Short answer. A single offence, not two. The Code provides its own penalty where a homicide is committed by reason or on occasion of an attempted or frustrated robbery. The robbery failing does not split the case into a separate attempt and a separate killing.
What the law says
When by reason or on occasion of an attempted or frustrated robbery a homicide is committed the person guilty of such offenses shall be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code.
Revised Penal Code, Article 297 — Attempted Or Frustrated Robbery With Homicide. Read the full provision →
The robbery failing does not divide the charge
Art. 297 deals with exactly this situation: when by reason or on occasion of an attempted or frustrated robbery a homicide is committed the person guilty of such offenses shall be punished by reclusion temporal in its maximum period to reclusion perpetua. The Code treats the incomplete robbery and the killing as one offence with one penalty. That is why the instinct to argue that nothing was actually taken misses the target. Whether the robbery succeeded goes to which article applies, not to whether the death is answered for alongside it.
The words that do the linking
The connection required is that the homicide was committed by reason or on occasion of the robbery. That is a broader link than a plan to kill. It reaches a death that came about because of the robbery and a death that occurred on the occasion of it, so a killing that nobody set out to commit can still fall within the article. What the phrase does not do is dispense with proof: the prosecution must still establish that the death was connected to the robbery in one of those ways, and that connection is very often the real battleground.
The qualification written into the same sentence
The article ends with a reservation — unless the homicide committed shall deserve a higher penalty under the provisions of this Code. So this provision fixes the penalty for the ordinary case but does not put a ceiling on the matter. Where the killing itself, on its own circumstances, would attract a heavier penalty under another article, that heavier penalty is what applies. Anyone assessing what is at stake in a case of this kind therefore has to look at the character of the killing as well as at the failed robbery.
Where an accused person's real questions usually lie
Because the offence is treated as one, the contests tend to be about participation and about the link, not about arithmetic. Was this person part of the robbery at all; what did he do; was the death connected to the robbery or to something separate that happened at the scene. Those turn on the physical evidence, the sequence of events and the accounts of everyone present, and they are resolved on proof rather than on assumption. Nothing here indicates how any particular case will be decided. This is among the gravest charges in the Code, and counsel should be involved before any statement is given.
Related provisions
- Revised Penal Code, Article 297 — Attempted Or Frustrated Robbery With Homicide
- Revised Penal Code, Article 299 — Robbery In An Inhabited House