DISPOSITIVE: The judgment appealed from is therefore modified by finding the defendant guilty of the
consummated crime of rape and, in view of the aggravating circumstances mentioned in the
information, the penalty imposed upon the defendant is hereby increased to seventeen years, four months
and one day of reclusion temporal, with the accessory penalties prescribed by law. In all other respects the
judgment is affirmed with the costs against the appellant. So ordered.
G.R. No. 88724               April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

MEDIALDEA, J.:

FACTS: The accused, Ceilito Orita alias Lito, was charged with the crime of rape in before the
Regional Trial Court, Branch II, Borongan, Eastern Samar.
- Upon being arraigned, the accused entered the plea of not guilty to the offense charged.
- Ultimately, the trial court convicted the accused of frustrated rape.
- In concluding that there is no conclusive evidence of penetration of the genital organ of the
victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that
the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether or not there actually was penetration.
- The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity."
- The trial court was of the belief that there is no conclusive evidence of penetration of the genital
organ of the victim and thus convicted the accused of frustrated rape only.
- The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.

ISSUE: Whether or not the accused's conviction for frustrated rape is proper. Whether or not the
frustrated stage applies to the crime of rape.

HELD: NO. The alleged variance between the testimony of the victim and the medical certificate does not
exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which
means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and
tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim.
He merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially. The
fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the
victim's testimony if credible. Moreover, Dr. Zamora's testimony is merely corroborative and is not
an indispensable element in the prosecution of this case. Although the second assignment of error is
meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records,
We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated
rape.

In the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated

We have set the uniform rule that for the consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of
the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no penetration of the female organ because not all acts
of execution was performed.  The offender merely commenced the commission of a felony directly by overt
acts.

Taking into account the nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
 Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.

x x x           x x x          x x x

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as

those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

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 his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to
the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of the
perpetrator's will.

IN RE PEOPLE v. ERINA: Of course, We are aware of our earlier pronouncement in the case of People v.
Eriña  50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended party. However, it appears that this is a
"stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We
are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or  frustrated and a homicide
is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on
frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments introduced by said laws.

DISPOSITIVE: ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The
accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:

- FACTS: On 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children.

- At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with
water to be frozen into ice in the freezer located at the second floor.

- Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the
drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush
upstairs.

- Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short pants were down to
his knees.

- According to Corazon, Primo was forcing his penis into Crysthels vagina. Hence, accused was
charged with rape

- Physical examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthels body as her hymen was intact
and its orifice was only 0.5 cm. in diameter.

- Primo insists that it was almost inconceivable that Corazon could give such a vivid description of
the alleged sexual contact when from where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He asserts that the absence
of any external signs of physical injuries or of penetration of Crysthels private parts more than
bolsters his innocence.

- Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to
the extreme penalty of death, hence this case before us on automatic review

- In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she
saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthels
vagina." During the trial, Crysthel also testified to the effect that the accused’s penis touched her
sex organ but failed to penetrate it.

ISSUE: WON the conviction of the accused of rape is proper

HELD: NO, the conviction of the accused of rape is improper.

- The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12),
as provided in Art. 335, par. (3), of the Revised Penal Code.

- We have said often enough that in concluding that carnal knowledge took place, full penetration
of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary;
the mere touching of the external genitalia by the penis capable of consummating the sexual act is
sufficient to constitute carnal knowledge.
 - But the act of touching should be understood here as inherently part of the entry of the
penis into the labias of the female organ and not mere touching alone of the mons pubis or
the pudendum.

- Thus, touching when applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of
the victims vagina, or the mons pubis, as in this case.

- There must be sufficient and convincing proof that the penis

indeed touched the labias or slid into the female organ, and not merely stroked the
external surface thereof, for an accused to be convicted of consummated rape.[14] As
the labias, which are required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain
some degree of penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.

- Jurisprudence dictates that the labia majora must be entered  for rape to be consummated,

[16]
 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of the pudendum is not sufficient
to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.

APPLICATION TO THE FACTS: A review of the records clearly discloses that the prosecution utterly
failed to discharge its onus of proving that Primos penis was able to penetrate Crysthels vagina however
slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between
Primo and Crysthel. It should be recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position. It could be drawn from the foregoing narration that Primos
kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of
the accused and the victim would have provided Corazon an unobstructed view of Primos penis
supposedly reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc.,
since the legs and arms of Primo would have hidden his movements from Corazons sight.

Further, The testimony of Crysthel to the effect that the accused’s penis touched her sex organ but failed
to penetrate it should dissipate the mist of confusion that enshrouds the question of whether rape in this
case was consummated. It has foreclosed the possibility of Primos penis penetrating  her vagina, however
slight. Crysthel made a categorical statement denying penetration, obviously induced by a question
propounded to her who could not have been aware of the finer distinctions
between touching and penetration.

In cases where penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the
hymenal tags were no longer visible. None was shown in this case.

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external
signs of physical injuries on complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim.

RAPE, WHEN ATTEMPTED: v. Acts of lasciviousness: Under Art. 6, in relation to Art. 335, of the
Revised Penal Code, rape is attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other than his own spontaneous desistance. All
the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the
accused should be punished only for it.
DISPOSITIVE: WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages
is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison
term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to
fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum.
Costs de oficio.

SO ORDERED.
G.R. No. L-13785             October 8, 1918
THE UNITED STATES, plaintiff-appellee, 
vs.
TOMAS ADIAO, defendant-appellant.
MALCOLM, J.:

FACTS: The defendant was charged in the Municipal Court of the city of Manila with the crime of theft.

- The defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at P0.80, from
the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom
House, where it was found by other customs employees.
- He was found guilty by the lower court of the lesser crime of frustrated theft.

ISSUE: WON the lower court erred in convicting the accused of frustrated theft

HELD: YES. The crime cannot properly be classified as frustrated, as this word is defined in article 3
of the Penal Code, but that since the offender performed all of the acts of execution necessary for
the accomplishment crime of theft.

- The fact that the defendant was under observation during the entire transaction and that
he was unable to get the merchandise out of the Custom House, is not decisive; all the
elements of the completed crime of theft are present.

Dispositive: Judgment is reversed and the defendant and appellant is sentenced to three months and
one day of arresto mayor, with the costs of all instances against him. The merchandise in question,
attached to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered.

EXTRA: SC OF SPAIN CASES:

- The defendant was charged with the theft of some fruit from the land of another. As he was in the
act of taking the fruit he was seen by a policeman, yet it did not appear that he was at that
moment caught by the policeman but sometime later. The court said: ". . . The trial court did not
err . . . in considering the crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the policemen who saw the accused
take the fruit from the adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an interval of time. (Decision
of the supreme court of Spain, October 14, 1898.)

- Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything
to prevent it. Subsequently, however, while the defendant was still inside the church, the
offended party got back the money from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as consummated. (Decision of the
supreme court of Spain, December 1, 1897.)

- The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he
took a purse containing 461 reales and 20 centimos, and then placed the money over the cover of
the case; just at this moment he was caught by two guards who were stationed in another room
near-by. The court considered this as consummated robbery, and said: " . . . The accused . . .
having materially taken possession of the money from the moment he took it from the place
where it had been, and having taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was thereby produced; only the act
of making use of the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime. (Decision of the supreme court of Spain, June 13, 1882.)