2009 Criminal Law

2009 CRIMINAL LAW I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist. The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery. The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. A person who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide. A policeman who, without a judicial order, enters a private house over the owner’s opposition is guilty of trespass to dwelling. ANS: A-False. A recidivist is a person who after conviction of an offense was convicted of the same or another offense under the same title in the revised penal code. a. TRUE. rape and homicide are embraced in the same title of the RPC. Crimes against persons. Also, pardon does not erase his past criminal conviction. b. The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery. FALSE. The crime committed is Exploitation of child Labor under Art. 273 of the RPC and not Slavery (Art. 272) since it involves retaining the services of the minor for reimbursement of a debt incurred by the minor's ascendant. c. FALSE. It is a special aggravating circumstance which cannot be offset by any generic aggravating circ. D. - False. He is liable for more than 2 offenses, robbery, indiscriminate firing and homicide. d. FALSE. It is ALWAYS a special complex crime of Robbery with Homicide if a person is killed on the occasion of a robbery. 1

E. - True. There being no valid search or arrest warrant, neither was there express or implied consent from the aggrieved, the policeman violates the constitutional guarantee against illegal search and seizure and the constitutional right to privacy. II Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%) ANS: - As Judge, I will approve the petition. The grant of amnesty puts into oblivion the offense itself such that the person stands before the law precisely as though he had committed no offense (Barrioquinto vs. Fernandez, 82 Phil 642). The effect of amnesty completely extinguishes the penalty and all its effects (Art.89, par.3 RPC). Thus, the amnesty extends to the offense of Evasion of Service of Sentence for there is no sentence to evade in the first instance, the same having been completely extinguished and as though had never been imposed at all. - Petition granted. Amnesty erases all criminal liability or all prior acts of the crime committed as if he has not commit the crime he was punished or charged. Antero was granted amnesty for the crime of rebellion. If you look at it, Evasion of Service of sentence was imposed for evading the service of the penalty of rebellion. Remember, Evasion attaches only if you evade or escape the Sentence-if no prior sentence, no evasion. Since amnesty erases the criminal liability of rebellion (as if he has not committed it) then it should also erase its incident (evasion), hence he should be released. - I will not grant the petition. While amnesty erases all traces and vestiges of the crime, it refers to political offenses including those committed in the furtherance of rebellion such as that amnesty requires the concurrence of congress.

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Evasion of service of sentence is not a trace and vestige of the crime of rebellion, neither is it a consequence. It is but an effect of escaping where one evades punishment for the crime committed. It is never committed in the furtherance of rebellion, that is why amnesty looks backward. To argue that if not for the conviction of rebellion then he would have not escaped is to say that any crime committed due to said imprisonment like killing a jail guard in the process of evasion is also in the furtherance of rebellion where amnesty should extend. III Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days. [a] Is Rigoberto guilty of Direct Assault? Why or why not? (3%) [b] Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%) ANS: a. NO, Rigoberto is not guilty of direct assault. Since Judge Lorenzo is no longer a person in authority (as he is supposed to have compulsorily retired upon reaching the age of 70) and since the assault was made during Judge Lorenzo’s birthday party and not when he was either engaged in the performance of official duties or on the occasion of such performance, then there could be no direct assault. b. YES, even in that case, Rigoberto cannot be held liable for direct assault. Again, Judge Lorenzo is no longer a person in authority (as he is supposed to have compulsorily retired upon reaching the age of 70) and the assault was made during Judge Lorenzo’s birthday party, not when he was either engaged in the performance of official duties or on the occasion of such performance. As such, there could be no direct assault. IV Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad.

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The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad. [a] Did Charlie commit any crime? If so, what and why? If not, why not? (3%) [b] Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%) ANS: [a] Yes, Charlie committed an Impossible Crime under Art. 4 par.2 of the RPC. Criminal liability is incurred 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 or ineffectual means. Charlie having intent to kill, would have committed murder had it not been for the employment of ineffectual means. Thus, he is guilty of an Impossible crime. [b] My answer would not be the same since he would be guilty of the crime of attempted murder. The offender had intent to kill and commenced in carrying out his intent directly by overt acts but was not able to perform all the acts of execution which should produce the felony by reason some cause or accident other than his own spontaneous desistance. This is due to the fact that the powder used was non-toxic and could not have brought about the death of the victim, but since he suffered physical injuries from the induced substance and there was evident premeditation on the part of the offender the crime committed is attempted murder. V Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot. What, if any, is the liability of Ruben? Explain. (3%) Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%) ANS: 1. Ruben is not liable. He is not even an accessory. The accessory participates in the commission of a felony after the fact by profiting, concealing or harboring etc.

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2. Ruben is guilty as an Acomplice. His complicity consists of "previous act" i.e. by furnishing the gun to Ruben. There is no Parricide here. Parricide involves the intentional killing of one's father, mother, child, ascendants, descendants or spouse. The enumeration is exclusive. The killing of a relative which does not fall within those enumerated is not Parricde. VI Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it. On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed. Is Baldo’s contention correct? Explain. (3%) ANS: Baldo’s contention is incorrect since the crime had not yet prescribed. Under Art. 91 of the RPC the period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities or their agents. The crimes of Murder and Homicide which are punishable by Death, Reclusion perpetua or Reclusion Temporal shall prescribe in 20 years under Art.90 of the RPC. Here, the crime was discovered by the authorities only on January 2,1970 when it was reported by the witness, only then did the prescription for the crime begin to run. So when the offender was charged on January 6,1980 it is still well within the prescriptive period of 20 years counted from January 2,1970. (The offended party is already dead, hence the prescriptive period can only be reckoned from the date of discovery of the authorities.) VII Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00. Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law. While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the

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second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019. Is Charina correct? Explain. (3%) ANS: Charina may still be prosecuted for Indirect Bribery. For me there is no double jeopardy. Although the two charges arise from the same transaction, the same act gave rise to two separate and distinct offenses. There were different elements of the offenses charged (RPC crime vs special law). The protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one. VIII While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed. 1. What crime or crimes, if any, had been committed? Explain. (3%) 2. Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%) 3. Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%) ANS: a. Alfredo, Braulio, Ciriaco and Domingo committed the special complex crime of robbery with homicide resulting from direct assault. The killing of the policeman, an agent of person in authority, while resisting the said policeman who was then performing his official duty constituted the complex crime of homicide resulting from direct assault. Since the killing was done by reason of the commission of robbery, the crime is therefore, robbery with homicide resulting from direct assault. b. Alfredo’s death was by reason of the robbery. Hence, Braulio, Ciriaco and Domingo committed the special complex crime of robbery with homicide. c. Alfredo’s death was on the occasion of the robbery. Hence, Braulio, Ciriaco and Domingo committed the special complex crime of robbery with homicide. * the law does not distinguish as to the identity of the victim. for as long as by reason of or on occasion of robbery a homicide is committed, the crime is a

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special complex crime of robbery w/ homicide whether or not the one killed is one of the robbers, a bystander or a policeman responding to the incident. IX Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!" Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse. What crime or crimes, if any, did Virgilio commit? Explain. (5%) ANS: virgilio committed the ff. crimes: 1. carnapping when, w/ intent to gain, he took the van owned by another w/o the owner's consent and by means of violence or intimidation of persons.. 2. kidnapping and serious illegal detention of jeremy as he kidnapped and detained the minor and deprived the said minor of his liberty when he took over d van n brought d boy with him to his safehouse.. d crime is qualified by demand for ransom.. 3. kidnapping and serious illegal detention of daday, a female, as he kidnapped and detained her and deprived her of her liberty when he took over the van n brought daday with him to his safehouse.. 4. grave coercion when, w/o legal authority, he compelled the driver to do something against his will when he coerced the said driver to drive to a deserted place n thereafter to alight from d van.. 5. grave coercion when, w/o legal authority, he compelled daday to do something against her will when he coerced her to remain in the van n take care of d boy until ransom is paid.. 6. grave threats when he threatened the parents of d boy that he'll behead n kill the boy subject to the condition that ransom be paid in 2 days. X To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented.

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She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%) ANS: RTC Branch Clerk of Court: Direct bribery, violation of anti-corrupt and graft practices act, falsification of public documents, forgery, usurpation of authority, aiding and abetting a fugitive. Willy and Vincent: Escape and evasion of sentence Edwin: Direct bribery, violation of anti-corrupt and graft practices act, aiding and abetting a fugitive Chito: Corruption of public officials, aiding and abetting a fugitive, XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] Life imprisonment is a penalty more favorable to the convict than reclusion perpetua. [b] Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code. [c] In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery. [d] In the crime of libel, truth is an absolute defense. [e] For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes. ANS: XXXX

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XII [a] In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%) [b] Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%) ANS: a. the effects of the mit and agg circs should be given effect. one agg offsets one mit. so, only one mit will be considered. the mit circ will be considered only to fix the max. period under islaw. hence the max is reclusion temp min. to determine the min period under islaw, we go down one degree from the penalty imposable under the law(rec. temp.) so, it;s prision mayor. hence the minimum period is anywhere under prision mayor. the penalty, after applying islaw, is anywhere in prision mayor as minimun to rec temp min as the max. b. the answer is not the same. the application of islaw in spec penal laws is different as compared to the rpc, unless the spec penal law makes reference to the rpc for the penalties or adopts the penalties under the rpc. (dapat yung spanish names nila : rec temp, prision mayor, arresto mayor, etc). in applying islaw in spec penal laws (spl), the penalty under the spl must provide for a min and an max. if its a straight penalty ( ex. 10 yrs, 12 yrs, 6 years), do not apply islaw. in the problem, the judge is given the wide discretion to provide the penalty, as long as the judge gives a penalty that has a min which shall not go lower than the min prescribed by law (12yrs and 1 day) and the max should not exceed the max provided under the law ( 20yrs) so the penalty may be: 12 and 1 to 15 12 and 1 to 20 9

12 and 1 to 13 15 to 20 15 to 16 19yrs 11 mos and 1 day to 20 yrs. XIII Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22. What is delito continuado? (1%) Is Angelo’s contention tenable? Explain. (4%) ANS: XXX XIV Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him. What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (3%) ANS: The chain of custody in drug offenses requires the compliance of the procedures which the apprehending team should observe in the handling of seized illegal drugs in order to preserve their identity and integrity as evidence. This requirement arises from the unique characteristic of the illegal drug that renders it not readily identifiable and easily open to tampering, alteration or substitution, either by accident or otherwise. Thus, to remove any doubt on the identity and integrity of the seized drug, evidence of the prosecution must show that the illegal drug presented in court is the same illegal drug actually recovered from the accused. Otherwise, conviction of the accused for the drug offense fails.

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XV Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion. What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%) Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%) Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. (2%) ANS: a. "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. Joe may be entitled to Diversion. Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. b. No, suspension of sentence can no longer be applied when the juvenile is already twenty one years (21) of age or more at the time of the pronouncement of his/her guilt. c. Yes, Joe would still be eligible for probation since the imposable sentence for the attempted murder is Prision Correccional in its maximum period of 6 years due to the special aggravating circumstance, which is still within the limit allowed by PD 968. 11

XVI Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are nonexistent individuals, received the money. Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%) ANS: The charge of Malversation is proper. It is undisputed that those accused are all public officers and the funds allegedly misappropriated are public in character. Jessie by reason of her office as Municipal Treasurer had custody and control of such funds and is therefore accountable for the same. Ordinarily, a municipality's mayor and accountant are not accountable public officers as defined under the law. However, a public officer who is not in charge of public funds or property by virtue of his official position, or even a private individual, may be liable for malversation if such public officer or private individual conspires with an accountable public officer to commit malversation, as in the instant case. The charge of causing undue injury to the government is also proper. It is satisfactorily shown that the accused public officers defrauded the government of a much needed resource by facilitating the release of local funds which no one can account for and which did not reach the pockets of its intended recipients. (People vs. Pajaro G.R. Nos. 167860-65, June 17, 2008) XVII Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry. [a] What crime or crimes, if any, did Wenceslao commit? Explain. (4%) [b] Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%)

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[c] Would your answer to [a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%) ans: a. he committed 1. rape w/ homicide n 2. robbery.. rape w/ homicide kase ginahasa nya bago pinatay.. robbery kase w/ force n violens pinatay pa nga eh tapos gumamit pa ng picklock :wink: b. dwelling pwede maappreciate pareho sa rape w/ homicide n robbery kase ginawa pareho yung crime sa room ni loretta w/c is considered as her dwelling for purposes of aggravating d criminal liability.. picklock pwede maappreciate to qualify d unlawful taking into robbery..walang nocturnity kahet disoras ng gabi ginawa yung crime kase di naman sinabe na madilim.. c. no, if that's d case, ang nacommit ay 1. rape, 2. frustrated homicide n 3. robbery.. rape kase ginahasa si loretta, frustrated homicide kase himalang nabuhay si loretta.. robbery kase nga may force n violens at may use of picklock pa XVIII At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her. [a] What crime or crimes, if any, did Leoncio commit? Explain. (3%) [b] Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%) ANS: 1. The crime is act of lasciviousness. Lewd designs could be inferred from his lascivious acts further fueled by the environment (seductive music and the placedisco club) and the circumstances mentioned in rape (demented-incensed and force-constant refusal) are present. Note: similar to a decided case where the venue was on the theater as compared to another case in the Church. Same acts were committed but the former is act of lasciviousness and the latter was unjust vexation only. 2. The crime will also be acts of lasciviousness when the music stopped. The only difference between the former situation and the latter is that the lascivious act is overt due to the absence of music and need not be inferred.

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There is a greater propensity that lascivious acts are prompted by lewd designs and lust in these kind of places. 1. the crime is unjust vexation. the song number may have brought the two person to dance in an intimately and seductive manner, but this negates "lewd design" on the part of leoncio. 2. My answer would not be the same if the music stops. Absence of the music may be readily conclude that the act of leoncio is driven by lewd design, therefore leoncio can be held liable for acts of lasciviousness. XIX Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier. Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%) ANS: The charge of frustrated murder is not proper since neither evident premeditation nor treachery can be appreciated in this case. Another person was killed. He shoud be charge with frustrated homicide. He had perform all the acts of execution which should produce the felony but nevertheless did not produce it by reason of some cause other than his own spontaneous desistance. Hence, crime was frustrated homicide.

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