The Rule on Impossible Crimes

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SUBJECT: The Rule on Impossible Crimes

I. INTRODUCTION
This memorandum examines the concept of Impossible Crimes under the Revised Penal Code of the Philippines. It is a unique legal doctrine that criminalizes conduct which, due to the inherent impossibility of its accomplishment or the employment of inadequate or ineffectual means, nonetheless poses a danger to public order and demonstrates the criminal propensity of the offender. The rule is an exception to the general principle that an attempt which fails to produce a crime is not punishable.
II. LEGAL BASIS
The governing provision is Article 4(2) of the Revised Penal Code, which states: “Criminal responsibility shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.” Paragraph 2 further provides: “A person may also be criminally liable for an impossible crime when the act performed 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 or ineffectual means.”
III. ELEMENTS OF AN IMPOSSIBLE CRIME
For an act to be punishable as an impossible crime, the following elements must concur:

The act performed would be an offense against persons or property. The crime attempted must be one defined under Title Eight (Crimes Against Persons) or Title Ten (Crimes Against Property) of the Revised Penal Code, or special laws punishing acts against persons or property.

The act was done with evil intent (mens rea). The offender must have the specific criminal intent to commit the serious felony.

Its accomplishment is inherently impossible, or the means employed is either inadequate or ineffectual. The impossibility is not due to the intervention of a fortuitous event or the offender’s voluntary desistance, but is inherent in the act itself or the chosen means.

The act performed does not constitute a violation of another provision of the criminal law. If the act constitutes another, lesser felony (e.g., physical injuries instead of murder), that lesser felony shall be prosecuted, not the impossible crime.

IV. NATURE OF IMPOSSIBILITY
The impossibility must be legal or physical, but inherent.

Legal Impossibility: When the intended act, even if carried out as planned, would not constitute a crime (e.g., shooting a corpse believing it to be a living person; the “victim” was already dead).

Physical Impossibility: When extraneous circumstances unknown to the offender render the crime impossible (e.g., picking an empty pocket; administering a harmless substance believed to be poison).

Inadequate or Ineffectual Means: When the means or method adopted by the offender is incapable of producing the desired criminal result (e.g., using an unloaded gun, a voodoo doll, or an insufficient dose of poison).

V. DISTINCTION FROM FRUSTRATED AND ATTEMPTED FELONIES
This is a critical distinction. In frustrated and attempted felonies, the crime is possible, but the offender fails to accomplish it due to causes other than their own spontaneous desistance.

In Impossible Crimes, the crime cannot be committed from the very beginning due to an inherent flaw in the object or means.

The offender in an impossible crime is punished for a special category of attempt, where the danger to the public order lies in the perpetrator’s criminal disposition.

VI. PENALTY
Under Article 59 of the Revised Penal Code, the penalty for an impossible crime is arresto mayor (one month and one day to six months of imprisonment) or a fine ranging from 200 to 500 pesos. This is a significant reduction from the penalty for the intended serious felony, reflecting the lesser objective danger posed.
VII. JURISPRUDENTIAL EXAMPLES

People v. Balasa (G.R. No. 106357, Sept. 3, 1997): Accused fired at the victim who was already dead. Held: An impossible crime of murder was committed because the act of shooting, intended to kill, would have been murder had the victim been alive.

People v. Dungo (G.R. No. 209464, July 1, 2015): The Court clarified that for an impossible crime to exist, the acts performed by the offender must not constitute a violation of another law. If they do, that other crime shall be prosecuted.

People v. Fabian (G.R. No. 109213, March 3, 1997): Accused attempted to kill by witchcraft. Held: The act constitutes an impossible crime of attempted murder due to the employment of ineffectual means.

VIII. BURDEN OF PROOF
The prosecution must prove beyond reasonable doubt: (a) the criminal intent to commit a specific crime against persons or property, and (b) the performance of an overt act that would have constituted that crime were it not for the inherent impossibility or inadequate means. The inherent impossibility itself is a factual element that must be established.

IX: Practical Remedies.
For the prosecutor, the charge of an impossible crime should be considered when the evidence clearly shows criminal intent and an overt act, but a complete factual or legal impossibility precludes prosecution for the intended felony or its frustrated/attempted stages. Carefully examine if the acts constitute any other lesser crime first. For the defense, argue that: (1) the impossibility was not inherent but due to extraneous intervening causes (pointing to a mere attempt); (2) the accused lacked the specific criminal intent; or (3) the acts actually constitute a different, lesser crime which should be the proper charge. During trial, focus on the state of mind of the accused and the objective nature of the means or object used. Given the light penalty, explore the possibility of a plea bargain to a lesser offense or alternative dispute resolution where applicable, balancing the interests of justice with judicial economy.